Care Bill [Lords]

Lindsay Hoyle Excerpts

Monday 10th March 2014 Commons Chamber

[Paul Burstow]

I beg to move, That the clause be read a Second time.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

New clause 10—Exercise of functions—

‘When exercising functions under section 31 (Urgent procedure for suspension, variation etc.) of the Health and Social Care Act 2008, the Care Quality Commission may not take account of its functions under section 83 (Trust special administration: appointment of administrator) of this Act.’.

New clause 12—CQC duty to support integration of social and health care—

‘In exercising the functions and duties set out in section 90 (Performance ratings), the Commission must act always to require, enable and encourage the provision of health services in ways that support and facilitate the functions and duties of—

(a) local authorities set out in section 3 (Promoting integration of care and support with health services etc.) of this Act,

(b) the NHS Commissioning Board set out in section 23(1) 13N (The NHS Commissioning Board: further provision) of the Health and Social Care Act 2012, and

(c) clinical commissioning groups set out in section 26 (14Z1) (Clinical commissioning groups: general duties etc.) of the Health and Social Care Act 2012

where it considers that this—

(i) improve the quality of those services (including the outcomes that are achieved from their provision),

(ii) reduce inequalities between persons with respect to their ability to access those services, or

(iii) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.’.

New clause 27—Corporate responsibility for neglect—

‘(1) This section applies where a person registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 (a “registered care provider”) in respect of the carrying on of a regulated activity (within the meaning of that Part) has reasonable cause to suspect that an adult in their care is experiencing, or at risk of, abuse and neglect.

(2) The registered care provider must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom.

(3) Where abuse or neglect is suspected, the registered care provider is responsible for informing the Safeguarding Adults Board in its area and commits an offence if (without reasonable cause) it fails to do so.

(4) A registered care provider is guilty of an offence if the way in which its activities are managed or organised by its board or senior management neglects, or is a substantial element in, the existence and or possibility of abuse or neglect occurring.

(5) A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding two years, or to a fine, the range of which will be specified by regulations, or to both.’.

New clause 28—Review of protections for persons in the health and social care sector making disclosures in the public interest—

‘(1) Within six months of this Act receiving Royal Assent, the Secretary of State must make arrangements for an independent review of—

(a) the adequacy and effectiveness of provisions for the protection of persons employed within the health and social care sector who make disclosures in the public interest (whistleblowers) about matters of concern to their employer, a prescribed person or body or another person or body;

(b) the treatment and experience of past whistleblowers; and

(c) the need and opportunities to improve existing protections.

(2) The review shall take account of—

(a) the efficacy of existing legal provisions, policies, procedures and practices for the protection of whistleblowing and whistleblowers and access to redress for whistleblowers who suffer adversely consequent upon their disclosures;

(b) the available evidence on—

(i) the impact of whistleblowing on changes in health and social care standards; and

(ii) the treatment of whistleblowers over the last 20 years; and

(c) other matters as required by the Secretary of State.

(3) The Secretary of State shall arrange for a report with recommendations (or an interim report as may be required) from this review to be prepared and laid before each House of Parliament within 12 months of the review commencing.’.

New clause 29—Duty to minimise harm—

‘In section 20 of the Health and Social Care Act 2008 (regulation of regulated activities), after subsection (2)(b) insert—

(c) ensuring that the likelihood of harm befalling persons in respect of whom a regulated activity is taking place is reduced as far as possible.”.’.

New clause 30—Mandatory incident reporting and patient safety management systems—

‘In section 20 of the Health and Social Care Act 2008 (regulation of regulated activities), after subsection (3)(k) insert—

(l) impose requirements as to the reporting by all providers of regulated activities to the affected persons or their representative and family of incidents occurring in the carrying out of such activities which lead to the—

(i) death;

(ii) unexpected deterioration of condition; and

(iii) introduction of a new adverse condition in respect of the person, regardless of the severity of the new condition and the short and long term impact on the person;

(m) impose a requirement for the preparation and publication by all providers of regulated services of a safety management system plan.”.’.

New clause 33—Candour Commissioner—

‘(1) The Secretary of State shall establish an Office of the Care Commissioner for Candour and Disclosures in the Public Interest (the “Candour Commissioner’s Office”).

(2) The Candour Commissioner shall have duties to—

(a) protect and promote a culture of candour and disclosure in the public interest in the health and care services sector,

(b) provide or arrange confidential advice and support for persons working in the health and social care sector considering making a disclosure in the public interest,

(c) provide or arrange advice and support for persons in the sector who have made such a disclosure, and

(d) monitor the treatment, employment and re-employment of persons mentioned in paragraph (c) within the sector.

(3) The Commissioner shall report to the Secretary of State, with recommendations—

(a) on any issue within the Commissioner’s remit as she/he sees fit,

(b) making an assessment of the extent to which persons and bodies within the sector are protecting and promoting a culture of candour, with particular reference to the treatment, employment and re-employment within the sector of persons who have previously made a disclosure in the public interest.

