Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Monday 21st October 2013 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

168B: After Clause 109, line 14, at end insert—
“( ) Before section 65F of that Act insert—
“65ZFZF Trust special administration: measures required before powers take effect
No power under this Act for the administrator to recommend taking action in relation to another NHS foundation trust or an NHS trust, or for any such action to be taken, shall be exercised until—(a) at least 5 years have passed after the passing of the Care Act 2013;(b) the Secretary of State has reported to both Houses of Parliament on the case for the operation of such a power; and(c) an order made by statutory instrument giving effect to the recommendations of such report has been laid before and approved by a resolution of both Houses of Parliament.””

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg to move my Amendment 168B as an amendment to Amendment 168A moved by the noble Earl, Lord Howe.

We have just heard the noble Earl suggest that his amendment makes small changes and is a clarification of the existing law. However, it is my contention that the amendment is nothing short of a major change in policy on the reconfiguration of NHS services. Your Lordships are being asked to agree to it even though the case, or one of the cases, on which it is based—that of Lewisham hospital—is subject to an imminent Court of Appeal hearing. If it is accepted by the House, it is my view that NHS hospitals will be at risk of having services shut down without their agreement, without extensive consultation and without agreement from commissioners.

The changes made to the special administration regime by the government amendment would also extenuate the problems caused by having a different failure regime for NHS trusts compared with NHS foundation trusts—a point that my noble friend Lord Warner has consistently made.

Finally, to be effective, the changes could be construed as meaning that, for the first time, the Secretary of State has the power to issue directions to require the boards of solvent and successful clinical commissioning groups and NHS foundation trusts to take steps that they do not wish to take.

I see this not as a clarification of the law but as a major policy change that is at odds with the approach taken by the Secretary of State in the 2012 Act, when he repeatedly put his faith in local commissioning by local doctors. I make it clear that I am not opposed to changes in services: I support the major reconfiguration of services where clinical evidence supports it. Indeed, I should like to see much faster progress. When I and my noble friend Lord Warner argued this during the passage of the Health and Social Care Bill, the Government ploughed on with their extensive and fragmentary changes. The Government have belatedly come to realise that the structure they imposed is actually a barrier to progress—hence the amendment. It is also clear that, given the dire financial straits of many NHS organisations, the special administration process is likely to be used on an increasing basis. My concern is that giving so much power to trust special administrators is the wrong way to go about it. Indeed, evidence from Lewisham and Staffordshire suggests that it will often provoke widespread opposition and slow down progress.

As the noble Earl has said, the key change that the Government want to make is to ensure that the Secretary of State can act on recommendations that affect other NHS trusts, NHS foundation trusts or other providers and commissioners outwith the trust to which a special administrator has been appointed. How this would happen has been graphically illustrated in the case of Lewisham. The South London Healthcare NHS Trust was a badly performing trust with an accumulated deficit of £196 million. Consequently, a trust special administrator was appointed. In his draft report of 24 October 2012, he recommended that University Hospital Lewisham should no longer provide emergency care for critically ill patients who did not need to be admitted to hospital and that it should lose its obstetrics-led maternity unit.

The Secretary of State made some changes to those recommendations but Lewisham hospital would still have seen some significant downgrading in its services. This approach had no support locally and was blatantly unfair to the people of Lewisham. As Mr Justice Silber said when the Lewisham case came to the High Court:

“There are few issues which prompt such vociferous protest as attempts to reduce the services at a hospital which is highly regarded and which is much used by those who live in its neighbourhood”.

In the High Court, Lewisham Council and the campaign group argued that Lewisham hospital was not in the NHS trust over which the trust special administrator had been appointed and that the Secretary of State could make recommendations and decisions only in relation to the three hospitals in the South London Healthcare NHS Trust but not in relation to hospitals outside the trust area. The judge subsequently found in favour of Lewisham Council and concluded that the trust special administrator and the Secretary of State were not entitled to make recommendations and decide to reduce services at Lewisham because it was not a hospital over which the administrator had been appointed. It was situated in a totally different trust.

The appeal of the Lewisham decision by the Government will be held shortly. I find it remarkable that without hearing the outcome of the case they are seeking to amend the law in such a hasty way. The noble Earl said in his letter to us that the trust special administrator regime is,

“one way in which decisive action can be taken to deal with NHS trusts or NHS foundation trusts that are unsustainable in their current form”.

