Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 3rd July 2013 Lords Chamber

[Baroness Pitkeathley]

My Lords, in the unavoidable absence of my noble friend Lord Warner, I shall move Amendment 74 and speak also to Amendment 75.

These two amendments give an opportunity to put into the Bill further emphasis on the importance of integration. Amendment 74 requires reviews by CQC of regulated health providers to cover the integration of those services with other relevant services. Amendment 75 does the same for reviews of local authority adult social care services. They are a clear reminder in the Bill that when CQC carries out such reviews it will have to pay attention to the issue of integration of services for the benefit of patients and service users.

I shall not detain the Committee today with yet another speech of a kind that I have made many times before on the importance of integration of health and social care services from the point of view of patients, service users and their carers. We all know how important that is. The Committee is familiar with the arguments and, more importantly, so is the Minister. Indeed, the Chancellor of the Exchequer, no less, acknowledged this in his announcement in the comprehensive spending review in regard to joint budgets. The announcement has been widely welcomed, although caution has been expressed about how these budgets will operate in practice.

The amendments are a modest attempt to give some practical effect to the aspiration for integration which we all share. I hope the Minister will say that it is a good idea, “Let’s do it”, and get us off to a cracking start this afternoon. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I declare an interest as a chair of a NHS foundation trust and as a consultant and trainer with Cumberlege Connections. I am happy to support my noble friend Lady Pitkeathley’s Amendments 74 and 75, which rightfully push the CQC into the direction of integration of services. I also sympathise with the amendments of the noble Baroness, Lady Greengross, Amendments 76ZZA and 76ZAA, to which she will speak later.

My Amendments 74A, 76ZA and 76ZB and my opposition to Clause 80 stand part go to the core of the purpose of CQC and its approach to performance assessment in health and social care. Inevitably, recent events at that regulator in relation to Morecambe Bay and before that at Mid Staffordshire will readily come to mind. There can be no doubt that the current leadership of CQC faces a major challenge in changing the culture of the organisation and its approach to inspections. It has much to do to restore both public confidence and confidence within the NHS about the way in which it operates. That is why this clause is so important.

Clause 80 substitutes Section 46 of the 2008 Act and provides that the CQC’s duty to conduct periodic reviews, assess performance and publish reports of such assessments, which are henceforth to be known as “ratings”, is to apply in respect of any regulated activities and any registered service providers as may be prescribed in regulations. In addition, where regulations so provide, the CQC must also review and assess the performance of the provision and commissioning of adult social services by English local authorities. CQC is to be given responsibility for determining the quality indicators against which services and providers will be assessed. This may include measures of financial performance and governance if the CQC deems this appropriate. Different quality indicators, methods and frequency in periods may be used for different types of cases. The CQC may also review the indicators of quality and method statement from time to time as it sees fit.

Let me say at once that I support the broad intention of these clauses to make the CQC responsible for rating providers and local authorities. I say again that one should not underestimate the task. It is important that the CQC is not put under undue pressure to rush to change the way that it operates and to introduce new ratings without proper pilots being done and without having enough time to do it.

I refer the noble Earl to the Nuffield Trust’s work. As he knows, the Nuffield Trust was commissioned to carry out a review for the Secretary of State into the possibility of rating providers of health and social care. It argued that the new ratings must be given adequate time to work together with a range of stakeholders in developing a system which enables both patient choice and professional leadership to drive up standards of quality. That is vital. Yet I am concerned by the document issued by the CQC recently that indicates that it is to start inspecting and regulating NHS acute hospitals, in the ways that it set out in that document, from October 2013. Indeed, from December 2013, it will begin to rate NHS acute trusts and NHS foundation acute trusts, aiming to complete them before the end of 2015.

Have Ministers put pressure on the CQC around the timing of those ratings? Secondly, does the noble Earl not think that there is a risk that the CQC will be forced to rush into a new system without proper consideration? I remind him that the chairman of the CQC has recently made a number of statements. First, he has said that the approach to inspections by the previous leadership was wrong; it was wrong to go for generalist inspections. He also says that the culture of the organisation was wrong. Given that there are about 1,000 people employed by the CQC, although I am not absolutely certain, how on earth is the culture going to change in a short period of three or four months? I just do not think it is going to happen.

I have great admiration for the current leadership of CQC, but the risk is that it is going to be forced into a new system too quickly and it could fall over. As a result, its credibility will be very much damaged. Let us face it; it is almost starting from a negative position. I must confess that I am surprised that such an ambitious timetable has been set.

Who will be assessed? As I have already intimated, the clause provides for the Secretary of State to draw up regulations laying out exactly which services the CQC will rate. They are likely to be hospitals, GP practices, care homes, domiciliary care services across both the public and privates sectors and local authorities. Will the noble Earl confirm that? Will he say why this is not specified in the Bill? Does he not consider it important enough for Parliament to decide which bodies should be assessed, and to do so in primary legislation rather than through regulations?

I asked at Second Reading whether clinical commissioning groups are to be assessed. If not, why not? The Bill allows for local authorities to be assessed for their performance in the commissioning of adult social services, so I cannot really see why NHS commissioners—the CCGs—should not be similarly covered. The same logic then applies to NHS England which, after all, has been given a massive commissioning budget in relation to specialist services. If it is appropriate for local authorities to be assessed for their commissioning responsibility, surely all health commissioners should be similarly assessed. That must apply to NHS England because otherwise I do not see who will hold it to account for the mammoth amount of resources it will spend on commissioning specialist services.

I am particularly interested in local authority assessment, particularly in the way that services are commissioned. Can the noble Earl tell me whether this is intended to be a priority for the CQC? He will know that there is real concern about the practices of many private sector providers in social care in using zero-hour contracts and allocating only 15 minutes with each client. It is vital for the CQC to be able to investigate the way in which local authorities commission those services. We will come to this in Clause 5 but it would be very useful if the noble Earl could confirm that the commissioning responsibilities of local authorities will be a priority for the CQC.

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[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this has been a very useful debate and in addressing this group of amendments, it might be helpful if I began by setting out why we believe this clause is necessary.

At the moment, there is no straightforward way for members of the public to get a clear view of performance in hospitals and care homes, nor is there a measure to help drive up performance, so we believe that a new system is needed to give patients and the public a fair, balanced and easy to understand assessment of the quality of care provided. Clear ratings on performance will help to incentivise providers to improve their services, as they will be able to see how well they are doing. One of the central principles behind this clause is that it will enable the CQC to develop the new performance assessment system—informed by the views of stakeholders, of course, but nevertheless independent of government. In its report into ratings, the Nuffield Trust said:

“While there is a legitimate role for … government … to influence priorities, the process should largely be sector-led including the public and users”.

I am rather pleased that we did not debate this group of amendments on the previous Committee day because the CQC has, in the mean time, published a consultation on changes to the way in which it regulates, inspects and monitors care. I draw that to the attention in particular of the noble Lord, Lord Campbell-Savours, whose points I will address in a moment. This consultation, A New Start, sets out the commission’s initial thinking on the timetable for implementing ratings. The consultation document also sets out some detailed thoughts on how the CQC will rate NHS acute hospitals. I take the point made by the noble Lord, Lord Sutherland: this rating process will have to have some fundamental differences from that followed by Ofsted. However, the ratings will be based primarily on inspection judgments. They will be informed by a series of indicators, using data already available and the findings of other bodies such as those from accreditation schemes, clinical peer review and the judgments of other regulators. The CQC will be consulting on this model more fully later this year.

Noble Lords have raised concerns about the ability of a rating system to reflect the complexity of NHS acute hospitals. I assure the Committee that both the CQC and the Government are fully alive to this risk. The CQC is committed to producing ratings at a level which recognises the complexity of NHS services and is useful to people who use them, as well as those who commission NHS care. It is therefore proposing to provide ratings for certain individual services, such as emergency and maternity services, as well as for each hospital.

A rating will also be provided against each of the CQC’s key questions. They are: is the service safe? Is it effective? Is it caring? Is it responsive to people’s needs, and is it well led? This will mean that where the evidence is available, a trust would have five ratings at three different levels—for the individual service level, for the hospital site and for the whole trust. I am sure that noble Lords will agree that this is an ambitious aim, and one that seeks to reflect the complexity of the organisations that provide care.

The Government will draw up regulations that will enable the CQC to develop the programme of performance assessment in the manner outlined in A New Start. The consultation is the first small, but important, step in the process of developing a robust system of performance assessment of providers of health and adult social care. The first ratings of acute hospitals will appear at the end of this year: I will come on to the timetable in a moment. This will be another significant step in developing a ratings system, but it will not be the end of the journey. The Government are clear that the development of ratings will be a process of continuous evolution.

Amendments, 74, 75, 76ZA, 76ZZA and 76ZAA set out areas that the CQC must or could consider as part of its performance assessment of providers. These amendments would mean that the CQC would be required to include or consider the specific issues raised as part of its methodology. The Government share the view of noble Lords on the importance of the issues they have raised through these amendments. I am sure we can all agree that they are useful ideas. However, I hope that they will equally accept the importance of the central principle that we believe should be adhered to: that the CQC should be given freedom to develop its own methodology for the new performance assessments. The clause is deliberately designed to be flexible in that sense. I therefore hope that noble Lords will be content to withdraw their amendments, in the knowledge that the CQC is ready and willing to listen to all good ideas as it puts its final plans together.

The noble Lord, Lord Hunt, has also tabled Amendment 76ZB, which would require the CQC to undertake a pilot of its new performance assessment system and require the evaluation report to be approved by Parliament. The Government agree that the CQC’s new performance assessment methodology should be subject to evaluation. This is why, in our response to the Francis inquiry, Patients First and Foremost, the Government made the commitment that:

“The Department of Health will commission an independent evaluation of the operation of the new ratings system, and this will inform future adaptations”.

The amendment would give Parliament a power of veto over the methodology which the CQC develops for performance assessment. This is not desirable as it would constrain the freedom of the CQC to act on the findings of its consultation with stakeholders. I therefore hope that noble Lords will be content not to move that amendment.

Amendment 74A would require the CQC to undertake performance assessments of commissioners of healthcare services, specifically clinical commissioning groups and NHS England. The wording of Clause 80 could enable the CQC to undertake reviews of local authority commissioning of adult social care services. The absence of a similar requirement for healthcare commissioning therefore requires an explanation. The requirement for the CQC to review healthcare commissioning was removed by the Health and Social Care Act 2012 on 1 April 2013 when primary care trusts were abolished. This is because the function of supporting the development of the commissioning system for healthcare in England has become the responsibility of NHS England. NHS England’s role is to determine how the performance of healthcare commissioners, including clinical commissioning groups, is assessed and managed. There is therefore no need for the CQC to carry out a virtually identical role. I trust that the noble Baroness will be content to withdraw her amendment, but I would like to address the particular points raised.

[Lord Hunt of Kings Heath]

I do not quite see the logic of that, because in a sense NHS England has a vested interest in ensuring that all is well with the CCGs. It is not an independent body in the way that the CQC would be.

The other question is about NHS England itself. It is a massive commissioner of specialist services. If a local authority is to be assessed, I still do not see why NHS England ought not to be subject to some kind of independent assessment. It could have a huge impact on where specialist services are going to be provided in future. We know that Ministers are no longer prepared to answer questions about lots of things that NHS England does, so there seems now to be a gap in the architecture.

