Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015

Lord Mackay of Clashfern Excerpts

Tuesday 24th February 2015 Lords Chamber

[Baroness Scotland of Asthal]

The real issue is whether we are going to abrogate our own responsibility. Is this something which we should ask an outside agency to do? Should we make a decision where we cannot come to a fully informed and articulated decision ourselves? If we are left in the position of saying, “I am not entirely sure about the research or the sagacity of the legal principles being advanced that enable me to pass this”, surely we should wait until that is clarified. If the House believes that it wishes to abrogate that responsibility because the nature of the issues we are dealing with are such that we feel comfortable about doing that, then of course that is always a matter for us. But I simply argue that what is being asked for is what I hope to be a relatively short period for these matters to be fully considered and fully put to rest.

I am very conscious of time but there are a number of arguments that we could put forward on the law, which would help to further exemplify that this matter is not easy. It is complex. The reason I emphasise that the law officers are disagreeing is the following. All law officers are in the same position. We are not here to tell people what they want to hear; we are here to tell them what they need to know. That should be valued by the House and I am sure that the House would want to be confident that doing this, which everyone hopes would be a good thing, should be lawfully done, too.

[Lord Mackay of Clashfern (Con)]

My Lords, one of the bases of my noble friend Lord Deben’s amendment to the Motion is this question of whether these regulations are lawful. I have studied quite carefully the opinion of the noble Lord, Lord Brennan, with a junior. I have seen other opinion as well but I am thinking now only of my own analysis of what the noble Lord and his junior said.

The first point is: is this lawful under the domestic law of the United Kingdom? My answer is that it is clearly lawful because, in 2008, this Parliament passed an amendment for the purpose of allowing such regulations to be made. That is as clear as it can be, and you do not need to be a lawyer to think that it is possibly quite a good point. The result of the opinion that the noble Lord, Lord Brennan, has given on this point is that that amendment would be held to be pointless. The courts are not very keen on reaching a conclusion that a deliberate action of Parliament is without point, so I feel very strongly that these regulations in draft are lawful, within the domestic law of the United Kingdom.

Now we come on to the complexities of the European law. Like the noble and learned Baroness, I have had some experience, now long past, of appearing before the Court of Justice in Luxembourg. Masters of complexity are very difficult to find at a greater level than it has. The essential point about this, however, is very clear. If the noble Lord, Lord Brennan, is right, it is not a question of these regulations being wrong; it is that the whole procedure that they are aiming to do is unlawful according to European law. That is fundamental. I do not believe that it is correct, because I do not think that the European Union has a treaty basis if we are dealing with medical procedures in the member states. The regulations that are referred to in great detail—huge definitions and all the rest of it—are intended to deal with the furtherance of the common market. Therefore, if you get a tablet in Germany that is supposed to be suitable for you, then it would be equally suitable in this country—

[Baroness Scotland of Asthal]

Can I just help the noble and learned Lord by saying that the thing that concerns me is Article 6.3 of the treaty and the way in which the charter has been incorporated to consolidate all the other European laws that were there before the making of the charter? It was the charter itself, and the way in which it has changed things, which makes the difference. I am not focusing primarily on the issues that have been referred to by my noble friend Lord Brennan in his opinion. I am really looking at those issues that arise as a result of the charter. I do not believe that their proper interpretation has been dealt with. I know that the House will not like me very much if I go through the whole charter, but I am very happy to share the issues which really concern me with the noble Earl, Lord Howe.

[Lord Mackay of Clashfern]

So far as I have understood the European treaties, they do not confer an authority as yet to interfere in the medical procedures within the member states. That is basic, and means that they cannot interfere or render unlawful a medical procedure such as the one proposed in these regulations. I could go into the detail of it—I am sure that would not be very acceptable—but I have two principal reasons for thinking that that is right. The first is that no challenge, so far as I know, has been offered by the European Commission to the provisions in the 2008 Act—which of course would be the right place to challenge this, if it were unlawful. This provision was definitely intended to make these regulations possible. The second reason that I advance is that in the opinion of the noble Lord, Lord Brennan, a reference is cited to a treaty dealing with these matters which is outside the European Union. It has a number of members of the European Union as signatories, but it has not been signed by the United Kingdom, nor ratified of course by the United Kingdom, so it is not part of our law. That is the kind of law that deals with embryology in a way that might have been difficult for us if it had been part of the European Union.

