Care Bill [HL]

Lord Warner Excerpts

Wednesday 12th June 2013 Lords Chamber

Moved by

[Lord Warner]

73: Clause 79, page 66, line 13, at end insert—
“( ) a Chief Inspector of Hospitals,“( ) a Chief Primary and Community Care Inspector,”

[Lord Warner]

My Lords, I have put down this amendment to explore briefly the Government’s thinking on the appointments set out in the amendment. As has already been said, I am sure we are all delighted that Professor Sir Mike Richards has been appointed Chief Inspector of Hospitals. I was doubtful about the practicality of this post but if anybody can make a success of it, I think Mike Richards can. Why did the Government not make this a statutory post? Is it because they see it as a time-limited appointment?

The second part of the amendment explores a slightly wider issue. I know that the post of Chief Inspector of Social Care has been advertised but does the Minister think that the post has been too narrowly drawn and represents a bit of a missed opportunity? I know from remarks he has made at events I have been at that the Health Secretary has considered whether there should be a chief inspector of primary care, which I am sure has strengthened his relationship with GPs. For my part, poking around in some of the murkier corners of primary care and trying to strengthen it would be no bad thing.

However, the wider system problem we face in the NHS is the weakness of the combined set of non-hospital services and their integration with social care. That weakness is now leading to moves in some places for acute hospitals to think of themselves as the base for community-based services. I suspect that is a development we will regret in the longer term, particularly if those services end up bearing a disproportionately high amount of the overhead costs of acute hospitals. Can the Minister say a little more about whether the Government are considering appointing a chief inspector of primary care and whether further consideration could be given to widening the brief of the Chief Inspector of Social Care to embrace community health services and possibly primary care? I beg to move.

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[Baroness Northover]

Perhaps I could carry on. I will come back to that in a minute.

Setting these roles as non-statutory clearly gives the CQC important flexibility to design them to fit their method of regulation in the fast-developing field of health and social care, without the constraints of prescribing the functions of the chief inspectors in statute. As these roles are not mentioned in the legislation, it would not be appropriate to require in legislation that they should have a seat on the board. Having said that, discussions with the CQC chair and chief executive showed them to share the view that chief inspectors will have much to offer the board. Their preference, subject to appropriate board approval, is that when practicable these executives should be appointed to the board. Given the intended importance of these roles, we fully agree with that. In advance of the new legislation coming into operation, I can confirm that the Secretary of State would consider using his current powers to appoint the three inspectors to the board if that was requested by the present CQC chair and chief executive.

The noble Lord, Lord Hunt, asked about Health Education England and the HRA. These will be established as unitary boards, which is to say that they consist of both executive and non-executive members. I can clarify that the chief inspectors are accountable to the chief executive and to the CQC’s board. They will speak for the CQC on their findings when they inspect providers. Having clarified these areas and reassured noble Lords about the significance of these roles and the need for flexibility, I hope the noble Lord will be content to withdraw his amendment.

[Lord Warner]

Clearly the noble Baroness has clarified matters, but whether she has reassured me is another question. I think the Government underestimate the profile of the Chief Inspector of Hospitals in particular. There is no doubt that this will be a very powerful and important post with an enormous profile. The idea that this person can be overruled by the chief executive and the board, as this legislation sets out, poses a problem I certainly want to think more about.

I also think that there is a gap here. Community health services are not clearly in anybody’s remit. I am sure my noble friend Lord Hunt would agree that if we were to identify one black hole where there is not a great deal of data on performance and quality, it would be community health services. It is an area that has not been probed well by independent inspection, and as far as I can see the game plan is to have no inspector looking into that area. Given everybody’s concern about integration, it seems a bit of a missed opportunity for there not to be some linking up there.

I want to consider this much further. It would be helpful if Ministers sent the Committee the job description for the three inspectors they propose. In my experience, it is rather difficult to appoint anyone to anything without a job description. It would be very helpful to our deliberations to have that before Report.