I agree, but surely not at the expense of well run trusts. Of course there need to be changes in the local health economy beyond just the trust that is failing; a trust does not fail in isolation but is part of a complex, interconnected system—change one bit and you impact on the other bits. However, the legislation was intended to deal with a simple case in which a trust had failed and was then broken up, with its assets being transferred or sold off. My contention is that this type of approach is not suited to major reconfiguration processes and should not be a back-door way to achieve unpopular changes.

I should also say that the government amendment seems to introduce a major anomaly around commissioning. A clinical commissioning group that commissions services from a failing NHS foundation trust is entitled to define and protect essential NHS services, but a clinical commissioning group that commissions services from a successful NHS trust can now see local services removed, even if that clinical commissioning group considers those services to be essential.

Further, the scheme proposed by the amendment appears to be legally ineffective. Neither a clinical commissioning group nor a foundation trust is subject to the direction-making powers of the Secretary of State—both are independent corporate bodies with boards which are responsible for making their own decisions. It is unclear to me how the boards of the clinical commissioning group and a foundation trust are supposed to be legally required to carry through any decision which is made within a special administration process relating to another body.

Nor is it clear what happens if the commissioners do not wish to commission services against the model that the special administrator has proposed. That is the case in Mid Staffordshire, where the special administrator’s proposals have not found favour with either the public or the clinical commissioning group. There appears to be no limit to how far recommendations might stretch to be “necessary” and “consequent”. It is clear that one trust could have many commissioners, and changes in services could impact upon many other trusts. The special administrator is being given a free hand to cast his net as widely as he wishes.

In conclusion, there are serious defects in the special administration process which the noble Earl’s amendment does little to resolve; indeed, it brings further anomalies and inconsistencies. However, my key concern about the amendment is that it removes the requirement to go through a properly defined and structured reconfiguration process, with extensive consultation with the local community. From all that we have learnt about successful reconfigurations, we know that they need to take a special form of open and honest leadership, a patient process of engagement and consultation, and proper consideration of the wider impact. The Government really should think again about this and my amendment gives them the opportunity to do so.

[Baroness Warnock (CB)]

My Lords, I have hesitated to speak before about the Lewisham situation, partly because I believe that some changes are needed in hospital provision over the whole country but mainly because, as a resident in the borough of Lewisham, I might be thought to be so biased that my opinions would carry no weight. However, the situation has radically changed with the introduction of the noble Earl’s amendment.

It is completely intolerable that the law should be changed and overturned in this hasty way, regardless of the fact that everybody admits that there is no fault to be found with the Lewisham hospital administration. It is an admirable hospital and its extensive and thorough accident and emergency section is particularly valued by a large number of people, for whom Lewisham is a centre to which they can get easily by various forms of transport, let alone by ambulance.

The contention that it would make little difference to the residents of Lewisham if this comprehensive A&E department were closed was risible. The tests to see how long on average it would take to get there were carried out at dead of night, and in various ways there was a great deal of false suggestion in the administrator’s conclusions. Above all, the clinical commissioners were by no means convinced and were not in agreement with the proposals.

The reason for speaking so strongly in favour of the amendment moved by the noble Lord, Lord Hunt, is that things have now moved far beyond Lewisham. I am speaking not only about the Lewisham situation; the proposals are perfectly general—the powers proposed for the Secretary of State could be used anywhere in the country.

What we have now is a radical change of power and, as other noble Lords have said, all hospitals are now under threat of closure, whether or not they are successful or administered with financial prudence, as Lewisham has been. It seems to me that this is an absolutely arbitrary overturning of what was found in court. Therefore, I beg noble Lords to think of this amendment in that light and not just to be concerned with the two particular trusts but with hospital provision all over the country.

--- Later in debate ---

[Earl Howe]

My Lords, the matters we have debated today are of great significance. Of course—and I need to make this clear—we do not want to see any NHS trust or foundation trust fail, but equally we cannot shirk the responsibility to take action if and when that happens. In our taxpayer-funded health system, every pound counts and every pound should be put to best use, providing high-quality, effective care. Failed organisations squander resources. I do not want to be derogatory about them in other ways, but they usually take for themselves an unfair proportion of resources in relation to the local health economy more widely. Failed organisations, if nothing is done, have to be propped up by government bail-outs. That cannot be right, particularly at a time when resources are as constrained as they are now. We need an effective regime for tackling these issues.