These are simple reasons why I think this situation is reasonably clear. Of course, I accept that the law officers have taken a different view. We have not had a chance of discussing it in detail with them. The other point I have to make is that no amount of discussion in a Joint Committee can settle this matter. The only place it can be settled is in a court of law, either the domestic courts of the United Kingdom or, if necessary, the Court of Justice of the European Union in Luxembourg. In a sense, if that is a real point, the sooner the regulations are passed the better so that they can be tested.

So far as the point made by the right reverend Prelate is concerned, I understood that the research that the HFEA was asking for has been done and is in the process of publication. It just does not happen to have completed publication. As he was speaking I was reminded that when I had the responsibility of taking the 1990 Act—the original Act in this area—through this House, the then Bishop of London took quite a prominent part in the discussions. His watchword was caution—and he thought that that amount of caution had been built into the procedure by having the HFEA examine individual cases and be in charge of the licensing.

--- Later in debate ---

[Baroness Scotland of Asthal]

My Lords, before the noble Earl starts his speech, may I apologise to the House? The noble Lord, Lord Alton, has clarified the fact that it was the Lord Chancellor and the current Attorney-General who voted against this measure in the House of Commons. I was told that two Law Officers had voted against, and I assumed that the two Law Officers must have been the right honourable Dominic Grieve and the current Attorney-General. It was not: it was the Lord Chancellor and the current Attorney-General. I should apologise for that; it was a misunderstanding of the information that I was given.

[Lord Mackay of Clashfern]

It would be right to say that the Lord Chancellor is not a Law Officer of the Crown.

[Baroness Scotland of Asthal]

My Lords, that is why, having been told that it was the two Law Officers, I came to the conclusion that the Lord Chancellor was not among them.

Adult Social Care Contracts

Lord Mackay of Clashfern Excerpts

Wednesday 11th February 2015 Lords Chamber

[Earl Howe]

My Lords, the principle that the noble Baroness articulates is, I am sure, applicable in some areas. I hope that she will be reassured to know that the department has developed statutory guidance for the Care Act to support local authorities, including commissioning. The guidance to the Act directs local authorities to ensure that all packages of care and support that are arranged are good quality and do not undermine people’s well-being. Furthermore, the department will, with partners, be developing a set of commissioning standards which will help local authorities to improve their commissioning practices.

[Lord Mackay of Clashfern (Con)]

My Lords, can the noble Earl tell us whether the Care Act effectively prevents the practice to which the noble Lord, Lord Campbell-Savours, referred?

Medical Innovation Bill [HL]

Lord Mackay of Clashfern Excerpts

Friday 24th October 2014 Lords Chamber

[Baroness O’Neill of Bengarve (CB)]

My Lords, I am sorry to say that I am another non-medic. Indeed, I am a philosopher by trade and training but I would like to make three points. First, I was puzzled at Second Reading and again this morning by a certain divergence of vision among those of our medical colleagues with surgical experience and those who are not surgeons. It seems that, on the whole, those with surgical experience are quite happy with current legislation. They feel that they must innovate and that the non-standard anatomy, which I have learnt that we all enjoy, means that they cannot go in there with a rule book and just stick to it. I have not heard quite the same uniformity from our clinical colleagues who are non-surgeons. I hope that we could be a bit clearer about whether surgical procedures should be in here at all.

Secondly, the question of unintended consequences has already been raised by the noble Lord, Lord Giddens, and others. Some quite process-heavy amendments have been proposed which deserve rather more picking apart than they have already received. We do not wish to put in so much process that we successfully stifle the very innovation that it is the purpose of the Bill to achieve. I hope that we can come back to those amendments.