[Lord Hunt of Kings Heath]

It seems to me that unless this is sorted out there will be problems in the future, notwithstanding the calibre of the current leadership of the CQC, which I readily acknowledge. If the chief inspector does not have total operational independence when acting as chief inspector, I see a recipe for potential trouble. We will not reach Report until October, so there is plenty of time. My noble friend and I would be very interested to have at least some discussion about how the CQC will avoid the kind of conflicts that clearly we would rather not have, if at all possible.

[Baroness Northover]

I am very happy to take back to the department the request for further descriptions of the jobs in these cases. We should also bear in mind that the aims of these chief inspectors, as part of the CQC, are to maintain safety and effectiveness and drive up quality. They have shared aims; it is not as if they have different ambitions in this regard.

[Lord Warner]

That is extremely helpful, but my noble friend is absolutely right. Bearing in mind our earlier discussion about warning notices and enforcement, in reality what the chief hospital inspector says in many cases is what will determine whether the CQC goes ahead with a warning notice, which might trigger trust special administration. That is a really powerful position in the public arena. I would welcome, with my noble friend, a discussion with Ministers about this, but in the mean time I beg leave to withdraw the amendment.

Amendment 73 withdrawn.

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[Lord Warner]

My Lords, I shall speak to Amendment 77 standing in my name. I have taken a slight different approach from that of my noble friend, but I was out of the traps a little before him. I was trying to do something slightly different, but I am equally happy with his rather more elegant amendment on the duty of candour. Whether I have got the wording of the amendment right is another matter, but I was trying to link the organisational responsibility for a duty of candour to the registration process. Therefore, that right at the outset, as a condition of registration, the organisation had to sign up to the idea of a duty of candour.

When one is in the patient’s position, the duty of candour in relation to the employee becomes very important. The patient sees individual people, not necessarily something called an organisation. On the other hand, for the reasons that the noble Baroness, Lady Finlay, mentioned, one has to provide cover for individuals who operate in that organisation, both to protect them from unreasonable attacks by the victim of the mistakes, but also from attacks by the employer for blowing the whistle on them. In this amendment, I am striving for an obligation on the employer—the provider of the services—to have a duty of candour as part of their registration conditions. At the same time, the employee should be protected against unfair employment practices or unfair criticism. One is then forced along a path—which is not fully explained in my amendment—where the contract of employment between the individual and the employer gives some protection to the employee who blows the whistle.

That is quite complicated stuff and this is a complicated area, but we have to strive not just for organisational candour, but for some protected way for the employee to level with people when things have gone wrong. I think the secret lies somewhere in the contract of employment. We do not want that routed only through doctors. In a care home, for example, it will not be the doctors talking to the residents, their families or whoever. We need to do more work on this. Given that this was such a high-profile issue in the Francis report I, like my noble friend Lord Hunt, find it surprising that we are not trying to deal with it in the Bill, complicated though it is. We need to put some wet towels around our heads to try to find a way of capturing this in the Bill, so it is both fair to the employer and to the employee. That is what I am trying to do. Whether I have succeeded in my simpler version in Amendment 77 I am not sure, but that is the thinking behind it.

[Baroness Jolly]

My Lords, I welcome the debate on the duty of candour. It almost seems as though we are rewinding to 18 months ago, when we had similar debates during the passage of the Health and Social Care Bill. Although I would not have wished the events at Mid Staffordshire Hospital on anybody, I am really pleased that as a result the Francis report recommended a duty of candour. I therefore welcome the Government’s intention to implement that duty. However, as we have seen over the past 20 minutes, nothing is as straightforward as it first seems, so a lot of hot-towel work needs to be done to get this right.

I shall not detain the Committee long, but there are two sets of choices that the Government have made and I am curious why they made them. The first is whether the duty of candour is on the individual or on the organisation. The second, to which the noble Lord, Lord Warner, has just referred, is whether it is going to be in the Bill or in secondary legislation.

The duty of candour will cause a large change in people’s behaviour and it should be a game changer in lots of ways. As an aside, I think that complaints will fall. If somebody turns around and says, “I’m sorry”, people are less likely to complain. Certainly, those of us who have been involved in complaints will know that on many occasions patients just want someone to say that they are sorry and to explain why and how it went wrong, because they do not want it to go wrong in the same way for anybody else. So there might be an unintended consequence there.