[Earl Howe]

Ministers most certainly are willing and able to answer questions about what NHS England is doing, and will continue to do so. Parliament, of course, will be entitled to keep NHS England’s performance in the spotlight; that architecture was built into the 2012 Act very deliberately. I do not accept the noble Lord’s point about clinical commissioning groups, because it is for NHS England to assure itself that the commissioning system for healthcare in England is working properly. There will be a high degree of transparency in that regard. The performance management role of NHS England will be right there, and I think that the proof of that will emerge over the coming months.

Perhaps I could cover the individual points raised by noble Lords. The first point was raised by the noble Lord, Lord Hunt, and echoed by the noble Lord, Lord Campbell-Savours, about how we expect the CQC culture to change in a relatively short time. I say to both noble Lords that I firmly believe that the CQC is already very much a changed organisation. It has a new leadership team in which I have full confidence. It has a new board—which, incidentally, the noble Lord, Lord Hunt, may be interested to know will include Kay Sheldon—and I think it has a new attitude to openness and transparency, as its handling of the Grant Thornton report demonstrates.

On 16 July, the CQC’s chief inspector of hospitals, Professor Sir Mike Richards, will start in post, so that is very soon. By September the CQC will be publishing a list of hospitals that it has the greatest concerns about, and it will be using its new surveillance system to develop this list. The CQC is committed to learning from the past and pressing ahead rapidly to improve for the future. I agree with the noble Baroness, Lady Howarth, that the CQC needs stability.

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Moved by

[Lord Hunt of Kings Heath]

78: Clause 1, page 1, line 4, at end insert—
“( ) The Secretary of State, in making regulations or issuing guidelines under this Part, must have regard to the general duty of local authorities in exercising a function under this Part in the case of an individual to promote that individual’s well-being.”

[Lord Hunt of Kings Heath]

My Lords, I shall speak also to my Amendments 78D and 88L. I am also supportive of Amendment 79, which very much follows the thinking behind my own Amendment 78. I also support Amendment 78ZA, in the names of the noble Lord, Lord Bichard, and the noble Baroness, Lady Tyler. I am sympathetic, too, to the amendments tabled by the noble Lord, Lord Black. I have also added my name to Amendments 78A and 78B in the name of the noble Baroness, Lady Barker. She will speak substantively to those amendments, which we have proposed in a number of Bills going back many years. They try to make sure that, when a regulator is dealing with a religious care home, regulations do not get in the way of the spiritual beliefs of the residents in that home.

Amendment 78 takes us to the very important well-being principle. In its consultation paper which led to the consolidation of the social care legislation that we see in this Bill, the Law Commission proposed that there should be tightly defined processes for determining the scope of adult social care. That follows on from the debate that we have just had. Replies to that consultation persuaded the Law Commission to define the purpose of adult social care as promoting or contributing to the well-being of the individual. That recommendation was accepted by the Government and is central to their new approach to adult social care.

Clause 1 provides for a set of legal principles which govern how local authorities are to carry out their care and support functions for adults under the Bill. Subsection (1) establishes the overarching principle that local authorities must promote the well-being of the adult when carrying out functions under the Bill in relation to that adult. This duty applies both in relation to adults who use services and to carers. The well-being principle applies to local authorities when they exercise a function in the case of an adult. My understanding is that it is not intended to be directly enforceable as an individual right, but to carry legal weight where a local authority’s failure to follow the principle may be challenged through judicial review.

This issue was considered very carefully by the Joint Select Committee, which commented specifically on the role of the Secretary of State in relation to the well-being principle. It took the view that many of the details that will shape the way in which local authorities discharge their functions under the Bill are subject to regulations and guidance issued by the Secretary of State. We will, of course, come on to one example—that is, the regulations in relation to eligibility, which we will debate not, I suspect, tonight but on another day.

The Joint Select Committee referred to Section 1B(1) of the National Health Service Act 2006, which provides:

“In exercising functions in relation to the health service, the Secretary of State must have regard to the NHS Constitution”.

The Select Committee suggested that the Secretary of State should be obliged to have regard to the requirements of Clause 1 on well-being when exercising the functions under the draft Bill. In giving evidence to the Joint Select Committee, the Minister replied:

“We absolutely want the wellbeing principle to apply comprehensively”.

The Joint Select Committee comments:

“We welcome the importance that Ministers attach to the well-being principle. We recommend that the draft Bill should include a provision requiring the Secretary of State, when making regulations or issuing guidance, to have regard to the general duty of local authorities under clause 1”.

We debated this at Second Reading. The noble Earl, Lord Howe, said that,

“Clause 1 is intended to apply at an individual level, when a local authority makes a decision. This individual focus on the specific well-being and outcomes for that person is at the heart of the way that the Bill has been drafted. It is not intended to apply in a more general way”.—[Official Report, 21/5/13; col. 829.]

He went on to say that it would therefore not be appropriate for the Secretary of State to be subject to the same duty, as the Secretary of State does not make decisions at the individual level.

I think there is an element of Ministers almost washing their hands of what actually goes on at ground level in health and social care. We have already seen that in the Health and Social Care Act 2012, and we are seeing some elements of that here. Of course, the Bill places a responsibility on local authorities to promote well-being in the way they implement the provisions of the Bill locally. However, if the Secretary of State were to issue regulations without having regard to the promotion of well-being, there is a risk that those regulations or guidance will conflict with the well-being principle. That would place local authorities in an impossible situation. For instance, if the eligibility criteria issued in regulations by the Secretary of State do not take full account of all aspects of well-being in Clause 1, local authorities may find that people who need support to promote well-being as defined in Clause 1 fall outside the eligibility criteria. I will come on to debating the eligibility criteria, but there are some aspects of the eligibility criteria which would suggest that they do not meet the well-being principles in Clause 1. I hope the noble Earl will think very carefully about this. There is a broad consensus in your Lordships’ House and within the Select Committee dealing with the draft Bill that the Secretary of State, when issuing regulations and giving guidance to local authorities, ought to be operating under the same principle of well-being as those local authorities are. It seems to go straight back to the debate instituted by the noble Lord, Lord Best, in relation to the Government legislating but not giving the wherewithal to local authorities to actually carry out that legislation effectively.

I turn to Amendments 78D and 88L, which are concerned with ensuring that health needs are taken fully into account in decisions taken by the local authority. I fully acknowledge that I have been inspired to do this by the noble Baroness, Lady Campbell. The starting point here is that it is essential to look at this through the prism of person-centred integration. As a starting point, we need to look at ways to put the individual’s and carer’s need for integrated working in the Bill and outline a statutory framework for person-centred integration that will support and incentivise local moves towards more integrated working. There are clearly points of contact here with the scheme which the Minister’s honourable friend Mr Norman Lamb announced recently for local pilots on health and social care integration.

Promoting the individual’s well-being, assessing their needs and those of their carers, deciding on eligibility and the priority for needs to be met, developing them with an appropriate care and support plan, enabling the best use of a personal budget and/or direct payment, and ensuring continuity of capacity during and after a move such as a house move are all processes or stages in which active engagement of NHS professionals or services could have a positive effect on the outcomes for individuals and carers. Integrated approaches by social care and the NHS can inform decisions, expand options, widen choice, retain or restore capability, prevent or reverse deterioration, avoid admission to and accelerate discharge from more intensive support and enable more efficient, equitable and economic use of scarce resources.

These amendments, which aim to ensure that happens in relation to the whole well-being agenda, are entirely relevant to the eligibility criteria. I remind the noble Earl that Mr Lamb, in his foreword to the document that we have received, makes the observation that,

“there needs to be better integration between local authorities and the NHS to remove gaps and build services around the needs of people”.

The discussion document’s only reference is in one paragraph which says:

“The assessment process in the Bill … provides for joint assessments between local authorities and other bodies such as the NHS. Improved integration will ensure that the person does not have to undergo separate assessments and will support better care planning to meet the individual’s overall health and care needs, or to join up whole-family assessments which look at an adult needing care alongside those who care for them”.

Of course, that is welcome as far as it goes, but there is a risk that it depends on an ill-defined concept of better integration and may well fall short of a holistic approach to well-being, assessment, care and support planning, carer support and review. We will come to the draft regulations later. This has a significant bearing on assessments for health and social care integration. The intention is to scrap the present assessment system, based on judgments about degrees of risk to areas of individual capability and exclusion from participation in various aspects of ordinary living. The new model proposes to examine people’s ability to carry out various personal care tasks and undertake a selections of household tasks. The rationale offered is that the new system will be more objective and fairer in its application, but there are some concerns here. First, this is explicitly a deficit-model of assessment, requiring individuals, their carers, relatives and social workers to almost play up or exaggerate the things that they are unable to do in order to qualify for support. In many ways, that replicates the very bad approaches that we have seen in some welfare assessments. It is certainly bad for morale and distorts the overall framework for making decisions. In one sense, one can argue that it reverses efforts over the past 20 years to maximise independence, choice and control and build on the strengths, contributions and aspirations that people can have. I must say to the noble Earl that is has some very uncomfortable reminiscence of the new approach to disability benefits, whereby people are required to prove limitations under the inexpert and unsympathetic eye of ATOL assessors. I hope that is not the approach that is going to be taken in relation to the eligibility criteria. There will be very great concern if that is to be the case.

The noble Baroness, Lady Campbell, has many examples, which I hope she might be able to intervene and provide, of disabled people with high health and social care support needs, who are ready for discharge but languishing in costly high-dependency hospital units because clinical commissioning groups have almost ground to a halt due to decision-making, with arguments about who pays being one of the many reasons for this. It is absolutely essential to ensure that when we debate and take forward the well-being concept, which of course we welcome, not only do we have a situation where the Secretary of State is subject to those principles as well, but the health service plays its part in ensuring a wholly integrated approach. As we come to debate the eligibility criteria, that is going to be a very important factor for our consideration. I beg to move.

[Lord Bichard]

My Lords, I support the amendment and in particular speak to my own Amendment 78ZA, which seeks to place the concepts of dignity and respect on the face of the Bill at the outset. I should declare an interest as chairman of the Social Care Institute for Excellence.

A week or so ago I visited a residential home in Edgbaston, Birmingham, and I came away convinced that I could happily live there. I am not sure that they would want me but I was convinced that I could live there if they would have me. As I reflected on that visit I asked myself why I felt so positively, because I do not always feel that way about a visit. The accommodation was comfortable, clean and not overly institutionalised. The staff were skilled and well qualified. There was a rich programme of voluntary recreational activities and a great deal of interaction between the local community and the home. A special school was visiting on a regular basis and there was clearly a bond between the residents and the students at the special school.

All very impressive, but above all, I experienced a place where residents were treated with dignity and with respect by staff who seemed to understand that people’s greatest need at a time when they have to receive some support is not to lose their dignity. Those residents wanted, above all else, to retain their dignity, and so would I.

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[Earl Howe]

I agree that dignity is a very important concept, which is why we expressly amended the Bill to include that word right at the beginning. Clause 1, which defines the well-being principle, is the foundation for everything that follows. While one could pepper the Bill with references to the word “dignity”, I am not sure that that would add very much in practice.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the Minister for that response. I hope that he will reflect a little on the amendment from the noble Lord, Lord Bichard, and the noble Baroness, Lady Tyler. I understand what he is saying about the words in the Bill; I think that noble Lords just wanted to find a way of giving that greater focus. That will be well worth giving further consideration to. With regard to the amendment from the noble Baroness, Lady Barker, I am grateful for the reassurance that the Minister has given.

