Care Bill [Lords]

Grahame Morris Excerpts

Monday 16th December 2013 Commons Chamber

[Mr Hunt]

I recognise that the right hon. Lady campaigns hard for her constituents. The four tests set out by the Prime Minister were never designed to require unanimous support from local CCGs for necessary changes. If we had to secure that, it would be virtually impossible to make any major reconfigurations. Where there is a failing hospital, it is important to resolve and address situations. There are exceptional occasions when that cannot be done in an individual trust’s area. The change in the law will not apply retrospectively to Lewisham, but it is right to ensure that, if we are to learn one lesson from what has happened in recent years, we deal much more quickly with failing hospitals, and that applies to South London Healthcare NHS Trust as well. Governments and the NHS must never again sit on coasting or failing hospitals for year after year without doing what it takes to sort them out. That is why this year, for the first time, we have put 13 hospitals into special measures. How utterly inexplicable but sadly predictable it is that the Labour party, which failed to sort out those problems, is today refusing to back the changes that mean those mistakes can never be repeated.

Another lesson from the Francis inquiry is that we need to create a culture of openness in health and social care so that, rather than being bullied and intimidated, doctors and nurses feel they can speak out about problems. The Care Bill will introduce a duty of candour as a requirement for registering with a CQC. That means that honesty and openness must come as standard for every organisation. We are also introducing a new criminal offence that will apply to care providers that supply or publish false or misleading information. Directors and other senior staff involved in committing the offence will be held to account. In addition to the Bill, the professional regulators have agreed to place a new strengthened professional duty of candour on all doctors and nurses. The Government are on the side of openness and transparency in our health care system.

[Grahame M. Morris (Easington) (Lab)]

I am sorry that the Secretary of State has not made any reference to part 1 of the Bill, which is about care and support. I hope he will come on to it, because it is so important. Perhaps he will also explain why Francis’s recommendations on a duty of care are being applied to organisations but not to individuals?

[Mr Hunt]

As the hon. Gentleman knows, we considered that matter carefully. We decided that the best way forward is to strengthen the professional duty of candour on individual doctors and nurses through their professional codes. After extensive consultation, which was supported by the medical profession, including the British Medical Association, we decided that that was a better way of ensuring that we had the right outcomes and did not create a legalistic culture that could lead to defensive medicine, which would not be in patients’ interests.

If supporting the Francis measures in the Bill is too awkward or embarrassing for Labour Members, can they not see the merits in the parts of the Bill that deal with out-of-hospital care? I am talking about not just vulnerable older people, but carers, for whom we need to do more. We need to do much more to remove the worry that people have about being forced to sell their own home to pay for their care.

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[Andy Burnham]

Just as the Government’s proposal is not the Dilnot report, it is not my national care service proposal. I had a range of different proposals, and that one has to be considered in that context.

As the Minister knows, I proposed a universal approach in which everybody would contribute on the NHS principle—I seem to remember that he and I were in some agreement about that. That was a deferred payment, but this proposal is different. The Government are talking about a universal deferred payment scheme in which people will pay from what they leave behind, but—and this is the point—it will not be available to everybody. That was the promise the Minister has broken.

[Grahame M. Morris]

My right hon. Friend is making excellent points. On deferred payments, this proposal has been presented as something new, but is it not the case that about 90% or 95% of local authorities currently offer a similar scheme?

[Andy Burnham]

They are offering a similar scheme but at the moment they are not allowed to charge interest on it. That brings me to the next part of what is wrong with these proposals. What the Health Secretary has not said today is that interest will be charged on his proposed deferred payment scheme, which is not universal because it is not available to everybody. A loan to cover the average length of stay in a care home—two and a half years—would clock up extra costs of £3,500 in interest alone. That interest would not be included in the cap but would be outside it. Again, people will not feel that what they are paying is related to a cap.

