NHS: London
Earl Howe Excerpts(11 years, 8 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, with the leave of the House, I shall now repeat a Statement made by my right honourable friend the Secretary of State for Health in the other place earlier today on changes to health services in London.
“With permission, Mr Speaker, I would like to make a Statement on the Shaping a Healthier Future programme, a locally led review of NHS services across north-west London.
The NHS is one of the greatest institutions in the world. Ensuring that it is sustainable and that it serves the best interests of patients sometimes means taking tough decisions. The population of north-west London is growing, and will reach approximately 2.15 million by 2018. Around 300,000 people have a long-term condition.
However, there is great variation in the quality of acute care. In 2011 there was a 10% higher mortality rate at weekends for emergency admissions, and the number of hospital readmissions differs considerably across the area. The Independent Reconfiguration Panel expressed concerns that the status quo in north-west London was neither sustainable nor desirable, and might not even be stable.
In order to address these challenges, the NHS in London started the Shaping a Healthier Future programme in 2009. It proposed significant changes to services, including centralising A&E services at five hospitals rather than nine; 24/7 urgent care centres at all nine hospitals; 24/7 consultant cover in all obstetric wards; a brand new trauma hospital at St Mary’s Paddington; brand new custom-built local hospitals at Ealing and Charing Cross; seven-day access to GP surgeries throughout north-west London; over 800 additional posts created to improve out-of-hospital care, including a named accountable clinician for all vulnerable and elderly patients, with fully integrated provision by the health and social care systems; and increased investment in mental health and psychiatric liaison services.
These changes represent the most ambitious plans to transform care put forward by any NHS local area to date. They are forward thinking and address many of the most pressing issues facing the NHS, including seven-day working, improved hospital safety, and proactive out-of-hospital and GP services. The improvements in emergency care alone should save around 130 lives per annum and the transformation in out-of-hospital care should save many more—giving north-west London probably the best out-of-hospital care anywhere in the country.
The plans are supported by all eight clinical commissioning groups, the medical directors of all nine local NHS trusts, and all local councils except for Ealing. It was as a result of a referral to me by Ealing Council on 19 March 2013 that I asked the Independent Reconfiguration Panel to conduct a full review. The panel submitted its comprehensive report to me on 13 September 2013, which I have considered in detail alongside the referral from Ealing. I am today placing a copy of the panel’s report in the Library, alongside the strong letters of support for the changes I received from all local CCGs and medical directors.
The panel says that Shaping a Healthier Future provides,
“the way forward for the future and that the proposals for change will enable the provision of safe, sustainable and accessible services”.
Today I have accepted the panel’s advice in full, which will be published on the panel’s website.
The panel also says that while the changes to A&E at Central Middlesex and Hammersmith hospitals should be implemented as soon as practicable, further work is required before a final decision is made about the range of services to be provided from the Ealing and Charing Cross hospital sites.
Because the process to date has already taken four years, causing understandable local concern, I have today decided it is time to end the uncertainty. So while I accept the need for further work as the IRP suggests, I have decided that the outcome should be that Ealing and Charing Cross hospitals should continue to offer an A&E service, even if it is a different shape or size to that currently offered. Any changes implemented as part of Shaping a Healthier Future should be implemented by local commissioners following proper public engagement and in line with the emerging principles of the Keogh review of Accident and Emergency services.
I have written today to the chair and vice-chair of the Health and Adult Social Services Standing Scrutiny Panel of the London Borough of Ealing Council, the chair of the IRP—Lord Bernard Ribeiro—the chief executive of NHS England and local MPs, informing them of my decision. These much needed changes will put patients at the centre of their local NHS, with more accessible, 24/7 front-line care at home, at GP surgeries, in hospitals and in the community. More money will be spent on front-line care which focuses on the patient. Less will be wasted on duplication and underperforming services.
Let me be clear that, in the joint words of the medical directors at hospitals affected, there is a,
“very high level of clinical support for this programme across NW London”.
Local services will be designed by clinicians and local residents and be based on the specific needs of the population. None of these changes will take place until NHS England is convinced that the necessary increases in capacity in north-west London’s hospitals and primary and community services have taken place.
I want to put on the record my thanks to the IRP for its thorough advice. As the medical directors of all the local hospitals concerned said in their letter to me, these changes will,
“save many lives each year and significantly improve patients’ care and experience of the NHS”.
When local doctors tell me that is the prize, then I will not duck a difficult decision.
I commend this Statement to the House”.
My Lords, that concludes the Statement.
Earl Howe
My Lords, I am grateful to the noble Lord, Lord Hunt of Kings Heath, for his questions. I preface my answers by saying that this is the first significant set of local reform proposals under the Government’s NHS reforms and it is a set of proposals that has been led clinically by the CCGs. There is an unprecedented level of clinical support for the changes that I outlined. The chairs of all the local CCGs wrote to the Secretary of State personally expressing absolute support; the medical directors of all the local hospitals affected wrote to him expressing absolute support; and the Independent Reconfiguration Panel report is crystal clear that the principles of this scheme are right and will benefit patients.
The noble Lord asked me about A&E services, in particular, at a time when we know that A&E departments are under pressure—a fact which I do, of course, readily acknowledge. The key to these recommendations is twofold. First, the way investment will be deployed will mean that we shall have centres of excellence in emergency care which will copy, in some respects, the way that stroke and trauma care has been centralised across London. This was controversial at the time but is now acclaimed by clinicians and, I think, politicians alike as proving to save hundreds of lives every year. There will be more critical care consultants on duty 24/7; more obstetric consultants on duty 24/7 on labour wards; consultants in other specialities, such as paediatrics, on duty between 12 and 16 hours a day, seven days a week; more trained and experienced emergency doctors on site 24/7 in A&E departments; and more investment in mental health, so that psychiatric liaison services can better co-ordinate care for vulnerable mentally ill people. In general, we will have all nine of the hospitals concerned across north-west London with urgent care centres open 24/7.
That is one half of the equation; the other half is investment in the community. I mentioned that there will be access to GP surgeries seven days a week across north-west London. That is not to specify which surgeries —the key is access to GP services. It will be for the local commissioners and NHS England to work out which surgeries they should be. Eight hundred additional posts will be created to improve out-of-hospital care and some £190 million will be spent recurrently every year on GP and other local services by 2017-18. Therefore the preventive aspect of these proposals should mean that fewer people land up in A&E in the first place.
The noble Lord asked me about the proposals for Ealing and Charing Cross. The IRP’s advice is clear that the current problems and future challenges faced by the NHS in north-west London require large-scale change in the way that services are designed and delivered. I concur with that entirely. However, it also says that while the changes to A&E at Central Middlesex and Hammersmith Hospitals should be implemented as soon as practicable, further work is required before a final decision is made about the range of services to be provided from the Ealing and Charing Cross Hospital sites. As the process to date has already taken four years, as I mentioned, my right honourable friend has decided that it is time to end the uncertainty. Therefore, while he accepts the need for further work, as the IRP suggests, he has decided that the outcome should be that Ealing and Charing Cross Hospitals should continue to offer an A&E service, even if in the end that is of a different shape or size from that currently offered. What does that mean?
In the first instance, we are clear that a 24/7 urgent care service should be run from both those sites, involving senior consultant cover and the ability to admit patients 24/7. Any changes implemented as part of the Shaping a Healthier Future proposals should be done by local commissioners following proper public engagement and in line with the emerging principles of the Keogh review, as I mentioned. However, none of the changes to these critical services will take place until NHS England is assured that all the necessary increases in capacity in north-west London’s hospitals and primary and community services have been satisfactorily developed.
The noble Lord asked me about Lewisham. I will not disguise the Government’s disappointment at the result of the court judgment yesterday. However, we respect that judgment. Our priority now is to end the uncertainty for patients in south London. It is time for the new Lewisham and Greenwich NHS Trust to move on and work with its commissioners and the community to develop a local solution that is clinically and financially sustainable. The proposals that we came forward with earlier in the year cannot be proceeded with in their entirety. In our view that is a pity, because we now have a local health economy with an annual financial shortfall, which has to be addressed in some way. In so far as we can assist local commissioners to find a way through that problem, we will be happy to do so. However, it is largely up for local determination.
As regards the appeal, we felt that that was the right and responsible thing to do. This is the first time that the trust special administration provisions have been used and it was important that the law should be tested to be absolutely clear what it meant. We make no apology for the fact that our interpretation of the law as Ministers was different from that of the judge. However, as I said, the judge has made his ruling, and we need to respect it.
I hope that I have answered most of the noble Lord’s queries. However, he ended his remarks by observing that, as he perceives it, the Government have created a situation where service configuration can take place in the future without local clinical support or consultation. I would just like to assure him that that is not so. Indeed, the importance of having local clinical support could not be stronger. We see it here in the example of north-west London, and even in the rare case where trust special administration is required, the consultation involved is clearly set out in legislation. Local people will not be left out of the dialogue. I hope that that is of some reassurance to the noble Lord.
Baroness Hanham (Con)
My Lords, may I say how glad I am to hear that the proposals have support from all the clinicians and the CCGs? The noble Lord will know that I was chairman at St Mary’s Hospital when the Imperial College Healthcare NHS Trust was formed —and it was formed on the basis of full support from clinicians and the local community. The local community is not always at one with change, so I shall ask the noble Lord a couple of questions. First, this is not a short programme. These proposals will not take five minutes to implement. Most of the changes in the health service over recent years have taken an enormous amount of time, and it would be fair to say that the Imperial Trust, which includes Charing Cross, has probably only just completed its previous reorganisation, and now it is being reorganised again. The first question is: what is the proposed timescale?
Secondly, the noble Lord mentioned consultation, and may I say that it is absolutely vital that the local community be brought along with this? Otherwise, it will take even longer. Thirdly, there is an expectation that there will be a lot of new consultant and other medical posts. I am aware that A&E is not flush with clinicians taking up the specialty, so may I ask what encouragement is being given, by the colleges in particular, to ensure that there will be enough staff available to deal with the new services? Finally, may I say how glad I am that St Mary’s has figured again in trauma services?
Earl Howe
My noble friend, with her experience, asks some very pertinent questions. On the question of timescale, we believe that it will take between three and five years for the proposals to be actioned to their fullest extent. It will be necessary to take that kind of time. Some elements can happen relatively quickly, but my noble friend is absolutely right that there are important workforce issues to be taken into account. Indeed, one of the IRP recommendations was that the NHS should review its workforce programme and ensure that it has the means in place to deliver what is required. I am sure that in working through the proposals, local commissioners, as well as NHS England, will need to satisfy themselves on that point—not least with regard to the new posts to be created in the community, but also in terms of accident and emergency consultants in the A&E departments of the relevant trusts. On local communities, again I agree with my noble friend. As the Shaping a Healthier Future proposals are developed by the clinical commissioners, it will be vital that any further proposals are consulted on locally, and that there is real buy-in from patient groups and the public generally.
Lord Winston (Lab)
I declare an interest as a member of Imperial College London and a practitioner who has been a consultant in north London for a long time. It is right that the financial shortfall means that there has to be considerable reconfiguration. In this case that is a move in the right direction. However, it raises a number of questions to which I would be very grateful if the Minister would respond. One is that if you close casualty you affect the training of surgical trainees. Do the Government have a view on that issue?
The Minister also referred to obstetrics in west London. As he will almost certainly know, the neonatal paediatrics department at one of the best obstetric hospitals in the country—Queen Charlotte’s, based at Hammersmith Hospital—has always been somewhat threatened. Is that secure, given that one of the issues in north-west London is undoubtedly that of duplication in many hospitals, which is expensive? Does the Minister feel that this is the only reconfiguration that will be required, given the amount of duplication that there is?
Earl Howe
To answer the last point, it is clear from the IRP report that its authors believe that this is a comprehensive set of proposals which will stand the test of time in north-west London. It is a very thorough set of proposals which takes into account every aspect of healthcare provision. On maternity and paediatrics, I can tell the noble Lord that under these proposals there will be more obstetric consultants on duty 24/7 in labour wards. As he will know better than anyone, that, of course, is designed to reduce the number of complications during birth and to ensure one-to-one midwifery care for women during labour. Consultants in other specialties such as paediatrics will be on duty, as I mentioned, for 12 to 16 hours a day, seven days a week, providing much better cover than at present.
It was very striking in the IRP report that the first point made by the noble Lord, Lord Winston, did not elude the panel. The panel concluded that the pragmatic and explicit approach used by the NHS reflected the clarity of the aim to improve quality outcomes by implementing life-saving standards through the establishment of major hospitals. The report referred to the economic realities of the NHS and the urgency of making progress in the light of known risks to the sustainability of emergency services such as the abilities of staff, A&E and emergency surgery rotas, and the desire to minimise the negative impact on access of concentrating services. That was shorthand—as the noble Lord will see if he reads the rest of the report—for saying that the desirability of concentrating expertise in centres of excellence is a clear imperative for the quality of care that patients receive. As regards surgical experience, I think that if my noble friend Lord Ribeiro were here, he would confirm that that is absolutely the direction of travel, but that we must ensure that surgical expertise is built on a sufficient number of hours and cases for the quality of care to be maintained. That is exactly what underlies this whole set of proposals.
Lord Walton of Detchant (CB)
My Lords, since the relevant professional bodies, not least the British Medical Association, have decided that they wish to support a move towards the provision of all acute and relevant services in the NHS for a full seven-day period, it is inevitable that there will be major reconfiguration of services not just in north-west London but in many other parts of the country. This will involve the concentration of specialist services in fewer hospitals and could even result in the closure of some smaller hospitals. However, that is not immediately relevant. The point I will make is that it is good to know that the clinical commissioning groups and the local hospital trusts have all supported this proposed reconfiguration.
However, I must ask the Minister a couple of questions. First, is he satisfied that the five A&E departments into which all accident and emergency services are to be concentrated, with four others closing, have the capacity to provide facilities for all the relevant staff and to deal with the increased number of patients who will go through those five hospitals? That is point number one, which is crucial.
Secondly, is the Minister satisfied that this concentration of services, with the new 800 posts in the community to which he referred, can be carried out within the existing financial constraints? Have these changes been costed? As the Minister knows, under the so-called Nicholson challenge, the NHS is required to make substantial savings across the country over the next year or so, and it is crucial that he can reassure the House that the necessary money will be available to provide this reconfiguration, which is clearly in the best interests of patients and their communities.
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.
Lord Kennedy of Southwark (Lab)
Will the noble Earl confirm, first, that there will be no further appeal in respect of Lewisham hospital after the decisions of two courts; and, secondly, that there will be no attempt to change the law in respect of Lewisham hospital? What lessons have been learnt by the noble Earl and his ministerial team that they can apply to what is going on in north-west London? We are all aware that the Minister has never visited Lewisham hospital; the last ministerial visit was in May 2010. Will he tell the House—if not from the Dispatch Box, then by writing and placing a copy in the Library—when Ministers last visited the hospitals in north-west London that have been mentioned?
Earl Howe
I can certainly find out the answer to that last question. As regards the appeal, we have only just received the judgment, as the noble Lord will know. But that is only the outline judgment. We have not received the full text. It is important that we read that and inwardly digest it before we finally decide on the way forward. The lessons of Lewisham are very clear. I confirm that we shall not be legislating around Lewisham and the recent provisions in the Care Bill were not retrospective, as the noble Lord is aware. I have not personally visited Lewisham, which is clearly an omission that I should at some point rectify, but it is important for me to put on the record that the concerns expressed by the people of Lewisham are, and have always been, entirely understandable. Ministers greatly respect the wish of local residents to see their hospital thriving, as it always has in the past. Nevertheless, as I said earlier, Lewisham and Greenwich now have a challenge. There is a financial issue that needs to be addressed and I hope that commissioners and providers, acting together, can do that successfully over the months ahead.
Baroness Masham of Ilton (CB)
My Lords, can the Minister say whether, if A&E departments are shut, hospitals will be downgraded? Will the resources of the ambulance service be increased to transport ill patients around, as the ones with A&E departments may not have enough capacity to treat them?
Earl Howe
I do not think that it is appropriate to talk about downgrading in this case. However, it is appropriate to talk about changing the way in which services are delivered to the local population. In the case of two hospitals, we are seeing fully fledged A&E departments becoming 24/7 urgent care centres. That means that the most serious A&E cases, such as trauma and cardiovascular emergencies, will be taken to centres of excellence where patients will have a much higher chance of survival. That is a pattern that we are seeing throughout the NHS and one that has been proved to be successful and in the interests of patients. On ambulances services, we are already seeing in London, for example with stroke care, ambulances taking patients to centres of excellence for stroke care. Eight of these centres now exist compared to 32 some years ago. That means longer journeys in an ambulance but also much higher survival rates for the patients. I do not think that we should look on the kind of reconfiguration that I have described in a negative way. On the contrary, the whole thrust of these proposals is to improve the quality of care for patients.
Lord Rea (Lab)
The noble Earl said that, as part of this reconfiguration, there will an increase in the services available in the community. Can he say whether this will be done in co-operation with the royal colleges and the British Medical Association rather than being imposed from above? The latter solution is unlikely to work.
Earl Howe
The noble Lord is absolutely right. These solutions should not be imposed from above. Indeed, the Shaping a Healthier Future proposals were designed by local clinicians in consultation with their patients. It was not a prescription dreamt up in Whitehall. We are very clear that the local NHS should continue to feel local ownership of these ideas as it takes them forward. I have no doubt that, if it feels it necessary, it will turn to the royal colleges for particular kinds of advice. It is free to do that as it wishes.
Lord Tomlinson (Lab)
Is the noble Earl aware that on this side of the House he is very highly regarded as a model of clarity? However, in the second part of his answer to the noble Lord, Lord Hunt, today, he was somewhat equivocal in relation to the future of Lewisham Hospital. I hope that he will accept an invitation to visit Lewisham Hospital. I declare an interest as somebody who lives in that area and has opposed the closure. Does he also realise that such is the strength of feeling in Lewisham, he had better have read the whole judgment carefully and cleared all his lines before he goes there? The threatened closure created such community anger as I have never seen before and he would be most unwelcome unless he were able to give a clear and unequivocal response about its future.
Earl Howe
My Lords, I certainly understand the noble Lord’s strength of feeling on this. It is certainly my intention to read the judgment when we receive it in full. Nothing is closing in Lewisham. The service remains as it has been. There is nothing that Ministers intend to do to change that situation. However, as I mentioned earlier, there is an issue to be addressed in Lewisham and indeed in Greenwich. It is a pressing financial issue that commissioners as well as the hospitals themselves have to face. I have no doubt that a visit to Lewisham would benefit me enormously and I shall await an invitation to that effect.
Care Bill [HL]
Earl Howe Excerpts(11 years, 8 months ago)
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Lord Hunt of Kings Heath
My Lords, I do not seek to brush it aside. However, this clause relates to the responsibility,
“of a local authority, in exercising a function under this Part … to promote that individual’s well-being”.
Spiritual issues are subsumed under the amendment moved by the noble Earl, Lord Howe. With the greatest of respect, this does not relate to an employment law issue between an employer and an individual. This is very much around the kind of support that should be given to an individual by the local authority. There is a distinction between the situation that the noble Lord raised, and the issue that is set out in this clause.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, before I move to the matter in hand, I thank noble Lords for the tremendous dedication that they have shown to the scrutiny of the Bill during its passage through the House. It is a landmark piece of legislation, and I hope that the House will agree that the changes that the Government have made in response to the debates that we have had have strengthened the Bill so that it will pass to the other place in an even better state. Many noble Lords across this House have dedicated impressive time and energy to improving the provisions in all parts of the Bill, but time does not permit me to thank all noble Lords individually, as I would like to. However, I thank again those noble Lords who played such an important role in improving the Bill as members of the pre-legislative scrutiny committee.
I turn to my noble friend’s amendment. Under Clause 1, local authorities must promote individuals’ well-being and must also have regard to individuals’ views, wishes and feelings. As I set out during our debate on Report, we consider that these provisions mean that a local authority would take a person’s spiritual views, wishes and feelings into account in promoting their well-being. However, in response to concerns raised by a number of noble Lords on Report, I have now tabled an amendment to make it absolutely clear that these matters should be considered where they are of importance to the individual.
My amendment adds “beliefs” to the matters to which a local authority must have regard when exercising care and support functions. Having regard to someone’s beliefs includes their spiritual beliefs; for example, ensuring access to an appropriate figure of religious authority during palliative care. This approach achieves the same aim as Amendment 1 in the name of my noble friend Lord Hamilton, but I suggest to him and to the House that the government amendment is preferable, for two reasons.
First, my amendment quite deliberately does not refer specifically to “spiritual” well-being, but applies instead more widely to beliefs, which was the point made very effectively by my noble friend Lady Barker. That is because we do not wish to exclude those who may not consider themselves to have “spiritual” beliefs. That issue was raised by the noble Lord, Lord Warner, on Report, in relation to humanists.
Secondly, despite the comments of the noble Baroness, Lady Warnock—to whom I listened as always with great attention—spiritual well-being is not a well understood or defined concept. It carries a risk because it may confuse the practical application of the well-being principle on an individual level. There is another problem here. My noble friend’s amendment would effectively mean that local authorities had a duty to promote an individual’s spiritual well-being or beliefs. It is not appropriate to require a local authority to promote spiritual matters, except in so far as they affect the emotional well-being of a person.
Lord Cormack (Con)
This is a question not of local authorities promoting but of their protecting. There is surely a real difference there.
Earl Howe
I hope that my noble friend will on reflection agree that promotion is very much a part of the local authority’s role here. However, subsection (2) makes adequate provision as regards the emotional well-being of a person.