The House has agreed with this on two previous occasions, passing legislation in 2009, during the time of the previous Government, and again in 2012 to provide failure regimes for trusts and foundation trusts respectively. We thought that those regimes would be effective, but experience now shows that they need clarification. The noble Lord, Lord Hunt, suggested that this amendment represented a major change of policy and the noble Baroness, Lady Warnock, characterised it as an arbitrary overturning of the decision of the court in the south London case. The Government’s policy has been consistent. It is entirely unchanged. It is self-evidently not a change of policy. Had it been so, the recommendations made by the trust special administrator in south London would have been ones that we would have questioned as legally dubious in the department. On the contrary, we believe that the administrator’s recommendations fell squarely within the wording of the 2009 Act, which, as I mentioned earlier, used the phrase, “in relation to”. That was the phrase around which the judge’s ruling revolved, and it was a different interpretation of that phrase that the judge took.

The noble Lord, Lord Hunt, is very knowledgeable about the heath service, but I am afraid that on this matter he is wrong. His amendment would render the failure regime quite useless. Five years is too long for a failed hospital and the patients it serves to wait for an effective remedy, to say nothing of the cost to the public purse. One of the provisions that the noble Lord has tabled would require the Secretary of State to justify making the power operational after the end of the five-year period, but is that not the debate we should have now? In any event, the effect of accepting his amendment would lead to an incoherent muddle. Either the House believes that a trust special administrator must be able to take the action necessary to resolve serious and prolonged problems at a trust or it does not. A long wait and a report will make no difference to the issues of substance. I urge the House to be decisive on this rather than doing what is effectively kicking a can down the road.

I know that fears have been expressed that the clause we are inserting would enable the Government to make free with every hospital around the country. That is not so. In fact, I submit to your Lordships that that suggestion is scaremongering. The powers could have been used for a long time if it were the Government’s intention to close down every hospital or lots of hospitals. The regime was designed by the party opposite, lest we forget, to deal with the specific circumstances of a trust in failure. It enables an external expert to be appointed as administrator to take a fresh look at the situation and, working with the trust and its commissioners, to develop recommendations for the future.

One needs also—I say this particularly to the noble Lord, Lord Warner—to recognise that trust special administration is only ever invoked when the normal processes for agreeing a reconfiguration have hit the buffers. In normal circumstances commissioners and providers in a locality get together and very often agree about the way services should be reconfigured to make them clinically and financially sustainable. In the case of south London and in the case of Mid Staffordshire that process has been going on for a long time. It is only because we reached an intractable position that administrators were appointed in those instances.

We have heard today that some aspects of our amendment provoke strong feelings, particularly the clarification—and it is a clarification—that a trust special administrator can make recommendations that include other providers where those recommendations are necessary for, and consequential on, his core recommendations. I bring noble Lords’ attention to those key words. Of course I recognise those views, but I do not share them. The clarification is vital for the failure regimes to be effective. It may be possible for the solution to the problems faced by a failed organisation to be found within the boundaries of that organisation, but it may not. Indeed, it is quite likely that it will not be. The health service is formed of a complex network of interdependent providers, all influencing one another. It is plain that making changes to one has a knock-on effect elsewhere. The amendment is a reflection of that reality.

I have a degree of sympathy with those who have argued that the effect of this could be unfair on the successful provider impacted by the failure of a neighbour. Such a step would, of course, be taken reluctantly. But I argue that it must be possible to take such a step if, and when, that is the only way of resolving the problem. The amendment would not apply retrospectively. The date of the court hearing in the south London case is therefore not relevant.

The rest of my amendment makes minor changes and I hope that they will be acceptable to the House. I hope more strongly that the amendment as a whole will find favour. It could be, as some noble Lords have suggested, that additional things need to be done. We do not believe that to be the case but I have heard the arguments put by a number of noble Lords that the amendment might need additions at some time in future. Our minds are open to that. But I beg noble Lords not to lose this opportunity of passing my amendment, as it matters a very great deal, not just in local areas but in the health service as a whole, in the interests of equity and fairness, which, after all, underpin the whole NHS. I believe that noble Lords should reject the amendment proposed by the noble Lord, Lord Hunt.