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[Charlotte Leslie (Bristol North West) (Con)]

I greatly welcome much of what is in the Bill. I am slightly disappointed by the tone of some—not all—Labour Members, who seem to suggest that the challenges our society faces with social care are in some way new. I looked after an old lady from 2003, during the economic boom times, and became very well acquainted with her care package, care needs and care challenges, and the challenges faced by her social workers. Back then, social workers were expected to get across London in 20 minutes, which was obviously impossible, so the care time that they had with my friend was severely cut down; in fact, sometimes it was 15 minutes, a figure that we have already heard. There was also a massive challenge in terms of raising the status of the profession of social work. Those challenges existed back then, during the boom times, and they still exist now. It is very brave and ambitious for the Government to be making such significant steps in unifying health and social care at a time when the economic situation is very difficult.

Other Members have dealt with the care and support aspect of the Bill more eloquently than I can, and I am sure that others will too. I want to focus my brief remarks on part 2, which is about the response to Francis and care standards.

I think that one lesson we have learned following the Mid Staffs scandal is that making rules does not necessarily mean making change. I remind the House of the 2002 “Code of Conduct for NHS Managers”, which states:

“As an NHS manager, I will observe the following principles: make the care and safety of patients my first concern and act to protect them from risk;…be honest and act with integrity; accept responsibility for my own work and the proper performance of the people I manage”.

Following the unravelling of scandals in Mid Staffs and elsewhere, it is very hard to understand how NHS managers were adhering to that code of conduct, which was written for them, and why none of them has faced the consequences of not doing so. That is a salutary lesson: we need to be wary that putting things in writing does not always mean that they will happen culturally. People have remained unaccountable for a serious breach of that managerial code of conduct, many of whom, I am afraid to say, continue to work in the NHS today.

As the Bill progresses, I want to see more detail on how the contractual obligation for a duty of candour, which is welcome, will be enforced. I understand the desire for a statutory duty on individuals, but I share fears that it may oversimplify the blame culture that this House has discussed at length. Having seen what happened with our hospitals’ complaints system and the cover-up of blame, I am very worried that a statutory duty on an individual clinician could be abused, such that blame could be parked at a clinician’s door by a management system that does not want its own failings to be highlighted. That could lead to unfortunate false allocations of blame by the system in which clinicians work.

If a contract’s duty of candour is not met, what will be the consequences? It is an issue that there have been no consequences for those who have breached things written down in guidelines and codes of conduct. It is important to understand in more detail what the consequences will be of a breach of contract.

I would particularly like to know whether managers, organisations such as NHS England, and Department of Health officials will have the same duty of candour. The reason why scandals such as Mid Staffs have been allowed to go on and on is that it was not just the hospital that was complicit in it; the entire system around the hospital should have been acting in patients’ interests, but it did not.

Some have faced consequences for their actions—their actions were good, but the consequences have been diabolical—namely whistleblowers. I know and understand that real reform of how we treat whistleblowers and enable whistleblowing will require changes to the Public Interest Disclosure Act 1998. If a whistleblower has been found to be correct in raising concerns in the NHS and those concerns are recognised, I would like to know why any future employer would choose not to employ them. If an employer is a good employer, they would welcome a whistleblower into their ranks as someone who would not go native and accept appalling care when others might do so and who would also have the moral fortitude to stand up and talk about failings when others might not. The test of a good employer is how well they employ people who have been proven to be whistleblowers.

People such as Eileen Chubb and David Drew have sacrificed their careers to highlight bad care, but they have not seen the systemic changes for which they made those sacrifices and they are still suffering the consequences. Surely that is a part of NHS and health culture that the Bill should seek to change.

I welcome the fact that the Care Quality Commission will be looking at the issue of whistleblowers and I welcome James Titcombe’s involvement in the CQC. As someone who thought that the CQC brand was so damaged that it should probably just be scrapped and we should start again, I have to say that I think David Prior has made remarkable progress, given what he started out with, in beginning to turn this monolith around.