Finally, and with trepidation as I am standing right behind the noble Lord, Lord Pannick I say that, there is a bit of a difference between reasonableness and proportionality. They tend to come as twins. I am entirely in favour of reasonableness but proportionality suggests that you have at the back of your mind enough data to say what is proportionate and what is not. I fear that introducing requirements for proportionality may actually wreck the possibility of innovation in areas where part of the objective is to obtain the data, because they are not yet there. I would have thought that from a patient’s point of view it is reasonable to go for a treatment for which there are not yet complete data, and therefore no judgment of proportionality can be made, but which nevertheless is reasonable because the other options are dire.

[Lord Mackay of Clashfern (Con)]

My Lords, I had not intended to take much part this morning but, my name having been mentioned, I am stimulated to respond. The Bill is about innovation. Therefore, if a doctor is attacked for some failure in respect of innovation, the ordinary rules of defence that are presently available do not seem appropriate. Our colleagues who are excellent innovators have managed to avoid the necessity for litigation as a result of their innovations. However, if by any chance any of them were challenged, how would they go about their defence?

I make this basic point in answer to my colleague the noble Lord, Lord Pannick. He quoted what I said at Second Reading. It will not surprise your Lordships if I happen to hold still to what I said then. The point is that when there is an innovation, there is not much material on which to judge whether it is reasonable or proportionate. If there were in the existing practice, it would not be an innovation. The problem is therefore that the ordinary formulations of reasonable and proportionate with which lawyers are very familiar—I am enough of a lawyer to be familiar with them—are not really appropriate. I believe that the test which my noble friend Lord Saatchi’s Bill originally had, and which is preserved among all the innovations that have taken place since, is in Clause 1(4)(a):

“Nothing in this section … permits a doctor to administer treatment for the purposes of research or for any purpose other than the best interests of the patient”.

That is a simple test which the doctor must face at the time of innovation and, so far as I am concerned, elaboration with the familiar legal phrases that are very dear to lawyers is a mistake. I therefore adhere to what I said at Second Reading.

I should perhaps say that I am not entirely without experience in this area for when I was in practice in Scotland, which is now a long time ago, I did quite a lot of work in the Medical and Dental Defence Union of Scotland area. My very first appearance as a counsel in this House was in respect of a doctor’s negligence. My experience was over quite a long period; it may not have been very good but it was certainly extensive. I very much support the Bill and hope that we need not get around to voting on it today. There is plenty of scope for discussion about these matters and a good deal of substance in many of the amendments. We should discuss them further and, if necessary, have votes on Report.

[Baroness Wheeler (Lab)]

My Lords, on behalf of these Benches I welcome the commencement of the Committee stage of the Bill. At Second Reading we underlined the necessity for close scrutiny by this House, and we are pleased that the opportunity has been presented to us. In that debate there was both strong support for and strong reservations about the Bill, with many questions and issues to be addressed. We have moved on since then, but despite acknowledged progress made on safeguards for staff and patients contained in the amendments from the noble Lord, Lord Saatchi, there remain crucial reservations and concerns from key parts of the medical profession and from patients’ organisations, as we continue to discuss today.

We commend the work that the noble Lord has undertaken on the Bill, and feel that the changes on patient and staff safety signify improvements to it. It is reassuring that his proposed amendments have the backing of Sir Bruce Keogh, the NHS medical director, and the Government, and that the common-law Bolam test would remain unaffected by the Bill. The noble Lord, Lord Saatchi, knows that there is strong support for the principles and the intent of what he is trying to achieve. Labour has always strongly supported efforts to put innovation at the heart of the NHS and to bring innovative treatments to patients faster.

After Second Reading, the Minister for Health, Dr Daniel Poulter, responding to a Parliamentary Question in the Commons from Labour on the progress of the Bill, acknowledged the Government’s support for the principles of the Bill but emphasised that the amendments were necessary,

“to ensure it does not: put patients at risk; deter good and responsible innovation; place an undue bureaucratic burden on the National Health Service; or expose doctors to a risk of additional liabilities”.

