Care Quality Commission (Reviews and Performance Assessments) Regulations 2014

Lord Hunt of Kings Heath Excerpts

Monday 27th October 2014 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

That this House regrets that the Care Quality Commission (Reviews and Performance Assessments) Regulations 2014 include no provision for the regular assessment of performance by clinical commissioning groups and local authorities in the commissioning of health and social care and of the NHS Commissioning Board in relation to specialty commissioning (SI 2014/1788).

[Lord Hunt of Kings Heath (Lab)]

My Lords, the statutory instrument that we are debating tonight arises from an amendment that the Government sought parliamentary approval for during the passage of the Care Bill in 2013 and 2014. That amendment related to the scope of periodic performance assessments to be undertaken by the CQC and the method by which such reviews are to be devised and will allow an aggregate performance rating to summarise and compare the performance of organisations or the services provided. It is for the CQC to devise such quality standards and methodology in consultation with the Secretary of State and those key stakeholders that the CQC considers appropriate. The scope of those performance assessments is set out in these regulations, which by virtue of Regulation 1 will come into force on 1 October this year. That means that the CQC will be under a duty to undertake performance ratings of those registered service providers and regulated activities that such providers carry out, as prescribed by Regulation 2 and the schedule to these regulations.

I remain somewhat sceptical of the ability of the CQC to place such huge organisations as hospitals in one of only four categories. The Explanatory Note to the SI refers to work commissioned by the Secretary of State on the use of aggregate ratings of providers. This is not the first attempt at performance ratings, but the fascinating piece of work produced by the Nuffield Trust and commissioned by the department has a number of warnings on this. The trust says in its report:

“A rating by itself is unlikely to be useful in spotting lapses in the quality of care”,

particularly for services which “complex providers like hospitals” give.

“It is here that the analogy with Ofsted’s ratings of schools breaks down. Hospitals are large, with many departments and different activities, seeing large numbers of different people every day, carrying out complex activities, many 24/7, and in which people are sick and can die. Put another way, the risks managed by hospitals vastly outweigh those managed in schools. For social care providers the risks may be lower, but many are still dealing with frail, ill and otherwise vulnerable individuals”.

Its conclusion is that,

“unless there is a ‘health warning’ on a rating to clarify to the public what it can and cannot say about the quality of care, there is an inevitable risk that the rating (and the rating organisation) will be discredited, as lapses occur in providers scored as ‘good’ or ‘excellent’”.

It says that it will be just a matter of time. In summary the Nuffield Trust concluded that,

“the overall approach to ratings should allow complex organisations to be assessed at different levels and to promote service-specific ratings where possible, particularly in the case of hospitals”.

I would be grateful if the noble Earl could comment on this, particularly on how he considers the rating outcomes of individual providers are to be communicated to the public in an understandable way that none the less pays due regard to the complexity of the ratings so well described by the Nuffield Trust.

My real objective in bringing these regulations before your Lordships’ House is not so much what is in the statutory instrument as what is not. I go back to our debates during the passages of both the Care Bill and the Health and Social Care Bill in 2012. The noble Earl will know that I have expressed considerable concerns about the fact that the way in which clinical commissioning groups and local authorities commission services is no longer to be subject to regular review, audit and, indeed, rating by the CQC. During the passage of the Care Bill only a few months ago we discussed concerns about the quality of local authority commissioning of care services in the context of the scandal of 15-minute visits and zero-hours contracts. We argued then that the CQC should undertake regular inspections of local authority commissioning performance.

I suggest that the same goes for clinical commissioning groups in the National Health Service. When we debate NHS issues the noble Earl frequently—indeed, consistently —refers to the importance of commissioning. Whenever he is pressed on problems or gaps in services he has put his trust in more effective commissioning. However, it is very difficult to see how the performance of commissioners is properly assessed and held to account in the current structure. The noble Earl has previously argued that we should rely on such things as CCG outcome indicators, backed up by scrutiny from local Healthwatch. I think that that is a pretty weak response. So far there is scant evidence to show that this is effective. I am sure we would acknowledge that often when things go wrong in a health system it is a failure of the system—of course of the providers giving the services, but also of commissioners and, indeed, local authorities. Let us take the four-hour A&E target, which is proving to be a major challenge up and down the country. There will of course be issues in the organisation of the hospital itself, but there will also be issues around the organisation of primary care, the way in which services are commissioned and the ability of local authorities to ensure that there are specific and sufficient facilities in the community for when patients are discharged from hospital.

It is a matter of regret that the CQC, as the primary regulator on quality and standards, is no longer concerned on a regular basis with the performance of local authorities as commissioners, and with clinical commissioning groups. It is true that the CQC has the power to conduct special reviews where concerns have been raised about a particular commissioner. I do not know whether that has happened yet—maybe the noble Earl will be able to tell me—but it seems to me that that is not anywhere near sufficient.