Statutory independence of the CQC is very long overdue. I think that everyone in the House has been concerned about the fact that the CQC’s mission seemed to be reputation management for itself and the NHS, and not a brave and courageous stand on behalf of the patients it was supposed to be protecting. In order to ensure that the CQC remains independent from Government—independence in words is fine, but independence in culture is what really matters—it might be illustrative to look back to the era before the CQC and other regulatory bodies were in place, when royal colleges used to send their members into hospitals. They would do so not to inspect hospitals as such, but for reasons of medical training. However, by getting a granular view of the training on offer they could see whether or not it was sufficient. If not, the royal colleges could, under bodies such as the hospital recognition committee, withdraw training from a hospital, which gave the inspection teeth. It was the royal colleges that went in—often without any pay at all; just enough to cover expenses—and interviewed junior doctors and consultants individually, and problems naturally came to light because the interviews were often confidential.

A Wigan hospital fell foul of an inspection in 2001 and its chief executive did not take kindly to it. Funnily enough, just after the inspection took place, the chief executive, who was quite close to Alan Milburn and the then Prime Minister, went into the Department of Health and abolished the system whereby professional clinicians could get a granular view of what was going on in hospitals, replacing it with the postgraduate medical education training board and then the medical training application service, which was disastrous. The more we can put those who do not have an interest in bolstering the Government of the day—namely the professionals, clinicians and members of the royal colleges—on the ground and doing granular investigations, the more confident we can be that the CQC will be independent.

[Grahame M. Morris]

I am not sure that I share the hon. Lady’s enthusiasm about the transformation of the CQC; nevertheless, some progress has been made. Does she share my concern that clause 85 proposes to dilute the CQC’s powers with regard to investigating the commissioning of adult social services and social care by local authorities? Is that not a step backwards, particularly if the hon. Lady is concerned about the issue of 15-minute visits and the impact that has on quality?

[Charlotte Leslie]

I am afraid that the quality of care and social care could be the next boil of scandal to erupt as we gain a more granular view of what is going on. Organisations need not just more effective tick-box inspections, but more effective granular inspections. I do not agree with the hon. Gentleman: I think the CQC is taking great steps forward. I am very sceptical, but I am cautiously optimistic of progress and will continue to look at what the CQC does.

I will make progress, because I do not want to prevent other Members from contributing to the debate. Essentially, the Bill can only put down regulation. One of my favourite things is to warn against systems so perfect that nobody needs to be good, yet this House really only has levers to change systems. We cannot always enable people to be good, but we can devise systems that enable them to be good. This House is attempting to turn around a massive cultural tanker and it is unrealistic to think that we can do so through the scope of a single Bill. I think, however, that the Bill takes very important steps forward in a very difficult context. I am disappointed that it is not supported throughout the House, although I think that constructive amendments and changes to it will be welcomed in the interests of the patients we are all here to serve. I heartily recommend the Bill to the House.

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[Barbara Keeley]

Will the right hon. Gentleman give way?

[Grahame M. Morris]

Will the right hon. Gentleman give way?

[Paul Burstow]

I give way to the hon. Lady because she tried to intervene first.

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[Heidi Alexander (Lewisham East) (Lab)]

It is a pleasure to follow the hon. Member for Newton Abbot (Anne Marie Morris), who made a measured, thoughtful speech. It is sad that the Secretary of State did not strike the same tone at the beginning of the debate. I want to speak briefly about the proposals for the funding of elderly care and express my deep concerns about the Government’s proposed changes to the trust special administration process.

I have spoken before in this place about the care crisis in this country, not least because of my own family’s direct experience. When my nan had to move out of her home seven years ago, my family had no idea what was about to happen to the very modest assets she had built up over her lifetime. My nan was not an extravagant woman. She never once went abroad. She simply worked hard and brought up her family. When vascular dementia took hold of her mind and her body, she could no longer stay in the semi-detached house in Swindon she had bought with my grandfather. She had to sell it. She moved to sheltered accommodation but, after a few years, she deteriorated rapidly and soon had to move to a nursing home. Before she died, she spent £130,000 on care in that home over three to four years, using up all but £23,000 of her lifetime assets. If she had known that, it would have broken her heart. She would not have thought it fair that everything she and my grandfather had worked for could not in any meaningful way be passed down to her children. My family are neither rich nor poor; we are like families up and down the country for whom the hand of fate intervened resulting in catastrophic care costs for their loved ones.