When the Minister sums up, I would like to know why the decision was made not to put the duty in the Bill. Is that decision irrevocable?

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[Baroness Northover]

My Lords, I welcome this very interesting debate which has gone in various directions. We have a number of amendments to consider here.

Amendment 73A would transfer the responsibility for the National Reporting and Learning System from NHS England to the Care Quality Commission. We wish to take the opportunity to underline the importance of the data and information available through the NRLS to the work of the Care Quality Commission. Indeed, a key component of the CQC’s new three-year strategy sets out how it will make better use of intelligence to inform inspections. However, I remind noble Lords that it was only on 1 June that responsibility for the National Reporting and Learning System was transferred to NHS England. This transfer puts patient safety at the heart of the NHS—I heard what the noble Lord, Lord Hunt, said, but I think it is extremely important that it is at the heart of the NHS—and will build on the excellent work of the National Patient Safety Agency. NHS England plans to develop a responsive NRLS that will provide a one-stop shop for NHS clinicians, patients and the public.

Additionally, noble Lords may be aware of the Berwick review of safety—reference was made to it—which seeks to learn lessons from the Francis report. It will report in July on a whole system approach to ensure that there is zero tolerance of harm in the NHS. We will, of course, give full consideration to any recommendations that that review might make on the effectiveness of the NRLS. In view of these important developments and reviews, we believe that reallocating this work now would be unnecessarily disruptive.

Amendment 73B introduces a new clause which would require the CQC to have regard to guidance on staffing numbers and skills mix in carrying out all its functions. I fully understand the sentiment behind this. All noble Lords will agree that high-quality care is dependent on the people giving it. We heard from the noble Lord, Lord Campbell-Savours, about the problems that arise when that breaks down. Clearly, the right staffing in terms of numbers and skills is vital for good care. It therefore follows that staffing levels and skills mix are key considerations for the CQC in regulating quality of care. However, as the noble Lord, Lord Campbell-Savours, says, that is not necessarily sufficient. The CQC’s registration requirements place a clear legal duty on providers to have sufficient numbers of suitably qualified, skilled and experienced staff in place for the services provided. It is the responsibility of individual providers to be accountable for staffing levels and the skills mix of staff in their organisations. Where a provider does not meet the staffing registration requirement, the CQC is able to use its enforcement powers to protect patients and service users. However, I note what the noble Baroness, Lady Finlay, said about this being an issue which is not necessarily best placed in primary legislation. The point is to try to achieve quality, safety and efficacy.

The CQC will shortly review and consult on its registration requirements. We intend to amend the requirements so that they will include fundamental standards. These will set the basics below which standards of care must never fall. We can assure noble Lords that the new chief inspectors that we talked about previously, based within the CQC, will have the power to inspect and assess staffing numbers and the skills mix as part of examining the quality of care and will be able to take any necessary action as they consider appropriate. Noble Lords asked whether NICE might become involved in that. We believe that the current legislative arrangements already require the CQC to assess staffing levels. However, we will work with NICE, the CQC, NHS England and other partners to review the use of evidence-based guidance and tools to inform staffing decisions locally.

Amendments 76B and 77 each introduce a stand-alone duty of candour in primary legislation. We had an extremely interesting debate that demonstrated the complexity of the issue. As the noble Lord, Lord Warner, noted, it is a complicated area. The noble Baroness, Lady Finlay, illustrated that, as did my noble friend Lady Jolly and the noble Lord, Lord Campbell-Savours. He noted that there could be unintended consequences such as unwanted litigation. However, my noble friend Lady Jolly said that often all that patients and their families need is clarity and something being admitted to. All these issues show how complicated the area is. The noble Baroness, Lady Finlay, spelt that out.