My noble friend Lord Hamilton compared what we are proposing in the Bill to the situation in the National Health Service. The NHS does not have a duty to promote spiritual well-being and, if it did, that potentially would have the negative consequences that I outlined. Having said that, the noble Baroness, Lady Emerton, is of course right—the NHS must take a patient-centred approach when planning and delivering services, and that would naturally include having regard to an individual’s beliefs where relevant. It is exactly this position that the Bill will replicate for local authorities when they plan and deliver care and support. To support the NHS in fulfilling its functions the Department of Health has produced best-practice guidance on NHS chaplaincy but I struggle to understand how that can equate to a duty in primary legislation on local authorities to promote spiritual well-being as my noble friend would have it.
Lord Framlingham (Con)
I am minded to vote for the amendment but perhaps the Minister can explain why there is a great deal of difference—or any difference —between the National Health Service and local government in terms of patient care.
Earl Howe
I tried to explain that there is none. There is no primary duty in statute on the National Health Service to promote spiritual well-being, which is why we are trying to make the Bill entirely consistent with that position. We have aimed for a system built around individuals and I have tabled my amendment to make absolutely clear that a person’s beliefs, spiritual or otherwise, should be taken into account in this personalised approach to care.
As noble Lords may expect, I asked my officials to consider my noble friend’s proposal and whether anyone could benefit under his amendment who would not do so under the Government’s amendment. The advice that I received is clear that no such example can be found. I struggle to understand why my noble friend might feel it necessary to divide the House on this matter if he is minded to do so.
Baroness Knight of Collingtree (Con)
Does my noble friend appreciate that only very recently we were given a sharp lesson? Unless a law is clear in its wording for those who have to live by it, any interpretation can be put on it. He will well remember what has happened regarding the Abortion Act. Because it was not thought necessary at the time to put certain wording in, it is assumed that it is legal to ignore it.
Earl Howe
I agree with my noble friend, which is precisely why I am resisting the word “spiritual”. I do not think that that is a concept that is well defined in law and I think that it could give rise to enormous confusion. It is for that very reason that I am resisting the suggestion of my noble friend.
I hope that noble Lords will agree that my amendment achieves the aim of ensuring that a person’s beliefs, including those of a spiritual nature, are taken into account where that is important to the individual concerned. I propose that local authorities may promote an individual’s spiritual well-being by taking their beliefs into account, while avoiding any negative consequences. I hope that the House will agree not to follow my noble friend in this instance.
Lord Hamilton of Epsom
My Lords, I must say that my noble friend has put before us a rather fine argument. It strikes me that if we are saying that spiritual needs cannot be named, but that on the other hand they are covered under the expression of taking into account “beliefs”, that does not hold a lot of water. I very much take my noble friend’s point—we must make this absolutely clear. People must understand the legislation. I do not think that just putting in “beliefs” will necessarily mean much to people. I am sure that “spiritual well-being” would mean something to people. As I said in my opening remarks, I think that it would give great reassurance. In the circumstances, I must test the opinion of the House.
Lord Hunt of Kings Heath
My Lords, perhaps I may raise a couple of points with the noble Earl, Lord Howe, on this. First, to reinforce the point made by the noble Lord, Lord Best, about the cost falling on local authorities in providing facilitation to independent, regulated financial advice, there is a much more general point about the capacity of local authorities to implement the measures in this Bill. The Bill leaves us, albeit with many amendments, with an underlying concern about whether local authorities will have the wherewithal to implement a raft of new responsibilities over the next few years.
Secondly when the noble Earl argued against similar amendments on Report, he spoke of the concerns of local authorities that they might be held liable if they referred a person who comes under the Act to a financial adviser who subsequently gave poor financial advice. We have heard from the noble Lord, Lord Best, that the LGA supports the general thrust of my noble friend’s amendment. Can the noble Earl confirm, first, that a regulated financial adviser will be subject to FCA requirements and come under its disciplinary and regulatory codes? Secondly, can he reassure local authorities that they can offer names of regulated financial advisers in the way that I understand a number of local authorities do at the moment without fear of subsequent action being taken against them? I was puzzled by the argument put forward on Report and it would be good to have this cleared up at this stage.
Earl Howe
My Lords, Amendment 3 brings us once again to the important matter of financial advice. As we have covered this subject at some length previously, and in the interests of time, I will endeavour to keep my response reasonably short. At the same time, I do not intend to make brevity a substitute for substance.
My discussions with the noble Lord, Lord Lipsey, my noble friend Lord Sharkey and the noble Baroness, Lady Greengross, and my officials’ discussions with the financial services industry have persuaded me that we are all seeking the same end point for financial information and advice. I believe that any apparent distance between the positions of the Government and noble Lords on this issue reflects only the way that I have expressed our intentions thus far. We want to ensure that when people take decisions about how to fund their care it is done in a considered and informed way. We agree that the local authority has a pivotal role to play in ensuring that this happens. I want to set out what I see that role as being in the hope that noble Lords will agree that we are indeed in concordance.
We believe that the local authority should take a proactive role. What does that mean in practice? Under the new system we expect many more people, a large number of them self-funders, to approach the local authority to start their meter running. This provides an invaluable opportunity for local authorities to reach out to these people and tell them about the support that is out there to help them better plan, prepare and provide for the costs of their care. It is particularly important for self-funders that this includes the relevance and the availability of regulated independent financial advice. To pick up the word in the noble Lords’ amendment, this should be a facilitative role for the local authority, providing a nudge in an appropriate direction.
In trying to define what we mean by facilitation, I wholeheartedly agree that handing out a leaflet or placing a page on a website is not sufficient. Instead, local authorities should talk to people and use the opportunity of contact with self-funders and others to give them individually tailored advice that suits their personal circumstances. They are likely to know something about a person’s financial situation and so will be able to tell them about the range of information and advice that might be most relevant to them in considering their care options, whether that is light-touch budget planning or advice from a regulated organisation. It would not be sufficient for local authorities just to tell a person about the types of information and advice available. They will also have to explain how it could be accessed and provide information to enable them to do so.
There is more work to be done before we can finalise what the guidance will say. To get it right, we will need to work collaboratively with stakeholders, including the financial services industry. We have begun to do that already and have had initial discussions and workshops involving representatives from the finance industry. They have confirmed what we all know of some of the necessary complexity in the system, so how and at what stage a person or their family is facilitated to take up regulated financial advice will depend on how and where they have made contact to obtain information and advice. We will gather examples of best practice to inform statutory guidance to help local authorities identify the types of information and advice that different people may need, inform them of those options at the right time and help them to access them.
In addition to the call for evidence and responses to the consultation on funding reform, background work has already been undertaken over the summer that supports the development of statutory guidance. Work commissioned through the Think Local Act Personal partnership has resulted in two publications on information and advice, principles for the provision of information and advice and an interactive map evidencing the difficult pinch points in people’s typical journey through the care system.
We have commissioned detailed work with six local authorities chosen from 40 examples of current practice collected earlier this year to draw together evidence on benefits and effectiveness in developing information and advice services. A number of those examples, including West Sussex, involve directing people to regulated independent financial advice. Helpfully, the ABI has invited my officials to participate in a workshop on access to financial advice being held on 14 November, which we expect further to support the development of guidance.
I am confident that no further amendments are needed to effect what I believe is a shared ambition. The Bill sets out the framework, the skeleton if you like, but it is the statutory guidance and implementation support that will put meat on those bones. What I have set out today is what we will put into practice through guidance. This guidance will be developed in co-operation with all interests, including the Association of British Insurers and the Society of Later Life Advisers, SOLLA, which will build on the good practice that already exists in many areas. We really want this to be the product of co-development which achieves the aims that I firmly believe that the noble Lord and I share.
The noble Lord, Lord Hunt of Kings Heath, expressed concern about what I said on Report about the possibility that local authorities could be held liable in the event that a regulated financial adviser gives poor advice. He pointed out, quite rightly, that such an adviser would be covered under FCA codes, and so on. The issue here is about the local authority making a recommendation to an individual adviser. We do not consider that there is any problem with local authorities providing a list of advisers from whom a person could choose.
On the impact of local authority responsibilities, we have established a partnership with the Local Government Association and the Association of Directors of Adult Social Services and have set up a joint programme and implementation board. We have a lot of ground to cover, and I think that no one would deny that we have our work cut out over the next few months, but I can tell the noble Lord that, together, we are absolutely committed to providing the support that is needed by local government to enable it to fulfil its functions. I hope that we have achieved a meeting of minds on this matter and that what I have said today will give the noble Lord, Lord Lipsey, sufficient reassurance to withdraw his amendment.
Lord Lipsey
My Lords, I could not have put it half as well myself. I beg leave to withdraw the amendment.
Earl Howe
My Lords, it will probably be of assistance if I speak to these two amendments. In moving Amendment 4, I shall speak also to Amendment 6. These amendments are designed to correct minor drafting errors in the Bill.
Amendment 4 concerns Clause 17, which relates to financial assessment. Subsection (10) clarifies that the regulation-making power to set a financial limit allows for regulations to provide for different financial limits for different types of care and support—or support, in the case of carers. Paragraph (b) states that the regulations may set,
“different levels for different levels of support”.
The amendment would correct this erroneous repetition and ensure that it reads instead:
“different levels for different descriptions of support”.
This ensures that the regulation-making power in subsection (10)(a) mirrors the regulation-making power in subsection (10)(b).
Amendment 6 relates to transition assessments of a young carer’s needs for support in Clause 64. The other provisions containing duties to carry out transition assessments—Clauses 59 and 61—require there to be “significant benefit” to the person in question. However, this clause only talks about “significant benefit” with no mention of the individual and so is quite abstract. This was an oversight. The amendment would therefore clarify that the significant benefit must be “to the young carer”, to bring it into line with the other similar provisions.
I hope that noble Lords feel able to support these minor and technical amendments, which will help ensure that the Bill is clear and works as intended. I beg to move.
Baroness Tyler of Enfield (LD)
My Lords, I rise briefly indeed to welcome Amendment 6 and what I see as the further strengthening and joining-up between this legislation and the Children and Families Bill in relation to young carers. I particularly welcome the greater rights it gives to all young carers. I am really pleased to see the entitlements to both assessment and support for young carers as they reach that very critical age of transition at age 18. This will help because these young people often face additional barriers at that age as they are trying to access further education, employment and training, which is so important to their wider well-being and outcomes. I welcome it very much.
Lord Hunt of Kings Heath
My Lords, I am looking forward to the response of the noble Earl, Lord Howe, and hope that he can reassure the House on this point. It is important that the House should be reminded that the universal deferred payment scheme was discussed on pages 65 and 66 of the Dilnot commission report, which set out an analysis and evidence supporting its recommendations. It explained why the current arrangements and deferred payment schemes were not widely used, and why in the main report the commission recommended extending the current system to a full universal offer across the country.
In its arguments, the commission accepted that local authorities should be able to charge interest and recover their costs and that a scheme would be cost-neutral to the state, although it might require an initial cash injection. Dilnot also made it clear that the Government needed to strengthen and standardise the deferred payment scheme in the light of their decision on the level of the cap, means-testing and the contribution to general living costs.
I accept that the scheme was not intended to be generally available to the very wealthy and asset-rich. As my noble friend Lord Lipsey has so convincingly argued, though, being required to spend your assets down to £23,250 seems far too restrictive to deliver a viable scheme. Indeed, as it would be of no use whatever to people of middle income, it is very difficult to see if anyone at all is going to use the scheme. My question is: why have the Government been consulting on such a figure? Does that actually mean that they do not want the scheme to succeed? Do they recognise that it cannot possibly succeed if you have to get down to such a low figure before the scheme can apply?
My only reading of why the Government have consulted on this low figure is because of Treasury concern about the initial cash injection. Is that so? Will the Minister also acknowledge that there is a question about whether in the long term—or indeed in the short term, because the scheme will begin to pay for itself within a very short time—his department thinks that there is going to be a cost-neutral scheme? It will be interesting to hear from him about why the Government seem so cautious and have been consulting on what seems to be such a low figure.
For the reasons that my noble friend has persuasively put forward, although in the end the number of people who will use the scheme may be counted in their thousands rather than their tens of thousands, there is no doubt that having a scheme available will provide a great deal of comfort to many people and their families, and it would be a great pity if this was going to be stillborn. We need to see a scheme that will be practical and will not squeeze middle-income people. I hope that the Minister will be able to reassure the House that the Government are having second thoughts in this area.
Earl Howe
My Lords, Amendment 5 returns us to the issue of deferred payments. I begin by saying that I welcome the opportunity to debate this subject again. Unfortunately, the Government’s position on it has been fraught with misunderstandings, and I would like to take this opportunity to dispel at least some of those.
First, I remind the House that a consultation on funding reform has been running over the past three months, and it closed last Friday. During these three months, officials have travelled across the country explaining our proposals and seeking people’s views. What we have put forward so far are proposals—something for people to consider. These are not set in stone. We will listen to what we have heard through our consultation, and indeed in this Chamber, as we develop our policies over the next few months.
The purpose of this amendment, as the noble Lord, Lord Lipsey, has explained, is to ensure that anyone—even people with assets of great monetary worth in addition to their main home—can have a deferred payment agreement. I have to make it clear that if one takes this amendment literally, I disagree with that principle. I do not think the public purse should be helping people who do not need financial support to pay their care fees. This would seem a long way from the Dilnot commission’s view that deferred payments should be used to support people who,
“would be unable to afford care charges without selling their home”.
For a person with a substantial sum in their bank account or substantial liquid savings, a deferred payment agreement might be a cheap loan—a convenience, one might say—but it would not be serving its core purpose.
I hope that we can therefore agree that the principle of having an upper threshold for non-housing assets is a sound and a necessary one. If we agree that this is a sound principle, all that is left to do is agree on an amount. Our consultation sought views on that amount. The noble Lord, Lord Lipsey, asked what was wrong with an asset threshold of £118,000. From April 2016, we are extending means-tested support for people with up to £118,000 when the value of a person’s home is taken into account in the financial assessment. This determines when an individual may be eligible for local authority support with their care costs. Deferred payment agreements are designed to help people to pay for their care costs; their ability to meet these costs in the short term will be dependent on their liquid non-housing assets rather than housing wealth. I can say to the noble Lord that we are happy to consider using a threshold of £118,000 as we analyse the consultation responses. We are happy to consider a range of figures.
The noble Lord, Lord Hunt, asked why we proposed the £23,250 threshold. We were seeking to identify those people most at risk of having to sell their home to pay for their care. The reason we proposed £23,250 specifically is because it provides consistency with the threshold for means-tested support when the value of someone’s home is not taken into account, and with the principle that people with non-housing assets under that amount are likely to need state support to pay for their care costs. Indeed this is the same figure and the same reasoning that the previous Government applied in their White Paper. Therefore, from that point of view if no other, it is a little surprising to hear the noble Lord, Lord Hunt, arguing against it.
There is an interesting point about people with more than £23,250 in savings. About 60% of people entering residential care are state-supported, meaning that they have only limited assets. Of the remaining 40% who enter residential care as a self-funder, less than half have liquid savings of more than £23,250. This means that the proposed threshold of £23,250 excludes only the richest 15% of people entering residential care. By increasing the liquid savings threshold to £118,000, the scheme would be available to all but the richest 5% of people entering residential care. I hope that that is a helpful contextual analysis. However, I reiterate—particularly to the noble Lord, Lord Lipsey—that we are not wedded to the figure of £23,250. We will analyse the responses to the consultation before making any further decision.
To answer the question posed by the noble Lord, Lord Hunt, about whether the scheme will actually be cost-neutral, we intend and believe that in the long run the scheme will be cost-neutral. We have committed £330 million to fund the implementation of the cap cost system, and deferred payments to cover the initial set-up costs.
I hope that in the light of what I have said the noble Lord will, on reflection, agree that his amendment would be undesirable as drafted and that he will be content to withdraw it.
Baroness Oppenheim-Barnes (Con)
Before the Minister sits down, will he confirm that if a house has to be sold, after the repayment of the debt, the proceeds remain the property of the person whose house was sold? Would it be possible for the potential beneficiaries to pay the debt in advance so that the house does not have to be sold?
Lord Lipsey
My Lords, I thank the Minister for his reply. It is tempting to go further into the minutiae of these issues, but I think I have been in politics long enough to recognise when a Minister is elegantly preparing for a government retreat. Believing that we have just heard an exemplar of such a speech, I beg leave to withdraw the amendment.
Baroness Wheeler (Lab)
My Lords, from what my noble friend Lord Patel has said, it is clear that the issue of safeguarding inquiries is not at all sorted. He has highlighted a substantial gap in the Bill that could have a very serious impact on some of the most vulnerable people in our communities and prisons. He rightly seeks equivalence of care and protection for adults detained in prison and those residing in approved premises such as bail hostels—care and protection that all other vulnerable adults have when it comes to safeguarding inquiries by local authorities. We take on board his deep concerns about prisons and what appears to be a lack of co-ordinated and clear responsibilities in respect of safeguarding inquiries. I ask the Minister to look further into the matter, as my noble friend suggested.
My noble friend raises some key issues on whose responsibility it is to carry out a safeguarding inquiry for adults living in the community in approved premises. Given all the uncertainty about future service delivery as a result of the Government’s major reorganisation and break-up of the probation service, if that responsibility is currently with the local probation trust, this amendment, which calls on the Secretary of State to report to Parliament within one year of this clause of the Bill coming into force, becomes even more necessary. To require the new community rehabilitation companies or their successor bodies to account for how they have discharged their responsibilities for safeguarding adults residing in approved premises is an acceptable way forward.
I look forward to hearing from the Government about how they intend to deal with the matter in the light of the serious concerns expressed by my noble friend today and in previous discussions on the Bill, and in light of the huge confusion that will result from the proposed changes to the probation service. I very much hope that the Minister will be able to support my noble friend’s endeavours to fill what is potentially a serious gap in the Bill, and to ensure future adequate protection of these vulnerable adults.
Earl Howe
My Lords, I will begin by making absolutely clear that we agree that all prisons and approved premises should have arrangements for safeguarding the adults in their care. They should have a comprehensive policy that is understood by all staff and which ensures that vulnerable adults are identified and given appropriate support. I hope that we also agree that we cannot relieve prisons and probation providers of their duty of care by imposing a duty on a local authority to make safeguarding inquiries into suspected abuse or neglect in a prison or approved premises.
We need clear guidance for prisons, probation providers and local authorities to ensure that the procedures within prisons and approved premises are informed by best practice and local expertise. My officials will work with the Ministry of Justice and the National Offender Management Service, together with the Association of Directors of Adult Social Services and other stakeholders, such as the Prison Reform Trust, to develop instructions and guidance for prisons, probation providers and their local authorities. Those instructions and guidance will be in place by the time the Bill is implemented and will give improved clarity about the Prison Service and probation providers’ roles and responsibilities in safeguarding adults in their care, including the need to have a whole-institution approach to safeguarding, and cover their relationship with the local safeguarding adults board.
The Ministry of Justice encourages prison and probation staff to be involved with local safeguarding adults boards. The guidance on how safeguarding should be carried out in conjunction with local authority partners can draw attention to the duty in Clause 6 that local authorities and their partners must co-operate in the exercise of their respective functions relating to adults with needs for care and support. The guidance will be consistent with the broader advice and guidance on safeguarding adults in the community to ensure that good practice on safeguarding policies and inquiries is routinely shared.
In addition, the guidance will set out clearly the need for locally agreed relationships with local safeguarding boards, including clear local protocols around the circumstances for involvement of local SABs. The guidance will also make clear how prison and probation staff can benefit from the expertise of social services and local authority safeguarding teams.
For approved premises, the probation provider has a clear responsibility in relation to safeguarding but there is nothing to prevent it seeking advice from either the safeguarding adults board or the local authority safeguarding team. This already happens in many areas. Since a local authority’s duties in relation to safeguarding would not extend to safeguarding adults who are at risk of abuse or neglect by reason of their detention or their offence, a joint approach would be much more effective where there is a particularly difficult safeguarding challenge in an approved premises.
Her Majesty’s Inspectorates of Prisons and Probation and the Prisons and Probation Ombudsman will take account of the guidance and local agreements and make recommendations for improved practice, if relevant, when inspecting services and investigating complaints within the prison and probation services.
I wish to be clear in answering the noble Lord, Lord Patel of Bradford, who said that the document No Secrets said that local authorities have responsibility for safeguarding in approved premises. Local authorities do not have a statutory duty at the moment. It is the duty to conduct inquiries that will not apply—not that local authorities cannot conduct an inquiry if invited to by the probation trust or provider. Guidance and probation instructions will provide further detail on how local authorities and probation trusts, as they currently are, can work together at a local level. The guidance will go to all probation providers who run approved premises. Probation services will be contracted out in due course, so these will be approved premises provided by the probation service and by voluntary or private providers. The guidance will make it clear that the provider running the accommodation has a duty of care and a safeguarding responsibility.
I hope that, with those assurances and clarifications, the noble Lord will feel able to withdraw his amendment.
Baroness Masham of Ilton (CB)
My Lords, how will the Government ensure that the guidance is carried out? Would a report not be useful?
Earl Howe
My Lords, the Ministry of Justice will want to ensure that the guidance is adhered to and the department will have oversight of the way that this works in practice, as the noble Baroness might expect. As I say, there is best practice already out there; we want to build on what we know works, with joint working across the prison and probation services and local authorities.
Lord Patel of Bradford
My Lords, I thank the noble Earl for taking time to talk to me about these concerns and providing a comprehensive response. I am really pleased about the guidance that is going to be produced and shared. The noble Earl said that comprehensive policies and procedures are in place, and I should say for clarity that I have no argument with that. A number of institutions do not have them in place and that is where the guidance will come in handy.