I also want to discuss the position of NHS England. The noble Earl will know that, although the original changes brought about by Mr Lansley were designed to hand over nearly all the commissioning budget to clinical commissioning groups, a rather substantial amount of money was ultimately retained by NHS England for commissioning of specialist services. It would be fair to say that NHS England’s performance on that has given cause for concern. The noble Earl will be aware that the budget for specialist commissioning is hundreds of millions of pounds overspent. In essence, we had an out-of-control budget and the board of NHS England seemingly unaware of what was going on. If an NHS provider had performed so lamentably its board would have been sacked, and rightfully so. I ask the noble Earl how the board of NHS England has been held to account for its lamentable performance relating to specialist commissioning. Have sanctions been applied? At the very least, should the CQC not assess NHS England’s commissioning performance?

In our previous debate on NHS England, the noble Earl informed us:

“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”.

He also said:

“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”.—[Official Report, 21/10/13; col. 813.]

I am sure the noble Earl thought that they were comforting words, but how on earth does this apply to the debacle over specialised commissioning? To my knowledge, that has still not been properly resolved.

I am not convinced that the Government have the right approach to commissioning. If commissioning in the health service and in local government is as important as the Government say it is, surely it is in the public interest that the CQC should take a much stronger role in checking and rating the performance of commissioners, and indeed of health and care system performance generally. I hope that this leads to a good debate. I beg to move.

[Baroness Wall of New Barnet (Lab)]

My Lords, I support in principle the wording of the business that we are dealing with, particularly the emphasis on regular assessment of other than the provider trusts. I share with the House and the Minister why I now feel that that is even more important. I declare an interest as chairman of Milton Keynes Hospital NHS Foundation Trust. Just last week, we were inspected by the CQC. Obviously, we do not yet know the outcome of that. The CQC was with us for four days and there were 40-odd people there.

As the noble Earl is aware, I have been very supportive of the CQC and share his aspirations for it. To be honest, our inspection was extremely thorough. We have to wait with bated breath for the outcome, but the enthusiasm, what was described as the buzz around the hospital and the way that people felt strongly about the services that they were giving made a huge difference to the whole thing. I am only three months into that trust, but this was not about preparing for the CQC; it was about the culture of the organisation and wanting to improve. I hope that the CQC comes back with recognition of that, whatever the outcome might be.

The inspection was carried out under the new way of doing things, which I think is great. There were many more people across all the spectrums of our services, at a professional and clinical level. That was superb. The reporting back every night was very good and helpful to the chairman and chief executive. All that felt good and thorough, which is what it is all about. I agree with my noble friend’s view about extending that for the very reason that he just gave. The importance of that inspection to the outcome for our patients was absolutely paramount, regardless of what the outcome might be in terms of the grading or level of assessment we might be given. But without that thoroughness and rigour, particularly with the CCGs, who are the ones making decisions about our services, with the GPs who run them—unless there is a deep dive, as we would call it, into any other part of the health service—the gaps that are still a worry for us may remain.

In particular, my noble friend Lord Hunt said that there was an issue around local authorities. All trusts are struggling terribly with A&E. There are many reasons for that, as my noble friend has said. But one of the big reasons is the lack of rigour in social care and local authorities’ commitment to or understanding of the role that they play. From the experience that we have had over the past week, I believe that this is not a threat to people: it is empowering for them to have the CQC in there, ensuring that the rigour that they are supposed to apply to their work is there and that the role they play in patients’ experience really makes a difference. I urge the noble Earl to consider this opportunity yet again. We made a decision in the Care Act, which I think even more now is really a mistake from which we need to move on. I do not share the cynicism of my noble friend, but I share the concern about whether the CQC can embrace all that.

The investigation into my trust was supported, as I understand it, by far more clinicians than ever before and far more people had a much greater knowledge of the health service. If the CQC can continue to develop in that way, I believe it is in its interest—and, more importantly, in our patients’ interests—that those commissioning groups go wider and deeper into other than the provider trusts.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am sure that the House is most grateful to the noble Earl for such a comprehensive description of the relationship between the department, NHS England and commissioners for health and social care. I congratulate my noble friend Lady Wall on her appointment to the chairmanship of the Milton Keynes Hospital NHS Foundation Trust. I echo her thoughts about the new inspection regime, which is a vast improvement on the old regime. I also acknowledge that the CQC has made some excellent appointments at senior level to help the inspection process.

That is a very good start, but there are gaps in relation to the commissioning of services. I would like to follow up the question asked by the noble Baroness, Lady Barker about prison health services. The Explanatory Memorandum states that regulated activities provided by prescribed service providers in prisons are excluded because:

“A performance rating might be helpful to the commissioners of these services, but only if it can be uniformly awarded to all providers in the sector and at present, not all prison healthcare is regulated by CQC”.

This is not the time to go into that in more detail, but I should be grateful if the noble Earl would be prepared to write to us about it—unless he wishes to intervene now. I am grateful that he indicates that he would be prepared to write to us, because it is an important point. There have been vast improvements in the health service within prisons in recent years and I would have thought that they would welcome some ratings from the CQC. I hope that the Government will look into that.

On the substantive point, I simply want to say to the noble Earl that many of the issues that the health service and care services face are very pressing and very challenging. Those services depend on all the people within a system—both commissioners and providers —working together. I still believe that there is a strong case for there to be assessment by the CQC to help systems generally to learn from others, to see where weaknesses are and to improve the whole system approach—something that is missing from the current regime. This has been a good debate. I beg leave to withdraw my Motion.

Motion withdrawn.