On Amendments 78 and 79, the Minister has essentially said that he still sticks to the general principle that the well-being clause applies to local authorities and individuals. The point here, though, and the reason why I am glad he is taking it away, is a point raised by a number of noble Lords: this legislation, which is a wholesale recasting in the light of the Law Commission’s work, is likely to endure for many years to come. That is why it is so important that the link between the Secretary of State’s duties, and those of local authorities, and the Secretary of State’s powers regarding guidance and regulations are brought together. I hope that the Minister will find a way of getting this into the Bill.

The noble Baroness, Lady Campbell, was very eloquent when she talked about what happens if health and social care do not provide an integrated service. She gave an example of a very distressing case of someone who could be out of hospital and back into work. This was down to a failure of two public bodies to sort things out. I know that the Minister says that in fact the legislation is okay; the problem is that these public bodies will continue to fail people who fall between two stools. These bodies do not seem to have an understanding that it is imperative for them to look after the interests of those individuals. I hope that the noble Baroness might return to this at a later stage.

The noble Lord, Lord Black, made some wholly persuasive arguments. My noble friend Lady Wheeler reminded me that Canine Partnerships is another organisation that is very much involved in pet companions for people with stroke, epilepsy and other illnesses. I myself have come across organisations in Birmingham in connection with the health service that do a fantastic job. All I would say is that if the noble Lord put this to a vote, the Opposition would be right behind him, so let us see. I beg leave to withdraw the amendment.

Amendment 78 withdrawn.

Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 3rd July 2013 Lords Chamber

[Lord Low of Dalston]

My Lords, I was waiting to see whether the noble Lord, Lord Hunt, was going to speak to his amendments in this group—

[Lord Hunt of Kings Heath]

Would the noble Lord find it helpful if I went next?

[Lord Low of Dalston]

Yes, please.

[Lord Hunt of Kings Heath]

Thank you very much. My Lords, I think this is a very interesting group of amendments and the noble Baroness, Lady Greengross, in her Amendments 78C and 79K—to which I have added my name—and her other amendments makes some very important points about the need for a preventive approach, including its health dimension. My noble friend Lord Touhig has added his powerful voice to it.

In Amendments 79K and 80A there is a real issue here about the national minimum eligibility threshold. It would provide some certainty for some adults about whether their care needs will be met, but we know there will be many people whose needs remain just below the level at which local authorities will at a minimum need to meet through the national eligibility criteria. We know the Ending the Other Care Crisis report produced by Scope with four other charities estimates that 105,000 working-aged disabled adults will in fact continue to rely on universal services. This places greater responsibility on local authorities to put in place the necessary services to help prevent, delay or reduce care needs.

There is an argument for framing Clause 2 more positively to encompass the many diverse forms of preventive support that local authorities could put in place to prevent deterioration in the well-being of adults in their area. We want local authorities to be more ambitious and to think about prevention more positively. While understanding the pressures that undoubtedly local authorities will be under, these amendments would give a very powerful voice to the need to go down the preventive route.

My Amendment 79A, to which the noble Lord, Lord Low, has added his name, continues the same theme on placing a general duty on local authorities to prevent, delay or reduce the need for care and support. We know that in Clause 2 there is a requirement on local authorities to look at how they can make the best use of community facilities to prevent, delay and reduce needs for care and support. That is very welcome indeed but the question is: to what extent are local authorities geared to put that into practice? Hence I have tabled this amendment. I think we need give a push to local authorities to take this seriously. I hope the noble Earl will be sympathetic to agreeing to some form of amendment which would reflect this in Clause 2.

The noble Lord, Lord Low, has a number of other amendments in this area which I would very much wish to support, although I have not lent my name to them. They are very well framed and important. Coming back to the issue we discussed in the debate just before the dinner break, this legislation may well stay on the statute book for many years to come, so it is really important to get it right. The emphasis that the noble Lords, Lord Low and Lord Rix, have given to these points bears careful consideration, so I am very happy to support them.

[Lord Low of Dalston]

I thank the noble Lord for his anticipatory support of my amendments, and perhaps I may return the compliment by saying that my name is on five amendments in this group and I have the most copious set of notes I have ever had in any debate. I hope that noble Lords will bear with me at this time of night, but with five amendments, there is quite a bit to go through.

As the noble Lord, Lord Hunt, said, I have put my name to his Amendment 79A and to that tabled by the noble Baroness, Lady Greengross, and in the names of the noble Lords, Lord Hunt and Lord Touhig, Amendment 79K. There are the same group of Peers on Amendment 80A, but Amendments 80C and 87F are in my name only, so I shall obviously spend a bit more time on them.

Before that, I shall say a few words on Amendments 79A, 79K and 80A. Clause 2 would be stronger if local authorities were also placed under a general duty to take prevention into account in exercising any of their functions under Part 1, not just those relating to direct provision of care. Amendment 79A would ensure that local authorities act to “prevent, delay or reduce” individual care needs across every one of their functions. Amendment 79K would ensure that the prevention duty focuses on what a local authority must do to prevent a deterioration in well-being, in addition to preventing, delaying or reducing the need for care and support. Amendment 80A would oblige authorities to have regard not just to the importance of identifying adults and carers with needs for care and support and the services available to meet those needs, but,

“the steps it could take to improve and enhance the provision of services, facilities or resources in its area”.

The idea would be to ensure that local authorities actively consider what more they could do to prevent needs for care and support above and beyond identifying existing services, facilities and resources in the authority’s area.

The Bill currently stops short of that, which is bad news for the hundreds of thousands of older and disabled people who are not deemed eligible for adult care and support. It is also bad news for the Government’s aspiration to rebalance the system away from crisis interventions in a more preventive direction. The amendments suggest a more strategic approach which, by putting in place services at the community level, not just directed at individual care, could ensure that those who did not reach the eligibility threshold were, nevertheless, not bereft of support entirely. In other words, they provide a means of enabling available resources to go further by deploying them strategically in aid of prevention.

The kind of preventive services I am thinking of might be of six types. First, there are enabling services, preventing harm before it occurs—as you might say, working well away from the cliff edge. Secondly, there are services that prevent care needs from developing: for example, reablement or specialist rehabilitation to help an adult with sensory loss or a falls prevention service for older people discharged from hospital. Thirdly, there are prompt interventions, detecting and responding to early signs of difficulty, forestalling problems which could lead to more serious consequences —as you might say, working just over the edge of the cliff. Fourthly, there are services that help to delay care needs once they have started to emerge, for example, home adaptations for those no longer independently mobile or befriending services for the recently bereaved, perhaps funded by the local authority but delivered by a local Age UK. Fifthly, there are services that reduce care needs once they have started to intensify, for example, a stroke rehabilitation service provided alongside the NHS to help adults to regain control over key activities of daily living.

Sixthly and finally, there are acute interventions reducing the impact of a situation spiralling down—working well down the cliff, you might say. Wales furnishes an example in the Social Services and Well-being (Wales) Bill, which is currently before the Welsh Assembly. I hope the Minister might be willing to take a look at that. The corresponding section of that Bill, Section 6(4), explicitly states that a local authority must, in the exercise of its other functions, have regard to this preventive services clause in the Bill.

--- Later in debate ---

[Baroness Royall of Blaisdon]

My Lords, I shall speak to Amendment 79L tabled by the noble Lord, Lord Patel, who unfortunately cannot be in his place this evening. The purpose of the amendment to which I have added my name is to ensure that carers are identified and signposted to the enhanced support outlined in the Bill as early as possible and before they reach crisis point. I put my name to this amendment following a discussion with Macmillan, to which I am very grateful for its excellent briefing, about the situation of approximately 905,000 cancer carers in England, half of whom are not receiving any support despite the fact that cancer has a real impact on their lives. Of course, the impact is nowhere near as big as that on the person with cancer but nearly half of carers say that it affects their mental health and well-being; one in five says that it affects their relationships and working life; and 15% say that it affects their household finances. Almost half of cancer carers identify at least one type of support they are not currently receiving that would assist them with their caring duties. They are in real need of help but are not aware of who or where to turn for support.

As many noble Lords will know from personal experience, the real problem is that many cancer carers do not think of themselves as carers but they might well need information, advice or support. Indeed, my noble friend Lady Pitkeathley has just made the same point in general about all carers. They have no idea about things such as the local authority carers’ assessment, which is the gateway to statutory support. Consequently, the number of cancer carers who have had such an assessment is far lower than for those caring for people with other conditions and disabilities. Evidence shows that health professionals simply do not identify cancer carers as carers and do not signpost them to help or support.

Therefore, while I welcome the fact that the Care Bill enhances rights for carers, including placing a new duty on local authorities to undertake a carers’ assessment for all carers and to meet the eligible needs of carers, there is a gap which this amendment is designed to fill. Cancer carers have a lot of contact with the NHS but they seldom come into contact with local authorities. This amendment would help to ensure that all NHS bodies work with local authorities to improve the identification of all carers so that in turn they can be assessed and access appropriate support.

In the Care and Support White Paper the Government said that,

“there is still an unacceptable variation in access to tailored support for carers”.

It outlines its requirement for,

“NHS organisations to work with their local authority partners … to agree plans and budgets for identifying and supporting carers”.

This amendment would provide a vehicle for ensuring that this optimal practice of joint identification and partnership became a reality throughout England where, at the moment, the identification is at best patchy and at worst non-existent. Local authorities should take the lead but they could benefit greatly from the help of many relevant health bodies such as NHS England, CCGs, and primary care and hospital trusts which already have procedures and systems in place to identify carers. Clearly, that does not always happen.

The amendment would not lead to additional expenditure. In fact, if carers were identified as early as possible, when in most cases they just need signposting to information and advice, it could save money. Fewer carers would reach the sort of crisis point that requires NHS support for themselves and local authority support for the person for whom they are caring.

On Saturday, I was in Torbay and I talked with some people about their excellent system of integrated healthcare in which they understand that a whole-system approach is needed to support carers and that proactive identification is needed by the NHS. I was therefore interested to read a quote from Mr James Drummond, lead officer for integrated services at the Torbay and Southern Devon Health and Care NHS Trust, in which he says:

“If we wait for carers to approach us we may not engage until there is a crisis. Proactive identification is good practice, but national support is needed to spread this across the country. It should be made clear that identifying carers and signposting them to support is the responsibility of all health and social care professionals, not just local authorities”.

That says it all. I know that the Government recognise the need for the NHS and local authorities to work together on this important issue so I very much hope that the noble Earl will use this amendment and agree to look at ways of formally involving the NHS in the local authority duty to identify carers.

[Lord Hunt of Kings Heath]

My Lords, this is a very important group of amendments, and I very much support my noble friend Lady Pitkeathley in her Amendments 78F, 79E, 79H, 88C, 88E and 88F. I also support my noble friend the Leader of the Opposition in her Amendment 79L, emphasising the importance of working with the National Health Service.

My Amendments 79F, 79J and 79M to Clause 2 concern the position of young carers. They aim essentially to ensure that local authorities provide or arrange services to prevent young carers from developing needs for care and support, as well as preventing and reducing needs for adults and adult carers. The 2011 census identified 178,000 young carers who have to care for a relative in England and Wales alone. It is good that the Government have now acknowledged that, given the changes being introduced by the Care Bill for adult carers, the law must also be reviewed for young carers. However, we need a much clearer indication of what these changes will look like and particularly of how the Care Bill will ensure that adults receive sufficient care and support so that children are protected from excessive and inappropriate caring roles. We cannot have a situation where people have unmet care and support needs, which results in children and young people having to meet these needs.