However, I have no desire to see the local authority relieving the prison or probation trust of any duty of care. What I was saying—although it is probably a play on words—was that the No Secrets guidance seems to suggest that a local authority is probably the only agency that would investigate or inquire into a safeguarding issue. I am not saying that probation trusts will not do so but the feeling is that that duty falls on the local authority at the moment. My big anxiety is that Clause 75(7) expressly states that Section 42 should not apply. The Bill therefore actually states that local authorities should not carry out a safeguarding inquiry for people in prison or approved premises. The fact that it says in the Bill that they should not do it, but at the same time we are giving guidance to say that if everybody works together it should be okay, leads me to ask the Minister how we square that circle. It gives an awkward flavour to the debate. I hope that the noble Earl is willing to go back and have a look at both the guidance and the clause, as I believe that that is where the problem lies.
As regards safeguarding adults boards, I am very pleased that the noble Earl has said that prisons and probation trusts should join the safeguarding boards. Initially the Bill said that they should not be forced to do so. Then it was drafted to say that they “may” do so. I suggest that they should. This is crucial, as the noble Lord, Lord Ramsbotham, said, as otherwise their skill base is missing.
Those two areas are crucial. I do not know what will happen if and when the probation trusts are abolished, and what problems that will cause, but at least the amendment requiring that there is a report within a year will give us that information.
Lord Patel of Bradford
The fact that we each have looked at that provision in a different light suggests that it may be useful to look at that again when the guidance is produced so that we are very clear and we give local authorities the confidence to play the lead in co-ordinating this.
I again thank the Minister for taking away all the issues and re-examining them. I beg leave to withdraw the amendment.
NHS: EU Legislation
Earl Howe Excerpts(11 years, 8 months ago)
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Lord Kakkar
To ask Her Majesty’s Government what recent assessment they have made of the impact of European Union legislation on training and service delivery in the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
We are aware that concerns exist about the impact of EU legislation on some areas of training and service delivery within the NHS. That is why we recently announced the review of the implementation and impact of the working time directive, to be led by the Royal College of Surgeons. This follows the balance of competences review for health, which included concerns about the impact of this directive on continuity of care and doctors’ training.
Lord Kakkar (CB)
My Lords, I declare an interest as professor of surgery at University College London. In 2010, the then Secretary of State for Health and Secretary of State for Business, Innovation and Skills were due to commence robust negotiations with our European partners on the working time regulations. Despite the welcome announcement of the current Health Secretary’s further review of the impact of those regulations, do the Government stand by their commitment to repeal this detrimental legislation as it applies to healthcare? This is now increasingly cited by coroners as having contributed to patient harm. Moreover, our trainees tell us that it is now undermining their ability to acquire the necessary skills for future independent consultant practice. Patients and doctors alike now blame these regulations for a destruction of professionalism in our health service.
Earl Howe
My Lords, it is the impact on our health service that we want the Royal College of Surgeons to look at specifically. In the coalition agreement, we committed to limiting the application of the working time directive in the UK, including in the NHS. Nobody wants to go back to the bad old days of tired doctors, but it is important for the working time directive to have more flexibility for a health service that operates on a 24-hour basis. Increased flexibility for the NHS would allow it to take account of local needs and practices, while at the same time ensuring the health and safety of the workforce. We stand prepared to work with partners in Europe to that end. I believe there is strong support in the NHS for this.
Lord Ribeiro (Con)
My Lords, I thank my noble friend for acknowledging the role that the president of the Royal College of Surgeons is playing to ensure that the European working time directive is not having an adverse impact on patient care. In the United States, the duty hours that surgeons work are limited to 80, although flexibility has been introduced into their working so that trainees nearing independent practice can work more flexibly and for more hours. As 80% of surgical trainees currently work more than 48 hours a week, is it not time that we applied some flexibility to the European working time directive?
Earl Howe
My noble friend speaks, as always, with great authority on these matters. The independent review is by clinicians and of clinicians, looking specifically at the issues associated with the implementation of the directive. It means that any issues that are identified and can be acted on without needing to change the law—which was one of the points underlying my noble friend’s question—could lead to swift and effective action. In addition, my noble friend might like to know that the review will be looking at how the directive interacts with the junior doctors’ contract. It is intended to provide a sensible front-line view of doctors’ working hours.
Lord Lea of Crondall (Lab)
My Lords, does the Minister accept that the idea that the working time directive is universally denigrated by all members of staff of the National Health Service is very far from the truth? Does he also accept that there is a need to protect patients and the health of doctors themselves by having something along the lines of the working time directive, and that the Royal College of Surgeons ought to accept that that is the case?
Earl Howe
My Lords, I stress that this is not a step to find a way to make doctors work longer. As I said a moment ago, it is clearly in nobody’s interest to go back to the days when doctors were constantly tired and worked excessive hours. However, when senior clinicians tell us, as they have, that the implementation of the directive is harming patient safety and doctors’ training, we have to take that seriously. That is why we want to take a closer look at how this directive is impacting on the ground.
Lord Willis of Knaresborough (LD)
My Lords, I welcome my noble friend’s very strong comment that the working time directive has huge benefits, as well as clearly having challenges. However, in terms of this review of surgeons’ training, will he also look at the fact that for at least two and a half days a week most of our theatres are absolutely empty, with no activity taking place? One of the big requirements is that there should be more activity in terms of elective surgery within our hospitals—which would itself help the whole training issue.
Lord Crisp (CB)
My Lords, this argument has been going on for a very long time—at least a decade. Will the Minister let us know when he expects the review to report and when he thinks that some action will come about as a result of it?
Lord Hunt of Kings Heath (Lab)
My Lords, I refer noble Lords to my health interests in the register. The noble Earl will be aware that this country has introduced a strong process of revalidation of doctors and continuing professional development. Can he assure the House that doctors who come to practise in the UK from other European countries will have been subject to as strict a regime as that in the UK?
Earl Howe
My Lords, the noble Lord will know that doctors from the European Economic Area are deemed to have professional skills equivalent to those of doctors trained in this country. When doctors come from outside the European Economic Area, then, indeed, the GMC puts procedures in place to ensure that the skills of those professional people match those that we would wish to see in the National Health Service.
Viscount Bridgeman (Con)
Can the Minister confirm that the proposed amendment to the free movement directive now gives competent authorities the powers to test EEA nurses for English proficiency before they get clearance to practise in the UK? If that is so, is it, in the Minister’s view, adequate in the interests of patient safety?
Earl Howe
My Lords, my department is absolutely committed to ensuring that regulated healthcare professionals are not able to work in the NHS without adequate English skills. The revision of the mutual recognition of professional qualifications directive, which impacts on registrations from within the EEA, clarifies that regulators such as the NMC can undertake proportionate language controls on professionals following registration.
Care Bill [HL]
Earl Howe Excerpts(11 years, 8 months ago)
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“Trust special administration: powers of administrator etc.
(1) In section 65O of the National Health Service Act 2006 (Chapter 5A of Part 2: interpretation) (the existing text of which becomes subsection (1)) at the end insert—
“(2) The references in this Chapter to taking action in relation to an NHS trust include a reference to taking action, including in relation to another NHS trust or an NHS foundation trust, which is necessary for and consequential on action taken in relation to that NHS trust.
“(3) The references in this Chapter to taking action in relation to an NHS foundation trust include a reference to taking action, including in relation to another NHS foundation trust or an NHS trust, which is necessary for and consequential on action taken in relation to that NHS foundation trust.”
(2) In section 65F of that Act (administrator’s draft report), in subsection (1), for “45 working days” substitute “65 working days”.
(3) After subsection (2C) of that section insert—
“(2D) Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (2A) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”
(4) In section 65G of that Act (consultation plan), in subsection (2), for “30 working days” substitute “40 working days”.
(5) After subsection (6) of that section insert—
“(7) Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (4) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”
(6) In section 65N of that Act (guidance), after subsection (1) insert—
“(1A) It must, in so far as it applies to NHS trusts, include guidance about—
(a) seeking the support of commissioners for an administrator’s recommendation;(b) involving the Board in relation to finalising an administrator’s report or draft report.”(7) In section 13Q of that Act (public involvement and consultation by NHS Commissioning Board), at the end insert—
“(4) This section does not require the Board to make arrangements in relation to matters to which a trust special administrator’s report or draft report under section 65F or 65I relates before the Secretary of State makes a decision under section 65K(1), is satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9) (as the case may be).”
(8) In section 14Z2 of that Act (public involvement and consultation by clinical commissioning groups), at the end insert—
“(7) This section does not require a clinical commissioning group to make arrangements in relation to matters to which a trust special administrator’s report or draft report under section 65F or 65I relates before the Secretary of State makes a decision under section 65K(1), is satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9) (as the case may be).”
(9) In section 242 of that Act (public involvement and consultation by NHS trusts and foundation trusts), in subsection (6)—
(a) for “65I, 65R or 65U” substitute “or 65I”, and(b) for the words from “the decision” to the end substitute “the Secretary of State makes a decision under section 65K(1), is satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9) (as the case may be).”(10) In Schedule 14 to the Health and Social Care Act 2012 (abolition of NHS trusts in England: consequential amendments)—
(a) after paragraph 4 insert—“4A In section 13Q(4) (public involvement and consultation by Board), omit “makes a decision under section 65K(1),”.
4B In section 14Z2 (public involvement and consultation by clinical commissioning groups), omit “makes a decision under section 65K(1),”.”,
(b) in paragraph 15, after sub-paragraph (3) insert—“(3A) In subsection (2D), omit “or an NHS trust” and “or the NHS trust.”,
(c) in paragraph 16 (the text of which becomes sub-paragraph (1)) at the end insert—“(2) In subsection (7) of that section, omit “or an NHS trust” and “or the NHS trust”.”,
(d) in paragraph 24, after sub-paragraph (2) insert—“(2A) Omit subsection (1A).”,
(e) after that paragraph insert—“24A In section 65O (interpretation)—
(a) omit subsection (2), and(b) in subsection (3), omit “or an NHS trust”.”, and(f) in paragraph 35, omit the “and” preceding paragraph (d) and after that paragraph insert “, and(e) in subsection (6), omit “makes a decision under section 65K(1),”.””
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
This clause would clarify and make small changes to the trust special administrator’s regime in the light of our experience following its use at South London Healthcare NHS Trust and Mid Staffordshire NHS Foundation Trust.
Your Lordships will know that the regime for trust special administration was introduced by the previous Government under the Health Act 2009. The aim of the regime has always been to provide, with a tight timescale, a sustainable future for the services provided by a failed trust. The regime is only ever used as a last resort, when all other efforts by a trust and its commissioners to develop a viable model of care have been unsuccessful. There comes a point when time has to be called on local efforts to resolve the situation. Problems should not be allowed to fester, and it is not right that taxpayer resources could be diverted away from patient care to bail out failing organisations.
The regime enables a failed trust to be put into administration. The role of the trust special administrator is to take charge of the trust while the board is legally suspended and to develop and consult on recommendations in a draft report, before making recommendations in a final report that secure a sustainable future for services. The unsustainable provider regime for NHS foundation trusts was amended in 2012 to make it compatible with the extended regulatory role given to Monitor to operate the new licensing regime. The regime is used only on an exceptional basis at the most seriously challenged NHS providers, where other solutions or interventions have failed. It is time-limited, to focus efforts on delivering a sustainable solution with statutory deadlines for each stage of the process.
Use of the regime at South London and Mid Staffordshire suggests that two stages of the administration process need to be extended. The administrator would benefit from having more time to produce its draft report, and it would be better to have a longer consultation. The clause would therefore extend the time that the administrator has to complete these two key stages by giving 65, rather than 45, working days to produce the draft report and allowing 40, rather than 30, working days to undertake consultation on that report. The existing powers to extend the various stages of an administration beyond these statutory time limits will remain, as there will always be cases where an extension is appropriate.
Secondly, the clause would put beyond doubt the Government’s existing position that the remit of a trust special administrator is to make recommendations that may apply to services beyond the confines of the trust in administration and that the Secretary of State, for NHS trusts, and Monitor, for foundation trusts, have the power to take decisions based on those wider recommendations.
Where severe and prolonged problems exist, the administrator appointed must be able to propose a viable solution. It was always the Government’s intention that the interpretation of the words “in relation to” could include wider actions where necessary and consequential on primary recommendations about the trust in administration. This clarification of the scope of the administrator does not constitute a change of policy, is not retrospective, and is intended only to remove any uncertainty for the future.
NHS trusts, foundation trusts and other providers do not exist in isolation from each other. They are part of a complex, interdependent, local healthcare economy. Issues of clinical and financial sustainability nearly always cross organisational boundaries. Parliament must surely have intended originally that the legislation would enable an administrator to fix the problems that it was appointed to fix. If the only way to do this is to look beyond the confines of the failing trust then that is what it must do.
Thirdly, the clause would strengthen requirements for a trust special administrator appointed to an NHS foundation trust to seek the support of commissioners affected by their recommendations. A trust special administrator appointed to an NHS foundation trust is already required by statute to seek support for its draft and final recommendations from all commissioners of the trust in administration. This clause would extend that requirement so that the administrator would also be required to seek the support of commissioners of services affected by the administrator’s recommendations that are provided by other trust providers, with NHS England’s support being sought in the event that all commissioners did not agree.
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.
Lord Hunt of Kings Heath
My Lords, I am grateful to the Minister and other noble Lords who have spoken in what has been an excellent debate. My feeling about the debate is that the House has conclusively come to a view that further discussion needs to take place on the matter. I will come back to that in a moment.
I agree with the noble Earl that failed organisations squander millions of pounds. He is absolutely right to say that the need for them to be propped up by others has a deleterious effect on the NHS as a whole. We know that at least 20 NHS trusts or foundation trusts are in severe financial difficulty at the moment. It is likely that that number will grow in future. That is why there is considerable doubt that the special administration provisions will apply to only a very small number of cases. There is every possibility that, over the next two or three years, it will have to be used in many cases. That is why I am concerned that the provisions that the noble Earl is asking us to agree to today will be used to lead to configuration of services in which the interests of the failing trust will be put at the heart of the process rather than interests of the health service as a whole in a given area. That is the crux of the issue and that is why Lewisham is so important. It is a very good hospital—it was minding its own business—and then, suddenly, a special administrator came along and said that to solve the problem of the trust that it was dealing with it would have to reduce Lewisham hospital services. That is the crux of the argument and why we are concerned about the provisions being put forward by the noble Earl today.
The noble and learned Lord, Lord Mackay, suggested that we should let the Government have their amendment today and it can then be dealt with in the other place. Of course, I always admire the other place’s assiduous attention to duty when scrutinising legislation, but the fact is that the other place is simply not geared up or able to do that. The noble Earl, Lord Howe, was rather rude about my amendment which was, of course, perfectly formed and correct in every way. Will the noble Earl, having listened to this debate, agree to pause and allow us to have further discussions—even between now and Third Reading in eight days’ time—to see whether it would be possible to come back with an amendment that is more suited to the circumstances he described? Is the noble Earl prepared to do that? If he were, I would welcome it.
Earl Howe
My Lords, I am more than willing to have discussions between now and Third Reading but I suggest to the House that it is necessary to pass the government amendment now and to look at whether we need to change that amendment at a future date. Our minds are open to that but, unless we pass the government amendment, we will have missed a historic opportunity to correct a vital lacuna in the law for the benefit of the NHS as a whole.
Lord Hunt of Kings Heath
My Lords, I am very grateful to the noble Earl. It would, however, be possible for him not to move his own amendment today, to allow for further discussions and to table a revised amendment at Third Reading. That is as far as I can go in offering the Opposition’s help in this matter.
Lord Hunt of Kings Heath
My Lords, in view of that, I wish to test the opinion of the House.
“Chief Inspectors
After paragraph 3 of Schedule 1 to the Health and Social Care Act 2008 insert—“Chief Inspectors3A (1) The non-executive members must—
(a) appoint an executive member to be the Chief Inspector of Hospitals,(b) appoint an executive member to be the Chief Inspector of Adult Social Care, and(c) appoint an executive member to be the Chief Inspector of General Practice.(2) Each of those executive members is to exercise such functions of the Commission on its behalf as it determines.
(3) When exercising functions under sub-paragraph (2), an executive member must have regard to the importance of safeguarding and promoting the Commission’s independence from the Secretary of State.””
Earl Howe
My Lords, in moving Amendment 142, I shall speak to the other government amendments in this group, Amendments 143, 145, 146, 148, 149 and 150. This group relates to the ability of the Care Quality Commission to operate free from day-to-day intervention by Ministers. The amendments that I have tabled will place the CQC on a new footing of greater operational autonomy. They also clarify some of the arrangements for the new system of ratings to be operated by the CQC. I will outline the principle guiding the Government in tabling these amendments.
Last year we passed legislation that placed a duty on the Secretary of State to promote autonomy in the way that other bodies exercise their functions in relation to the health service. The changes that we are proposing build on this. They remove nine separate powers that the Secretary of State currently has to intervene in the day-to-day operation of the CQC. Additionally, they place the new chief inspector posts on a statutory footing, ensuring their longevity, with a specific duty to operate in a way that ensures the independence of the CQC’s judgments.
We are also introducing a new system of regular assessments of registered providers, which has no requirement for ministerial approval of the methodology. Each of these changes gives the CQC greater scope to get on with the day job without interference from Ministers. Why does this matter? The CQC has the key role in providing assurance of the quality of services provided to patients and service users. It needs to be able to inspect what it wants when it wants and to be free to report its findings as it wants. The proposed amendments and new clauses that I have tabled will see the Government relinquish a range of powers that intervene in the operational decisions of the CQC.
In addition to the amendments relating to the department’s powers to intervene in the work of the CQC and to place the chief inspectors on a statutory footing, I am also tabling a number of amendments relating to the performance assessment system operated by the CQC. The amendments clarify that the CQC will not undertake routine performance assessments of local authority commissioning but, rather, will be able to carry out special reviews of local authority commissioning under Section 48 of the Health and Social Care Act 2008. This will bring the position for commissioning by local authorities in line with that of NHS commissioning as put in place by the Health and Social Care Act 2012.
I will briefly set out two areas where the CQC’s freedom is not being enhanced and explain why. The changes that we are making will give the CQC greater freedom in its day-to-day work, as I have explained. When it comes to the CQC’s strategic role and activities, outside of its routine functions, it is appropriate that the Government maintain oversight of the commission.
The first area to which this applies is investigations of commissioning. The amendments we are making to Section 48 of the Health and Social Care Act 2008 make it clear that the CQC has the power to carry out a special review or investigation of commissioning—both of health commissioning by NHS England and NHS Clinical Commissioning Groups and of local authorities’ commissioning of adult social services. Such reviews will only be possible with the approval of the Secretary of State for Health, in the case of NHS commissioning, and the Secretaries of State for Health and Communities and Local Government in the case of local authority commissioning.
Secondly, I reassure noble Lords that we are maintaining the arrangements through which the commission is accountable to the Department of Health. We will retain a range of the conventional measures that exist to manage an arm’s-length body of the Government. The non-executive members of the CQC’s board will continue to be appointed by the Secretary of State, who will also maintain the power to intervene if the commission fails to properly discharge any of its functions. The department will also continue to hold the CQC to account for its financial and operational performance. I hope that these amendments will find favour with the House, and I beg to move.
Lord Warner
My Lords, I express my concern about the provisions of subsection (4) of the Government’s new clause on the independence of the CQC. My instincts are that this will do the absolute reverse of what the Government are seeking to do in terms of the CQC’s independence, which is why my Amendment 143A seeks to remove subsection (4). I do not disagree in any way with the other provisions in this set of government amendments and will explain my thinking. Subsection (4) effectively prevents the CQC investigating, of its own mere motion, the extent to which local authority commissioning practices and decisions on adult social care damage user interests and well-being.
In effect, if the CQC considers, after looking at the results of its work on providers of services, that there is a major stumbling block to good, sound provision of services that promote the well-being of users—the provision in Clause 1 of the Bill—it has to seek the approval of the Secretary of State before it can do any kind of generalised or thematic review of local authority commissioning of services. It has to seek the approval not only of the Health Secretary but of the Secretary of State for Communities and Local Government. That seems a step backwards from the position we have now, where the CQC, as I understand it, could actually undertake these kinds of reviews. I do not see how the new subsection (4) helps the CQC to get to the root of a problem that may be affecting thousands of users of services. We have already seen that the providers were not the instigators of the policy of 15-minute home visits—it was the commissioners of services who instigated that policy. They required the providers to do that; they almost drove them along the path of not paying for the travel costs of the healthcare assistants who were making those visits. The institutional behaviour that has grown up and caused so much concern among the public and in Parliament has been driven by commissioners.
I suspect that we will have other kinds of such issues as we move through a decade of austerity in public services. It ought to be possible for the CQC to take the initiative and try to get to the bottom of those issues by carrying out a thematic review of the commissioning practices. That is why we need to take out subsection (4), which seems to be incompatible with the rest of the provisions in this set of government amendments, which I thoroughly welcome. All credit to the Government for removing these requirements on the CQC, but why are they spoiling the ship for a ha’porth of tar? Why are we pushing back on the ability of the CQC to decide that it wants to carry out a review of commissioning practices, when that is not in the best public interest? The Government should think again about this.
Earl Howe
My Lords, I set out in my opening remarks the principle that lies behind the amendments that I tabled: namely, that the CQC should have more operational autonomy in its day-to-day activities. I sense that the principle is not inimical to many noble Lords. The amendments tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Greengross, are in contrast to that principle and seek to tie the hands of the regulator and commit it to considering specific issues in all circumstances.
I say straightaway that the issues raised by the noble Lords are important: namely, how providers deal with the most commonly recurring conditions in specific settings, and how hospitals are implementing NICE guidance on the use of medicines. I do not argue that the CQC should not consider these issues. It has made clear in its consultation document, A New Start, that NICE guidance will play an integral role in its new performance-assessment methodology. That shows that we can trust the regulator to set its own priorities and to change them in response to new challenges. However, I submit that they should not be in the Bill.