These four key tests are what we should keep firmly in focus today, and I hope that the noble Lord, Lord Saatchi, and the Minister will address whether they consider that the tests have been met in the revised Bill in their responses to the issues that have been raised today.

I will limit myself to speaking on just some amendments in this group. Like other noble Lords, I look forward to hearing from the noble Lord, Lord Saatchi, and the Minister on the key issues raised by the many experts in this field who have spoken today. On patient safety, as I have stressed, we welcome the efforts made by the noble Lord, Lord Saatchi, in his amendments to address widespread concerns that the overall Bill would encourage reckless rather than responsible innovation and put patients at risk. We support the new emphasis on reasonable and responsible innovation contained in amendments in the next group, as well as the reference in Amendment 10 in this group from the noble Lord, Lord Pannick, and my noble friends Lord Turnberg and Lord Winston, to the doctor needing to act in a manner that is both reasonable and proportionate. The new provisions in Amendments 8 and 9 are important because we recognise that they are designed to provide that a doctor’s departure from the existing range of accepted medical treatment for a condition is not negligent where the decision to depart is taken responsibly.

We also welcome the deletion of the references in the previous Bill to the doctor’s responsible officer and appropriately qualified colleagues in respect of the staff to be consulted about the proposed treatment. These caused much confusion among both supporters and people with concerns about the Bill, and the new reference in Amendment 16 to the need to obtain the views of one or more appropriately qualified doctors in relation to the proposed treatment is clearer—although it is a critical area that will also need to be developed under guidelines, codes and/or regulations. It needs to be clear who is an appropriate qualified doctor. The new definition of a doctor being,

“appropriately qualified if he or she has appropriate expertise and experience in dealing with patients with the condition in question”,

is also an improvement to the Bill, although the question of the independence of the doctor whose opinion is being sought is a critical one.

My noble friend Lord Turnberg addressed this earlier with much force under Amendment 7. Key stakeholders have stressed that requiring the doctor to have regard to the opinions of other professionals responsible for patients’ care, together with the requirement for written consent to be sought from at least one other doctor who is independent of the responsible doctor, would be a welcome step in providing more clarity to the process.

There is an extremely worrying potential for conflict of interest here—for example, in the supporting doctor’s involvement in the development of the drug or treatment in question—and clear guidelines and rules of engagement will be essential. Sir Robert Francis QC points to the problem that arises from the choice of the appropriate qualified doctor to consult resting entirely with the doctor wanting to offer a new treatment. He or she is free to choose someone in his own partnership or laboratory, or someone with a commercial interest in promoting or selling the treatment. It is less than clear who is the final judge of whether the individual is appropriately qualified. There is also concern among a number of stakeholder groups that pharmaceutical companies could put undue pressure on doctors to try out potentially dangerous treatments, and this concern will also need to be addressed.

Concerns remain that the involvement and consent of patients to untested innovative treatments are not more explicitly in the Bill. Amendment 14 from the noble Baroness, Lady Masham, addresses this issue by specifying the need to obtain informed consent in light of the aims, processes and risks. I look forward to hearing further from the noble Lord, Lord Saatchi, on how he considers the Bill can address this, as this point has been raised by a number of noble Lords in the debate.

--- Later in debate ---

[Lord Pannick]

My Lords, I added my name to Amendment 6 because I agree with the noble Lord, Lord Winston, that it would improve the Bill to provide a definition of the core concept of innovation. As the object of the Bill is to provide greater clarity for medical practitioners, it is surely perverse not to include any definition of that core concept in the Bill. No doubt Amendment 6 needs improvement, perhaps for the reasons given by my noble friend Lord Kakkar, but I could not be persuaded that it is beyond the very considerable skills of the draftsman of the Bill, Daniel Greenberg, to provide a definition of innovation.