The Bill’s proposals to cap those costs and to raise the amount of money that an individual’s family can keep after paying for care should be welcomed, but we should welcome them cautiously. The cap does not cover all care costs, and the complexity of the process of valuing people’s assets and calculating their personal contribution means that many people will still end up paying very significant sums. Presenting the proposals as the answer to the country’s care crisis is disingenuous and risks spreading even more confusion about what support from the state families can expect.

If individuals are to pay less, the state will pick up more of the tab, and the financial front line in that respect will be local authorities. They are already buckling under the strain of providing social care. London Councils, the body representing the capital’s local authorities, estimates that the costs of resetting the means-test threshold, added to the rising demand for care, will see social services departments facing a shortfall of more than £1 billion in the years between 2016 and 2020. The money set aside by the Government to deal with that is inadequate. Be it this Government or the next one, we have to wake up to the scale of the financial challenge and answer the tough questions about where the money is going to come from.

I could speak for much longer about the care proposals in the Bill, many of which I welcome, but I now wish to address part 3, chapter 4, which extends the powers of special administrators appointed to failing hospital trusts. The changes are only a small part of the Bill, but they have serious implications for hospitals and the health service across the country. The introduction of even more draconian powers for special administrators will hamper the public’s ability to have their say on key hospital services and could lead to a chaotic and rushed system of hospital reorganisations that will not be in the best interests of patients or our democracy.

[Grahame M. Morris]

My hon. Friend is making important points about clause 118, which has become known as the “Lewisham clause”. Given the recent experiences of the length of time the trust special administrator has to consult the general population, does she think that 100 days is long enough?

[Heidi Alexander]

In my experience, it is wholly inadequate. The consultation period is being slightly extended through this Bill, but I still do not believe it can lead to a genuine, open and honest debate between the people trying to lead change and the public, who have a right to make their voice and views heard.

I wish to discuss our experience in south-east London of the first ever use of the trust special administrator regime when the South London Healthcare NHS Trust was placed into administration last year. It is important for the House to understand that this process is totally different from any other hospital reconfiguration. It is a very fast process—roughly six months from start to finish—led by an administrator who is brought in from outside the organisation primarily to balance the books. The administrator is appointed to a specific failing trust, but what happened in our corner of London was that the administrator determined that in order to sort out the financial problems of the failing trust he needed to look beyond its confines, and that is where Lewisham hospital came in: a separate, successful, neighbouring hospital was told that its full accident and emergency department, its maternity service and its excellent paediatric department would have to go to solve the financial problems elsewhere.

The people of Lewisham did not think that that was very fair. The case was fought in the courts and the Secretary of State was told, not once, but twice, that he was acting unlawfully—hence clause 118; he fought the law and lost, so he is now trying to change it. He wants administrators to be able to specify and force through massive service changes at hospitals that are not part of the trust to which an administrator has been appointed. In effect, he wants to do elsewhere what the courts told him he could not do in Lewisham. When the trust special administrator regime was first legislated for, guidance was issued by the Department of Health stating that the process should not be used as a “backdoor approach” to reconfiguration. That is precisely how it was used in Lewisham, and had the law not been on our side, our full A and E and maternity service would now be closing, and half our hospital would be up for sale.