The Government share the view that providers of health and care must be open in their dealings with patients and service users. Our response to Robert Francis’s report makes a clear commitment to introduce a statutory duty of candour. I therefore wish to reassure noble Lords that we are doing that. In particular, I should like to reassure the noble Baroness, Lady Masham, on that point. That is what we are doing. The route that we are taking is perhaps endorsed by the nature of this debate. We see this as something that is better taken through by secondary legislation. Let me spell that out. The Government intend to introduce an explicit duty of candour on providers as a CQC registration requirement. This will require providers to ensure that staff and clinicians are open with patients and service users where there are failings in care. I hear the warnings voiced by the noble Baroness, Lady Finlay. In the end, the aim has to be to improve the quality, safety and efficacy of care. I note what she said about confidentiality.

As with all requirements for registration with the CQC, the Government intend that the duty of candour should be set in secondary not primary legislation. There are very strong reasons for that. Using secondary legislation will enable us to expedite the introduction of this duty and provide a degree of flexibility to get the design of the duty right. I am sure that the department and my noble friend Lord Howe will welcome noble Lords’ engagement, bringing their own wet towels if they wish to, as we take this forward. Secondary legislation will still allow for full parliamentary scrutiny, given that the changes to the regulations that set CQC registration requirements will be subject to the affirmative procedure in both Houses. The duty itself will have the same legal power in secondary legislation as it would in primary legislation. There is also the additional advantage that in such a new and important area we can refine this new duty over time, if noble Lords’ warnings prove to be significant. That is why I commend the Government’s preferred approach of setting the new statutory duty of candour through secondary legislation.

Amendment 77A has the effect of removing the power to specify the type of information and the type of care provider within scope of the new false or misleading information offence. This is a different but obviously related area. This would mean that we have a criminal sanction that applies to all information required by legal obligation, including under contract, which would be disproportionate. It is important that the offence does not inhibit providers from sharing information voluntarily, but we also need to keep the flexibility to respond to new information or different priorities for information over time.

We appreciate that noble Lords will be interested in understanding more about the types of providers to which this offence will apply. The Government are still considering the scope of the offence and I am absolutely certain that my noble friend Lord Howe will be happy to discuss this further with noble Lords.

We start from the issues raised in the Francis inquiry. We are therefore clear that the offence will apply to providers of NHS secondary care. This includes NHS trusts, foundation trusts and independent sector providers of NHS secondary care. We are giving further thought to whether the offence should also apply to other types of providers. We will consider whether, for example, there is a case for extending the offence to providers of adult social care, general practice and mental health services. We will consider this, working together with our stakeholders, and we will of course keep noble Lords informed as to our thinking as this moves forward.

[Lord Warner]

I am sorry to interrupt the noble Baroness’s flow, but could I just get her to expand a little bit on the approach on the issue I raised about protecting the employer? I was pleased to hear what she was saying about using the registration process to impose the duty of candour on the employer, but there remains the concern, which I think a number of us have, about how the employee who blows the whistle actually gets protected under the arrangements that she is talking about.

[Baroness Northover]

My noble friend says that they have protection under the NHS constitution. I hope that that clarifies it for the noble Lord but, given the time, I am happy, if necessary, to write to cover that further.

There were a number of questions, but I am well aware that time is pressing and that we are almost at the end of this part, so I will just come to one or two of them. In terms of the individual statutory liabilities in Patients First and Foremost, the Government stated that:

“before we introduce criminal sanctions at an individual level…we would want to ensure that this does not unintentionally create a culture of fear”.

The noble Baroness, Lady Finlay, spoke about that. We are, of course, waiting at the moment for the Berwick review, and no doubt we will be addressing this further in the light of it.

The noble Lord, Lord Hunt, asked about various points in relation to Francis. Francis himself made clear that many of his changes can be taken forward within the existing legislative framework and, as the noble Lord, Lord Campbell-Savours, indicated, they are, at heart, about changing behaviours in organisational cultures. The responsibility is therefore with each and every person serving patients to take action to make the changes needed.

However, we have these reviews coming forward, and we will obviously review what else we need to do. This has been an ongoing, long-standing problem, as noble Lords will be aware. I have listened to many debates in your Lordships’ House where these issues have been addressed, and people are endlessly frustrated in terms of trying to make sure that the quality and safety that you see in certain parts of the NHS is replicated in all parts of the NHS.

I am scurrying on through. If there are issues which I have not addressed, I am sure that—