I recently met a young man who had been caring for someone in his family for most of his life. He told me that it would have made a huge difference to him if his family had received support earlier. If this had happened, his caring responsibilities might not have had such a clear and serious impact on his education. He is doing well now and hopes to go to university, but it has clearly been extremely challenging for him to stay in education, and there are many thousands of other young people who have been similarly affected. That is why my amendments to Clause 2 are so important. They make clear that local authorities must take steps to prevent children from carrying out caring duties that have a detrimental effect on their health and well-being. Can the noble Earl assure me that the Care Bill will be amended to ensure that this is the case? If he can, I would welcome an indication of which parts of the Bill will be amended so that young carers are protected.

My other amendments on this issue are to Clause 12, which provides for regulations on whole-family assessment. Again, the Government have indicated that they will look at how the law might be changed for young carers in the Bill, but it is not clear how that might be done. We know that currently adult social care services and health services routinely fail to identify children who may be caring for an adult, even where the adult is assessed. That also applies to educational establishments. That means that often children can continue to undertake harmful caring roles and end up developing needs for care and support themselves.

It is very important that adult needs assessments relate to any child in the household, so that inappropriate caring by children is prevented and children's needs for support are prevented or reduced. The law must be clear that adult services need to help to identify young carers. The presence of a young carer should always constitute an appearance of need for the family and should automatically trigger an assessment of the person for whom they care. Can the noble Earl confirm that this is indeed the Government’s view? Will it be made clear, through primary care or regulations, that there should be consideration of whether a joint child and adult assessment would be appropriate and that children’s services should work together; consideration of whether any child should be assessed for support in their own right under children’s law; and consideration of whether lower-level support may be needed for the whole family, including the child?

It is a pity that we are taking this important debate at so late an hour, and no doubt we will return to this matter on Report, but I look forward to the noble Earl’s response.

NHS: Mid-Staffordshire NHS Trust

Lord Hunt of Kings Heath Excerpts

Monday 24th June 2013 Lords Chamber

[Earl Howe]

My Lords, the latest figure that I have for the cost of the Department of Health’s media centre is for 2011-12 and is £2.57 million. I will write to my noble friend as soon as I have more recent figures. She may be interested to know that the names and contact details of each of the department’s press officers are published on the GOV.UK website. Currently, 28 Department of Health press officers are listed there. I do not have to hand the details of the number of press officers employed by NHS England, but, again, I shall write to my noble friend with that information. In the department and in NHS England, internal line management arrangements are in place to measure performance.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests in the register. I was very interested in the Minister’s first response, in which he agreed that oversensational statements about the NHS are doing great damage. Has he shared that view with his right honourable friend the Secretary of State? Hardly a day goes by without the Secretary of State taking an opportunity to attack various aspects of the National Health Service. Will he take it from me that this is having a very bad effect on morale in the NHS? His right honourable friend should desist, and a period of silence from him would be very welcome.

Care Quality Commission: Morecambe Bay Hospitals

Lord Hunt of Kings Heath Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for repeating the Statement, and I declare my interest as a consultant trainer with Cumberlege Connections and as chair of the Heart of England NHS Foundation Trust. Yesterday’s report will have left your Lordships shocked. The noble Earl began with an apology and we on this side of the House echo that apology. Of course, it is a sad fact of life that mistakes will be made. What is never acceptable is when people or organisations try to hide those mistakes. Sadly, this is what appears to have happened in this case.

The report covers a four-year period up until autumn 2012 and deals with failures in regulation, but also with subsequent attempts at a cover-up. It was only published thanks to the efforts of James Titcombe and his family, and I echo the tributes that the noble Earl has paid to him. It is essential that he and all the other families affected in Lancashire and Cumbria get the answers they are looking for. We on this side of the House are fully committed to making sure that this happens.

The most shocking revelation in this report is that in March 2012 an instruction was given by a member of senior management at the CQC to delete the findings of an internal review. Today’s report says:

“we did find evidence of the apparently deliberate suppression of an internal CQC report … and the alleged decision to suppress it … may constitute a broader and on-going cover-up”.

When one considers the context in which this takes place, it is truly shocking. At that time, we were almost two years into a public inquiry into the failings at Mid Staffordshire. That followed an earlier independent inquiry, also led by Robert Francis, following which all parts of the NHS had committed to full openness and transparency. It came after failings at other trusts, most notably Basildon and Thurrock, had been made available, which led to the Opposition calling for an in-depth look at hospitals and a new assurance that they were safe. That is why yesterday’s report is so hard to comprehend. It raises serious questions for the CQC and the Government, which I will take in turn.

On the question of the CQC, I agree with the noble Earl’s assessment of the quality of the new leadership team at the CQC. I commend the new chief executive, David Behan, for commissioning this report. However, yesterday the chair, Mr David Prior, said that he wants to draw a line under the issue. Does the noble Earl agree with me that that line can be drawn only when further questions about the report are answered?

On the cover-up, paragraph 1.17 of the summary of the report says, as I said earlier, that the order to delete,

“may constitute a broader and on-going cover-up”.

Will the noble Earl address this point directly and tell the House whether he is confident that this cover-up is no longer happening? Is he satisfied that the CQC is taking all appropriate steps, and does he have full confidence going forward, or does he believe that a further process of investigation is necessary?

More specifically, is anybody who is involved in the decision to delete that report still working at the CQC or elsewhere in the National Health Service? If they are, I think the public will find that very hard to accept. Given that accountability is essential, does he agree that the public would find it very hard indeed to accept data protection laws standing in the way of this? Will he therefore review the decision to shield the identities of those involved?

The noble Earl will probably have heard the Information Commissioner, speaking today about the use of the Data Protection Act, saying, as I understand it, that there is no blanket ban under the Data Protection Act that would deal with a situation like that, and that if there is an overriding public interest in the names being in the public domain, the Data Protection Act should not be prayed in aid.

I know that the CQC is now seeking further legal advice, and that is welcome. In the end, does the noble Earl agree that sometimes organisations have to override legal advice and do the right thing? I hope the CQC will do that and do it quickly.

Turning to the noble Earl’s department, can I just have it confirmed that the decision to delete the report was taken solely by senior management at the CQC? Can he confirm that officials in his department were not aware of that deleted internal report and were not involved in any discussions between the CQC and the department about it?

Yesterday, at Prime Minister’s Questions, the Prime Minister said that there should always be support for whistleblowers, and he was right. However, there are serious doubts about whether that happened in this case. Concerns about the CQC were raised by a whistleblower, but I understand that she was then subject to attempts to remove her from the CQC board. The noble Earl will recall that I raised this in the House, and he very kindly took action on the matter. It has been reported that the same whistleblower told the CQC board yesterday that she raised issues internally first and then within the department, including directly with the then Secretary of State, in a meeting. Is the noble Earl prepared to release the minutes of those meetings?

We note the important work of Mr Don Berwick, but should we not be getting on with implementing the recommendations of the Francis report in this regard? The Care Bill, which is now in your Lordships’ House, is an ideal vehicle for implementing Francis but is remarkably light on clauses relating to Robert Francis’s recommendations. His report emphasised the need for openness, transparency and candour. Openness will enable concerns and complaints to be raised freely and without having questions to answer. Transparency will enable the truth about performance and outcomes to be shared with everybody with an interest in it. Candour will ensure that any person harmed by the provision of a healthcare service is informed of that fact and an appropriate remedy offered.

Francis made specific recommendations, including that a statutory obligation should be imposed to observe a duty of candour. He wanted healthcare providers who believe or suspect that the treatment or care provided to a patient has caused death or serious injury to inform that patient, or a duly authorised person, of that fact as soon as practical. He said there should be a statutory duty on all directors of healthcare organisations to be truthful and that it should be made a criminal offence for any registered medical practitioner to knowingly obstruct another in the performance of the statutory duties that he wished to see enacted, to provide information to a patient or nearest relative intending to mislead, or to dishonestly make an untruthful statement. However, the only offence in the Bill is a corporate one of providing “false or misleading information”. That is not a duty of candour, so I was very surprised to see the Secretary of State say yesterday in the other place that there would be a duty of candour in the Care Bill. It is not in the Care Bill and I do not think that secondary legislation is sufficient.

Does the noble Earl also not agree, in the light of what happened at the CQC, that it is perverse that the duty not to provide false or misleading information applies only to providers? It does not apply to the CQC; to the other regulator, Monitor; to NHS England; or to his own department. Is he prepared to agree to amendments to the Care Bill on Report to extend this duty to the organisation that has been found so grievously to suppress information that it found itself uncomfortable with?

There is clearly a real problem about the approach that the CQC has taken to hospital regulation. Is the noble Earl willing to have a lengthier debate about regulation? I wonder whether we are just putting too much responsibility on regulators and not enough on the people who actually provide those services. I particularly worry about what he says about the introduction of Ofsted-style ratings into the health service. He will have seen evidence from a number of medical bodies, which are concerned that this is going to be too simple a process when judging something as complex as a hospital.

A hospital may be given a 1 rating—an outstanding rating Ofsted-style—but inevitably within a large hospital, although overall it may be a category 1 there are likely to be services that are not so good. My worry is that a hospital, because it has been given a 1, will not then be reinspected for a number of years, which is the Ofsted style, and its weaknesses will go undetected. When at some point a real problem with patient care comes into the open, it will undermine the whole credibility of the exercise undertaken by the CQC.

We know that the CQC has really been pushed into this by the Government and the Prime Minister. I hope it will be given the flexibility to come up with a more sophisticated approach. We do not want to set the CQC up for failures in the future. I am very fearful that a simple grading of 1 to 4 is almost guaranteed to do that. Overall, I am glad the Government have brought this Statement to Parliament. It is very important indeed that the messages and lessons are learnt. However, we need a much wider debate about the role of regulation in the health service and about whether the practicalities of this can be taken forward effectively by the CQC.

Health: Children's Heart Services

Lord Hunt of Kings Heath Excerpts

Wednesday 12th June 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl for repeating the Statement and for reminding the House of the events which led to the Safe and Sustainable review. Terrible failings in the care of very sick children at the Bristol Royal Infirmary in the 1980s and 1990s led Sir Ian Kennedy to call for expertise to be concentrated on fewer surgical sites, a call supported by more immediate, recent events, including the suspension of children’s heart surgery at the John Radcliffe Hospital in Oxford in 2010. Since Bristol, Sir Ian’s important conclusion has had the support of the health professions and all sides of the House.

As we digest what the noble Earl has said, two considerations must remain foremost in our minds. First, this issue continues to transcend party politics; and secondly, the complexity it presents should not derail us from our determination to deliver the safest possible care for children in the country. That said, changes of this magnitude must be able to command consensus and public confidence and that has not happened since the decision on site selection by the joint committee.

When it was published, while the Opposition supported the reduction in sites, we expressed concerns about the distribution of the seven sites, skewed towards the west of England and leaving a large swathe of eastern England, from Newcastle to London, without a centre. For a family living in Hull or Lincoln, the prospect of leaving home to travel hundreds of miles, with the cost of accommodation and time off work, added to their stress and anxiety. Therefore, it is not surprising that there has been such strength of feeling, particularly across Yorkshire, the Humber and east Midlands. While clinical safety must predominate, does the noble Earl agree that the NHS needs to give further consideration to public access and travel times when reconfiguring services? In this case, as the IRP points out, the joint committee considered access the least important factor. The IRP concluded, surely rightly, that the decision used a flawed and incomplete analysis of accessibility. Going forward, can the noble Earl tell me that his department will ensure that that is corrected and that access will be a significant factor in a future decision?

On the review itself, the noble Earl will know that one main concern has been that mortality data were not given enough weight. While decisions on this cannot be based on death rates alone, we agree with John Deanfield, the director of NICOR, who, in his letter to NHS England in April 2013, said:

“Mortality is only one measure of quality, but currently is the most robust available outcome”.