The TSA process is a brutal and rushed one. It starts with the need to save money, with questionable clinician input. When the starting point is the accountant’s bottom line, the public are understandably sceptical about whether the medical and clinical input has just been shaped to suit the desired financial end point. The speed at which the process takes place leads to shoddy and haphazard work. The administrator in south London recommended to the Secretary of State that he make decisions about Lewisham hospital based on an understanding that the whole process would cost £266 million and would take three years to implement. After the Secretary of State took his decision, it emerged, from the office of the trust special administrator, that it would cost twice that and take twice as long. The quality of the condensed public consultation was atrocious: people were struggling to find copies of the consultation document in local libraries; we had an online response form that did not even contain a direct question about Lewisham’s A and E; and hundreds of people had to stand outside packed public consultation meetings because they could not get in. That is not the way to deal with a subject that understandably arouses such passions in people. People care so much about the health service because it is often where they experience the worst and best moments of their life. They want to have their say in how their services are organised, and giving even more draconian powers to special administrators erodes their ability to do that.

I understand that hospital services have to evolve—some services will have to close or be relocated—but to get public support for change, we have to get the process right for persuading people of the case for change. An augmented special administrator process, acting as a steamroller for the closure of hospital services, makes it less likely that those arguments are won, not more. These changes are at complete odds with the Conservative party’s manifesto commitment to

“stop the forced closure of A&E and maternity wards”.

The changes take power from the very doctors the Government say they are giving power to and could destroy trust in those who are central to leading the case for change and improvement in our NHS. For that reason, as well as others, I will be voting for the Opposition amendment, and it is why I believe that clause 118 should be deleted from this Bill as it progresses through Parliament.

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[Grahame M. Morris (Easington) (Lab)]

I am pleased to have the opportunity to speak in this debate. Like several colleagues who have spoken, including the hon. Member for Totnes (Dr Wollaston), I served on the Joint Committee on the draft Care and Support Bill, under the chairmanship of the right hon. Member for Sutton and Cheam (Paul Burstow), and I also serve on the Health Committee, so I have a particular interest in this Bill. I had originally intended to make a more wide-ranging contribution, but I will confine my remarks to part 1, which deals with care and support.

I had hoped that the Secretary of State would conduct a hearts and minds exercise in trying to selling the Bill, so I was rather disappointed that he turned it into a political knockabout, jumping straight into the most contentious elements, and clause 118 in particular, which sets out the trust special administration arrangements.

I do not think that we can consider the Bill without giving some thought to the background. Let us not forget that over this Government’s tenure, £2.68 billion— at 20% of the net adult social care spend, that is not an inconsiderable sum of money—has been cut from council budgets. Although we were talking about the principle of well-being in relation to clause 1, which I think all Members support, in practice cuts of that level mean that fewer people are getting help with paying for their care and more people are being charged for vital services, such as help with getting washed and dressed and with eating—the basic things that most of us take for granted.

I have no doubt that councils, particularly those in the north that I am familiar with, are doing their best to save money and provide services efficiently by changing the way care is provided and, where they can, working more closely with the NHS. However, the scale of the cuts means that they are being forced dramatically to reduce services and increase charges to balance the books. All the evidence that has come to the Select Committee and the anecdotal evidence that Members receive indicates that is the case.

The Secretary of State got into a little argument in his opening statement with regard to eligibility thresholds, which is a really important point. In 2010-11, 38 councils provided free care to people with “low” or “moderate” needs, and 114 provided free care only to those whose needs were considered “substantial” or “critical.” Those needs really are substantial and critical, as we can see if we look at the definitions, which are set out in the guidance. Now, however, only 15 councils continue to provide care and support to people with “low” and “moderate” needs and 137 provide care only to those assessed as having “substantial” or “critical” needs. That means that in many areas preventive services have all put disappeared. Setting the threshold at such a high level is therefore a false economy.

According to Age UK, as a result of tightening eligibility criteria, 800,000 people in the UK have a care need but are not getting any support. As my right hon. Friend the Member for Stirling (Mrs McGuire) mentioned, there is another care crisis, because a third of the total of those requiring care are working-age adults. Indeed, four in 10 working-age disabled people who receive social care say that it does not meet their basic needs, including eating, washing, dressing and getting out of the house. One in three says that cuts in social care have prevented them from working or volunteering.