(4) The Secretary of State shall lay a copy of the Commissioner’s annual report before each House of Parliament accompanied by an explanatory statement setting out the steps that the Government plan to take to remediate any shortcomings identified by the Commissioner.’.

Amendment 19, in clause 90, page 81, line 27, at end insert—

‘(2A) The Commission must, in respect of such English local authorities as may be prescribed—

(a) conduct reviews of the provision of such adult social services provided or commissioned by the authorities as may be prescribed;

(b) assess the performance of the authorities following each such review; and

(c) publish a report of its assessment.

(2B) Regulations under subsection (2A) may prescribe—

(a) all adult social services of a particular description; and

(b) all local authorities or particular local authorities.’.

[Paul Burstow]

This part of the Bill and this group of new clauses and amendments are all about ensuring that the system delivers the best possible quality of care and that, when things go wrong, it is clear how the situation is to be corrected and what penalties will be faced by those who have let people down and, in some cases, treated them in an appalling way. There is much in this part of the Bill that is to be applauded, although the nature of the Report stage of a Bill means that we often do not applaud a Bill much, because we are focusing on the things that we want to amend further.

New clause 8 deals with a subject that was also a feature of our discussions in Committee—namely, the concern that the commissioning role of too many local authorities, and the discharge of their responsibilities for planning for the care and support needs in their communities, had degenerated into little more than crude procurements and, worse still, in some cases just spot purchasing of care services. In some local authorities, there was no sense of strategy or of engagement with the local population, and there were no pragmatic conversations with provider organisations ahead of a procurement process. There was no real sense of how to shape the market to deliver the best possible outcome from the point of view of the wider public interest.

Those concerns were expressed a number of times in Committee, and they have been echoed throughout all the stages of the Bill. They were certainly strongly expressed by a number of the representative bodies of provider organisations when they gave evidence to the Joint Committee scrutinising the Bill. Of all the evidence sessions in that Joint Committee, the one that sticks with me is the one at which the provider organisations gave evidence. There was a palpable sense of the deterioration, and even the collapse, of relationships between local authorities and providers as a consequence of the commissioning not being done well in some organisations.

My new clause is designed to address a concern expressed by a number of organisations about a change that the Government made to the Bill in the other place. In that change, they removed from the legislation that established the Care Quality Commission the provision for periodic reviews of the performance of local authorities in regard to their statutory duties on care and support. I am prepared to accept the arguments that the Minister made before removing that provision, but only if we can have much greater certainty that the Care Quality Commission will undertake regular thematic reviews of care and support services.

New clause 8 sets out a number of the things that I think such a thematic review should include. For example, we have established a regime for sector-led improvement whereby local authorities can seek peer review of their delivery of quality commissioning of care and support services. It is working well in some places, but there is certainly evidence that it is not in others. There is a concern that arrangements will be made that allow an inadequate level of peer review and, frankly, people to get away with not doing the right thing. That is why a back-stop provision allowing thematic reviews is absolutely essential, and why ideally I would like the CQC to be independent in its judgment on that, rather than beholden to Ministers to authorise it. That is not the situation we are in, but the new clause would have us look at those issues.

I was told by a provider that I met at an event which the United Kingdom Homecare Association organised with me that CQC inspectors positively discourage comments about local authority commissioning. If a provider has a concern about how they are being constricted, arguably inappropriately, by a commissioner’s decision or practice and tries to raise that with an inspector, they are told, “That is not a matter for us.” It is absolutely a matter for the CQC. I hope the Minister can say something about what he will say to the CQC on that issue. It seems to me that understanding the intervention of commissioners is a really important part of gathering intelligence about the robustness of a local care economy, and the best way to gather that intelligence, at least in part, is by inspectors being open to being told about that.

--- Later in debate ---

[Andrew George]

My right hon. Friend is making an excellent case. There is another reason why it is essential that inspection in that area becomes paramount, and that is because of the drivers in the system itself that discourage avoidable hospital and community hospital admissions and seek the earliest possible discharge into the community. What we have is a scenario in which people are being cared for in their homes, in an “out of sight, out of mind” environment, so inspections become all the more important because of the need to ensure that they are safe—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Paul Burstow.

[Paul Burstow]

My hon. Friend makes an important point—

[Mr Deputy Speaker]

I think he made a speech.

[Paul Burstow]

I defer to you on that point, Mr Deputy Speaker.

New clause 8 would ensure first, that there is an examination of how sector-led improvement is working; secondly, that the concern about rates for care, which we touched on when we debated new clause 15, is looked at, particularly time and task commissioning and procurement; and thirdly, that the way in which resource allocation formula are drafted and how they operate—an issue that came up in my Committee’s inquiry into the Bill—and the fact that they are often very opaque to the public, with regard to what is and is not in them when it comes to determining the level of a personal budget, are absolutely crucial to the quality of the care someone might be able to receive.