Care Bill [Lords]

Jamie Reed Excerpts

Monday 10th March 2014 Commons Chamber

I could elaborate further on these points, but I am conscious of the time. I hope that the Minister will be able to give us some further words of reassurance, not least about the discussion that I think he has had with the chair of the CQC since our deliberations in Committee.

[Mr Jamie Reed (Copeland) (Lab)]

I thank the right hon. Member for Sutton and Cheam (Paul Burstow) for getting this extensive group of new clauses and amendments under way. I understand that he shares a lot of the concerns felt by Labour Members, and the concerns of the Chair of the Health Committee have also been illustrated, as have those of other Government Members. It is essential that the Government take action to address the issues before the House.

The main issue I wish to raise this evening is the ability of the Care Quality Commission to inspect the commissioning of adult care services by local authorities. A number of new clauses and amendments have been tabled, and rather than examine each in extensive detail, it will be better for colleagues if I speak to the principles at the heart of the issue. It is, however, crucial that we understand the background to this group of new clauses and amendments.

In 2010, the Government announced the cessation of annual performance assessments. On application that has resulted in the CQC no longer inspecting the commissioning practices of local authorities. One consequences of that has been for local authorities to peer review voluntarily the services provided by neighbouring local authorities, and that in turn has resulted in the creation of a kind of opacity, or a climate of perverse incentives. Local authorities are more likely to give a neighbouring authority the benefit of the doubt on such issues. Co-operation has become the default in the sector, and although that should be welcomed to a degree, there is a disincentive for any local authority to raise issues of poor care in an adjoining local authority on which it might rely for assistance and other services. Given the financial strain on local authorities as austerity bites, they are forced to merge functions—and more—with each other, meaning that the disincentive is likely to persist for the time being at least.

As was pointed out and discussed in some detail in Committee, a strong effective regulator is as essential in the health and social care system as in any other sector—perhaps even more so. Only through thorough and effective monitoring and enforcement can patients have confidence in the services they receive, or exercise an informed choice when choosing those services. That is why the previous Government legislated for the creation of the first ever independent regulation of the NHS, and what is today the Care Quality Commission.

Regulatory oversight is an iterative process that by its very nature tends to be more active in taking remedial action than preventive action. It is the responsibility of every Member of the House to ensure that the regulator is given the tools and resources it requires to be as proactive as possible in preventing problems not just in the future following care failures, but before any failures occur in the first place. In short, the best regulatory systems are intelligent and proactive. That is why it is essential that the Care Quality Commission should be allowed proactively to inspect and review the commissioning of adult social care undertaken by local authorities. It is one thing to inspect the service provided—clearly that is important—but more information could be revealed, and better regulation resulting in better services would be enabled, if the regulator could inspect the process of service commissioning.

When a service fails, we need to understand the root causes of such a failure. How has a poor service come to pass? Is it down to a poor operator, a poor service provider, or is the local authority not commissioning the right service in the right way? Under the Bill, only once a pattern of poor care is identified can the CQC apply to the Secretary of State for permission to undertake a special review. There are a number of issues with that. First, the quality of care would have to be extremely low for a consistent period to allow a pattern of poor care to be identified, and that does not provide the best level of protection for service users suffering from inadequate care services. Secondly, the CQC would have to bear a significant burden to prove such a pattern before undertaking a special review. Such a burden will consume time and resource, while again prolonging the time during which service users may be receiving inadequate levels of care.

When the Minister responds, will he outline what threshold of proof would be required for a Secretary of State to grant the CQC permission for such a review, and say whether that has been modelled within the Department at any stage? Surely such issues have been considered. What mitigation does the Bill contain to prevent poor levels of care from continuing to be provided while investigations into care standards are ongoing? How does the proposed model fit the Ofsted model? On the face of it, it does not appear to fit it at all, because Ofsted does not wait for schools to fail before stepping in. I think—the Minister knows my views on this—that such a comparison has never been accurate and that strained and unnatural is a more precise description. The whole House will appreciate hearing the defence of a regulatory system that regulates only once failure has occurred.