Charges for vital care services, such as home help and meals on wheels, are increasing fast. In effect, that is a tax on some of the most vulnerable people in our society, people who have already been hit the hardest by benefit changes. Some Government Back Benchers talked about the need to cut the deficit. There is a need to address the economic situation, but not on the backs of the poorest and most vulnerable. To my mind, it is a question of political priorities. I am proud that my party has pledged to scrap the bedroom tax, which I think brings great shame on the coalition Government because of its impact on disabled people.

Other Members have mentioned the consequences of price variation. I do not want to repeat those arguments, but it certainly is a factor when calculating the care costs for the cap. For example, in Tower Hamlets home care is free, but in Cheshire East—I am not sure which hon. Member represents it—it costs £20 an hour. In east Durham, the area I represent, it is about £10, so there is wide variation in costs.

We cannot improve the quality of care for older and disabled people without improving the working conditions of the 1.5 million people employed in adult social care, many of whom are on low pay and lack job satisfaction. In many cases that can lead to poor care for some of the most vulnerable people in society. Care workers do an incredibly valuable and important job, yet the TUC has estimated that between 150,000 and 220,000 of them are not even paid the legal minimum wage, and over 300,000 are employed on zero-hours contracts.

[Sheila Gilmore]

Does my hon. Friend agree that the problem of low pay and poor conditions, which he is outlining so well, is a concern for not only the workers, but ultimately the people receiving the care, for example because of the lack of continuity of care?

[Grahame M. Morris]

My hon. Friend makes an excellent point. That ties in with home care visits. The United Kingdom Homecare Association has indicated in a briefing that three quarters of home care visits now last 30 minutes or less and that one in 10 last only 15 minutes. There must be deterioration in care if carers are there for only 15 minutes. Care rationed in 15-minute slots is simply unacceptable, and I think that the House should reflect on what is happening. This is important because older people end up in hospital unnecessarily and stay longer than is necessary. There has been a 42% increase in delayed discharges from hospitals since figures were first collected in August 2012. Indeed, last month saw the largest number of delayed days in hospital ever recorded, and there were 78,400 such days in October alone. These delayed discharges now cost our NHS £20 million each month. That money could be used to fund about 1.5 million hours of home care for vulnerable older people and help to keep them out of hospital when they can be supported in their own homes.

Ministers claim that they want joined-up services, but through the Health and Social Care Act 2012 they legislated for fragmentation. Their integrated transformation fund contains no new money but is made up of £3.8 billion that is coming out of existing NHS and social care budgets. I accept that the Bill provides a framework and establishes important principles, and there are things that we can agree with. However, fine words are all very well, but we need immediate action such as the measure proposed by my right hon. Friend the Member for Leigh (Andy Burnham) to use £700 million from this year’s NHS underspend to help tackle this crisis now. We need some vision from all parties but especially from the Government parties.

I looked at some old early-day motions to see how some of these proposals were tackled in the past. My hon. Friend the Member for Sefton Central (Bill Esterson) suggested that this should be paid for through general taxation, and I agree. In one old EDM, a number of Members from all parties agreed with that principle; I see some of them nodding now. It is not such a radical or revolutionary step.

We clearly need a wholesale change in how we deliver health and social care. We need a whole-person approach and a national care service. We need the same ethos that applied during the establishment of the NHS, which brought together disparate entities and groups into one body. We need to bring health and social care together into a single service that provides all the care an individual will need throughout their life.

The Bill has many positives, but it is fundamentally important to deal with the eligibility threshold. If it is set above “moderate”, it will do little to help working-age disabled people.

If the Minister does not mind, I would like him to clarify whether the duties of openness and transparency in the Bill will apply equally to all organisations that provide NHS services, including private contractors who provide outsourced services; he will be aware of my ten-minute rule Bill. I urge people to consider the Bill and to support Labour’s amendment.