Noble Lords questioned the CQC’s role in the oversight of commissioning of both health and adult social care. The noble Lord, Lord Warner, tabled an amendment that would have the effect of allowing the CQC to carry out a study of the efficiency of commissioning without seeking the approval of the Secretary of State.
I will explain the approach that we are taking. We are maintaining powers for the CQC to carry out reviews of commissioning in both health and social care. However, where this happens, we believe that it should be a special rather than a periodic review. My noble friend Lady Barker asked why. The main role of the CQC is to inspect and regulate service provision. The very name, CQC, reflects that. Where this leads the CQC to believe that there are problems with local commissioning, it will have the power to look into this further. However, any review of commissioning will impact on the CQC’s capacity to regulate service provision. Therefore, it is only right that this should be carefully considered and subject to ministerial agreement.
If a noble Lord were to ask me in what circumstances such agreement would be withheld, I would be in some difficulty because it is hard to imagine circumstances in which, if there were clear evidence of poor commissioning practices in an area, that agreement would not be forthcoming.
Special reviews can be tailored in all sorts of ways. They can be tailored to look at how commissioners are delivering specific policy objectives—for example, personalisation or service integration. The special review powers could be used to target the poorest performers, conduct thematic reviews across all local authorities—and I shall mention that again in a second—or perform reviews of a cross-section of local authorities. These reviews are a sophisticated power that allows the CQC to get to the heart of an issue in a way that periodic reviews cannot. If there is a good case for it conducting a review of that kind, it will not be stopped from doing so.
The noble Lord, Lord Warner, questioned the whole principle of ministerial sign-off for these special reviews. In fact, all special reviews and investigations by the CQC under Section 48 of the 2008 Act currently require the approval of the Secretary of State, so, in that sense, we are not doing anything radically new.
As I said, the CQC will be able to carry out a special review of commissioning where there is evidence that commissioning practices are contributing to the provision of poor care for patients and service users. A prime example of where the CQC could be tasked to conduct an investigation would be if it had evidence that 15-minute commissioning was taking place. That applies to any area where poor commissioning is identified as a contributory factor to the poor provision of care, either in terms of the quality of services or where access to services is raised as an issue by people who use them. I hope that that is reassuring. We are absolutely clear that the CQC will play a leading role in making sure that people receive acceptable standards of care. Indeed, only last week we announced that the CQC was considering the use of 15-minute care visits to vulnerable and elderly people. That is entirely appropriate and I emphasise that it will still have the power to carry out special reviews of that kind.
The noble Baroness, Lady Greengross, went further and said that it was counterproductive to remove the periodic review power for commissioning. She referred to statements about this made by my honourable friend, Norman Lamb, the Minister for Care and Support. I would simply say to her that retaining Section 46 functions—the periodic review functions—would offer the CQC nothing further in terms of enforcement powers against local authorities. Regardless of whether a review is undertaken under Section 46 or Section 48 in relation to an English local authority, the follow-up action remains exactly the same, with the CQC able to issue an improvement notice in the event of a local authority failing to discharge its functions and to recommend special measures to the Secretary of State in the event of substantial failings.
Our approach will allow the CQC to focus its efforts on those areas where there are concerns about commissioning, rather than on all commissioning, including commissioning where the normal oversight arrangements have revealed no overt problems. I should now like to come to those oversight arrangements, because the noble Baroness asked me who is responsible for the oversight of commissioners if it is not the CQC. We need to remember that commissioners are already regularly overseen, in a number of ways, in the new system. In the case of the commissioning of health services, the new NHS architecture has NHS England taking the central role in performance-managing the commissioning of NHS services. It ensures that clinical commissioning groups deliver the best possible services and outcomes for patients. The CCG assurance framework has been developed precisely to ensure that the CCGs are working to improve services and the quality of care for patients.
This new system is also more transparent. The CCG outcomes indicator set will support CCGs and health and well-being partners in improving health outcomes by providing comparative information on the quality of health services commissioned by CCGs and the associated health outcomes, and it will support transparency and accountability by making this information available to patients and the public. That is new. The first quarterly assurance conversations have now taken place between NHS England and CCGs. We expect that CCGs will want to make the outcome of these conversations available publicly as part of the commitment to transparency. The board will publish an annual assessment at the end of 2013-14, as required by legislation.
In addition, NHS England has its own governance processes in place, including the development of the direct commissioning assurance framework to demonstrate that it meets the standards required. As this is developed further, elements will be introduced to bring external scrutiny to its board and function. Ultimately, NHS England is held to account by the Department of Health for its commissioning activity against its delivery of the priorities set in the mandate.
That does not mean that there is no independent scrutiny of NHS commissioning. Health and well-being boards and local Healthwatch will ensure that the public voice is heard where there are concerns about the design and commissioning of services. Where local Healthwatch identifies concerns, it can raise these with Healthwatch England, which can in turn request the CQC to take action. Where the CQC has strong concerns that commissioning is having an impact on the quality and safety of provision, it can initiate—with ministerial permission—a special review or investigation. This is a much richer tapestry than perhaps some noble Lords have portrayed it.
On local authority commissioning, other measures in the Bill will strengthen the duties on local authorities in exercising their care and support functions. These include a new express duty to promote people’s well-being and a duty to shape local care markets to ensure that they are sustainable and diverse and that they offer high-quality care and support. They will not, as the noble Lord, Lord Hunt, fears, be left to themselves. To start with, the department will work with the local government and adult social care sector to produce statutory guidance on local authority commissioning of care and support. As well as this, the Government are committed to ensuring that there is a clear link between local authority commissioning and the outcomes and experiences of service users. That will be achieved through the adult social care outcomes framework, which will give local people, local Healthwatch and others robust and comparable information on councils’ performance. The Government are committed to making information on adult social care outcomes even more accessible and readily understood by people who use care and the wider public further to enhance transparency.
As with NHS commissioning, local Healthwatch and health and well-being boards will be able, through Healthwatch England, to raise concerns with the CQC about poor commissioning. This is independent, regular scrutiny that will be driven by the views of those with direct experience of service failings—the service users themselves. Although this system is in its early stages, I genuinely believe that the mechanics are in place to ensure that local authority commissioning is scrutinised regularly and in a way that it has not been before.
My noble friend Lord Deben referred to the Localism Bill and wanted assurance that the powers given to the CQC will not be circumvented in various ways. I can assure my noble friend that it is not our intention that the powers given to the CQC will be circumvented by other legislative proposals or any other means.
My noble friend Lady Barker asked why we are stopping the CQC doing what it does now, and whether there is any evidence that the power has been misused. As I am sure my noble friend will agree, the CQC plays a very important role in regulating and inspecting health and care services. It is the nation’s chief whistleblower on health, but to do its job properly it must be able to act without fear or favour from the government of the day. In a nutshell, we want to make it a stronger organisation by ensuring that it has the freedom and independence always to speak out about patient safety concerns, irrespective of who is in government. The removal of the need for the CQC to gain the approval of the Secretary of State for its programme of inspections and so on will particularly complement the role of the CQC’s new chief inspectors in providing an authoritative and independent judgment of the quality of health and social care services.
I would say to the noble Baroness, Lady Pitkeathley, that the main objective for the CQC, as set out in the 2008 Act, is centred on service provision. The objective is to protect and promote the health, safety and welfare of people who use services. It will do this, as it does at the moment, through looking at service provision and it will look at local authority commissioning when there is evidence of problems.
“Independence of the Care Quality Commission
(1) Part 1 of the Health and Social Care Act 2008 (the Care Quality Commission) is amended as follows.
(2) In section 48 (special reviews or investigations), omit subsection (7) (Secretary of State’s power to make regulations as to procedure for representations before publication of report).
(3) In section 54 (studies as to economy, efficiency etc), in subsections (1) and (3), omit “, with the approval of the Secretary of State,”.
(4) After subsection (2) of that section, insert—
“(2A) The Commission may not exercise the power under subsection (1)(a), so far as it relates to the activity mentioned in subsection (2)(d), without the approval of the Secretary of State.”
(5) In section 55 (publication of results of studies under section 54), omit subsection (2) (Secretary of State’s power to make regulations as to procedure for representations before publication of report).
(6) In section 57 (reviews of data, studies and research), in subsection (1), omit “, with the approval of the Secretary of State,”.
(7) In section 61 (inspections carried out for registration purposes), omit—
(a) subsection (1) (Secretary of State’s power to make regulations specifying frequency etc. of inspections), and(b) subsection (4) (Secretary of State’s power to make regulations as to procedure for representations before publication of report).(8) In section 83 (annual reports), omit subsection (3) (Secretary of State’s power to direct preparation of separate reports).
(9) In paragraph 5 of Schedule 4 (inspection programmes etc.), omit—
(a) in sub-paragraph (1) (preparation of programme etc.), “, or at such times as the Secretary of State may specify by order,”, and(b) sub-paragraph (3) (Secretary of State’s power to specify form of programme etc.).(10) In consequence of subsections (3) and (6), omit section 293(3) and (4) of the Health and Social Care Act 2012.”
Lord MacKenzie of Culkein (Lab)
My Lords, I also support both amendments. It seems to me, as a nurse, to be a self-evident proposition that having safe staffing levels and the correct skill mix, taking into account dependency and acuity, is the right thing do. Anyone who has listened to the debates in this House on various Bills dealing with health and social care over the past few months knows that it is an enormously complicated issue. However, we must bring it back to this level of patient safety and the duty of providers to provide safe staffing levels and the correct skill mix. If that is not done, all the other things we talk about will be in vain and we will end up with more reports, more inquiries and more problems.
As has already been said, it is incumbent on Governments to take account of all these things: the Francis report, the review into Winterbourne View and some of the recommendations in the excellent report produced a few months ago by the noble Lord, Lord Willis. It is vital that we get this right. At a time when financial pressures will force authorities to look at diluting the numbers of trained nursing staff and trained staff in the community and replacing them with healthcare assistants or support workers with hugely varied levels of training and experience, it is absolutely right that we get the correct level. As has already been said, both of these amendments can only add to the Bill and take nothing away from it.
Earl Howe
My Lords, I hope that I can give noble Lords considerable reassurance on the Government’s position on these important issues. It is almost axiomatic that safe, high-quality care is dependent on people and that right-staffing, in terms of numbers and skills, is vital for good care. The importance of having the right staff with the right skills and in the right numbers is central to the delivery of high-quality care. Where staff are stretched because they are too few in number, corners will be cut, with inevitable adverse consequences for patient care. Equally, where staff do not have the right skills to carry out their tasks, the quality of care will suffer.
Patient safety is the first priority, and safe staffing levels really matter. The quality of care provided to patients is ultimately the responsibility of the leadership of provider organisations. It is their responsibility to ensure that they have the right staff with the right skills in the right place at the right time in order to provide high-quality care. In the final analysis, it is for hospitals themselves to decide how many nurses they employ, and they are the best placed to do that. Nursing leaders have been clear that hospitals should determine and publish staffing details and the evidence to show that staff numbers are right for the care needs of the patients that they look after.
Although local providers are best placed to do this based on local need, we expect them to look to authoritative guidance and evidence-based tools and learn from best practice to deliver cost-effective and safe care. We recognise that there is a need for national action to ensure that local organisations meet those expectations. As a result of the national nursing and midwifery strategy and vision published in 2012, Compassion in Practice, a considerable amount of work is going on across England to ensure that providers use evidence-based tools, using acuity and dependency measures to set staffing levels, and for boards to publish these staffing levels on a regular basis.
I want to explain what we are now doing to build on that work. First, the Chief Nursing Officer, supported by the National Quality Board, is developing guidance for the system, including a set of expectations, to support provider organisations in securing the appropriate staffing capacity and capability for nursing, midwifery and care. This guidance is being developed with the intention of ensuring safe patient care and that patient outcomes are not compromised. It will include expectations on transparency and publication of information on staffing.
This guidance is being developed jointly by the statutory organisations responsible for quality across the NHS, which are brought together as part of the National Quality Board and which include the Care Quality Commission, Monitor, the NHS Trust Development Authority and NHS England. It will be published next month. I can therefore only agree with the intention behind the amendment that providers need to be open and transparent about their staffing numbers. The positive news is that action is already in place to ensure that this happens.
Lord Willis of Knaresborough
What my noble friend has said is incredibly encouraging. However, before he leaves that point, could he take up the very important issue raised by the noble Lord, Lord Warner? This is not just about hospitals; it is also—particularly in my case—about care homes and other community settings. Will the regulations apply to all those settings, so that we get continuity throughout the system?
Earl Howe
My Lords, I am happy to come to that point. The short answer is that that is certainly our intention.
I turn to Amendment 159, about which I will be a little critical. We consider that requiring health or care service providers to,
“publish a report containing staffing levels based on evidence of safe staffing levels supported by acuity and dependency levels for each patient”,
is really not a viable alternative to what we are already putting in place and would not work in practice. It would be burdensome to implement in precisely that form and could detract from the ability of staff to deliver good clinical care.
I understand, of course, the thrust of the thought behind the first part of the amendment, which says that,
“the first duty that a health or care service provider must consider for any decision is patient safety”,
However, it carries the risk of unintended consequences. It could lead to other important factors, such as innovation and service improvement, not being given sufficient weight and providers becoming unduly risk averse. We need to reflect that any innovative treatment—which we want to encourage in the health service—carries some risk. That is always justified by benefits for the wider system. We do not want clinicians to become reluctant to take risks if this amendment were passed.
Also, we do not feel that specifying report requirements for provider boards is the role of the Secretary of State any more. Rather, the focus has to be to allow for local accountability and local decision-making. However, as I have said, we recognise that decision-making tools are needed and I agree with my noble friend Lord Willis about that. We are working with the CQC, NICE and others to ensure that providers have the evidence-based tools they need to make decisions to secure safe staffing levels. These decisions will then be subject to external scrutiny and challenge by commissioners, regulators and the public, and to inspection by the Chief Inspector of Hospitals.
However, at the end of the day we come back to the fundamental point, that it is the responsibility of individual providers to be accountable for staffing levels in their organisations. The existing registration requirements, which are enforced and monitored by the CQC, already recognise the importance of that. That is my response to Amendment 144. The requirements state that providers must take steps to ensure that at all times there are sufficient numbers of suitable staff to carry on the regulated activities that the organisation provides. Additionally, the Chief Inspector of Hospitals has also made it clear that appropriate staffing levels are part of the requirements of registration for the CQC.
In assessing whether a provider meets the registration requirement on staffing, the CQC refers to relevant guidance about staffing levels and skills mix published by professional councils and relevant expert and professional bodies. These include the Department of Health, Skills for Care, Skills for Health, the NHS and the Royal College of Nursing. Where a provider does not meet the staffing registration requirement, the CQC is able to use its enforcement powers to protect patients and service users from the risks of unsafe care associated with inadequate and/or poorly trained staff.
In its consultation document A New Start, published in June this year, the CQC stated that the focus of its new inspection methodology would be on five key domains. Are services safe, effective, caring, responsive to people’s needs, and well led? These domains will cut across all areas of activity, including levels of staffing and skill mix.
Lord Warner
How easy will it be for members of the public to see this material when they are trying to be sure that they are going to a safe place?
Earl Howe
The answer to that question is the rating system, which the chief inspectors are planning to bring in. Proposals for that will be announced very shortly. We attach great importance to that kind of transparency, not only in the NHS but in the care sector. On my noble friend’s question about whether all this would cover the care sector as well as the NHS, as he will know, the CQC issues sector-specific guidance on how to meet staffing registration requirements. Obviously NHS England would only provide guidance that relates to the NHS. As I already said, the Chief Inspector of, say, Adult Social Care would inspect regularly against CQC guidance. The plan is to consult in April 2014 on the CQC guidance on social care.
My noble friend spoke about an emerging consensus on a minimum level of staffing below which care is unsafe. I understand his point, but I am sure he will acknowledge—and did, implicitly, in his remarks—that staffing is not simply about crude numbers; it is not just about nurses. Healthcare assistants and other members of the team all have a key role to play. My noble friend Lady Gardner was absolutely right to point out that the skill mix is relevant in these circumstances. Patient safety experts agree that safe staffing levels should be set locally. It is not for Whitehall to set one-size-fits-all staffing rules. That is exactly why we have asked NICE and other nursing experts to review the evidence, to help organisations to make the right decisions on staff numbers at a local level and then, essentially, to govern themselves. I make it absolutely clear that we fully agree that safe staffing should apply in all settings and that point will be taken into account as we develop our plans.
I hope noble Lords are reassured that action is already being undertaken in a combination of ways, through Compassion in Practice, the CQC registration process, and, shortly, through the role of the Chief Inspector of Hospitals. That will ensure that providers are open and transparent about their staffing numbers and that they assess these staffing levels, not just on the day of an inspection but on a regular basis, using evidence-based tools, and by taking into account local factors that relate to local patient needs and outcomes. I therefore hope that noble Lords will be content to take stock of what I have said and will not press their amendments.
Lord Hunt of Kings Heath
My Lords, I am grateful to all noble Lords who have spoken. I will say at once that I very much support Amendment 159. I agree with my noble friend Lord Warner that the two amendments run in parallel very well indeed.
I know that the noble Baroness, Lady Gardner, thinks that my amendment may be a little too modest. Perhaps it is a start. I assume that the noble Baroness was not chair of the Royal Free when the “poaching” that she described took place. The point was well made.
The noble Earl, Lord Howe, has listed a number of ways in which we could be assured that staffing numbers and skill mix will be okay both in the NHS and the care sector. The fact is that, however much information is published and however much this might be part of the licensing regime of CQC, these organisations have been around for some time. There is consistent evidence that staffing levels are not sufficient. We have already had the Francis report, which said that NICE should undertake benchmarking on staffing levels. The Keogh report on the 14 hospital trusts said:
“The review teams found inadequate numbers of nursing staff in a number of ward areas, particularly out of hours—at night and at the weekend. This was compounded by an over-reliance on unregistered support staff and temporary staff”.
The Berwick report goes over the same ground. At the end of the day, I do not think there is enough beef in the system to ensure that we have adequate support staff. If NICE is going to carry out the benchmarking, which is a very good thing, we need to make sure that the regulator actually has some beef in terms of ensuring that we get adequate staff levels in clinical areas. I think that my Amendment 144 ensures that that will happen. I should like to test the opinion of the House.
“(13) Consultation undertaken before the commencement of this section is as effective for the purposes of subsection (9) as consultation undertaken after that commencement.”
Earl Howe
My Lords, I shall speak also to Amendments 152B to 152F. These are amendments to the clauses that establish a new offence and penalties where care providers provide certain false or misleading information. Together with the new duty of candour on providers that we considered last Wednesday, this measure is key to supporting openness and transparency among care providers.
We are making two substantive amendments. First, Amendment 152F extends the offence to directors and other senior individuals who consent to or connive in an offence committed by the care provider, as well as to cases where the negligence of senior individuals has led to the offence by the care provider. This amendment brings the offence into line with a number of other offences that are committed by organisations, such as Health and Safety at Work etc. Act offences and offences under the CQC legislation, where senior individuals are also liable for the offence. This will encourage directors and other senior individuals leading organisations to take greater ownership of the provision of information.
Secondly, since Committee, the Government have reflected on the penalties for this offence. The provision of accurate information is central to the safe functioning of the health and social care system as it provides the intelligence on which commissioners and regulators form judgments about the quality of care. Where that information is wrong, it can result in delays in taking action to protect patients and service users. Falsifying such information is a serious matter that can frustrate attempts to provide safe care for patients and service users. In the light of this, we believe that a custodial sentence is warranted in the most serious cases. I am therefore bringing forward Amendment 152E, which introduces a maximum penalty on indictment of two years’ imprisonment. I emphasise that the Government are not of the view that the custodial penalty will be used with any frequency. The aim of the offence is not to punish directors and other senior individuals but, rather, to drive improvement and performance.
The amendments also address a number of concerns that were raised in Committee. There was some debate about the scope of the false or misleading information offence. I should like to make it as clear as possible that the false or misleading information offence will apply only to the provision of publicly funded care. We will specify in regulations—a preliminary draft of which we have shared with noble Lords ahead of the debate—which information this will relate to, starting with information provided by hospitals. We are making a small number of amendments to clarify the scope of the offence. First, we are amending the definition of a care provider to make it clear that this does not include commissioners or regulators. We are also amending the wording so that the offence could apply to sole traders and all types of partnerships, such as GP practices, and to care providers who are funded by service users under direct payment arrangements. I beg to move.
Lord Hunt of Kings Heath
My Lords, I want to ask the noble Earl just one question. Why does it not apply to commissioners? We know from events that have happened in the past few years that in many cases commissioners have been responsible for issues by sins of omission or by not being completely open. It is a puzzle to me why all the emphasis is on providing and not on the way that commissioners actually operate. There is evidence, for instance, that the way some commissioners operate can have a direct impact on the quality of provision. We have already discussed this in relation to 15-minute visits. I am puzzled as to why so little attention is being paid to the way that commissioners themselves should operate.
Earl Howe
That is a perfectly reasonable question. The short answer is that, in determining the scope of this offence, our focus was and is on information that is closest to patient care, where inaccurate statements can allow poor and dangerous care to continue. That approach responds directly to the Francis report concerns about the manipulation of patient safety information. We believe, therefore, that the proposals are focused and proportionate. We are targeting this offence on the key patient safety and quality data that commissioners and regulators use to assess performance. We think that we have the balance right.