Will the noble Earl confirm that, in the further process of review announced today, these data will feature more prominently?

The main concern we have with the announcement that the Government have made today is the proposal to link the children’s review with the review of adult heart services and the implications that might have for the timetable. The Statement uses the words “better co-ordination”. I understand that about 30 centres are carrying out adult heart surgery. The seven selected centres for children will not be collocated with adult heart surgery. As the noble Earl knows, there are a number of specialist children’s sites. The link between the children’s sites and the adults’ sites is not at all clear. Is there a danger that, by linking the review with adult heart surgery, the Government risk a loss of focus and, indeed, more delay? By broadening it in this way, is there a danger that we will lose the consensus that has already been gained over the future of children’s heart surgery?

The decision will clearly have implications for the timetable of the children’s review. It is noticeable that the Statement does not really contain a clear timetable. Can the noble Earl set out a more precise timetable for when the actual decision is going to be made?

I wonder whether the noble Earl has seen the response from the Royal College of Surgeons today. It expressed disappointment that the reform plans will be suspended, adding to what it describes as a long and exhaustive process. In its final comment, it urges NHS England to act swiftly and decisively, and says:

“Continued foot dragging will only delay the much needed reform that will ensure children will get the best treatment available”.

Can the noble Earl respond to that? He says that the review will be concluded by the autumn, but the question here is when decisions will be made and, even more importantly, when they will be implemented.

The Statement sets out a major role for NHS England going forward. Can I be assured that, in the process that NHS England takes forward, it will operate independently of interests linked to the selected sites? Does he agree that it is vital that we do not lose confidence in the process and damage confidence in all 10 existing services? I noted what he said in reassuring the House about safety. I welcome that, but is his department taking action to ensure that all existing units will not lose expertise in the intervening period? That will be a source of concern the longer the review takes and the longer the decision takes to make.

It is clearly important that public confidence in the process and the final decision is maintained but, balanced against that, unnecessary delay will not bring the best results for the children who most need our help. In that regard, I should like to ask him about the comments made by Sir David Nicholson, the chief executive of the NHS, at the annual meeting of the NHS Confederation last week. In an interesting speech, he said:

“We cannot let the tyranny of the electoral cycle stop us from making the real and fundamental changes that we need to make to the NHS”.

He went on to say:

“So what happened when we got a new government in is we wasted those two years where you can really make change happen. We spent our time talking about reorganisation and changes and all the rest of it and we didn’t talk about the really important changes that are required for the NHS”.

I am quoting that because the election is less than two years away. Can the noble Earl reassure me that the electoral cycle is not going to get in the way of coming to a sensible and speedy decision?

Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 12th June 2013 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

58B: Clause 98, page 81, line 25, at end insert—
“( ) the Medical Royal Colleges;”

[Lord Hunt of Kings Heath]

My Lords, Clause 98 concerns a duty of co-operation with the Health Research Authority. That is of course absolutely supported. My Amendments 58B and 58C would insert into the list of organisations,

“Medical Royal Colleges … the General Medical Council, the General Dental Council and the Nursing and Midwifery Council”.

I have no doubt that the noble Earl will warn me of the dangers of this, but in a sense his own department has provoked it by putting a list into the Bill. Inevitably, we looked at that and wondered why some organisations were missing. I realise that Clause 98(1)(i) allows flexibility by regulations to add to the list and I am sure that that flexibility is welcome, but we should get this right in the first place. I find it difficult to understand why, for instance, the medical royal colleges are not listed. They have a vital role to play in this area.

Similarly, I support the noble Baroness, Lady Emerton, in her Amendment 59. I am sure she will speak to that in a moment. If the Chief Medical Officer is named, why is the Chief Nursing Officer not? I know there has been concern over the years about the position of the Chief Nursing Officer. The last Government as well as this one have debated this issue. Given that we wish to see an extension of research into nursing and clinical areas because of the absolute importance of enhancing the quality of nursing, it is disappointing that the Chief Nursing Officer is not listed.

I also support Amendment 61 from the noble Lord, Lord Willis, which takes the responsibility in Clause 98(7) of local authorities and NHS trusts to have regard to guidance from the HRA on good practice in research and extends it to other providers, including the private sector. These are important amendments as a whole. It is important that the Bill is informed and improved.

On my Amendment 61A, I am puzzled that in Clause 98(7) the requirement is only to have regard to HRA guidance. Surely that should be strengthened, as in my amendment, which says that guidance “must” be followed,

“unless there is good reason not to do so”.

I have taken advice on this matter. The noble Earl will know that there has been a problem over the years in getting approval for multicentre trial research. I understand that the research ethics committees have improved their performance in recent years, and that is to be welcomed, but we now apparently have the problem with some NHS trusts and foundation trusts. Of course, as this is the start of another Committee day, I ought to declare my interests as the chair of a foundation trust and as a consultant and trainer with Cumberlege Connections. It is disappointing if individual NHS organisations are holding up multicentre research, for all the reasons that we know about: UK plc and the need for us to ensure that there is greater investment in research in the UK. I want some assurance that if there is undue delay, the HRA will be able to intervene and ensure that NHS organisations get on with giving the necessary approval.

On Amendment 60A, health research capacity in the UK is of course one of our strongest assets. It includes pharmaceuticals and medical devices, and takes place in our medical schools and hospitals. World-class research is undertaken here, frequently with outstanding results, yet we consistently fail to exploit that research when it comes to its translation into practice. How many other countries have exploited research undertaken in this country? I very much welcome the establishment of academic health science networks, which are responsible for encouraging much closer links between research and health service practice.

However, there is much more to be done. I would like the HRA’s objectives to include encouraging innovation and practice. It is important that the HRA is in a position to advise the department on potential policies that might have an impact on the scale of research and development in the UK. One such example is the present intention to move away from the current pharmaceutical price regulation scheme method of reimbursing pharmaceuticals. I know that the Government are committed to the introduction of value-based pricing. I always try to tempt the noble Earl to debate in your Lordships’ House the introduction of value-based pricing, principally because very few people understand what it involves. Even having been the Minister who received the original report on it, I must say that I am still in the dark as to exactly how it will unfold.

My key question is this. I know that the PPRS approach is not perfect and that at regular intervals Governments negotiate it downwards, but it has always given flexibility to the industry to price new-licence medicines as it wishes within a profit cap. The advantage of that flexibility is that many new drugs are launched in the UK rather than in other countries. I would like to hear from the noble Earl that the introduction of value-based pricing will not have an impact on the willingness and ability of pharmaceutical companies to continue launching products in the UK. I believe there is a link between the launch of products and investment in R&D in this country.

I may strain the patience of the House, but while I am talking about pharmaceuticals it is tempting to ask the noble Earl about the implications for the cancer drug fund. He knows that the intention was for that fund to become obsolete with the introduction of value-based pricing. However, cancer charities that I have met believe that value-based pricing will apply primarily to new active substance licences from 2014, and will therefore have limited impact on treatments made available through the fund. Will the noble Earl comment, or perhaps write to me, with an assurance that, before firm proposals are made on this issue, full consideration will be given to the impact of value-based pricing on the cancer drug fund, its continuation or potential substitution? I beg to move.

--- Later in debate ---

[Earl Howe]

I understand the issue that the noble Lord has raised. There are a number of ways of exercising leverage on foundation trusts, if I can put it in that rather impolite way. One of them relates to the funding from the National Institute for Health Research. The noble Lord may well be aware that as from 1 April that funding is conditional on the 70-day timeline for the recruitment of the first patient into a trial. If that timeline is not met, the funding does not follow. I can tell the noble Lord that that has concentrated minds rather effectively across the health service, including in foundation trusts, towards achieving a much more efficient and effective decision-making process.

I am aware that I did not answer a question from the noble Lord, Lord Patel, about rationalising the number of research ethics committees, which may well bear upon this issue in another sense. The HRA and its predecessor have made good progress in reducing the timelines for ethical approval, something that stakeholders have recognised. The current special health authority feasibility study is looking at how to address other delays whereby trust decisions can be made based on their capacity and capability to take part in research. This is ongoing work. I come back to my point about the core function of the HRA, which is, above anything else, to protect the interests of patients and the public. It might not be advisable to load on to it too many other roles that could detract from that core function.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for that comprehensive response. I cannot help thinking that in order to protect the patient and the public there must be recognition that high-quality research is one of the best ways to enhance the quality of patient care. I remain concerned that bodies in the NHS still do not understand the importance of getting their act together in research approval. That does not mean that they do not have to go through a thorough process, because there clearly has to be a rigorous process to protect the public. I would like to see stronger language in the Bill that essentially allows the HRA to intervene if undue delays take place. I hope that we can return to that on Report.

I am grateful for the noble Earl’s comments on value-based pricing. All I would say to him is that I have been disappointed that there has been a great lack of public debate on this matter. I know that the department is shortly to publish further work. It is essential that these ideas are tested, and I am concerned that this is going to be simply a matter of negotiation between his department and the industry without there being a wider discussion of the implications. I appeal to the noble Earl for some opportunity on that.

Finally, the Minister has made it clear that the list in the clause represents bodies concerned with regulation, and that is now well understood. I come back to the question raised by the noble Baroness, Lady Emerton: is there not a case for another clause stating that there is a general duty of co-operation? There is an argument that while, of course, you have your statutory regulators which need to co-ordinate their efforts, you also want a lot of organisations and people to be involved, including the Chief Nursing Officer and the Director of Nursing at the department. I put that forward as a suggestion and beg leave to withdraw the amendment.

Amendment 58B withdrawn.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

64A: Clause 74, page 62, line 7, at end insert—
“( ) “Significant improvement” is to be defined in regulations.”

[Lord Hunt of Kings Heath]

My Lords, we now come to Part 2 of the Bill and particularly to Clauses 74 to 77, which may be described as a failure regime for NHS trusts and NHS foundation trusts. Clause 74 makes amendments to the powers of CQC to issue warning notices to those bodies. Where it appears to CQC that the quality of healthcare services provided by a trust requires significant improvement, CQC will be able to highlight those areas in a new form of warning notice. This will state the reasons for CQC’s view, and it will require improvements in the quality of services to be delivered within a specified time. At the end of that period, CQC must review whether the requirements specified in the notice have been met.

Where CQC is not satisfied, it must decide what further action needs to be taken. In the case of a foundation trust, CQC’s review must include use of its power to require Monitor to put the trust into special administration. Clause 75 extends Monitor’s powers to be able to issue additional licence conditions on foundation trusts when CQC has issued a warning notice. At present, Monitor can make use of these powers only if there is a failure in the governance of a foundation trust.

In the event of healthcare services provided by the trust requiring significant improvement, Monitor will as a result be able to take timely action to make changes to leadership or governance with the intention of securing improvements to those services. Clause 76 will enable Monitor to make an audit to authorise the appointment of a trust special administrator in cases where it or CQC is satisfied that there is a serious failure by an NHS foundation trust to provide healthcare services of sufficient quality and that it is appropriate to make the order. At present, Monitor is able to authorise the appointment of a trust special administrator only in cases of insolvency. Monitor may make an order when it is so satisfied, but must make the order when required to do so by CQC.