These are going to be rare cases and they are always difficult. The problems by their very nature are intractable and serious. We must fix them and have mechanisms to do that in order to put services back on a sustainable footing. Otherwise, I respectfully submit, we ourselves will have failed. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the Minister and other noble Lords who have spoken in what has been an excellent debate. My feeling about the debate is that the House has conclusively come to a view that further discussion needs to take place on the matter. I will come back to that in a moment.

I agree with the noble Earl that failed organisations squander millions of pounds. He is absolutely right to say that the need for them to be propped up by others has a deleterious effect on the NHS as a whole. We know that at least 20 NHS trusts or foundation trusts are in severe financial difficulty at the moment. It is likely that that number will grow in future. That is why there is considerable doubt that the special administration provisions will apply to only a very small number of cases. There is every possibility that, over the next two or three years, it will have to be used in many cases. That is why I am concerned that the provisions that the noble Earl is asking us to agree to today will be used to lead to configuration of services in which the interests of the failing trust will be put at the heart of the process rather than interests of the health service as a whole in a given area. That is the crux of the issue and that is why Lewisham is so important. It is a very good hospital—it was minding its own business—and then, suddenly, a special administrator came along and said that to solve the problem of the trust that it was dealing with it would have to reduce Lewisham hospital services. That is the crux of the argument and why we are concerned about the provisions being put forward by the noble Earl today.

The noble and learned Lord, Lord Mackay, suggested that we should let the Government have their amendment today and it can then be dealt with in the other place. Of course, I always admire the other place’s assiduous attention to duty when scrutinising legislation, but the fact is that the other place is simply not geared up or able to do that. The noble Earl, Lord Howe, was rather rude about my amendment which was, of course, perfectly formed and correct in every way. Will the noble Earl, having listened to this debate, agree to pause and allow us to have further discussions—even between now and Third Reading in eight days’ time—to see whether it would be possible to come back with an amendment that is more suited to the circumstances he described? Is the noble Earl prepared to do that? If he were, I would welcome it.

[Earl Howe]

My Lords, I am more than willing to have discussions between now and Third Reading but I suggest to the House that it is necessary to pass the government amendment now and to look at whether we need to change that amendment at a future date. Our minds are open to that but, unless we pass the government amendment, we will have missed a historic opportunity to correct a vital lacuna in the law for the benefit of the NHS as a whole.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the noble Earl. It would, however, be possible for him not to move his own amendment today, to allow for further discussions and to table a revised amendment at Third Reading. That is as far as I can go in offering the Opposition’s help in this matter.

[Earl Howe]

I am grateful to the noble Lord. However, as I indicated, this is a pressing and urgent matter. While I am always open to inter-party discussions, the time has come for the House to take a decision.

[Lord Hunt of Kings Heath]

My Lords, in view of that, I wish to test the opinion of the House.

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[Baroness Pitkeathley]

My Lords, I, too, am troubled by the seeming perversity of government Amendments 145, 146 and 149. The effect of the amendments seems to be to make it harder for the CQC to conduct investigations into local authority practices, particularly of commissioning. My understanding, from my hazy memory of when the CQC was set up, was that that was a particularly important function. Surely it has become more so, given the commitment to integration between services provided by the health service and those provided by local authorities. Was that not a key feature of establishing the CQC? The timing of this seems to be very odd—perverse, as the noble Lord, Lord Low, said—given the current huge concern about the way in which services are commissioned, the so-called 15-minute care visits, and so on.

Do the Government see a continuing role for the CQC in working with local authorities to improve the way that they commission services, or is this a retreat from the way the Government view the CQC? I was very involved in the discussions before the CQC’s relaunch, and understood that to be an important part of its function. The amendments appear to reduce the CQC’s power to help improve local authority commissioning and, because of that, its oversight of care quality. That is a great concern to us all, particularly when we are so concerned about the quality of the services which are commissioned.

[Lord Hunt of Kings Heath]

My Lords, first, I welcome the amendments in relation to CQC independence. I would like assurance that it does what it says on the tin. I assume that the CQC will be regarded as independent. Perhaps it will be making fewer visits to the Secretary of State than it does at the moment. If there are weekly meetings, as is suggested, between the Secretary of State, the CQC, Monitor and NHS England, it is very difficult to believe that it is going to be truly independent. The proof of the pudding will be in the eating; but it is very difficult to know why the Secretary of State needs to see the CQC on such a regular basis if it is really an independent organisation.