“Offences by bodies
(1) Subsection (2) applies where an offence under section 84(1) is committed by a body corporate and it is proved that the offence is committed by, or with the consent or connivance of, or is attributable to neglect on the part of—
(a) a director, manager or secretary of the body, or(b) a person purporting to act in such a capacity.(2) The director, manager, secretary or person purporting to act as such (as well as the body) is guilty of the offence and liable to be proceeded against and punished accordingly (but section 85(2) does not apply).
(3) The reference in subsection (2) to a director, manager or secretary of a body corporate includes a reference—
(a) to any other similar officer of the body, and(b) where the body is a local authority, to a member of the authority.(4) Proceedings for an offence under section 84(1) alleged to have been committed by an unincorporated association are to be brought in the name of the association (and not in that of any of the members); and rules of court relating to the service of documents have effect as if the unincorporated association were a body corporate.
(5) In proceedings for an offence under section 84(1) brought against an unincorporated association, section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates’ Courts Act 1980 apply as they apply in relation to a body corporate.
(6) A fine imposed on an unincorporated association on its conviction for an offence under section 84(1) is to be paid out of the funds of the association.
(7) Subsection (8) applies if an offence under section 84(1) is proved—
(a) to have been committed by, or with the consent or connivance of, an officer of the association or a member of its governing body, or(b) to be attributable to neglect on the part of such an officer or member.(8) The officer or member (as well as the association) is guilty of the offence and liable to be proceeded against accordingly (but section 85(2) does not apply).”
“Training for persons working in regulated activity
In section 20 of the Health and Social Care Act 2008 (regulation of regulated activities), after subsection (4) insert—“(4A) Regulations made under this section by virtue of subsection (3)(d) may in particular include provision for a specified person to set the standards which persons undergoing the training in question must attain.””
Earl Howe
My Lords, in Committee noble Lords were rightly concerned about the way that healthcare assistants and social care support workers are trained and supported to carry out the crucial tasks assigned to them. Amendments were also tabled concerning the regulation of this group of workers. I sought then to reassure noble Lords that the Government were determined to ensure that this important part of the workforce received high-quality and consistent training to deliver the best standards of support and care to patients and service users. Having listened very carefully to the views expressed in Committee, I have reflected a great deal on this important issue and today I am able to go further than I was able to do on that occasion.
First, however, I shall provide a short recap. What we are now doing will mean building on what we have been putting in place since your Lordships’ House last discussed this issue during the passage of the Health and Social Care Act 2012. Common induction standards have been in place in social care since 2005, but the sector skills councils jointly published a code of conduct and national minimum training standards in March 2013. The standards place dignity and respect at the centre of the knowledge required to provide safe and effective care. The sector skills councils engaged comprehensively in the development of both the NMTS and the code of conduct across the health and social care sectors, including NHS and social care providers, the Health and Care Professions Council, the Royal College of Nursing, the Royal College of Midwives, the Nursing and Midwifery Council, and patient representative groups.
We know that we need to build on these standards. The department is investing £130 million in training and developing the social care workforce this year. Working through Skills for Care, the Department of Health provides funding of some £12 million each year to social care employers to train and develop their workforce. Health Education England is also investing £13 million in the training and development of healthcare assistants.
Earl Howe
My Lords, I am very pleased that noble Lords have recognised the announcement I made today about the development of the care certificate, led by Health Education England working with professional bodies and the sector skills councils. It goes a long way to ensuring that we address training and quality standards for this part of the workforce.
I shall do my best to answer the questions that have been put to me. First, I pay tribute to my noble friend Lord Willis who has made a very important contribution to the debate on healthcare assistants in the Willis Commission on Nursing Education. I acknowledge his long-standing interest and expertise in this area. While the government position on a recommendation such as regulation is different from his—I will come on to regulation in a moment—we share his concern that healthcare assistants and social care support workers need to have the training to do the tasks that they are asked to do. I am well aware of the recommendations that he has made in that area and we will not lose sight of them.
My noble friend asked about government Amendment 153 and why it does not say “must” instead of “may”. First, I can confirm that we will make regulations in this area. The amendment provides an expressed power to delegate the standard-setting function to another body if we so choose. It is in the Secretary of State’s power to delegate. The amendment states “may” because the Secretary of State may in the future wish to set the training standards which he would be able to do under his existing powers. The Secretary of State would not be able to do that if regulations had been made that delegated this function to another body.
The noble Lord, Lord Warner, asked what the care certificate will look like. It is a little too soon for me to answer that in any detail. Health Education England is still considering that issue because of the range of settings in which healthcare assistants and social care support workers operate. We have asked Health Education England to ensure that the approach to the care certificate is flexible so that it is meaningful in every setting. As Camilla Cavendish recommends, they will need to build on the best of the training and development practice which is out there, and the good work that is being done on the code of conduct and the national minimum training standards. A key requirement is to ensure that the skills and behaviours are taught so that we move away from the tick-box approach identified in some instances in the Cavendish review. I know that that is a particular concern—rightly—of the noble Baroness, Lady Emerton. Equally, the noble Lord, Lord Warner, was right to say that we have to think about the mechanisms which would allow, in appropriate cases, the withdrawal of a certificate where an individual had been found wanting in their caring skills.
The noble Baroness, Lady Emerton, asked who will be involved in the development of the certificate. As I have said, Health Education England has been asked to lead this work. It will engage with sectoral bodies, including the sector skills councils, but also more particularly the NMC, the RCN and providers of care. The department will be involved as well. I can reassure her that the code of conduct and the national minimum trading standards were not solely the product of the sector skills councils but were very much the result of consultation and cross-sector working with a number of professional bodies.
My noble friend Lord Willis asked whether there would be an advanced certificate. An advanced certificate, bridging into nursing qualifications, certainly needs to be considered as part of the wider response to Camilla Cavendish’s report and we may have more to say about that when we make our official response. However, we agree that any work done by Health Education England must look at the broader picture and the other recommendations made by Camilla Cavendish.
My noble friend also asked about recognising existing high standards of training, where those pertain. He is absolutely right that we need to build on the best training that is out there and to recognise the tasks that people are called upon to do. The Cavendish review makes recommendations on better quality assurance which we are also considering.
The noble Baroness, Lady Wall, asked what we do about healthcare assistants and social care support workers who are already working in the field. That is a point of detail which is still to be worked through but, in principle, if someone is already working as a healthcare assistant or social care support worker and meets the standards there should be some way for them to demonstrate this without having to undergo unnecessary repeat training.
The noble Lord, Lord Hunt, suggested that, if we have gone this far, it is almost inevitable that we should proceed to regulate this sector of the workforce. I do not agree with him, but, in answer to the noble Lord, Lord MacKenzie, our minds are still open to the possibility of regulation at some time in the future. However, we need to bear in mind that statutory regulation is not just about training: it is a much broader process and we do not currently view it as appropriate or proportionate for healthcare assistants and social care workers. Statutory regulation involves setting standards of conduct required within a scope of practice; protecting commonly recognised professional titles; establishing a list of registered practitioners, which is quite an onerous process; providing a way in which complaints can be dealt with fairly and appropriately and allowing a regulator to strike off an individual from a register. We must make no mistake about how complex a business this is. I emphasise that we will continue to review this whole question as we go along but we do not think it is appropriate at present.
The noble Lord, Lord Patel, asked what sanctions there will be for people who do not meet the standards described in the certificate and the noble Lord, Lord Warner, asked a similar question. Unfortunately, I do not have a detailed answer for him today. However, it is a pertinent point that, as the development of the certificate continues, we will need to bottom out. Managers and the CQC will play a big role and are important in ensuring that the certificate is an effective way of evidencing people’s skills.
The noble Lord, Lord Warner, asked a related question about who an employer tells if they fire someone with the certificate. The process operated by employers under the existing system should include checks on various matters, including qualifications. However, the disclosure and barring service also provides a further layer of assurance by helping employers make safer recruitment decisions and prevent unsuitable people working with vulnerable groups.
The noble Lord asked what level the certificate would be set at. It is, at this stage, basic training but full details have not been finalised and I hope noble Lords will understand that if I go any further on this point I am in danger of pre-empting our formal response to the Cavendish report. Currently, the national minimum training standards cover issues such as how to communicate effectively with stakeholders, how to ensure that care is person-centred, how to handle patients, and infection control and prevention. However, no doubt those issues will be looked at and, if appropriate, built on.
I stress that I recognise how much of an issue of concern this is. I will take the opportunity to reassure noble Lords that, while what I am describing is the right course of action, we will continue to keep under review further measures as necessary. With that, I hope that noble Lords will feel reassured that there is already in place a proportionate system and process to provide public assurance, and that these measures, in addition to the commitments that I made today in relation to the training and development of the workforce, will in their totality be sufficient to enable them to feel comfortable in not pressing their amendments.
“(0 ) The non-executive members of HEE must include a person who will represent the interests of patients.”
Earl Howe
My Lords, I will speak also to Amendments 155, 156, 157, 161, 162, 163 and 164.
It is important that Health Education England, through its education and training functions, is able to develop a workforce that is informed by, and responsive to, the needs of patients and service users. Robert Francis QC highlighted the importance of embedding a culture of listening to, and engaging with, patients in his report of the Mid Staffordshire NHS Foundation Trust public inquiry. The report included a recommendation that Health Education England should include a lay patient representative on its board. The Government supported that recommendation and tabled Amendment 154 to require the Health Education England board to include a non-executive member who will represent the interests of patients. Indeed, we have already taken steps to recruit such a non-executive member to the board of the Health Education England Special Health Authority. However, it is our intention to go further. Amendment 162 would require local education and training boards to include a person who will represent the interests of patients.
Amendments 163 and 164 reflect minor changes to the drafting of Clause 94. Together, they clarify that the regulations requiring clinical expertise on LETBs relate to the provision in subsection (3)(b) of Clause 94.
In setting Health Education England up as a non-departmental public body, it is important that we give it the appropriate levels of autonomy and flexibility to determine how it organises itself and performs its functions. Amendment 155 seeks to enable Health Education England to arrange for any of its committees, sub-committees, members or any other person to exercise its functions on its behalf. Linked to Amendment 155, Amendment 156 seeks to enable Health Education England to make payments to any of its committees, sub-committees or members, or to any other person to whom it delegates functions. These amendments bring Health Education England into line with other bodies established under the Health and Social Care Act 2012 that have powers enabling functions to be exercised by their committees and by their non-executive and executive members. It is also consistent with Amendment 165, which covers the Health Research Authority.
Amendment 157 seeks to amend the Bill to clarify that Health Education England may not delegate the functions of a local education and training board to any other committee, sub-committee, member or any other person. The functions of the LETB will continue to be the sole responsibility of those committees established as local education and training boards. This is important and reflects the discrete role of the local education and training boards and the separation in the Bill of responsibilities for national and local education and training functions.
We had an excellent debate in Committee on the important role that education and training can play in supporting research. I know we are all in agreement that it is vital to create a workforce in the health service that is innovative and research-literate, with the skills required to diffuse the latest ideas and innovations.
The noble Lords, Lord Turnberg and Lord Patel, and my noble friend Lord Willis sought reassurance that the duty placed in Clause 89 on Health Education England to promote research would be equally applicable to LETBs when exercising their local workforce planning, education and training functions. As I set out in Committee, our view is that local education and training boards are obliged to support Health Education England in delivery of its primary duties. However, I have given this some thought and agree that it is important to reinforce the Bill to make this clearer. Amendment 161 not only seeks to clarify that the duty to promote research applies equally to LETBs but makes it clear in the Bill that Health Education England’s duties relating to continuous quality improvement and promotion of the NHS Constitution apply also at a local level.
These amendments will strengthen the patient voice within Health Education England and the local education and training boards, provide greater autonomy and flexibility, and ensure a strong research duty. I hope that noble Lords feel able to give these amendments their support. I beg to move.
Baroness Wheeler (Lab)
My Lords, we very much welcome this important group of amendments. If one reads back over the debates on the Bill in Committee, there can be little doubt that the provisions for HEE and LETBs have been considerably strengthened and improved by your Lordships’ detailed scrutiny and deliberations. These amendments consolidate that work.
We have also been encouraged by the progress that HEE has been making under the leadership of Sir Keith Pearson. The website demonstrates this, and the HEE leadership team has been highly visible at conferences and forums, setting out its proposed strategic priorities and consulting on the way forward. In particular, HEE seems to have taken up the key message that, in educating and training staff for NHS and public health, it must have a strategic understanding of the workforce requirements across the boundaries of health and social care and of the need for staff to work in an integrated way. This has been a major concern. I was pleased, for example, to hear the HEE medical director, Wendy Reid, emphasise this at a recent Westminster Health Forum workforce conference that I chaired.
These amendments strengthen the role of LETBs by emphasising that HEE duties under Clause 89 to ensure that quality improvement in education and training, promotion of research—as the Minister has stated—and the NHS Constitution all apply to LETBs. This is an important provision and reflects concerns expressed in Committee that LETBs must pay attention to the maintenance of standards and quality in education and training, as well as ensuring that sufficient numbers of staff are trained locally. This was a point made by my noble friend Lord Turnberg and which the Minister addressed earlier.
Amendments explicitly providing HEE with authority to delegate its functions to its committees, sub-committees, members or other persons are important in allowing HEE the flexibility that it needs to deliver its priorities and functions, and we strongly support them.
On HEE board and LETB representation, we join other noble Lords in expressing our relief at the government amendments, which ensure that people with clinical expertise are appointed to both bodies. This was a serious omission and its inclusion now greatly strengthens the Bill, as does the Government’s commitment that regulations will place a specific requirement on HEE and LETBs to include a nurse and a doctor. It is particularly important, as my noble friend Lord Hunt underlined in Committee, for the people in the driving seat on education and training requirements, standards and future needs at local level to be those who provide the services. HEE and LETBs must understand the pressures that the service is under in relation to staffing and to ensuring that education and training is flexible and responsive to the rapidly changing face and needs of health and social care. The implementation of the Francis recommendations for a lay patient representative on the HEE board and LETBs is also a key change to the Bill, which we strongly welcome and which will only enhance the work and effectiveness of those bodies.
Finally, as supportive of HEE as we are, it is hard to see in HEE work to date a clear strategy for developing the vital cadre of NHS managers that is needed to lead the NHS in the coming months and decades. There was a strong concern about this in Committee and the need for close working with HEE and the NHS Leadership Academy was acknowledged by the Minister. The Joint Committee wanted to see a statutory commitment for HEE to work in partnership with the academy, to ensure that managers in training work alongside their clinical colleagues and to increase the number of managers in the future who have clinical experience. Does the Minister not agree that this needs to be an explicit, upfront priority for HEE, which translates through to the work of LETBs? How will the Government ensure that this vital issue is addressed?
Earl Howe
My Lords, I turn first to the amendment in the name of the noble Lord, Lord Aberdare. He has, of course, raised a very important matter. I think that it would be too ambitious for me to offer him complete comfort on this issue at the Dispatch Box, but I hope that I can give him some. It is essential that patients have their conditions diagnosed promptly and effectively. Both Health Education England and the other responsible bodies, such as the professional regulators and royal colleges that are involved in setting the standards and content of education and training, must work together to ensure that the latest best practice is followed to deliver the best possible outcomes for patients. That is fundamental.
Going further, I reassure the noble Lord that in delivering its education and training functions, Health Education England will be very focused on doing so in a manner that supports the efficient delivery of NHS and public health services and the achievement of the best possible outcomes for patients. Health Education England has a clear duty in Clause 89 to exercise its education and training functions with a view to securing continuous improvement in the quality of health services. Those are not idle words; they are significant.
It is also important to remember that the NHS Constitution includes pledges on access to NHS services, including the right to access services within maximum waiting times. The Government are clear that bodies in the new health system must support the NHS constitution, which is why in Clause 89 there is a clear duty for Health Education England to promote the NHS constitution.
Finally, the list in Clause 91 of matters that Health Education England must have regard to includes the Government’s mandate to NHS England. I reassure the noble Lord in that context that the mandate already contains an explicit objective for NHS England to make progress in supporting the earlier diagnosis of illness as part of preventing people from dying prematurely. I acknowledge that this is a very important matter. I hope that for the reasons I have set out the noble Lord will feel somewhat comforted and reassured, at least enough not to press his amendment. I have no doubt that this is a debate that we will continue to have at reasonably regular intervals.
The noble Baroness, Lady Wheeler, asked what role Health Education England will play in developing NHS managers and whether it should be a priority for it. Health Education England is working closely with the Leadership Academy to support the development of the next generation of managers and clinical leaders. The Government included this as an objective in Health Education England’s mandate.
“(1A) HEE may arrange for any of its committees, sub-committees or members or any other person to exercise any of its functions on its behalf (but see sub-paragraph (4)).”
“( ) Subsections (1), (2) and (4) of section 89 (quality improvement in education and training etc.) apply to an LETB in the exercise of its functions as they apply to HEE in the exercise of its functions.”
( ) a person who will represent the interests of patients.”
Earl Howe
My Lords, at this point it will be convenient to consider also Amendments 166, 167 and 168. We have previously had some valuable debates about the Health Research Authority’s role in promoting transparency in research. I thank the Joint Committee that scrutinised the draft Bill and the Science and Technology Select Committee in the other place for their reports, which have informed Amendments 166 and 167.
In previous stages of the Bill’s passage, the noble Lords, Lord Patel, Lord Turnberg, Lord Warner and Lord Winston, the noble Baroness, Lady Wheeler, and my noble friend Lord Phillips of Sudbury have made particularly valuable contributions to the debate on this issue, which I have listened to with considerable interest. The Government have also discussed the Health Research Authority’s role in promoting transparency with stakeholders and with the existing special health authority.
The life sciences industry plays a key role in the Government’s strategy for economic growth and makes a valuable contribution to both the health and wealth of our nation. The Government agree that there is a powerful case for increasing transparency in clinical trials. Ensuring that research is registered and published and that data, information and tissue are available where relevant will help to make the best use of research, thereby maximising the health benefits for patients and the public from research undertaken and thus maximising the return on our investment in research. Amendment 166 makes it explicit that the Health Research Authority’s objective of facilitating the conduct of safe and ethical research includes promoting transparency in research. Amendment 167 lists some of the ways in which the HRA must promote transparency.
The existing special health authority is already making great strides in promoting transparency in research. The Health Research Authority published an action plan in May 2013, which received widespread support from a range of stakeholders including researchers, research sponsors, funders, professional bodies, stakeholders and members of the public with an interest in transparent research. Since 30 September, registration of clinical trials in a publicly accessible database has been a condition of favourable ethical approval from a research ethics committee.
These amendments will ensure that the Health Research Authority continues to promote greater transparency in research when it becomes a non-departmental public body. By doing so, that authority will continue to reassure people who participate in research that research is not duplicated unnecessarily and that unnecessary risks and burdens continue to be avoided. As promoting transparency in research is specifically included within its objective under Amendment 166, the Government would expect that the annual report would cover the authority’s measures to meet this section of its objective. While there is more to be done in this area, including by research funders, I hope that I have been able to reassure noble Lords that great strides are being taken and will continue to be taken.
Amendment 165 clarifies that the Health Research Authority may delegate any of its functions to any of its committees, sub-committees, members or any other person. The amendment mirrors a similar amendment that we have already debated with respect to Health Education England in Schedule 5—it was Amendment 157.
Finally, I would like to explain briefly Amendment 168, which corrects an oversight in the drafting of the Bill. It ensures that an appropriate body under the Mental Capacity Act (Appropriate Body) (England) Regulations 2006 is a research ethics committee recognised or established by or on behalf of the Health Research Authority, rather than a research ethics committee recognised by the Secretary of State.
I thank noble Lords and others for the contributions that have informed the amendments on the HRA’s role in promoting transparency in research. I hope that they will be welcomed. I beg to move.
Lord Willis of Knaresborough
My Lords, first, I declare an interest as the chair of the Association of Medical Research Charities. The brief comments that I am about to make are an amalgam of those made with the Academy of Medical Sciences, Cancer Research UK and the Wellcome Trust. On behalf of all those organisations, I can say how much we welcome these amendments and the way in which the HRA has so quickly become embedded into the research psyche. The work that it is doing ensures that on each of the major obstacles—of which ethics was the first, particularly in local ethics committees, but going right through to the regulation that it is starting to streamline, particularly with the Human Tissue Authority—we are really seeing a march forward. Frankly, the progress that has been made has staggered me. I congratulate not only the chairman and chief executive of that organisation but the Minister himself.
Earl Howe
My Lords, I am very grateful to noble Lords for their questions and comments. Without spending too much time, I shall try to cover the questions raised. Anything I do not cover, I undertake to answer in a letter. My noble friend Lord Willis asked a number of questions about how he should interpret the provisions in Amendment 167 in particular. Incidentally, it is important to point out that the way Amendment 167 is framed means that the HRA may do other things to promote transparency and research, not just the things that are listed in the amendment. The HRA should do what is set out in paragraphs (a) to (e), but it is not an exclusive list.
My noble friend asked me whether we should not be talking about registration of clinical trials instead of research. The amendment requires the HRA to promote the registration of research because we want to encourage transparency in all health and social care research. Greater knowledge about what research is under way or has already been undertaken is essential, so that new research can build on it, minimising the risks, intrusions and burdens for patients. We think that that applies to all research, not just clinical trials. The amendment requires the HRA to promote registration of research; it does not create a requirement for all research to be registered. I hope that that will ease my noble friend’s mind a little.
In delivering its objective of facilitating safe and ethical research, I would expect the HRA to take into account what databases are available for the registration of research, any existing requirements to register research, the need for requirements on registration to be proportionate and practical, and what is happening internationally. In doing so, presumably the HRA would consult stakeholders on achieving this part of its objective.
My noble friend asked me what is meant by,
“promoting … the provision of access to data on which research findings or conclusions are based”.