Let me say at once that the Opposition support the intention of giving greater emphasis to safety and quality and enhancing CQC’s powers in this area. Of course, we are very much influenced by the report of Robert Francis on Mid Staffordshire. We also welcome the introduction of a single failure regime, focused on quality as well as financial failure. However, I suspect that I am not the only noble Lord to have been confused by the respective roles of CQC and Monitor when reading this Bill. Indeed, I was surprised that the Department of Health boldly claimed in its factsheet that the new failure regime will give regulators clear roles in tackling failure. I must say that I found it anything but clear. The factsheet says:

“The Care Quality Commission … will focus on exposing problems and requiring action while Monitor and the NHS Trust Development Authority … will focus on intervening if a poor-performing provider is unable to resolve the situation working with commissioners”.

To confuse matters further, CQC retains enforcement powers for social care, general practice and independent sector providers. That is going to be very confusing. I also pose the question as to whether there are not going to be significant risks associated with these changes. As Robert Francis made clear, regulatory complexity can contribute to system failings. It is important that we get this right, so there are a number of matters which I would like to put to the noble Earl, Lord Howe.

Does the Minister consider that with this level of complexity, there is a risk of slowdown in the action required to address failures? How will Monitor, CQC and the NHS Trust Development Authority work together to ensure that problems are acted upon? Will Monitor and the NHS Trust Development Authority be able to question CQC’s findings and recommendations? What happens if those three august bodies disagree about whether action is needed? Will Monitor and the NHSTDA be equipped to come to their own views on quality, or do they have to take the view of CQC on trust?

The noble Earl will know that the potential confusion has been examined recently by the Health Select Committee. Indeed, the Secretary of State explained to the Commons Health Committee that the change in the arrangements so that CQC in essence has to refer concerns to Monitor, which then takes enforcement action, is devoid, as he put it, of conflict of interest when an inspector identifies a fault then later feels obliged to say that there is no longer a fault, simply to avoid the enforcement action appearing ineffective. However, that does not apply to the other sectors. It does not apply to social care provision, general practice or the independent sector. I do not understand why there is deemed to be a conflict of interest in relation to NHS foundation trusts and NHS trusts but not the other bodies. Nor does it apply to other sector regulators, such as the Health and Safety Executive or the Civil Aviation Authority. There are plenty of examples of regulators that monitor and also take the enforcement action.

I also do not understand why, when it comes to healthcare, the NHS has a different regulatory regime from that of the private sector. Surely, there ought to be consistency in approach. The noble Earl will know that we have had the fair playing field work undertaken by Monitor, as a result of discussions on the previous Bill. It does not seem that there is a fair playing field when it comes to regulatory machinery in relation to, say, the independent sector and to the NHS, even though they are both providing services under NHS contracts. I very much welcome Amendments 65, 66 and 67, tabled by my noble friend Lord Warner, and I would add to them my Amendment 66ZA, which would ensure that the NHS is dealt with equivalently.

On the NHSTDA and the NHS trusts, there is a puzzle regarding what appears from the architecture. I think it is generally accepted that those trusts which have not yet reached foundation trust status are generally considered to be the weaker organisations, given that NHS foundation trusts were introduced quite a number of years ago now. What is puzzling is that the weaker organisations seem to come under a weaker regulatory system. I will be interested to hear my noble friend Lord Warner’s remarks concerning his amendments, but it appears to be a puzzle and an inconsistent approach.

This also takes us back to the recommendations of Robert Francis concerning the merger of regulatory functions, which he suggested in his report that the Government should consider. On the fact that the Government have got themselves into such a tangle on the respective roles of CQC and Monitor, while I can well understand nervousness about having yet another restructuring in relation, for instance, to CQC—given the number of changes that have occurred to the care regulator over the years—I worry that they have come up with such a complex solution that I wonder whether merger might not come to be seen as the easier option.

I would also like to raise some issues about the process under which the failure regime takes place. I start with my Amendment 64A, in relation to the Section 29A warning notice under Clause 74(3). Can the noble Earl give some indication of how the significant improvement required is to be defined and assessed? Can he also say how proportionate CQC will be? Under proposed new Section 29A(2)(a) of the Health and Social Care Act 2008, which is introduced in Clause 74(3), a warning notice will state,

“that the Commission has formed the view that the quality of health care provided by the trust requires significant improvement”.

Is there not a need to clarify either in the Bill or in secondary legislation how “significant improvement” is to be defined and assessed and, specifically, how and where the warning notice applies given the number of multisite trusts offering a wide range of services?

In Clause 75, reference is made to Monitor’s imposition of licence conditions. What criteria will impact on Monitor’s decision to impose those licence conditions? Should they not be subject to statutory guidance, given the serious impact of their imposition? In view of the service implications for NHS trusts and NHS foundation trusts of CQC and Monitor interventions, ought there not to be a clear appeals process for providers, given the potential serious consequences for an individual trust or a local health economy of a warning notice or a “failure to comply” administration, both for the provider concerned and the other providers that may be affected by that decision?

My Amendment 66ZB deals with the multisite issue by requiring CQC to define how this is to be assessed. My Amendments 66ZD and 66ZE seek to have published the Monitor criteria under which a licence condition is issued following a warning notice. When such a warning notice is issued, a foundation trust should have the right to appeal under my Amendment 66ZC, which is consequential on Amendment 66ZE. The same principles apply to Clause 76 in relation to the regulator. CQC must surely publish criteria on following a transparent process in making judgments on trust special administration, where there also ought to be an appeals procedure.

It seems that there is a lot of work to be done to make sure that the health service and other providers fully understand the new regulatory apparatus that is to be brought into being. I remain concerned that there could be confusion between the two roles of Monitor and CQC and that the NHS Trust Development Authority’s role is rather mysterious. It is hard to understand why NHS trusts are not in fact subject to a much more robust process than other providers because, as far as I can see, apart from a number of community trusts which are likely to get foundation trust status, the intention is that we simply roll on for years to come with these unviable organisations. Money is clearly top-sliced in order to keep them going, and we know that the real issue is, in many cases, a failure to tackle reconfiguration. It is a worry that almost a limbo situation is being created in which no progress at all is going to be made. There is also a very clear need for due process as to how these licensing provisions are to operate and an appeal process for any organisation that is affected by them.

If the noble Earl, Lord Howe, would agree to the principle of that, I think he could look forward to general support within the health service and outside and, of course, public confidence. The overriding principle of making sure that quality and safety are considered at the same level, or even a higher level, than that of financial viability is one that we certainly support from these Benches. I beg to move.

--- Later in debate ---

I hope that noble Lords are content with my assessment of the failure regime in the light of the amendments tabled and that I have been able to provide reassurance that the approach that we have taken is correct. As I said, these clauses are a direct response to the report of the public inquiry led by Robert Francis, which sets out how regulators, commissioners, professional bodies and the Department of Health failed to secure high-quality care. The single failure regime will ensure that when quality is found to be lacking, a prompt and robust approach will be taken.

[Lord Hunt of Kings Heath]

My Lords, I will not detain the Committee other than to say that the noble Earl’s response bears careful reading. I am still confused about the role of the CQC. If it is able to enforce action against non-NHS social care providers, I do not understand why it is unable to enforce action against NHS providers. I hear what the noble Earl says about the better working relationship between Monitor and the CQC and I am sure that is right. I pay tribute to the new leadership of the CQC and to the appointment of Sir Mike Richards. However, I believe that the architecture still allows for confusion. I would like further clarification on when Monitor and the CQC can take a different view on quality issues. Perhaps we will come back to this on Report. I cannot believe that Monitor will simply accept the CQC’s judgment at face value. Surely its board will have to come to its own view on those issues. That is an area I would like to explore further.

The noble Earl was reassuring about the issue of non-foundation trusts raised by my noble friend Lord Warner. None the less, it does not feel quite like that on the ground. It does not feel as though immediate action is being taken with the many trusts that are clearly nowhere near achieving foundation trust status. I may encourage my noble friend to come back to that point. Having said that, I am grateful to the noble Earl for his comments, and I beg leave to withdraw the amendment.

Amendment 64A withdrawn.

Medicine: Experimental Drugs

Lord Hunt of Kings Heath Excerpts

Monday 10th June 2013 Lords Chamber

[Earl Howe]

My Lords, the noble Lord is right that the two issues are distinct. It has always been the case that a doctor can, under his or her own professional responsibility, in certain circumstances, prescribe an unlicensed medicine. However, he is also correct that clinical trials need to take place within a framework of proper ethical and organisational approval.

[Lord Hunt of Kings Heath]

My Lords, I refer to my health interests in the register. Will the introduction of value-based pricing inhibit or encourage early access to new medicines?

[Earl Howe]

My Lords, the noble Lord will have to wait, I am afraid, for the results of the current discussions that are going on with the pharmaceutical industry about what value-based pricing will look like in the end. Certainly, it is our ambition that the price of a medicine should more fairly reflect its benefit to the patient and society. Therefore, if doctors have greater confidence that those two things apply when they are made aware of the price of the medicine, we certainly hope that uptake will follow.

Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Monday 10th June 2013 Lords Chamber

[Baroness Masham of Ilton]

I would like to ask the Minister a question. I do so agree with the noble Baroness, Lady Browning, over Winterbourne; we do not want any more Winterbourne Views—and they can happen in any part of the country.

My question to the Minister is whether he would agree with me that, when it comes to crisis intervention and physical restraint techniques, all front-line staff should receive a national standard of training to deliver the best possible quality care and health services. Undermining best practice in this area is driven by three elements: a fragmented, unregulated training provider sector; procurement pressures, and commissioners’ and regulators’ roles in quality monitoring; and practice application. The people who have to be restrained are very vulnerable and, usually, mentally ill in some way. Is it really suitable for untrained people to do this job?

[Lord Hunt of Kings Heath]

My Lords, the noble Baroness takes us back to our debates last year on the regulation of health and social care support workers. We had some excellent discussions but, as the noble Baroness, Lady Browning, said, the Government set their face against the statutory approach without convincingly explaining to the House why they did not favour such a move. As far as I can see, the Government’s main objection appears to be cost; they are relying on better training and a voluntary register. But as the noble Baroness, Lady Greengross, pointed out, this may not be sufficient. As she says, unqualified care assistants are looking after very vulnerable people without the necessary training and support, and are being placed in a very vulnerable position. This is probably not the time to debate the loss of state-enrolled nurses, but my noble friend Lord Turnberg is absolutely right to say that the essential removal of the SEN grade has left a gap which needs to be filled.

My noble friend Lord Campbell-Savours points out that we are absolutely reliant on support workers to provide care. Many or most of them are actually very dedicated, but they are not being given sufficient tools to do the job effectively. One has to have great sympathy with the noble Baroness in her amendment.

Some noble Lords have said that it is not readily apparent why Health Education England ought to be the regulator. I certainly sympathise with that point, but no doubt the noble Baroness could easily substitute either the NMC or the HPC. We could no doubt come back to the question of which regulator it should be. The HPC has been somewhat acquisitive in past years in adding professions to its register, and would no doubt be keen to add healthcare and social care support workers to the large number of people whom it registers at the moment. As for the NMC, we understand that it has been through some difficulties in leadership and has a backlog of cases to be heard by its regulatory committees. But it has new leadership, and I am confident that it will be able to get through those problems—and, if it was chosen, it could also register health and support care assistants if that were to be required. So I do not think that there is an organisational issue in terms of difficulty in organising the regulation of support workers.

The Francis report has been mentioned by a number of noble Lords. This compelling report says:

“A voluntary register has little or no advantage for the public. Employers will not be compelled to employ only those on the register although they could be incentivised to do so”.

It concludes:

“It is not generally those who would seek voluntary registration who are the concern. It is those who will or would not seek voluntary registration but are still able to obtain employment who will be in contact with vulnerable patients”,

and those patients may not be appropriately protected. The Francis report says that this,

“need not be costly and can be self-financing”.