Like other noble Lords, I am puzzled why the periodic reviews of local authority performance in commissioning adult social services have been removed from the Bill. I am surprised at the current policy, which is that, as part of wider moves to devolve responsibility for improvement in the sector, local authority commissioning performance and assessment will be led by councils. Presumably that means that it is government policy that the performance of the commissioning function of local authorities in adult social care will be reviewed by local authorities.

With the greatest respect for the noble Earl, Lord Howe, he knows that I am a great admirer of local authorities; I have served on two. However, like the noble Lord who spoke so eloquently earlier about solar decisions being called in by DCLG—to which, no doubt, the noble Earl will have a detailed response—I would not have thought that the commissioning performance of local authorities was thought to be so excellent that they can be left to themselves to police their performance in future.

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Moved by

[Lord Hunt of Kings Heath]

144: After Clause 82, insert the following new Clause—
“Staffing numbers and skills mix
The Care Quality Commission shall, in carrying out its functions, have regard to any official guidance on staffing numbers and skills mix.”

[Lord Hunt of Kings Heath]

My Lords, we come to an important amendment that relates essentially to staff ratios and guidance. I refer back to the Francis report, which focused very much, among many other serious matters, on staffing ratios and appropriate staffing numbers employed by NHS trusts.

We know very well that given the financial strain currently on the health service there is a large concern about whether there are enough staff on the wards to give appropriate care. Much of the concern around the quality of nursing care and the quality of care by healthcare assistants has related to essential aspects of care, including feeding, caring and all those things associated with what we would regard as appropriate caring. Underlining those things has been a concern as to whether enough staff are employed on the wards.

The noble Earl will know that the Francis report recommended that NICE should benchmark issues around appropriate staffing levels. He will also know that since the Francis report came out we have had the Keogh report into 14 trusts with outline mortality rates. It is interesting that one of the important conclusions of the Keogh review was the need to look seriously at staffing numbers. There seems to be a direct relationship between outline mortality rates and staffing levels on the wards and in clinical areas. We have also had the Berwick review, which the Government established, looking more generally at staffing levels within the health service. The review identified staffing levels as being one of the most important areas on which to focus when it comes to reviewing quality of care.

My amendment relates to ensuring that in its responsibilities the CQC has sufficient focus on staffing levels. This is a very important matter at a time when the health service is being presented with an increase in the number of patients and an increase in technology and complexity at the same time as having to operate on a budget that is just above a level budget. Things are very difficult indeed in the health service. Roughly 70% of the budget of NHS organisations is spent on staffing and expenditure on nursing and healthcare assistants forms perhaps the most important element of the staffing budget. Therefore, in some way we need to protect staffing levels in such circumstances. My amendment suggests that this is a very important role for the CQC to play and I hope that the Minister will be sympathetic to it. I beg to move.

[Baroness Gardner of Parkes]

My Lords, I do not want to speak before whoever supports the noble Lord, Lord Hunt, in his amendment, so I will sit down and speak after the noble Baroness.

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[Earl Howe]

The answer to that question is the rating system, which the chief inspectors are planning to bring in. Proposals for that will be announced very shortly. We attach great importance to that kind of transparency, not only in the NHS but in the care sector. On my noble friend’s question about whether all this would cover the care sector as well as the NHS, as he will know, the CQC issues sector-specific guidance on how to meet staffing registration requirements. Obviously NHS England would only provide guidance that relates to the NHS. As I already said, the Chief Inspector of, say, Adult Social Care would inspect regularly against CQC guidance. The plan is to consult in April 2014 on the CQC guidance on social care.

My noble friend spoke about an emerging consensus on a minimum level of staffing below which care is unsafe. I understand his point, but I am sure he will acknowledge—and did, implicitly, in his remarks—that staffing is not simply about crude numbers; it is not just about nurses. Healthcare assistants and other members of the team all have a key role to play. My noble friend Lady Gardner was absolutely right to point out that the skill mix is relevant in these circumstances. Patient safety experts agree that safe staffing levels should be set locally. It is not for Whitehall to set one-size-fits-all staffing rules. That is exactly why we have asked NICE and other nursing experts to review the evidence, to help organisations to make the right decisions on staff numbers at a local level and then, essentially, to govern themselves. I make it absolutely clear that we fully agree that safe staffing should apply in all settings and that point will be taken into account as we develop our plans.