It is important that the data generated during research are made available to others, where possible, while protecting patient confidentiality. That helps to ensure that we maximise the benefit from investment in research. The Health Research Authority special health authority is currently planning to strengthen the research ethics committee review of researcher intentions, to make findings, data and tissue available. It is undertaking a pilot to consider whether the introduction of ethics officers will increase the proportion of favourable opinions at first review, improve the timelines of review and reduce the administrative burden on research ethics committees. That includes a review of researcher intentions to make findings, data and tissue available.
My noble friend referred to patient confidentiality. I stress, as I have on previous occasions, that in promoting the provision of access to data on which findings or conclusions are based, the common law duty of confidentiality and the Data Protection Act 1998 apply. The HRA will need to take account of these in delivering this part of its objective. We do not believe that it is necessary to state this explicitly in paragraph (c) of Amendment 167.
The noble Lord asked what is meant by,
“promoting … the provision of information at the end of research to participants in the research”.
Participants who take part in research have said that they want to be able to access the results of the research, and that was confirmed by recent HRA public engagement work. The HRA is working with others to set standards and provide guidance on how information should be provided to participants. Consideration of these plans against agreed standards will continue to be an issue for research ethics committees to review at approval. That work will continue through the HRA’s involvement work stream.
My noble friend questioned whether the results should be released to every participant, perhaps in aggregated form. It will be for the HRA, as an NDPB, to set out in its guidance for researchers its expectations as to the information they should provide to research participants at the end of the study. We would expect the HRA to develop its expectations, not only with stakeholders but with research participants themselves. We do not think that it is necessary to state explicitly that information should be in aggregated form.
As regards access to tissues, my noble friend made a good point. Human tissue is a valuable resource for research. Disposal should be a last resort. Making tissue available at the end of a study allows other researchers to make use of material already collected. Maximising potential for research from tissue collected helps to reduce the risks, burdens and intrusions placed on people by minimising the need to collect further tissue. Making tissue available at the end of a research study might involve the tissue being transferred to an appropriately licensed tissue bank, for example. We recognise that tissue has a limited life, and, through quality and assurance systems, tissue that should be disposed of is identified by either the tissue bank or the researcher. I can expand on that for my noble friend if he would like me to.
The noble Baroness, Lady Wheeler, asked whether the Government would ensure that CCGs and NHS staff engage in research. I am pleased to remind her that CCGs have a duty to promote research under the Health and Social Care Act 2012. I hope that that has covered at least the majority of the questions.
Care Bill [HL]
Earl Howe Excerpts(11 years, 8 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, the reason for this Motion is that the Government wish to give the House the opportunity to amend the order in which we take our Report stage debates today. Last week, I became aware of some concern that my Amendment 168A, relating to trust special administration, would have fallen for debate at a rather late hour this evening. I assure the House that this was not by design and that the Government are more than happy to facilitate an earlier debate. Clearly, the issue of trust special administration is an important one. I understand the wish of some noble Lords to debate it fully in prime time. Accordingly, the Motion in my name would allow the debate on Amendment 168A to be taken at the start of today’s proceedings on the Bill. I should also indicate to the House that in response to the request put to me last week by the noble Lord, Lord Hunt of Kings Heath, I would have no objection to relaxing the rules of debate that normally apply on Report so that this amendment can be debated in full if that, too, is the desire of the House. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I am most grateful to the noble Earl, Lord Howe, following my intervention last week. I made a similar proposition to the usual channels last Thursday, only to be told that there would be dire consequences for everything that your Lordships hold dear. I am glad that sense has none the less prevailed. I very much welcome this and support the noble Earl in his Motion.
Ageing: Public Services and Demographic Change Committee Report
Earl Howe Excerpts(11 years, 8 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I begin by congratulating the noble Lord, Lord Filkin, not only on raising this important debate but on chairing the committee that produced Ready for Ageing?. I thank the other members of the committee for their work on this valuable report. I am sorry that we were unable to discuss the report earlier in the year. However, had we done so, we would not have had the advantage or the pleasure of listening to my noble friends Lord Livingston and Lord Borwick deliver their superb and wise maiden speeches.
The committee’s report covers a number of very important and fundamental issues. As a result, it has provoked discussion and debate across government about how we can continue to work together most effectively to meet the needs of an older population. This country faces major demographic and economic challenges as a result of an increasingly ageing population. We welcome the committee’s report, which shares the Government’s ambition of making this country a great place in which to grow old. If we think about what such a country should look like, it is a place where older people get excellent care and support when they need it, where people are supported to live independently, where people plan and save to ensure a good retirement income in later life and where we make the most of the skills and talents everyone has to offer.
We know the challenge is significant. The quality of our later life is an issue which affects us all. The noble Lord, Lord Bichard, was right that cross-government co-ordination and focus are crucial to achieving success. We all have responsibility for ensuring we make the most of the extraordinary opportunity of increasing life expectancy, as the noble Baroness, Lady Finlay, rightly pointed out. These challenges are for individuals and communities, for local and national government and for the private and third sectors.
The Government’s response to Ready for Ageing?, published in July, describes the far-reaching programme of reforms we have put in place, as well as the plans we have for further work, which we believe will begin to address the challenges that the noble Lord and his committee have set out. The noble Lord, Lord Warner, was correct to highlight the pressures on the NHS. For example, the NHS handles more than 2 million unplanned admissions to hospital a year for people aged over 65. These account for 68% of hospital emergency beds and the use of more than 51,000 acute beds at any one time. It would simply not be sustainable for those admissions to go on increasing in line with demographic changes. We know that, to adapt and respond to future need, the health and care system needs to change. The challenges set out in the report create an opportunity for the NHS and local authorities to innovate and explore new ways of working, better to meet the needs of the local populations and optimise the use of available resources.
I listened with a very considerable measure of agreement to the noble Lord, Lord Bichard. Our vulnerable older people plan will strengthen primary care to make sure vulnerable and elderly people, including those with long-term conditions, have the support they need to keep them in better health and out of hospital. These are urgent and absolutely necessary changes to help ensure that our health service is person-centred, efficient and sustainable for the future. It is our ambition that people should receive high-quality, integrated and person-centred services that deliver the best outcome to the service user and make the system as a whole more efficient.
The noble Lord, Lord Filkin, questioned whether bottom-up change would be sufficient to transform health services. On 26 June, we announced the establishment of a £3.8 billion integration transformation fund, a pooled fund between local government and health to drive forward better integration between health and care services. It is perhaps more of a top-down initiative than the Government have been used to, but we felt that it was necessary.
The noble Baroness, Lady Finlay, and my noble friend Lord Mawhinney referred to the need for a 24/7 NHS, and my noble friend questioned how we would create that. Professor Sir Bruce Keogh, medical director of NHS England, is undertaking a review, consulting patients, the public and NHS staff to help shape the future of urgent and emergency care services. The review is investigating the provision of urgent and emergency care as part of a drive to promote more extensive seven-day services in the NHS and developing a national framework to build a safe, more efficient system. I can tell my noble friend that we are holding Sir Bruce to account for delivery of that framework. We urgently need to improve the way we offer care between our hospitals, primary and community care, and social services. Better integration and communication between these services is the key to success.
I can tell the noble Lord, Lord Crisp, that the NHS is planning for the longer term. In July, NHS England published NHS: A Call to Action. This is a first step in a sustained programme of engagement between NHS users, staff and the public around how the NHS will meet future challenges, including an ageing population and a significant increase in the number of people with long-term conditions. We are also consulting on major changes to the way in which people plan and pay for their care. The reforms will give everyone the peace of mind that they will get the care they need, and that they and their home will be protected from huge costs if they develop very complex care needs.
My noble friends Lord Borwick and Lord Griffiths and the noble Baroness, Lady Greengross, were absolutely right: enabling older people who can work to stay in work is critical to the economy and pension sustainability, and to the financial health and social well-being of individuals. The noble Lord, Lord Hunt, made that point as well. We have abolished the default retirement age, meaning that most people can now retire when the time is right for them. However, employment rates for older people remain lower than for some of their younger counterparts, and we must ensure that older people who wish to contribute in the workforce have the opportunity to do so. To that end, we have announced our commitment to publish an extending working life framework for action early next year.
The state pension reforms, which are currently in the House of Commons, will replace the two-tier pension system with a simpler, single-tier state pension for future pensioners. The full rate of the new state pension will be set above the basic means test, helping to provide a clear foundation for retirement saving. The reforms will underpin the rollout of automatic enrolment, which will see 6 million to 9 million people saving more, or saving for the first time, into a workplace pension. I can tell my noble friend Lord Griffiths that increasing the basic state pension by the triple lock is part of the secret here—a minimum of inflation, earnings or 2.5%. From April this year, the basic state pension has represented a higher share of average earnings than at any time since 1992.
The noble Lord, Lord Hutton, with his insight into these areas, spoke with great authority about defined contribution pension schemes. Automatic enrolment and the single-tier pension will provide a firm foundation for saving for retirement, but if the current forms of defined contribution pension saving become the default alternative to defined benefit schemes, the pension income of future generations from workplace pensions will be more uncertain than for past generations. Over the past 12 months, the defined ambition project, a joint project between DWP and the pensions industry, has been exploring options in a middle ground that do not leave either individuals or employers shouldering the entire risk of pension saving. The Government will shortly publish a consultation paper outlining the conclusions from this work and proposals for defined ambition pensions. Following the response, the Government will consult on draft legislation.
The noble Lord, Lord Filkin, and my noble friend Lady Thomas referred to the imperative of housing, as did the noble Baroness, Lady Wilkins. The Government are providing £315 million to help to develop specialist housing for older people and adults with a disability. That tailored accommodation will help people to retain their independence for as long as possible and provide a better quality of life at the same time as maintaining links to family and friends and retaining ties to their local communities.
I can tell my noble friend Lady Thomas that the care and support specialist housing fund will be paid out in two tranches. The first tranche will provide 3,000 extra specialist houses for older and adult disabled people; the second will support development of private sector housing for that group. All that is in addition to £4.5 billion being invested over the spending review period to deliver 170,000 affordable homes by 2015 for rent and affordable home ownership. That investment will lever in £15 billion of private sector investment, a total of £19.5 billion invested in new affordable housing. The National Planning Policy Framework, published last year, should deliver a wide choice of homes and plans for a mix of housing based on demographic trends and the needs of different groups in the community, such as older people.
Those are just a few examples of the wide-ranging reforms that are detailed in the Government's response to Ready for Ageing?. To follow up a point made by my noble friend Lord Livingston, work that we are doing today will mean that future generations will not be burdened with huge debts. As Albert Camus said:
“Real generosity towards the future lies in giving all to the present”.
Public provision must continue to adapt and respond as the needs and expectations of the population change. At the same time, individuals must take personal responsibility for planning for their later life, making choices and exercising control.
However, we are conscious that that is not the whole answer. I can reassure the noble Lord, Lord Filkin, and my noble friend Lord Ridley that work is ongoing across government to identify the scale of the challenges ahead. At a ministerial level, we will then consider how we should meet those challenges. I say to my noble friend Lord Mawhinney that this is definitely a matter for government. We will use this work to look for opportunities to innovate and explore new ways better to meet the needs of our local communities and optimise the use of available resources.
The Department of Health does not make its own projections of demographic changes, but is informed by work undertaken by academic experts in the field. Their models were developed under a programme of research funded by the Department of Health and other funding agencies. Inevitably, although they are plausible assumptions, there is significant uncertainty about the direction of future trends, and there is no consensus among academics. However, the department is confident that it is informed by the best modelling and evidence available.
My noble friend Lady Thomas rightly observed that social care funding is dropping. She made the point that it was not keeping pace with demand. I would not want to belittle the pressures on local government budgets. However, interestingly, the Health and Social Care Information Centre has recorded a drop in demand for social care. Local authorities report that preventive services, such as reablement of people leaving hospital, are successfully reducing demand on social care. We need to build on that.
The noble Lord, Lord Hunt, called for greater literacy in decisions about paying for care, and I completely agree. I am sure that he will therefore welcome the new advocacy powers that we have inserted into the Care Bill, which local authorities will be able to exercise.
My noble friend Lord Wei asked about the use of crowdsourcing as part of the chief scientist’s analysis. I can tell him that the chief scientist’s work is still being scoped, but I shall pass on my noble friend’s suggestion.
My noble friend Lady Tyler spoke powerfully about loneliness among the elderly, which is a serious issue blighting the lives of many people. We know that the quality of people's relationships has a massive impact on their physical and mental well-being. If we improve social and local connections, we can keep people healthier, active and more resilient for longer. If we do not, as she rightly said, people will continue to have their lives cut short. We are raising awareness of the issue and helping local health and well-being boards and commissioners to get better at measuring the issue in their local communities. This will help them to come up with the right targeted solutions and to drive local improvements that really make a difference. Loneliness and social isolation are problems that government alone cannot solve. For older people, as the right reverend Prelate was right to say, extending working life may be part of the answer, along with encouraging neighbourhood action, volunteering and participation.
The noble Lord, Lord Filkin, raised volunteering, as did the noble Lord, Lord Hunt of Kings Heath. It is vital that the voluntary sector, business and individuals work together to find the right solutions. The Government, alongside Age UK and the Age Action Alliance, are supporting a whole strand of work: a growing network of more than 465 organisations from all sectors of society, including businesses and the voluntary sector, working alongside older people to find practical solutions to the issues that the noble Lord, Lord Filkin, highlighted in his report. ILC-UK, the organisation with which the noble Baroness, Lady Greengross, is involved, is a member of the alliance along with several government departments and businesses such as Microsoft and all the major energy companies.
My noble friend Lord Livingston spoke about carers, and rightly said that they needed support. A summit last year, co-hosted by the Government and Employers for Carers, agreed that a task and finish group would be set up to consider national and international evidence on good practice to support carers who wish to remain in the labour market and to support employers to grow their businesses. He spoke, too, about the use of technology; it is a key priority for government to bring the technology revolution to health and care. We believe that at least 3 million people with long-term conditions could benefit from the use of telehealth and telecare services. Their use can also, incidentally, help social inclusion.
My noble friend Lady Tyler called for the Government to report back on progress. The Government’s response to this report is a first step in an important dialogue between the Government and the public, which must and will continue into the next Parliament. As part of this dialogue, the Government have committed to writing to the House of Lords Liaison Committee in a year’s time to update on the progress of their reforms, as well as providing any new evidence on challenges that might have arisen since the original report was published. This debate has contributed further to that dialogue and I thank the noble Lord, Lord Filkin, for bringing us together today and for his tireless work in raising the profile of these important issues.
Care Bill [HL]
Earl Howe Excerpts(11 years, 8 months ago)
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Lord Hunt of Kings Heath
My Lords, this has been a very important debate and I am sure we are grateful to the noble Lord, Lord Low, for the persuasive way in which he moved his amendment. There was a lack of certainty about the scope of the Human Rights Act, arising from the YL case which decided that a private care home providing residential care services under contract to a local authority was not performing a public function and its residents were therefore excluded from the protection of the Human Rights Act.
The noble Lord, Lord Skelmersdale, was right to remind us that we are on Report, but I wanted to reflect on a point made by the noble Lord, Lord Pannick, in Committee. To an extent, it is an answer to the noble Lord, Lord Faulks. What the noble Lord, Lord Pannick, said is that the vulnerability of the person receiving care and the risk of abuse is the reason why he thought the law should impose duties on the provider under the Human Rights Act. In all those circumstances, it should encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases.
In Committee, we heard from the then Minister, the noble Baroness, Lady Northover, who relied on two defences of the Government’s position. The first was—as the noble and learned Lord, Lord Hope, has reminded us—that those providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves bound by the duty. I am sure that we should all consider ourselves to be bound by many things, but the fact that we consider ourselves to be so does not mean that we are bound by them.
The Government’s second defence was that the Care Quality Commission as the regulator is subject to the Human Rights Act and that may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. It is a duty that falls on the CQC itself, and I remind the House that we are talking about thousands and thousands of providers of services. I do not think that it is a sufficient defence for people who are caught in a vulnerable situation. The noble Lord, Lord Faulks, expressed doubts about including a private function and he pointed to a number of safeguards that already exist, including Section 6 and the CQC, but the vulnerability of so many of the people who we are concerned about seems to express a need for greater statutory provision.
I also remind noble Lords that many of the people we are talking about will move in and out of private care and public care, and at some point under this legislation will actually be in receipt of public support as well as contributing to the cost of their care. We know that when the cap comes in, people will then be entitled to public support, but that does not cover the hotel costs which are estimated at around £12,000 a year. Many people will be in receipt of public support while also having some form of private contract and top-ups, which we have discussed. It would ensure that people had a relationship both in terms of public support and a personal relationship with their private providers. For all these reasons, the argument put by the noble Lord, Lord Low, is very persuasive indeed.
In Committee, the noble Baroness, Lady Northover, said that she thought that talks would be undertaken. I am not aware of those talks and certainly the Opposition have not been invited to them. I hope that the noble Earl will be able to report on what discussions have taken place. At this point, however, we should note the arguments that have been put and I have great sympathy with the noble Lord, Lord Low.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, noble Lords have spoken eloquently in support of these amendments and I appreciate the strength of feeling across the House. This is an important issue that is fundamentally concerned with the safeguarding of vulnerable people. While I always hesitate in the extreme to disagree with so many distinguished noble Lords, including noble and learned Lords, I have to say to the House emphatically that these amendments are neither necessary nor an appropriate way to achieve the objectives that are being sought.
As I said before on this issue, the Human Rights Act is about public functions; in other words, it is legislation that concerns the interface between the individual and the state. This philosophy underpins the European Convention on Human Rights and therefore also the Human Rights Act. The noble and learned Lord, Lord Hope of Craighead, to whom I listened with great attention, referred to the case of YL in response to my noble friend Lord Willis, and he urged that the judgment in that case should be accepted and that we should essentially move on. I respectfully agree with that, but I suggest that the key point in this context is what the previous Government did through the Health and Social Care Act 2008. The Act strengthened the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements that are in line with the relevant provisions of the European convention, and this applies to all providers of regulated activity, which includes personal care whether publicly or privately funded.
Earl Howe
My Lords, I have just described one of those perverse consequences: that we would purport to be giving rights to people which could not be pursued before the European Court of Human Rights. If I could correct the noble Lord, I was not seeking to suggest that the previous Government had addressed the issue that I have been talking about. They addressed part of the issue in the Health and Social Care Act 2008, but there is another dimension to it, as I have said. The amendment would risk creating an asymmetry, which once again risks creating legal uncertainty and confusion.
What people using services and their families want and need is reassurance that they will be treated with care, compassion, kindness and skill. This amendment would not provide any of those things. People are not, surely, really exercised about which route of redress they have if things go wrong so long as they have one, which they do; what they expect is for things not to go wrong in the first place.
I do not accept the argument that putting this measure into legislation will deter those who abuse or neglect, or galvanise providers into preventing those things. It would not send some kind of message that should not otherwise already be amply clear to all providers of care and support: that poor-quality care is unacceptable.
What I think will make much more of a difference are the stronger measures to improve care that the Government are proposing: the emphasis the CQC is placing on individual experience as opposed to paperwork, the improvements in commissioning and the safe routes for whistleblowers. We are amending the requirements that providers have to meet to enable the CQC to take effective action against providers that do not provide acceptable levels of care. With these things in place, it is my view that when things go wrong we will have a strong and effective mechanism for dealing with the situation. For all these reasons I say to the House that the amendment should be decisively and emphatically rejected.
I now turn to Amendments 138A and 138B, also in the name of the noble Lord, Lord Low. Their effect would be that, where a local authority delegates a function, in addition to the local authority remaining subject to all of its legal obligations in the way the function is discharged, the person authorised under the delegation would also be directly subject to those same obligations. These would include, for example, obligations arising under the Human Rights Act. The amendments are unnecessary because when it delegates its functions, Clause 75(6) is clear that the local authority remains responsible for the way that that function is discharged. The person using care and support will therefore always have a route of redress against the local authority even if the local authority has delegated the discharge of the function to a third party.
Furthermore, these amendments could prove unhelpful because, by making both the local authority and the contractor liable, they could create a lack of clarity about who is ultimately responsible for complying with the local authority’s statutory obligations when a function is delegated. We believe strongly that it must remain absolutely clear that the ultimate responsibility lies with the local authority and that it cannot absolve itself of this in any way. This is an important principle of allowing local authorities to delegate their functions and we do not want to cast any doubt on this.
The underlying intent of these amendments is unexceptionable as they are about protecting the rights of people using health and care services. However, I am absolutely and firmly resolved that these amendments will not achieve what we all want, which is that everyone receives safe, dignified and respectful care and that we must prevent abuse in the first place. With that, I can only express the hope that the noble Lord will think again and decide to withdraw Amendment 83.
Lord Warner
Before the noble Earl sits down, can he clarify something from his earlier remarks about the Human Rights Act? I ask with a certain amount of humility but also from the perspective of one of the people who wrote the Labour Party’s policy in 1996 on the incorporation of the European Convention on Human Rights into what became the Human Rights Act in this country. When that Act was framed, the definition of a public function, or the nature of a public function, was one which did not to a great extent anticipate the move over the next 10 to 15 years in which public services would actually be undertaken and provided by private and voluntary bodies. It simply did not do that. However, the terminology was wide enough at the time to embrace an organisation like Channel 4, which had a mix of public and private functions. It was incorporated, as I recall, into that legislation on the basis of its partial role in performing public functions.
The noble Earl seems to accept that, over time, case law can change the definition of the nature of a public function. He seems to be saying that we have to plod through the courts, case by case, to change the definition. I rather lost him when he then tried to argue that you cannot do it by groups of cases, which is effectively what this amendment does. Is the noble Earl saying that the definition of the nature of a public function—in the law as it is—cannot be changed by cases and can only be changed by amending the primary legislation itself?