Amendments 23 and 23A, which we are going to come to, are very helpful but they do not do the job of regulation. Does the noble Earl think that the Government should reconsider their position in the light of the Francis report and of today’s debate?

[Earl Howe]

My Lords, like my noble friend Lady Cumberlege, I pay tribute to the noble Baroness, Lady Greengross, for her very carefully crafted amendment. It seeks to extend compulsory statutory regulation to healthcare assistants and care assistants and to make further amendments to legislation to account for this. I want first to acknowledge the crucial role played by healthcare and care support workers in the delivery of high-quality care to patients and service users throughout the country. That much is a given. The vast majority of workers give the very highest quality of care and are relied on and valued for the way they improve people’s lives. However, we have all seen evidence that a minority let patients down. This is a cause for concern and it is right that there is discussion about how we can ensure consistent, high standards of care.

My noble friend Lady Cumberlege made some very compelling points on the terms of the amendment but on the wider issue of principle the Government do not believe that the case for regulation is proven. Compulsory statutory regulation is not, of itself, an effective way to assure the quality of care by these workers and it can detract from the essential responsibility of employers to ensure that any person they appoint is suitably trained and competent for the role.

There are already existing tiers of regulation that protect service users, including the standards set by the Care Quality Commission and the Disclosure and Barring Service. We also need to be clear that professional regulation is not a panacea. It is no substitute for good leadership at every level and proper management of services. It can also constrain innovation and the availability of services. Experience clearly demonstrates that a small number of those workers who are subject to compulsory statutory regulation from time to time fail to ensure that their practice is up to date and delivered to the standard that we expect. In these circumstances it is too often the case that regulation can react only after the event.

The placing of hundreds of thousands of individuals on a list would not, of itself, ensure that we never again see the appalling failings in care highlighted by the Francis report into Mid Staffordshire or, indeed, Winterbourne View. Strong and effective leadership of the workforce is where the focus for improvement should lie. Employers and managers who are closest to the point of care must take responsibility for ensuring standards.

We also recognise that we need to facilitate employers to appropriately employ, delegate to and supervise health and social care assistants. To this end, as I have previously mentioned, we commissioned Skills for Health and Skills for Care to develop a code of conduct and minimum training standards for these groups in England.

In addition, we have announced the Cavendish review to consider what can be done to ensure that all people using services are treated with care and compassion by healthcare and care assistants in NHS and social care settings. The Nursing and Care Quality Forum has been established to help all those involved in providing nursing and care in all care settings to deliver the fundamental elements of good care and achieve their ambition of providing the very highest quality of care. That is in part an answer to the point made very powerfully by the noble Baroness, Lady Masham.

The noble Lord, Lord Hunt, suggested that these workers are not being given the tools to upskill themselves. We want to ensure that all healthcare assistants provide safe, effective and compassionate care, and we have already announced a number of measures to support this, including a £13 million innovation fund for the training and education of unregulated health professionals, the publication of a code of conduct and minimum training standards for healthcare and care assistants, and a review of induction training by the CQC. This is work in progress.

Having made these points, I want to reassure in particular the noble Baroness, Lady Greengross, that we have an open mind as to the range of measures that need to be put in place. However, before we can take a rounded view of what those measures should be, we need to take account of the recommendations that flow from the Cavendish review. I suggest to the noble Baroness that that is the most sensible approach.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for giving way, but the terms of reference of the Cavendish review do not cover the regulation of healthcare support workers.

[Earl Howe]

No, the terms of reference encompass the core concern of the noble Baroness, Lady Greengross, which is the competence and skills of this sector of the workforce. That gets to the heart of the concerns of my noble friend Lady Browning around safety and the rest. The Cavendish review will point the way to a number of ideas that can move us in a positive direction.

Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Monday 10th June 2013 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

22: Clause 86, page 73, line 15, at end insert—
“( ) HEE has a responsibility to ensure that its duties under this section are also extended to the Local Education and Training Boards.”

[Lord Hunt of Kings Heath]

My Lords, I wish to make sure that the House is aware of my interest as chair of a foundation trust and as a consultant and trainer with Cumberlege Connections. This group concerns the objectives and priorities established for Health Education England in Clause 87 and that of the LETBs as set out in Clauses 90 to 93. My Amendments 22, 52 and Clause 90 stand part really go to the heart of the relationship between HEE and the LETBs. Past experience indicates that unless one has strong leadership at a national level on workforce issues, one can find that decisions are taken locally, without national consequences being thought through. In the past this has led to an unfortunate reduction in training commissions despite national exhortations not to do so. I want to avoid that happening with Health Education England. I appreciate that under Clause 90, LETBs are appointed by HEE and, I suppose, exercise functions on behalf of HEE. However, I would like to see it explicitly stated in the clause that LETBs will come under the firm direction of Health Education England.

I have to acknowledge that I have been taken to task for my amendments by the Foundation Trust Network for undermining local provider autonomy. I stand corrected. I sympathise, and understand that LETBs must have room to breathe and innovate. However, ultimately, the integrity of a national strategy must be maintained. I hope that the noble Earl’s response on this and, on the ability of HEE to amend the training plans of LETBs if they are considered to fall short, will be positive.

I turn to Clause 92 and my Amendment 47 on the co-operation required between LETBs and local providers. The clause ensures that commissioners must require providers to co-operate with the LETB in planning the provision of, and in providing, the education and training for healthcare workers. Who could disagree with the need for NHS trusts, foundation trusts and other providers to be called to co-operate with the LETBs. But why is this being done through the commissioning process?

I have frequently listened to Ministers, when asked to intervene in the NHS, say that it is a matter for commissioners. I do not want to argue the ideology of commissioning and providing, but I wonder whether that is the right approach in this case. If one thinks of the challenges facing clinical commissioning groups, with small staffs and little experience, can it be expected that they can devote time to ensuring that providers co-operate with each other and the LETBs over education and training? Realistically, I suspect they will have very little time indeed. Therefore, as a minimum the HEE should be required to give guidance on how commissioners are to undertake that responsibility. More substantively, why not lay a direct requirement in the Bill on NHS foundation trusts and trusts on the face of the Bill to co-operate with the LETBs? That would be a signal of intent that NHS bodies could not ignore. I hope the noble Earl might be prepared to give that some consideration.

My third and fourth amendments in the group concern the organisations that LETBs must involve in preparing their education and training plan as set out in Clause 93(4). Overall, this clause is welcome, but it could be improved by my Amendment 49, which adds local authorities to the list. I am sure that the noble Earl will argue that this is covered by Clause 93(4)(c), specifying that health and well-being boards must be involved. However, the importance of these plans goes wider than that. I am sure that the local authority in general in the area of the LETB would have much to offer.

Similarly, Amendment 51 seeks to have patients and carers involved. With all the debate about whether professionals trained to work in the health service are really ready to give clinical care—I go back to the debate we had recently about healthcare support workers—surely patients should have a place round the table, where decisions that have a crucial bearing on patient outcomes are made. Very similar amendments and arguments can be made in support of the amendments of my noble friend Lord Turnberg and the noble Lord, Lord Patel, which I support. However, I hope that the noble Earl will be able to come back positively on the need of patients or carers to have a place and be involved when the training plans of the LETB are being considered. I beg to move.

--- Later in debate ---

[Earl Howe]

My Lords, I would rather have a creative tension than a disconnect. If we get this right the tension will be there but it will be mutually reinforcing. You will have accountabilities running in both directions, essentially, from the national to the local and from the local to the national. In the past this has been a notoriously difficult area to get right. We hope and believe that the structure we are putting in place, in which the LETBs are committees of the national body but which have their own autonomy to a certain degree, will ensure that the tension that the noble Lord referred to really is creative, rather than the reverse.

[Lord Hunt of Kings Heath]

My Lords, that was a very useful exchange. I do not disagree with this architecture, in which national leadership comes from HEE but considerable autonomy is given to LETBs. When looking back at the history of the NHS I remain concerned, as does my noble friend, about failure to implement national strategies in relation to the workforce. This is because decisions are being taken locally which do not fit into the national strategy, particularly over training commissions. This afternoon the noble Earl said that HEE has enough powers to intervene if that were to happen. I think the question is whether HEE has enough national leadership and confidence to actually ensure that a national strategy is implemented. Of course, we will have to see.

On membership, I note the noble Earl’s statement about the number of different professional groups that will have to be covered by LETBs, which is why postgraduate deans are not listed on the face of the Bill. I think that my noble friend really was persuasive on this point. Doctors may not be the only profession, but they are a very important profession. I would have thought it quite extraordinary not to have a postgraduate dean among those around the table of the LETB. Equally, I do not think that the patient advisory forum is sufficient at national level. Considering the NHS record over the last few years, one of the areas causing most concern has been whether trained staff are fit for purpose when it comes to clinical areas. To have a representative of a patient or carer around the table at a LETB would have been very important. However, this has been a good debate, and I beg leave to withdraw my amendment.

Amendment 22 withdrawn.

--- Later in debate ---

[Baroness Cumberlege]

My Lords, I support these amendments on mandatory training. I know that the noble Baroness, Lady Emerton, has fought and fought for this. I served with her on the United Kingdom central council for nursing, midwifery and whatever it was. She pioneered the whole idea of improving nurse training, and it was very successful.

To follow on from the noble Baroness, Lady Hollins, it is interesting that we now have two different parts to the arguments. One concerns the benefit to patients and the public, while the other concerns the benefit to the workers themselves, which I thought was a very interesting angle. It was Terry Leahy who said that he built his empire just by ensuring that all who worked for him felt good about themselves, and I thought that that was very interesting.

I am concerned about how the amendments are fashioned because I am not quite sure what we are talking about. Perhaps the noble Baroness or the noble Lord, Lord Patel, will clarify that for me. We talked about healthcare support workers, and I understand that such workers predominantly work in the NHS. However, subsection (2) of the proposed new clause refers to,

“a health or care support worker”.

I am not sure what a care support worker is, as opposed to a healthcare support worker. Does the support worker work, as the noble Baroness, Lady Hollins, said, in people’s homes? Do they work in residential care? Are they covered by this or not?

The noble Baroness made another point, which I was also going to raise and on which I would like some clarification: what about the people who work for others who need care, through direct payments or personal budgets? Will this rule out those volunteers who often come in and sit with someone, who may do some minor tasks and may even do some relatively nursing-style tasks, such as putting in eye drops, which a member of the family would do? I should like to clarify who we are talking about.

[Lord Hunt of Kings Heath]

My Lords, like my noble friend Lord Campbell-Savours, I remain puzzled by the Government’s approach. I am grateful to the noble Baroness, Lady Emerton, for setting out a number of persuasive arguments for why there ought to be mandatory training for health and care support workers. There seems to be a general consensus around the House and no doubt the Minister will agree with it. My reason for supporting the amendment is that mandatory training is clearly very important, but it is inevitable that if you have mandatory training you have regulation; the two run together. Those who are proposing these amendments ought to recognise that there is an inevitability that if you have training then you must have a list of people who are trained; action has to be taken against those people who have been trained but are then found to be unsafe in dealing with vulnerable people; and there has to be a way of removing them from the list of those who have been trained that has been published. If you go down this route, one way or another you are clearly signing up to mandatory regulation, and a jolly good thing too.