As the Bill stands, it would appear that current provisions are best suited for remedial action to address instances of failure. The Bill addresses only actions to be taken following poor care, but does not give the necessary freedom to the CQC to act to prevent poor care from occurring in the first instance. That puts a limit on the practices of the CQC, and on application would mean that the inspection of commissioning would take place only in special circumstances. My fear is that we are knowingly legislating for a leaden-footed regulatory regime—hence the need for amendment 19.

The roots of care failures could be lodged firmly in the process of commissioning, and it is right that an independent regulator has the ability and duty to inspect all issues relating to the quality of provision before failures occur. Amendment 19 seeks to address the Government’s clear oversight in that regard. It would give the CQC more freedom to explore all aspects of care provision, rather than just quality, at the point where care is administered, and it would provide the scope for whole-system inspection. Problems can manifest much earlier in the process of care provision than the point at which care is received, and as such those problems must be dealt with earlier. The only way that is possible is for the CQC to be able to assess the quality of local authority commissioning.

If the Government seek to oppose amendment 19, I would be grateful if the Minister would explain why he thinks that the rather fudged clause in the Bill should remain unamended. The commissioning of services is clearly linked to the quality of service provided, so to limit CQC oversight to just one aspect, as in the Bill, is a flawed approach that knowingly turns a blind eye to other parts of the system, which are ultimately responsible for the standard of care provided.

The consequence of refusing to address the issues surrounding commissioning clearly results in the problems illustrated earlier by my hon. Friend the Member for Leicester West (Liz Kendall). A lack of oversight has meant that 15-minute visits and zero-hours contracts are quickly becoming the default option for care, rather than being used in extreme circumstances—we must all surely hear complaints about the consequences and effects of such an approach in our surgeries; I certainly do so.

Amendment 19 would give the CQC oversight of commissioning practices and lead to an improvement in care, and new clause 8 would put a duty on the CQC to undertake a review into commissioning practices within a year of the commencement of part 1 of the proposed Act. While that would be worth while in the short to medium term, to be useful in the longer term the CQC must be able to repeat inspections when it deems appropriate, not just when the Secretary of State requires it.

Clause 89 is entitled:

“Independence of the Care Quality Commission”.

Everyone across the House agrees with that principle except, it would appear, the Government in relation to this part of the Bill. Rather than giving the CQC independence to inspect commissioning services routinely, they are placing a shackle of ministerial approval on inspections that the CQC may deem necessary. That cannot be right, and to my mind it contradicts everything that the Government have said over the past 12 months regarding the need for CQC independence.

New clause 27 is tabled in the name of my hon. Friend the Member for Blaenau Gwent (Nick Smith). It would create an offence of corporate responsibility for neglect, which could see directors of care providers face jail if their management of a service led to abuse or neglect. I pay tribute to my hon. Friend’s work on this issue, and I know he works tirelessly helping those who have suffered as a result of neglect in the adult social care system. He does superb work in the House and is a credit to his constituency and his illustrious predecessors. It is right that we do everything in our power to ensure that those who abuse or neglect people in care are held to account. We put an inordinate amount of trust and faith in care providers, and if that trust is betrayed by wilful neglect or mismanagement, the perpetrators should face real punishment. These services are provided for some of the most vulnerable people in our society, and harm brought about by neglect must be punished. I would be grateful if the Minister would speak more about those issues, and say how the Government intend to address them.

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

I shall speak to new clauses 28, 29, 30 and 33, which stand in my name and those of other hon. Members from both sides of the House.

There is a huge amount to welcome in the Bill, and on Second Reading I welcomed the steps in part 2 to implement many of the recommendations in the Francis report. I said at the time that although there has been good progress, there remains a lot more to do, which is the reason behind the new clauses. I have tabled four new clauses—two on whistleblowing and two on patient safety. Those are both vital areas that we must get right.

I welcome the measures that the Government have taken to improve protection for whistleblowers, including changes to the Public Interest Disclosure Act 1998 and the banning of gagging clauses. Whistleblowers are not only individuals who are able to see where things have gone wrong when others around them have perhaps gone native and begun to accept the unacceptable, but they are people with the moral backbone and courage to speak out when things are wrong. It is hugely important that we have a culture where people do not need to become whistleblowers, because their complaints are taken up far earlier and they do not need to go down routes outside the usual complaints process. We should have a culture where people are encouraged to speak out, and where raising concerns is seen as a good thing.