Earl Howe
I think that I covered that point when I said that the courts have ruled that there is no single test to determine whether a function is of a public or a private nature. They have also pointed out that there are serious dangers in trying to formulate such a test, which is what the amendment is trying to do, in its own way. If we go back to the noble Lord’s example of the 90 year-old lady in the care home and even if the Human Rights Act were to apply, it is impossible to predict the outcome of an application to a court for—let us say—an injunction to prevent her removal, because each case is fact-specific. It may be found that the lady’s human rights were not violated, but it is not possible to predict that in advance. I hope that clarifies the position and answers the noble Lord’s question.
Lord Low of Dalston
My Lords, I thank the Minister for his response, although it obviously leaves me a little disappointed. I do not propose to respond on Amendments 138A and 138B, because I do not propose to press them to a Division when we finally reach them. However, I should like to say something in response to what has been said about Amendment 83.
First, I thank all noble Lords who have spoken, especially those who have spoken in support from all quarters of the House. It has been a high-calibre debate which does credit to a House noted for characteristically engaging in debate of a high calibre. This one was, I think, particularly authoritative. Without wishing to be invidious in any way, I particularly give thanks for the exceptionally thoughtful, careful and authoritative analysis to which we were treated by the noble and learned Lord, Lord Hope of Craighead.
I also observe that we were deprived of the analysis of two of my other supporters who attached their names to the amendment, the noble Lords, Lord Pannick and Lord Lester, who were unable to be here. In those who added their names to the amendment, those who have spoken and those who would have spoken had they been here, we could not have had a more authoritative and heavyweight line-up in support of the amendment in this House.
There has been general agreement that the matter should be put beyond doubt. Indeed, as the noble and learned Lord, Lord Hope, pointed out, it would actually be dangerous if we were not to do so. If I understood the noble Earl correctly, he said that we should stick with the position that was arrived at as a result of Section 145 of the Health and Social Care Act. As the noble Lord, Lord Wills, made clear, when he said that noble Lords should not pray in aid the position arrived at by the previous Government, this is unfinished business. No one can pretend that we have reached a final resolution of these matters with Section 145 of the Health and Social Care Act. That is why it is so important that we should take the opportunity presented by the Bill to take the further steps necessary to put the matter beyond doubt.
We have heard what the noble Earl had to say in response to the debate, but I confess that I am baffled. Between Committee and Report, the Government seem to have executed a complete volte face and completely changed their position. The position explained to us in Committee was that the Government did not believe that the amendment was necessary because the matters that it sought to put beyond doubt were already provided for. Today, the noble Earl tells us that he must urge the House to reject the amendment because the matters should not be provided for. The Government need to make up their mind what their position is.
The Minister also made the point that we should not take this step because it would deliver to service users rights over and above those available under the ECHR. I am sorry, but I simply do not understand that point. The amendment simply delivers to service users rights which are available under the Human Rights Act, which is predicated upon the ECHR. Even the noble Lord, Lord Faulks, agrees, I think, that we should put the matter beyond doubt; he just does not think that we should put it beyond doubt in this way or that the Human Rights Act should be extended this far. Having listened to all the debate, I submit that the noble Lord, Lord Faulks, and of course the Minister in adopting his remarks, are on their own in this matter in the House. There is general agreement not only that we should put the matter beyond doubt, but that we should put it beyond doubt in the manner which this amendment secures. Indeed, until today this agreement used to include the Government.
I think we should put the matter to rest, as the Minister has said, decisively and emphatically in the terms this amendment provides for and which the Government, until very recently, supported in substance, so I wish to test the opinion of the House.
Baroness Gardner of Parkes (Con)
My Lords, I particularly wish to speak on Amendments 83A and 84, but I could just as easily have spoken on any one of these amendments—there is such a big group of them—because the issue that I wish to raise is my concern over this care issue falling down between this Bill and the Children and Families Bill. The timing of these two Bills makes it very difficult unless the Minister, having heard all these debates that everyone will give now, and the comments on these issues, gives us an undertaking that he will liaise with the noble Lord, Lord Nash, and that between them they might try and sort out where it is going to go. This is what worries me: that it will end up going nowhere or come up from the noble Lord, Lord Nash, in a form that will make it too late to bring back here, unless the Minister says that he will look at everything said today and bring back an amendment—or at least accept an amendment if we could all agree on one.
So much of what has been said made sense. The comments of the noble Baroness, Lady Finlay, were fascinating, and the noble Lord, Lord Patel, put it all very clearly. The noble Baroness spoke more on issues about which I am particularly concerned. My eldest grandson is a Down’s child. His Down’s is fairly severe. He has been fortunate in having wonderful care at a Mencap home. He is 22 and this is his last year of receiving full support. He was very happy at the home for some years, until a glitch appeared in the past year. In his unit, a number of residents are put together to live a normal life and to learn how to go out and live in society. Unfortunately, a very aggressive boy was put into the group. No one knew that he was aggressive. He attacked the staff quite violently. As a result, others—I do not know whether it was just my grandson, or whether it was others as well—copied him. This is a terrible risk. If we do not supervise people and have continuing care and assessment of them, how do we know that they will not meet a violent person who behaves in this way, either deliberately or for some other reason—for example, because they are violent and cannot help trying to impose violence on everyone else? It is a real worry not only for the person but for society and the community.
The noble Baroness, Lady Finlay, spoke about the parents who care so much. The parents of this boy are both very clever doctors. One of his siblings is just starting medicine and the other hopes to in the next year or so. So he has siblings who would be able to care if his parents die before him. However, people with Down’s syndrome can live to a considerable age. I have met people of 50 and 60 who have the syndrome. In many cases, their parents will not be alive. It is a huge responsibility to pass on to siblings. Therefore, it is important that, as far as possible, these people should be brought into society to live as normally as they can. As they grow older, they usually grow bigger and stronger. Therefore, they are more of a worry to themselves and to other people. It is terribly important that the assessment of cases for continuing care should be made, and should continue to be made—and not just at 25. If people are going to live to 50, they may need support until then.
A number of the amendments put down by the noble Earl, Lord Howe, cover that issue, but without defining it clearly. This is why I am speaking in general on the amendments in this group. It is important that this should be clear. I have added my name to an amendment of the noble Lord, Lord Rix, in the Children and Families Bill. It is in response to the implication that the Government are thinking of taking out care completely: that once education finishes, nothing more will follow. That is why it is so important to be assured in this Bill that something else will follow.
My daughter tells me—and she has sent me a letter from another parent—that there is great concern that parents are not listened to nearly as much as other people are. The noble Earl’s Amendment 84 does not really cover anyone except a remote person in a local authority who will be responsible for needs. There is nothing to say that they will consult, or even consider the views of, parents or the person who is doing most of the caring for the person concerned. None of the amendments in this group quite reaches what is necessary to cover the issue. I hope that when the Minister sums up, he will give an assurance that will leave the way open for this to be considered at Third Reading. The rules on what can be brought back at Third Reading are very specific. If today we all ended up either winning or losing on some particular thing, it would not necessarily mean that we could modify it in a way that we all thought was better and brought a better answer. I support Amendment 83A and probably quite a number of others, but I will not go into the details because my argument applies both for and against so many of these amendments and I do not want to waste the House’s time by speaking more than once.
Earl Howe
My Lords, I am pleased that I have been able to table amendments that significantly strengthen these important provisions, and I am grateful to noble Lords for acknowledging that. Currently, assessment under the transition provisions has to be requested and I sympathise with the concern that in some instances, people who are unaware that they can request an assessment may lose out.
Amendments 84, 87, 89, 92, 94, 96, 98, 102, 103, 106, 108 and 113 remove the need to request the assessment. I have also tabled Amendments 85, 95, 99 and 104. They will replace provision that local authorities may assess a child, a child’s carer or a young carer when it appears to them that it will be of significant benefit to the individual to assess and where they are likely to have needs once they turn 18, with a duty that a local authority must assess in these circumstances.
Amendments 110 and 111 reflect an amendment to the young carer’s amendment to the Children and Families Bill. This is an example of the detailed work undertaken to ensure that the two Bills work together. I want to reassure my noble friend Lady Gardner in that context that we have done a great deal of work over the summer to make sure that that is indeed the case. Amendments 83A, 84A, 89A, 93A, 94A and 94B, tabled by the noble Lord, Lord Patel, and the noble Baroness, Lady Finlay, reflect concern that a local authority may leave it too late to carry out an assessment. I need to be very clear about this. The amendments I have tabled place a duty on local authorities that they must assess at the time where it appears to them that there is likely to be a need when the young person turns 18, and it is of significant benefit to that individual to assess at that time. My noble friend Lady Gardner was worried that the government amendments might not be sufficiently precise or prescriptive. The clauses are formulated in this way precisely so that assessments happen at the right time, whether that is before or after the age of 14, depending on the individual. The Bill approaches transition planning with a firm focus on assessing at the right time for the individual by the new duty to assess where it would be of significant benefit to the individual. I am not persuaded that the interests of young people are best served by prescribing when assessment should take place.
Lord Hunt of Kings Heath
I understand what the noble Earl is saying: it is difficult to prescribe in legislation. However, does he take the point that experience suggests that in the main assessments do not take place early enough, so when the young person is a little older it is often too late to put in the necessary arrangements? Behind the stricture of saying that it should be done at that age lies a real concern about how it works out in practice.
Earl Howe
My Lords, I accept that that is a problem in many cases and it needs to be addressed. It should be addressed satisfactorily by the government amendments in combination with guidance, which I am about to refer to.
To prescribe the age thresholds proposed would run the risk of failing young people and their families by creating a system that is run according to the age of an individual, rather than according to what is best for the individual at a given time in their life. I remain absolutely committed to ensuring that the question of when to assess a child, carer or parent carer is further addressed in guidance. This will do justice to the broad range of needs and circumstances of young people and their families at the point of transition. Guidance will be developed with the involvement of stakeholders.
“(2) A local authority may combine a child’s needs assessment or young carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the consent condition is met in relation to the child to whom the child’s needs or young carer’s assessment relates and—
(a) where the combination would include an assessment relating to another child, the consent condition is met in relation to that other child;(b) where the combination would include an assessment relating to an adult, the adult agrees.(3) A local authority may combine a child’s carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the adult to whom the child’s carer’s assessment relates agrees and—
(a) where the combination would include an assessment relating to another adult, that other adult agrees, and(b) where the combination would include an assessment relating to a child, the consent condition is met in relation to that child.(3A) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the assessments being combined and does so agree, or(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that combining the assessments would be in the child’s best interests.”
“Independent advocacy support: involvement in assessments, plans etc.
(1) This section applies where a local authority is required by a relevant provision to involve an individual in its exercise of a function.
(2) The authority must, if the condition in subsection (4) is met, arrange for a person who is independent of the authority (an “independent advocate”) to be available to represent and support the individual for the purpose of facilitating the individual’s involvement; but see subsection (5).
(3) The relevant provisions are—
(a) section 9(5)(a) and (b) (carrying out needs assessment);(b) section 10(7)(a) (carrying out carer’s assessment);(c) section 25(3)(a) and (b) (preparing care and support plan);(d) section 25(4)(a) and (b) (preparing support plan);(e) section 27(2)(b)(i) and (ii) (revising care and support plan);(f) section 27(3)(b)(i) and (ii) (revising support plan);(g) section 59(2)(a) and (b) (carrying out child’s needs assessment);(h) section 61(3)(a) (carrying out child’s carer’s assessment);(i) section 64(3)(a) and (b) (carrying out young carer’s assessment).(4) The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—
(a) understanding relevant information;(b) retaining that information;(c) using or weighing that information as part of the process of being involved;(d) communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).(5) The duty under subsection (2) does not apply if the local authority is satisfied that there is a person—
(a) who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement, and(b) who is not engaged in providing care or treatment for the individual in a professional capacity or for remuneration.(6) For the purposes of subsection (5), a person is not to be regarded as an appropriate person unless—
(a) where the individual has capacity or is competent to consent to being represented and supported by that person, the individual does so consent, or(b) where the individual lacks capacity or is not competent so to consent, the local authority is satisfied that being represented and supported by that person would be in the individual’s best interests.(7) Regulations may make provision in connection with the making of arrangements under subsection (2); the regulations may in particular—
(a) specify requirements that must be met for a person to be independent for the purposes of subsection (2);(b) specify matters to which a local authority must have regard in deciding whether an individual would experience substantial difficulty of the kind mentioned in subsection (4);(c) specify circumstances in which the exception in subsection (5) does not apply;(d) make provision as to the manner in which independent advocates are to perform their functions;(e) specify circumstances in which, if an assessment under this Part is combined with an assessment under this Part that relates to another person, each person may or must be represented and supported by the same independent advocate or by different independent advocates;(f) provide that an independent advocate may, in such circumstances or subject to such conditions as may be specified, examine and take copies of relevant records relating to the individual.(8) This section does not restrict the provision that may be made under any other provision of this Act.
(9) “Relevant record” means—
(a) a health record (within the meaning given in section 68 of the Data Protection Act 1998 (as read with section 69 of that Act)), (b) a record of, or held by, a local authority and compiled in connection with a function under this Part or a social services function (within the meaning given in section 1A of the Local Authority Social Services Act 1970),(c) a record held by a person registered under Part 2 of the Care Standards Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008, or(d) a record of such other description as may be specified in the regulations.”
Lord Mackay of Clashfern
My Lords, it occurs to me that the problem has been created by the use of the word “fraudulent”. It tends to suggest that the word “otherwise” is in some way connected with that. I wonder whether one could not take out that whole phrase in brackets. The idea is that, because of some mistake, something extra has been paid out. Ordinarily, it might be perfectly all right to recover that. You do not need to look into the detail of why it was wrong. The person in question—vulnerable people particularly, and those who are not so vulnerable, more recently arrived—may fall into error. The error may result in extra payments out by the local authority which, in ordinary circumstances, it should be able to recover. “Fraudulently” gives an idea of people trying to put something over on someone, and “otherwise” tends to be coloured by the same adverb. Perhaps this problem could be dealt with in that way.
Earl Howe
My Lords, we agree with the general view expressed by noble Lords that we must ensure that vulnerable elderly people are protected and are not discouraged from seeking help when they need it. However, I do not agree with the conclusions reached by the noble Lord, Lord Lipsey, and I regret to have to say that the manner in which he has expressed his concerns risks causing unnecessary worry to people who need care and support. Let me be clear: this power is not there to punish people, as the noble Lord put it, and should be used by local authorities only as a last resort, as I shall explain. Its purpose is to ensure that any charges that should have been paid can subsequently be recovered. It is not to penalise people unduly. But neither should the system reward mistakes or prevent unpaid charges being recovered. This would not only undermine the principle of personal responsibility, it could also result in local authorities having less money to provide care and support to those who need it the most. In practice, it means in some cases a licence to subsidise the better off at the expense of the worse off. Is that really what the noble Lord wants? The use of this power is to recover a debt and is not intended to imply a judgment about the person’s culpability. It does not look for the mens rea; it exists to ensure only that charges not paid can be recovered, as the equivalent current powers do now.
The principle of this provision is not new; the power is 60 years old. The noble Lord likes to make out that we are doing something radically new, but that is not the case. We recognise that there may be a number of reasons why someone has not paid the full amount of the charges due to the local authority, including misrepresentations of their assets which were entirely unintentional. But even where the reason is an accident or a mistake, local authorities still suffer a loss and must be able to recover that loss if there is no other means of doing so. This is public money.
One of the objectives of the Bill is to make access to care and support easier and more focused on people with care and support needs and their families. We expect local authorities to help and support people with care and support needs, discussing any concerns they have and providing advice and assistance as appropriate. This would include advice to help people understand the process of financial assessment and their responsibility to disclose financial assets. I absolutely fail to see why the noble Lord thinks it is socially just to allow people who misrepresent or fail to disclose their assets, whether intentionally or not, to receive more than their fair share of financial support. I reiterate that to do so would reduce the resources available to other people with care and support needs. That is what his prescription amounts to. I am concerned that this amendment would risk making it much easier for people to take advantage of the system and avoid charges and subsequent legal action. What the noble Lord is suggesting is that people could be as careless as they liked when filling out the form. Is that what he wants? The high evidential burden that local authorities would have to meet to recover debts risks making this power largely useless in practice. It would leave local authorities facing costly and uncertain legal action if they chose to pursue the matter.
Let me be clear on another point. A local authority should not, as a matter of course, use these powers to recover debts without first having discussed other options with the individual concerned. In most cases, especially those where the failure to pay the correct charges was inadvertent, there would be other simpler routes to follow, such as agreeing a repayment plan which allows for recovery over time in a way that is manageable. The noble Lord suggests that local authorities may exercise these powers in a way that will drive people out of their own homes. Quite aside from the fact that we have no evidence that local authorities behave in that way and have used their existing powers like that, I have to say that I find that assertion particularly unconvincing.
Local authorities are bound by the public law principle of acting reasonably at all times and must act in accordance with human rights legislation, as well as the well-being principle, which we have already debated. That alone should prevent a local authority using this power to force someone out of their home. The noble Lord is stretching our credulity if he is asking us to imagine a set of circumstances in which a court would make an order in favour of a local authority knowingly to evict a person from their home in this kind of situation. It would be counterproductive in the extreme. Should there be any possibility of this happening, we would use statutory guidance to make the position clear. Indeed, where I do think further action is needed is in the form of guidance. We will use statutory guidance under the Bill to set out the steps that we expect local authorities to take. For example, we would expect a local authority to discuss the situation with the cared-for person and their family when appropriate to establish what, if anything, is owed to the local authority; if there is a debt, to establish whether it is appropriate to recover it, because the local authority does not have to recover it—it can choose not to do so; and, lastly, if money needs to be recovered, to find an affordable way for the money to be repaid. As I have said, whether or not the person could have been reasonably aware of something that needed to be included in the financial assessment is one of the factors that the local authority should consider when deciding whether it is appropriate to recover a debt.
We plan to engage with local authorities in the wider sector on what happens at present and how this could be improved. I accept the need for effective communication about financial assessment and the recovery of charges. This highlights the importance of high quality information and advice, including financial advice, which was debated last week, and the importance of the new duties we are placing on local authorities in this regard. Should mistakes be made, people will not be criminalised, nor will any punitive charges be imposed, but ultimately it is right that mistakes are rectified so that individuals do not benefit from any errors they make, whether they were intentional or not. Neither local authorities nor those who rely on their services should be disadvantaged, but the amendment as it stands runs the risk of failing on all these counts.
I hope that I have reassured noble Lords that the debt recovery power, while to be used only as a last resort, remains important. There is nothing that people should fear from its use. I therefore hope that the noble Lord, on reflection and at this late time, will feel able to withdraw his amendment.
Lord Warner
My Lords, I want to speak to Amendment 122 in my name. This requires the Secretary of State to publish a review of the working of Part 1 and its funding before Clause 15 is brought into operation.
I have tabled this amendment because of my continuing concern that the Government are sleepwalking into the introduction of the new arrangements in this Bill without adequate funding provision and they do not really appreciate the parlous state of adult social care funding. I think my noble friend was being rather generous in his remarks. The situation is very bad. I have a cutting about the Equality and Human Rights Commission’s report into home care, published last week, in which the commission made it clear that council cuts could be affecting the human rights of older people. This is a serious situation.
People are very supportive of the basic architecture of the Dilnot and the Law Commission’s proposals enshrined in this Bill, and are very supportive of the Government bringing this Bill forward, but they simply do not believe that the funding is in place effectively to implement the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding and I think this is hardly surprising because the Government’s social care funding strategy seems almost designed to confuse. We have Eric Pickles signing up to quite swingeing cuts to local authority grants which inevitably reduces social care funding substantially. We then see Health Secretaries having to scrabble around to slip NHS cheques to local government to mitigate some of the Pickles cuts. Of course I do not want to be ungenerous to Health Secretaries, and these cheques are better than nothing, but they do not make good the shrinking base budget of adult social care that has been taking place over many years.
People like to claim and use bits of the Dilnot commission’s report that they favour and fancy. I would like to draw attention to pages 14 and 15, where we said:
“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.
We showed in this report that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding was going to need to change. It has changed, but not quite as we had expected or intended.
Adult social care will start the next financial year with a base budget about £3 billion lower in real terms than in 2010. So the base budget for social care is underfunded. That is where we start from. Most of the discussion that has taken place about the implementation of the Bill takes no account of the base budget deficit from which we are starting. That deficit is due only to get worse because there is another set of proposals under the DCLG settlement in Spending Review 2013 for another 2.3% cut in the budgets of local councils, which can only take even more money out of the local government budget for adult social care.
I have no doubt that the noble Earl will say much the same thing as he did in Committee about the Government’s proposal for a £3.8 billion pooled budget for 2015-16 to join up health and social care services. I welcome that. Most people welcome that. However, as the Minister acknowledged in Committee, only half of that £3.8 billion is new money, and only half of the new money will be paid upfront to local authorities as they start to implement the proposals under the scheme. The assurance that that new money will be in place takes no account of the further reduction of 2.3% that I mentioned in the spending of local councils in 2015-16.
We have a situation where the base budget is highly deficient, further cuts are coming out of local government expenditure by councils, which can only have a further impact on that base budget in 2015-16, when the new legislation is due to be implemented, and we have no guarantee that the lion’s share of that £3.8 billion pooled budget will be in the hands of councils when they start to implement the scheme. That is not a situation to fuel people outside with confidence that they will have successful implementation of the legislation.