I hope noble Lords are reassured that action is already being undertaken in a combination of ways, through Compassion in Practice, the CQC registration process, and, shortly, through the role of the Chief Inspector of Hospitals. That will ensure that providers are open and transparent about their staffing numbers and that they assess these staffing levels, not just on the day of an inspection but on a regular basis, using evidence-based tools, and by taking into account local factors that relate to local patient needs and outcomes. I therefore hope that noble Lords will be content to take stock of what I have said and will not press their amendments.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to all noble Lords who have spoken. I will say at once that I very much support Amendment 159. I agree with my noble friend Lord Warner that the two amendments run in parallel very well indeed.

I know that the noble Baroness, Lady Gardner, thinks that my amendment may be a little too modest. Perhaps it is a start. I assume that the noble Baroness was not chair of the Royal Free when the “poaching” that she described took place. The point was well made.

The noble Earl, Lord Howe, has listed a number of ways in which we could be assured that staffing numbers and skill mix will be okay both in the NHS and the care sector. The fact is that, however much information is published and however much this might be part of the licensing regime of CQC, these organisations have been around for some time. There is consistent evidence that staffing levels are not sufficient. We have already had the Francis report, which said that NICE should undertake benchmarking on staffing levels. The Keogh report on the 14 hospital trusts said:

“The review teams found inadequate numbers of nursing staff in a number of ward areas, particularly out of hours—at night and at the weekend. This was compounded by an over-reliance on unregistered support staff and temporary staff”.

The Berwick report goes over the same ground. At the end of the day, I do not think there is enough beef in the system to ensure that we have adequate support staff. If NICE is going to carry out the benchmarking, which is a very good thing, we need to make sure that the regulator actually has some beef in terms of ensuring that we get adequate staff levels in clinical areas. I think that my Amendment 144 ensures that that will happen. I should like to test the opinion of the House.

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[Earl Howe]

My Lords, I shall speak also to Amendments 152B to 152F. These are amendments to the clauses that establish a new offence and penalties where care providers provide certain false or misleading information. Together with the new duty of candour on providers that we considered last Wednesday, this measure is key to supporting openness and transparency among care providers.

We are making two substantive amendments. First, Amendment 152F extends the offence to directors and other senior individuals who consent to or connive in an offence committed by the care provider, as well as to cases where the negligence of senior individuals has led to the offence by the care provider. This amendment brings the offence into line with a number of other offences that are committed by organisations, such as Health and Safety at Work etc. Act offences and offences under the CQC legislation, where senior individuals are also liable for the offence. This will encourage directors and other senior individuals leading organisations to take greater ownership of the provision of information.

Secondly, since Committee, the Government have reflected on the penalties for this offence. The provision of accurate information is central to the safe functioning of the health and social care system as it provides the intelligence on which commissioners and regulators form judgments about the quality of care. Where that information is wrong, it can result in delays in taking action to protect patients and service users. Falsifying such information is a serious matter that can frustrate attempts to provide safe care for patients and service users. In the light of this, we believe that a custodial sentence is warranted in the most serious cases. I am therefore bringing forward Amendment 152E, which introduces a maximum penalty on indictment of two years’ imprisonment. I emphasise that the Government are not of the view that the custodial penalty will be used with any frequency. The aim of the offence is not to punish directors and other senior individuals but, rather, to drive improvement and performance.

The amendments also address a number of concerns that were raised in Committee. There was some debate about the scope of the false or misleading information offence. I should like to make it as clear as possible that the false or misleading information offence will apply only to the provision of publicly funded care. We will specify in regulations—a preliminary draft of which we have shared with noble Lords ahead of the debate—which information this will relate to, starting with information provided by hospitals. We are making a small number of amendments to clarify the scope of the offence. First, we are amending the definition of a care provider to make it clear that this does not include commissioners or regulators. We are also amending the wording so that the offence could apply to sole traders and all types of partnerships, such as GP practices, and to care providers who are funded by service users under direct payment arrangements. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I want to ask the noble Earl just one question. Why does it not apply to commissioners? We know from events that have happened in the past few years that in many cases commissioners have been responsible for issues by sins of omission or by not being completely open. It is a puzzle to me why all the emphasis is on providing and not on the way that commissioners actually operate. There is evidence, for instance, that the way some commissioners operate can have a direct impact on the quality of provision. We have already discussed this in relation to 15-minute visits. I am puzzled as to why so little attention is being paid to the way that commissioners themselves should operate.