Amendment 23A puts forward an eminently sensible suggestion for healthcare support workers to be certified to show that they have been trained in basic standards, with employers to register individuals who hold such certificates. We need to go back to the Francis report. Mr Francis is widely reported to be disappointed with the Government’s response to his report, and it is not hard to see why. His report commented on the absence of minimum standards in training and competence. This is compounded by huge variations in the approach of employers to job specifications, supervision and training requirements. That is why my noble friend Lord Campbell-Savours has come across so many instances of poor-quality healthcare support.

The Prime Minister’s Commission on the Future of Nursing and Midwifery noted that training for support workers was very variable and recommended that they should be better trained. In response, as the noble Earl told us earlier, the Government have commissioned Skills for Health and Skills for Care to work together to develop a code of conduct and minimum induction and training standards. We now know from the mandate issued by the Secretary of State to Health Education England that it is obliged to establish minimum training standards for healthcare assistants by spring 2014. At this point, I ask the noble Earl: how far does that go? Will it be mandatory for all entrants to the role of healthcare assistant to undertake such training? If that is so, will this extend to care assistants? What about existing health and care support workers? Will this training extend to them, or will it apply only to new people coming into the healthcare profession?

Under the proposals, how will employers know if their support workers have undertaken the minimum standard of training? Will a nationally recognised certificate be issued? Will a national list be established, indicating those who have undertaken such training? If there is not a list, does that not leave a big burden on employers seeking to check whether prospective staff have undertaken the minimum training requirement under the mandate? I come back to the point I made at the beginning: if a list is established, would that, in essence, not amount to a register? If there is such a list or register and it becomes clear that a support worker is unsuitable to care for vulnerable people, is there a way in which an organisation or employer could then apply to have such an individual removed from the list of people who have received the minimum level of training?

Having a certificate showing that someone has achieved a minimum level of training will be generally regarded as a certificate of an ability to practise. If there is such a certificate, there must be a way to remove that certificate if people are found to be wanting. In effect, once one begins to lay down minimum standards and to specify mandatory training, will there not be an inevitable step towards regulation? Amendment 23A poses those questions to the noble Earl. I hope that he will answer sympathetically.

[Earl Howe]

My Lords, I first thank the noble Baroness, Lady Emerton, for an interesting set of proposals and I am grateful for her thoughtful introductory remarks. I agree that ensuring the capability of the health and care support workforce is vital to delivering high-quality care to patients and service users across both health and social care settings. The issue is how we achieve this. Key requirements for delivering high-quality care can best be achieved by providers having the right processes in place to ensure they have the right staff with the right skills and the right training to deliver the right care in the right way to patients and service users.

The idea of statutory requirements can seem an attractive means of ensuring patient safety, yet Robert Francis’s report demonstrates amply that this in itself does not prevent poor care. I confess that I was a little surprised by the vehement support of the noble Lord, Lord Hunt, for the idea of statutory regulation because it was an idea that his Government resisted for some time. I suggest that they resisted it for a number of reasons and they came to the conclusion that it is not as self-evident as some like to make out. That is certainly this Government’s position. This is not, as the noble Lord, Lord Campbell-Savours, suggested, a laissez-faire attitude on the part of the Government. As we made clear in Patients First and Foremost, the initial response to the Francis inquiry, the Chief Inspector of Hospitals will ensure that all hospitals act to make sure that all healthcare assistants are properly trained and inducted before they care for people. I suggest that this is an important step forward.

Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Monday 10th June 2013 Lords Chamber

Debate on whether Clause 95 should stand part of the Bill.

[Lord Hunt of Kings Heath]

My Lords, we now come to the tariffs to be imposed in respect of education and training. Clause 95 establishes a tariff-based system for funding clinical education and training, whereby providers receive the same payment for the same activity. This is intended to enable a national approach to the funding of clinical payments and to provide for equality of treatment between different providers. What the clause does not do is to provide for equality of treatment between the public and private sectors. The noble Earl will be aware of Monitor’s fair playing field review that looked at a number of different activities and the impact on different providers, including public sector providers, private sector providers and the third sector. On education and training it remarked:

“Many stakeholders voiced concern that the private or charitable sectors are able to employ clinical staff without facing the cost of training them”.

It has been reported recently that surveys show an increase in the use of the private sector by the NHS in recent years and enforced marketisation. The Section 75 regulations are likely to increase that. The question that I put to the Minister is, if the NHS is developing much more into a mixed economy, what is the provision for the private sector to contribute to education and training?

[Lord Campbell-Savours]

As a layman among all these very professional people, I raise a very simple point. Returning to the private care home paying workers something like £7 an hour, I presume that that care home, if it so wished, could use the LETB.

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[Lord Hunt of Kings Heath]

There are various definitions relating to LETBs. For instance, Clause 90(3) says:

“In carrying out its main function, an LETB must represent the interests of all the persons who provide health services in the area for which the LETB is appointed”.

However, the general interpretation on page 89 defines not “health services” but rather “the health service” as,

“the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006”.

My question is: does “health services” in Clause 90 equate to “the health service” in Clause 110, or is “health services” in Clause 90 a wider interpretation that embraces the argument of my noble friend Lord Campbell-Savours?

[Earl Howe]

It may be convenient for the Committee if I take together the questions of the noble Lords, Lord Campbell-Savours and Lord Hunt, because the noble Lord, Lord Hunt, asked me about the role of the independent sector in participating in training and indeed in funding it. Perhaps I may clarify that.

The Health and Social Care Act 2012 placed a duty on the Secretary of State to ensure an effective education and training system, as I mentioned earlier. The Act also placed a duty on commissioners of health services to ensure that providers support the Secretary of State in this duty when contracting with them. The Government have already put into place measures to deliver the Secretary of State’s education and training duty by amending the commissioning contracts and supporting regulations for the delivery of services, so they now require co-operation on education and training. This means that all providers of NHS services are expected to co-operate and, where appropriate, this co-operation will involve them providing education and training.

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[Earl Howe]

The answer is twofold. First, the Care Quality Commission inspects every care home to a uniform standard. One of its duties is to ensure that the staff in a care home are sufficiently capable and trained to deliver care in the right way to the patients and service users who live there, taking into account the acuity of need of those people. Secondly, as the noble Lord may be aware, the Government have proposed that a system of star ratings should be reintroduced for both healthcare settings and adult social care settings. In that way the general public may have a much closer and more detailed sense of the quality of care provided in the care home, as assessed by the Care Quality Commission. Again, this is work in progress. The Care Quality Commission is working out its methodologies for delivering those star ratings, but if we get this right, I believe it will take us several steps forward in transparency of quality and the ability of members of the public to choose, in a much more meaningful way, the setting that they wish to see either themselves or their families benefiting from.

[Lord Hunt of Kings Heath]

My Lords, that has been extremely useful. The intervention of my noble friend Lord Campbell-Savours has been particularly useful. Reading Clause 86 (5) together with Clause 93 and the interpretation in Clause 110, it becomes clear that many nursing homes will receive some funding from the NHS in providing continuing healthcare for some residents. That seems to me to be very helpful indeed because, given that there is a great deal of concern about the quality of staff in nursing homes and the training of those staff, it gives local education and training boards a clear remit to concern themselves with the staff in a lot of nursing homes in their area. I hope that it will be possible for a message to be sent to Health Education England from this debate that, if it is looking at the most vulnerable areas in terms of vulnerable people, that ought to be where the priority should be. My noble friend has teased out a very important indicator of the way in which LETBs should work in future. I hope we will see in their plans that a major effort will be devoted to the staff in those homes.

On the more general question, I noted that the Minister had been urged to be cautious by various bodies in relation to whether there should be a levy on private sector providers. It is a bit rich of the Future Forum to worry about the third sector contribution since it is the Future Forum that has tried to open the door to a competitive market in the NHS. The third sector and Sir Stephen Bubb cannot have it all ways. If he wants to have a competitive market, as he seems to, then the third sector can jolly well make a contribution alongside the NHS. They cannot have it both ways.

[Earl Howe]

My Lords, I hear what the noble Lord has said on this. In practice, as he knows, most education and training take place in the public sector, but we expect Health Education England and the LETBs to seek advice from a range of stakeholders. Indeed, HEE has reinforced the importance of this in the appointment criteria that it has set for LETBs which state that they should demonstrate meaningful collaborative working relationships with stakeholders, including third and independent sector providers. This will help to establish stronger links with the independent sector so that it can deliver clinical placements and perhaps also postgraduate training programmes where appropriate.

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[Earl Howe]

My Lords, I beg to move Amendment 53, and at this point it will be convenient to consider government Amendments 54 to 57 as well.

The importance of balancing a person’s right to confidentiality with the benefits of using information to improve the current and future health and care of the population cannot be underestimated. The NHS constitution sets out a number of rights and commitments in this regard.

Section 251 of the NHS Act 2006 provides the Secretary of State with a power to make regulations that modify the common law obligations of confidentiality so as to allow researchers, public health staff and other medical practitioners to access information where there is no reasonably practicable way of obtaining consent to use such information for the purposes of medical research; that is, in the interest of improving patient care or in the public interest.

The Health Service (Control of Patient Information) Regulations 2002 made under Section 251 of the NHS Act make provision for public health surveillance and risk management, work associated with cancer registration and approvals for the processing of confidential patient information for medical purposes in certain circumstances, provided that the processing has been approved by the Secretary of State.

These amendments provide continuity for the functions of advising on the approval of processing of confidential patient information for medical purposes, other than direct patient care. These functions were previously carried out by the national information governance board and its ethics and confidentiality committee. The special health authority has been directed to undertake these functions since 1 April this year, and so the provisions would ensure continuity.

I turn to the detail of this group of amendments. The amendments would require the Health Research Authority to appoint an independent committee to provide advice on applications to process confidential patient information. The committee would advise on approvals to process confidential patient information for medical research purposes and for other medical purposes. As the Bill is currently drafted, the Health Research Authority would have the power to appoint such a committee under its proposed functions in Schedule 7 to the Bill, but this would be discretionary.

This group of amendments would ensure that such a committee is established and that it is independent. This is important to ensure that the arrangements that are currently in place will continue, maintaining public confidence in the decisions made. In the interests of consistency across the system, these amendments would require a single, independent committee to advise both the Health Research Authority itself on approval for medical research purposes, and the Secretary of State on all other approvals for medical purposes.

The Health Research Authority special health authority has established an independent committee, known as the Confidentiality Advisory Group, to advise the existing Health Research Authority and the Secretary of State on approvals. The provision of transparent, expert and independent advice to support approvals for processing of confidential patient information is vital. It protects and promotes the interests of the patient while facilitating the appropriate use of confidential patient information beyond direct patient care. It ensures that each application for approval is carefully considered and that there is consistent, expert advice to inform approval decisions.

I hope noble Lords will accept that these amendments will ensure that there continues to be independent advice on applications to process confidential patient information for medical purposes. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I am sure that the amendments will be welcome, and that access to confidential patient information needs to be accompanied by full safeguards for the protection of individual patient privacy. However, will the noble Earl also confirm the importance of access to this information for the purposes of legitimate research? Can he also confirm that by transferring these functions to the HRA, we can look forward to a more transparent, consistent and streamlined process in the future?

[Earl Howe]

My Lords, as I indicated, we have always needed to strike a balance—reflected in the 2002 regulations which the noble Lord brought forward in that year—between protecting the rights of the individual and ensuring that ethical approved research can take place using confidential patient data only where appropriate. I agree with the noble Lord that we should not place any undue barriers in the way of research, but there are clear rules around this which we need to honour and protect. We will be reaching a group of amendments around the issue of transparency, and if the noble Lord will allow it, I will reserve my remarks on that until we reach that group of amendments.