The Government can protest as much as they like but, at the end of the day, we need public documentation —preferably, I would say, by someone as independent as the OBR, but I would even settle for the Institute for Fiscal Studies. If I cannot have that, I would settle for legislation requiring the Secretary of State to put some of that information in the public arena and before Parliament before the Bill is put into full operation. People who are to implement it and the public need far more convincing than they have received so far that all will be well financially, to give people a reasonable chance to implement this highly desirable, on the whole, well constructed Bill, successfully when the time comes.
Earl Howe
My Lords, I have listened with care to noble Lords as they have introduced their respective amendments and I am confident that we can all agree that the issues that they raise are vital to the successful implementation of government policy and are essential parts of good policy-making. Let me first address the questions about the cost and funding of these reforms. We have taken and will continue to take a robust, evidence-based approach to assessing the cost of the reforms. We are working closely with local authorities to help them to understand the costs at a local level, and we will use this knowledge to refine our national modelling further. Funding of care and support, including the reforms in Part 1, will be reviewed regularly as part of the spending review process, and the core elements of the capped-costs system will be reviewed within each five-year period.
Turning to the specific issue of the short and long-term costs of the national eligibility threshold, I can assure noble Lords that we have published an impact assessment fully setting up the costs and benefits of the policy. We have comprehensively assessed and funded those provisions. We have published impact assessments for all elements of the Bill and, in line with the Government’s approach to all new burdens on local authorities, those costs were fully funded in this year’s spending round. Those estimates are based on the best available evidence in the area. They have been produced in co-operation with academic experts and officials from across government.
“(aa) if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or”
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.
Earl Howe
My Lords, I first would like to echo the comments made by my noble friend Lady Northover during Committee, when she paid tribute to the excellent work of the noble Lord, Lord Patel of Bradford, in the mental health field.
I think we can all agree that setting out a definition of mental health aftercare in legislation is important. A clear legal definition will mean that the scope of aftercare will no longer be entirely open to interpretation by the courts, whose views have varied over time. The question is what that definition should be. As updated by government Amendments 129, 130 and 131, our proposed definition contains a carefully framed duty that reflects the Government's policy on the appropriate scope of the duty to provide free aftercare services for a very small group of patients who have been detained for treatment under certain sections of the Mental Health Act. It has carefully drawn limits because the Government do not consider that it would be appropriate for the Mental Health Act to impose a duty on local authorities to commission services that are based on needs which neither arise from, nor are related to, a mental disorder.
Therefore we believe that the amendment tabled by the noble Lord, Lord Patel of Bradford, goes too far and would create an inequity between this group of people and others with equivalent needs for care and support who are not eligible for free aftercare, either because they have been detained under other provisions of the Act or not detained at all. They will be means tested and will have to meet eligibility criteria for the social care part of their aftercare package, so may not receive any social care from the local authority. In addition, with an ageing population, local authorities will have to be able to differentiate “mental health aftercare” in order to know when the “aftercare” finishes and ongoing support for other reasons begins.
The noble Lord suggested that the case of Mwanza was not a stable basis for primary legislation. He said that it is, after all, only one case. There is a bit of a misunderstanding around this. The Mwanza case merely triggered a debate; the issue is whether the definition is a good idea and, if so, how it can most helpfully be drafted. The Government’s definition of mental health aftercare services builds on the definition recommended by the Law Commission. The Government accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. We propose a wider definition than that suggested by the Law Commission, including that Section 117 services may relate to as well as just arise from the person’s mental disorder, and that the aftercare should prevent deterioration as well as readmission to hospital.
Because our definition is more precise, I feel that it will be more helpful than the noble Lord’s in ensuring that clinical commissioning groups, local health boards and both English and Welsh local authorities more easily agree on the aftercare services to be provided, so that these services can be put in place promptly.
I reassure the House that the definition we are now considering is the result of extensive consultation. In consequence, we have added a positive objective to prevent deterioration as well as preventing readmission to hospital, and have further changed the clause to remove the definite article when referring to “the mental disorder”, for which the noble Lord made the case in Committee. This is intended to remove any doubt about our intention that the scope of aftercare covers more than just one form of mental disorder, and is not necessarily limited to the specific disorder or disorders for which a person was previously detained under the Act and which gave rise to the right to aftercare.
Baroness Masham of Ilton
My Lords, what will happen to the protection of the public from those who have schizophrenia?
Earl Howe
My Lords, the protection of the public is of great importance, as I need hardly say; but we are dealing here with quite a narrow point of definition about who should be entitled to free mental health aftercare. To expand the scope of that definition to include others would not be fair on many people, which is why I have argued that I believe we have positioned the definition in the right way. The noble Baroness’s question is a very relevant one in the broader context of how we look after those with mental illness, but I would like to think that this amendment should not affect her concern one way or another.
Lord Patel of Bradford
My Lords, I am clearly disappointed at the response. I was expecting at least a halfway point at which we could meet and perhaps change the definition once again. I will not detain the House for very long. The noble Baroness, Lady Barker, very clearly and succinctly put the benefits of Section 117 and the joint working that takes place. That is probably the only piece of legislation that has encouraged joint working really well and has worked.
The noble Earl talked about the Government’s definition, and that is what it is: a Department of Health definition. However, it does not ride with everybody else out there. Everybody that I have spoken to clearly says that this is the wrong way. I fear that the department has got itself in a corner because it has accepted the Law Commission’s recommendation on this point. It did not accept the other three recommendations, which clearly shows, to me, that the Law Commission does not understand Section 117 services properly. Although the department has accepted this recommendation, I think it has realised that the basis on which it has done so is not appropriate; the case is unique and unrepresentative.
We have talked about inequity. These people have their liberty taken away: they are locked up against their will. They have been in and out of mental health services; they have had a raw deal. That is why they are there. This is a reciprocal duty on behalf of society to make sure that we give them free aftercare services. Yes, other patients may not get that, but this group of patients is extremely vulnerable. There is also the issue of public safety. We should give them the services they require.
I could go on, but I will not. I am really disappointed. This matter deserves that the House makes its views known, so I want to test the opinion of the House.
Care Bill [HL]
Earl Howe Excerpts(11 years, 8 months ago)
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Baroness Masham of Ilton (CB)
My Lords, I hope that the Minister will take note of the very serious points which the noble Lord, Lord Patel of Bradford, has made to your Lordships tonight.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, these two amendments deal with changes to Clause 72 to impose a duty on local authorities to make safeguarding inquiries in prisons and approved premises. I thank the noble Lord, Lord Patel, for tabling these amendments. We strongly agree that a person with care and support needs should be protected against abuse or neglect wherever they live.
Prison governors and directors, and the probation trust in the case of approved premises, are responsible for safeguarding prisoners and for protecting them from abuse and neglect. They have in place procedures to follow in response to allegations of abuse or neglect, and they must provide assurance on this to the National Offender Management Service. The UK operates a comprehensive level of monitoring and scrutiny within prisons to ensure that prisoners are kept safe and secure and that governors and directors are accountable for taking steps to improve matters if necessary.
We have in place a fully independent prison inspectorate that carries out a rigorous programme of scrutiny; more than 1,700 volunteers on prison independent monitoring boards who monitor the treatment of adult prisoners; and a Prisons and Probation Ombudsman who investigates both the complaints of those in prison and all deaths that occur among prisoners. Her Majesty’s Chief Inspector of Prisons and the Prison and Probation Ombudsman require assurance that safeguarding procedures are in place and their implementation provides equivalent protection to that available in the community. Investigations by the Ombudsman will provide learning to improve effectiveness. The important thing is not to impose a duty on another body to conduct inquiries in prisons and approved premises, but to ensure that the procedures within the prisons and approved premises are informed by best practice and local expertise.
The Ministry of Justice and the National Offender Management Service have acknowledged that there is a need for improved directions on safeguarding to the Prison Service and probation trusts. They will be working with officials from my department and stakeholders to develop instructions and guidance that will give improved clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. The Ministry of Justice encourages prison staff to be involved with local safeguarding adults boards, but the nature of that involvement is best determined at local level.
The Ministry of Justice and the National Offender Management Service will be producing guidance for prison staff on safeguarding in conjunction with their partners. This will be consistent with the broader advice and guidance on safeguarding adults in the community and will ensure that the importance of active engagements with SABs is routinely reiterated to prison staff. Any particular safeguarding considerations for older prisoners and those with dementia will be part of this operational policy. The guidance will set out clear instructions on the need for structured relationships with local safeguarding boards; for example, the model being employed by Surrey, where a memorandum of understanding sets out how prison staff will benefit from the expertise of social services and local authority safeguarding teams. It will also set out how and in what instances referrals to SABs will be made.
I hope that I have reassured the noble Lord, Lord Patel of Bradford, that the existing position makes clear the responsibility and accountability for the safeguarding and protection of prisoners, and that further guidance to prisons and approved premises will bring about the improvement and joint working that we all want to see. The proposed amendments to Clause 72 are therefore not necessary and I would respectfully ask him to withdraw this amendment.
Lord Patel of Bradford
My Lords, I thank the Minister for that informative response and I take on board completely the fact that prisons and the MoJ have developed some good safeguarding measures. I am pleased that further guidance is to be issued to encourage governors and directors to attend local authority safeguarding adults board meetings. I am fairly happy about prisons, prisoner safeguarding and liaison with local authorities. However, for clarification, if someone is living in approved premises, my understanding is that that has nothing to do with the prison governor or the prison because they are in the community living in, say, a bail hostel. Who has responsibility for any serious issue of neglect? I do not think that the probation service undertakes safeguarding inquiries. It would be the local authority, but this clause seems to suggest that it would not be; rather, that it would be the prison governor. That does not make sense to me, although perhaps I do not understand it completely. Of course, one assumes that the local authority would have responsibility for someone in the community, but this provision clearly states that it does not.
Lord Patel of Bradford
For the record, because no one on the outside seems to have been able to give me an answer, someone would have to report to the probation trust that a person is being neglected or abused and it would carry out a safeguarding inquiry. It would not be the local authority or the prison.
Lord Patel of Bradford
If that is the case and it is correct, I beg leave to withdraw the amendment.
“( ) The Secretary of State must have regard to the general duty of local authorities under section 1(1) (promotion of individual well-being)—
(a) in issuing guidance for the purposes of subsection (1);(b) in making regulations under this Part.”
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, are Amendments 138A and 138B consequential and therefore to be moved formally?
Earl Howe
My Lords, I do not think that the noble Lord, Lord Low, wished to move these amendments. He did of course move his earlier amendment which the House decided upon, but I think that he indicated he was satisfied with my reply on these amendments. I do not want to mislead the House at all, but I believe that that is right.
Baroness Wheeler (Lab)
My Lords, we are very sympathetic to what the noble Baronesses, Lady Barker and Lady Tyler, and my noble friend Lady Bakewell want to achieve through the amendment in promoting the well-being, dignity, rights and welfare of older people. My noble friend Lady Bakewell, in particular, has campaigned long and hard for an older person’s commissioner and, as the Voice of Older People under the Labour Government, speaks first-hand about the job that needs to be done in government to join up policies on health, social care, housing, transport, welfare, work and pensions to address the economic and social challenges presented by an ageing society.
The importance of a cross-government overview and strategy on older people is why Labour has a shadow Cabinet Minister for Care and Older People. Liz Kendall has a vital role in ensuring joined-up policies across the range of services that must be changed and adapted to meet older people’s growing and changing needs. The importance of developing a coherent strategy and vision for our old age was recently underlined by the excellent report of the Select Committee on Public Services and Demographic Change, referred to by the noble Baronesses, Lady Barker and Lady Tyler. The noble Baroness, Lady Barker, is entirely right to say that in Ready for Ageing? the committee described the UK and its society as being “woefully underprepared”. It pointed out that the implications of an ageing society had not been assessed holistically and that it had been left to government departments,
“who have looked, in varying degrees, at the implications for their own policies and costs”.
The committee called on the Government to look at ageing from the point of view of the public and to consider how,
“policies may need to change to equip people better to address longer lives”.
When we consider that important report tomorrow, the role of an older person’s commissioner in helping to face the future and meet the challenges so graphically set out by the committee and today will be a key part of that debate
A considerable amount of work and thought has gone into the drafting of Amendment 139, but the main emphasis seems to be on rights and redress, rather than the all encompassing and unique role envisaged by my noble friend Lady Bakewell in her Second Reading speech and earlier today. That would give the commissioner effective access to planning across different government departments.
We would prefer that broad approach, and, of course, we also need to learn from the experience of the older person’s commissioners in Wales and Northern Ireland. We understand that the advocacy role has worked particularly well in Wales in promoting the rights and interests of older people and challenging discrimination.
Inevitably, costs are an important consideration. The older person’s commissioner’s salary, operational support and accountability costs would be significant. I would be interested to learn from the noble Earl whether the Government have undertaken any costing and impact work on that, as promised to my noble friend when she first raised this issue, as she said, under the Health and Social Care Bill.
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.
“Duty of candour
In section 20 of the Health and Social Care Act 2008 (regulation of regulated activities), after subsection (5) insert—“(5A) Regulations under this section must make provision as to the provision of information in a case where an incident of a specified description affecting a person’s safety occurs in the course of the person being provided with a service.””
Earl Howe
My Lords, this amendment concerns the new statutory duty of candour. This will place a requirement on registered providers of health and adult social care to be open with patients and service users about failings in care. The Francis report made a clear recommendation that there should be a statutory obligation to observe a duty of candour on providers of healthcare who believe that treatment or care provided by them to a patient has caused death or serious injury. This would require the provider to inform the patient of that fact. This amendment is a major step towards implementing that key recommendation of the Francis report.
The Government’s approach is to introduce this duty as a requirement for registration with the CQC. In Committee, noble Lords tabled amendments that sought to place the duty of candour in the Bill. The amendment that I am presenting today seeks to strike a balance; I make no apology for that, since it allows us to have the best of both worlds. The amendment tabled in my name makes it clear that the Government must introduce such a regulation. It does not present the Government with a choice; rather, it imposes a crystal clear obligation on the Government to put such a regulation in place. I hope that it will be welcome to noble Lords for those reasons. I beg to move.
Baroness Masham of Ilton (CB)
My Lords, the duty of candour means honesty and straightforwardness. We desperately need an open, honest, transparent and compassionate health service, and I hope that Amendments 140 and 152 will help to achieve that.
Something has gone desperately wrong with the care in some hospitals and care homes. We now live in a litigious society, and I feel that that has been increased by cover-ups when something has gone wrong and gagging people who try to speak out. People will go to any lengths to find out what happened to their loved ones if they are not told and given an apology. Good medical personnel will explain and apologise if something adverse happens. So often, that is all that is needed.
Patients know that there are risks, if they are explained when they sign a consent form. When they go wrong, lessons should be learnt so that they do not happen again. That is one of the reasons why openness is so important. Have lessons been learnt after the horrific situation of the Mid Staffordshire hospital? Recently I heard of a former police superintendent who had had a brain injury due to an accident, and was a patient in a well known central London hospital. When his wife and young son went to visit him, they smelt him before they saw him. They found him facing the wall in bed, unable to move and lying in soiled sheets and wearing a filthy gown. His wife was so upset that she told a nurse, who just said that they were overworked. The next time the wife visited she found him sitting alone, facing a curtain, looking miserable and wearing a pad that had not been changed. She said to her children, “We are taking Daddy home”, and smuggled him out of the hospital.
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—
Lord Hunt of Kings Heath
Can I take it that, if that is the Government’s position, which will be set out in regulations, guidance to the providers of services regulated by the CQC would none the less make it clear that the principle of candour would apply to all such cases? I can see the distinction with regard to the seriousness of the incident in relation to the action that can be taken. The risk would be that a statutory duty of candour within the regulations might be taken the wrong way for cases which were not classified at such a serious level.
Earl Howe
I certainly take the noble Lord’s point. There is an issue of interpretation which we will want to clarify through guidance. That is what we intend to do. I look forward to discussing this with him and other interested noble Lords in due course. I hope that that will be sufficient to persuade the noble Lord, Lord Hunt, not to press his amendment when we get to it.
Business of the House
Earl Howe Excerpts(11 years, 8 months ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, before we move on to Report, I would like to raise a point arising from an amendment to the Care Bill that the Government laid late last night—indeed, some might say “sneaked out 10 minutes before the start of the England-Poland game”. This matter will come to be decided by your Lordships on the last day of Report on Monday night.
Amendment 168A is not a technical or insubstantial amendment; it relates to the powers of special administrators in dealing with NHS trusts that are considered to have failed. It follows what happened in south London. Following the appointment of special administrators, proposals were made to downgrade Lewisham Hospital’s accident and emergency department, even though Lewisham is a well run and much supported hospital. This hospital was completely outside the remit of the special administrators. This led to court proceedings where the Government had to back off in relation to the changes to Lewisham Hospital.
This amendment would essentially permit what the Government wanted to happen with Lewisham Hospital, but which was stopped, to be able to happen in future. Whether or not the Government are right or wrong, this is a very important subject. It deserves full scrutiny in your Lordships’ House, not to be taken as last business on the last day of Report when the House has had no other opportunity of discussing this important matter. I ask the noble Earl, Lord Howe, to agree that this amendment be recommitted to a Committee of the House in order that it can receive full and appropriate scrutiny.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I do not propose to debate this amendment now, but I will refer the noble Lord’s request through the usual channels.
Tobacco Products Directive
Earl Howe Excerpts(11 years, 8 months ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer noble Lords to my health interests in the register.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, we are very pleased to see the move towards tougher action on tobacco, with Europe-wide controls banning flavoured cigarettes and the introduction of stricter rules on front-of-pack health warnings. However, we are disappointed that the Commission’s proposal to regulate nicotine-containing products, including e-cigarettes, as medicines was not supported by the European Parliament. We believe that these products need to be regulated as medicines and we will continue to argue for this during further negotiations.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl, but is he particularly disappointed that it was Conservative MEPs who voted to weaken tobacco packaging warnings and blocked a ban on slim cigarettes, which are targeted at young women? Will the Government make amends by agreeing to amendments to the Children and Families Bill which would mandate the introduction of standardised packaging in this country?
Earl Howe
My Lords, the tobacco products directive, as the noble Lord will know, does not seek to introduce standardised packaging. As he will also know, the Government have decided to wait before making a final decision on that issue but we want member states to have the flexibility to make further progress on domestic tobacco control measures in certain key areas that go beyond the new directive. We have been helping to shape the final text of article 24 to achieve that objective.
Baroness Gardner of Parkes (Con)
Is my noble friend aware that in this country people who have suffered even major amputations are still so addicted to tobacco that they will ask the doctor to hold up the cigarette to their mouth? I have had this report from doctors. Does he not think that what we really have to aim at is stopping smoking among the young? Is he aware that in Australia it is no longer cool to smoke if you are young? Apparently, that is more effective than any of the health warnings.
Earl Howe
My noble friend, as ever, makes some very wise comments. The good news is that the most recent figures on smoking prevalence are going in the right direction. It is undoubtedly true that we can never do enough to raise our game on smoking cessation measures, one of them being nicotine-containing products. That is of course a major focus for Public Health England.
Lord Storey (LD)
Does my noble friend agree that if children are being driven in a car where adults, perhaps their parents, are smoking it is extremely dangerous for those children? Does he not think that the Children and Families Bill is an opportunity to put this right?
Earl Howe
I certainly look forward to the debate on that issue during proceedings on the Children and Families Bill and I agree with my noble friend that we have to do all we can to discourage smokers from lighting up when children are in a vehicle. We believe that that can be done without resorting to legislation at present.
Lord Faulkner of Worcester (Lab)
Is the Minister able to confirm that there is nothing in the tobacco products directive to prevent the Government introducing standard packaging for cigarettes and implementing a ban on smoking in cars when children are present?
Earl Howe
Yes, my Lords. So far there is nothing in the directive to prevent that, which is why article 24 is the most important issue for the Government. We want member states, as I have said, to have the flexibility to make further progress on domestic tobacco control measures in key areas.
Lord Patel (CB)
Despite the EU’s lack of interest in regulating for e-cigarettes, is it the Government’s intention to regulate against them in the United Kingdom?
Earl Howe
My Lords, our position is clear: e-cigarettes should be regulated as medicines. These products need to be regulated for safety and quality, one of the reasons being that, as medicines, we can more effectively control their sale to children and the way that they are advertised and promoted. We need to take an approach that is future proof, being applicable to new technology nicotine products in whatever form might be brought forward in the future.
Baroness Finlay of Llandaff (CB)
Can the Minister tell us what action the Government intend to take over slim cigarettes, which were not affected in the recent EU directive but which are particularly appealing to young girls and are often a route to introducing them to becoming addicted to tobacco?
Earl Howe
The noble Baroness makes a very good point. While some in the public health community are concerned about slim cigarettes, and understandably so, both the European Parliament and the Council decided that slims should not be banned under this directive. However, she is right that slims are known to be more attractive to women than men. It may be something that remains on the agenda for future consideration at a European level.
Viscount Ridley (Con)
My Lords, is the Minister aware of evidence from New Zealand that e-cigarettes are extremely effective in getting people off tobacco cigarettes and that they are more effective than tobacco patches? Is it not important that in regulating e-cigarettes we do not discourage them from taking a considerable market share from tobacco products, given that vaping is clearly much safer than smoking?
Earl Howe
My noble friend is right. E-cigarettes certainly have the potential for being a force for good in helping smokers to quit. At the same time, we do not want them to become a gateway into smoking. The aim is to have licensed products that have demonstrated safety, quality and efficacy, and for such products to be available as widely as possible.
Lord Brooke of Alverthorpe (Lab)
Will the Minister take note of the fact that people have moved from heroin to methadone, which is less dangerous to them than heroin? In fact, we now have hundreds of thousands of people parked on methadone and there is no way in which we can get them off it. That is extraordinarily expensive for the country and bad for their health.