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[Grahame M. Morris]

That is a good point. It is very important for the Government to lay down parameters for the scope.

The sharing of medical data has a fantastic potential to do good, as long as the necessary safeguards are there, but if it is mishandled, it also has the potential to do great harm. Patient data consist of very confidential information, which could prove damaging to the public if it were to end up in the wrong hands. We have already seen examples of that. I share the public’s fear that the Government are not seeking appropriate safeguards in respect of highly personal and sensitive information. Despite the Minister’s assurances about new clause 34, I do not think that it goes far enough.

Let me return to the issue of accountability. The benefits for companies that seek to misuse or leak patient data, for example, are considerable. The Minister has ruled out insurance companies, but I am worried about private health care firms. The pharmaceutical industry could profit from the re-identification of patient records, and I believe that the absence of parliamentary accountability to which I referred earlier, and a lack of clear and harsh penalties for those who misuse data, are undermining trust in what could be a highly beneficial scheme. Subsection (2) of new clause 25 defines misuse, and subsection (3) gives an indication of the penalties that would be applied. I think that they might act as a deterrent.

[Mr Jamie Reed]

My hon. Friend is making an excellent, intelligent and informed speech. The charge has been made that pushing our proposals too far risks scuppering the project, but is it not the case that the more safeguards we can introduce to reassure the public, the better the prospects of its success will be—and, moreover, the greater the data sample will be, and the better the system will be as a result?

[Grahame M. Morris]

I entirely agree. I think that that is vital, because, as we have seen in the case of politicians following the expenses scandal, once public trust has been lost, it is a huge task to win that trust back. There is a mountain to be climbed. I therefore think it important that we get this right.

The Government have an opportunity to pause the implementation of the Bill in order to consult properly, and, in the Bill itself, to address issues that have been raised by Members in all parts of the House and by other interested parties. I believe that if there is to be public confidence in the scheme, the Government should make a gesture by supporting Labour’s new clauses, particularly new clause 25. Given that the misuse and identification of data are the prime concerns of the public, I think that it would be eminently sensible to make them an offence. That is not rocket science, is it? If that is the problem, why do we not address it directly by creating an offence? Similarly, if an organisation makes applications for data from the Health and Social Care Information Centre, it should have to disclose any previous convictions under that offence. I am a big supporter of transparency and the extension of freedom of information. Private health care companies should disclose information that is relevant in those circumstances.

It seems bizarre to insist that the public should allow their private information to be shared with organisations that are allowed to hide their chequered pasts in some cases behind the cloak of commercial confidentiality. Parliamentary accountability, too, should be introduced to the decision-making process. The Secretary of State should retain the duty to approve any applications. The buck should stop with the Secretary of State. If there is a serious commitment to win back the public’s trust on care.data, the buck should stop with the Secretary of State, rather than with a big and unaccountable quango.

It would be of great benefit to the public if data sharing were exercised in an accountable and secure manner. I have always been an advocate of investment in public health. For that to be effective, we need an evidence base on which to plan interventions. The scheme is set to be disrupted unless the Government can demonstrate that they are serious about protecting patients’ privacy.

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[Grahame M. Morris]

I have considered that, and that is an important point. Compliance is important. Those issues should be addressed in the Bill. If we are to ensure that there is public trust, those points must be addressed.

[Mr Jamie Reed]

Does my hon. Friend share my concern and that of many GPs that the lack of necessary safeguards in the Bill may have an unintended consequence, particularly among the hardest to reach groups in society? Fear about the lack of safeguards in the Bill may stop them from accessing GPs and sharing their details and problems with them.

[Grahame M. Morris]

That is a huge danger. We have an opportunity to address that in this House this evening and when we consider the Bill further tomorrow. I personally am not advocating that people sign up to the opt-out clauses. That is important, but we need assurances to be able with confidence to support the Bill and the data collection proposals.