[Earl Howe]

That is a perfectly reasonable question. The short answer is that, in determining the scope of this offence, our focus was and is on information that is closest to patient care, where inaccurate statements can allow poor and dangerous care to continue. That approach responds directly to the Francis report concerns about the manipulation of patient safety information. We believe, therefore, that the proposals are focused and proportionate. We are targeting this offence on the key patient safety and quality data that commissioners and regulators use to assess performance. We think that we have the balance right.

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[Lord Willis of Knaresborough]

My Lords, I rise, somewhat gobsmacked, as they say in Yorkshire, at the launching by my noble friend of what has been a major breakthrough in the training of healthcare support workers. I notice that the noble Baroness, Lady Gibson, is nodding in approval as this is an area with which she too has been very closely concerned. I thank my noble friend for making that commitment. It makes most of my speech totally irrelevant but, nevertheless, I will add one or two bits just for good measure.

There is no doubt that there is an overwhelming case for appropriately training the 1.3 million healthcare support workers who do such a fantastic job in care homes and domiciliary settings, as well as in hospitals. This has been a national scandal so far. These people are a hugely valuable part of the workforce and it is important to recognise them as such.

I should like to ask some brief questions. Camilla Cavendish recommended that the certificate of fundamental care be a baseline on which there would be an advanced certificate. That would lead directly into nurse training so that there would be no glass ceiling for healthcare support workers, particularly since nursing has moved on to being an all-graduate profession. When the Minister responds, I hope that he will be able to say whether that is within the psyche. The idea of having student nurses working alongside healthcare support workers, particularly those training for the advanced level, is a good one, so that you know the skills mix that you are working with.

In Amendment 153, I railed at the word “may”. The amendment states:

“Regulations made under this section by virtue of subsection (3)(d) may in particular include provision for a specified person”.

Surely, the Minister could go one step further and say that, at Third Reading, it will become a “must” and not a “may”. The one thing we must not have—there are a lot of musts—is a situation where people can move away from this need to be able to make sure that within a short period the whole of our social, health and care workforce will be properly trained to a standard approved by the sector skills council and the Nursing and Midwifery Council. That is a major breakthrough.

My noble friend is right that there are some excellent training programmes. I have seen many of them. I remember one for healthcare support workers at John Radcliffe Hospital in Oxford within the hospital setting. I know that many care homes give superb training to their staff because that leads to good patient outcomes which sell the product. Has any thought gone into existing training being recognised so that people do not have to go through another hoop for the sake of getting their certificate? Perhaps Health Education England can do that with this. I hope other noble Lords will comment on our amendment.

Amendment 160 remains a thorny issue. A mandatory regulatory system for healthcare support workers has been on the table. Francis himself made it clear that this workforce should be regulated. Until now, my problem with that has been that there has been very little to regulate because if people are not trained to approved standards, how on earth do you have a regulatory system by which you can judge their competence? Now that we are getting one, I hope that the Minister will look again at regulation so that we get the complete package and, my goodness, this will be a Care Bill that we can really celebrate.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord, Lord Willis, has just referred to my Amendment 160. It relates to the regulation of health and care support workers. I have long thought that the regulation of support workers is necessary, desirable and inevitable because they play such an important role in caring for so many people. I pay tribute to the noble Lord, Lord Willis, for the outstanding work he did for the RCN’s independent commission which has informed this debate about standards of care workers.

I very much welcome what the Minister said about the development of a certificate of fundamental care. My noble friend Lord Young reminded me that I ought to ask the Minister at what level that is going to be because anyone who understands these issues will know that the level of a certificate is very important.

I want to draw together Amendments 153, 158 and 160. Given that in future when employers wish to take on care workers they will expect a certificate of fundamental care, does the Minister not think it inevitable that there will be a list of people who have been awarded the certificate? Does he not also think it inevitable that once you have that list, if you then have a person with a certificate and they transgress and there is concern about the way they care for people, there will inevitability be a drive to ask how you get that certificate off them? I believe regulation is inevitable now. There is no way away from the fact that once you have a certificate like this, there will have to be a list or a register and people will have to be evaluated. I for one very much welcome what the Minister has announced because it is a very important step along the road of regulation.