[Lord Mackay of Clashfern]

My Lords, the word “innovation” is a straightforward word in the English language. I am not sure that clarity is necessarily brought by multiplying it by how many in this amendment. Apart from anything else, one of the possibilities of innovation is for a doctor to say, “The standard treatment for this is a particular course of operation and chemotherapy. My belief is that that would not ultimately save you; it would subject you to a lot of pain and suffering and so on. The best thing, as far as I am concerned, is that you should not have any further treatment”. I am not sure whether that comes under the definition in Amendment 6, but if we want simplicity, we should go for perfectly clear English words. “Innovation” is one of them.

Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Wednesday 7th May 2014 Lords Chamber

[Baroness Barker (LD)]

My Lords, if it helps the Minister as he waits for some assistance in his response, I speak as one who has taken part in many of the discussions over the years. The Minister was right to acknowledge the work of a large number of people. One person who should be added to his list is the noble Baroness, Lady Greengross, who has worked tirelessly on this matter for some time. It is a measure of how long this debate has been running that when we first began to discuss it in this House, there were no direct payments for social care to anybody. Therefore, the matter did not arise. It is therefore extremely helpful that the Joint Committee on Human Rights has posed the question that it has. When we started, the scope to argue over what was a private arrangement and what was a public function was considerably less than it is now. Now, someone who has been assessed as needing and being entitled to social care may make an arrangement with a family member using a direct payment, but the question of whether it is a public function that is being discharged is still the one that goes to the heart of whether the Human Rights Act applies. It is extremely helpful that the Joint Committee has raised that question. Having got this far to overcome what has long been acknowledged as a tremendously unfair anomaly—whereby one older person in a residential home has rights and the person in the next room does not, simply because of who arranged, rather than funded, their care—let us get it right, at last.

[Lord Mackay of Clashfern (Con)]

My Lords, as I took part in the debate in this House that secured the original amendment to the Bill, I should very much like to associate myself with the remarks of thanks to my noble friend Lord Howe and to Norman Lamb and others in the other place. I think the root of this difficulty was the decision of this House from which Lord Bingham dissented. That was an indication that the decision might require revision in due course.

[Lord Rix (CB)]

My Lords, on behalf of learning disabled people and other vulnerable people I should like to thank the Government for making this amendment, which certainly ensures that their care will be greatly attended to in the future.

--- Later in debate ---

[Lord Mackay of Clashfern]

I support the view that we ought not to have too many impediments to effective action. When this matter was first raised in this House, when the Bill was being considered, the amendment dealing with a special administrator came in very late and there was a certain degree of feeling that it should have been dismissed. But I am glad to say that the House decided to continue with it, and of course the matter has been carefully and fully considered in the other place.

The procedure for special administration may be needed quite urgently in some places in the not-too-distant future. I hope not, but there is a risk of that. Therefore, it is extremely important that we have an acceptable, effective service and provision in position to deal with the special administrator and his powers as soon as possible. I thank my noble friend and his colleagues for advancing to this extent.

[Earl Howe]

My Lords, this has been an extremely helpful debate. I first pick up a point emphasised by the noble Baroness, Lady Murphy. Trust special administration is indeed a last resort, which was why I took care to spell out the other steps that we might expect to have taken place before administration is even considered. But the previous Government realised, rightly, that we have to have a mechanism in statute designed to deal with long-standing and apparently intractable situations in provider trusts—and not just to have a mechanism of that sort, but one that provides a reasonably swift resolution to the problem of significant failure.

The previous Government provided for a defined statutory timetable for the TSA process and they were absolutely right to do that. Indeed, as the noble Baroness, Lady Finlay, generously acknowledged, her own amendment, had it been accepted, would allow other affected commissioners to consult the public further about the administrator’s final recommendations. Consultation would be through the usual NHS process, taking about 12 weeks. It would fall completely outside the timetable of the trust special administrator and the net effect of such a change would be to reverse the effect of Clause 118. The administration regime would not be creating a complete and timely solution to the problem. It would render the strict legal timetable for the regime ineffective and delay what would be an uncertain resolution very significantly. I hope that noble Lords will not wish to follow that part of the noble Baroness’s amendment. I was glad to hear her say that she would not be moving it.

The noble Baroness asked me whether the committee to be chaired by Paul Burstow on the guidance will continue. Yes, it will. The Government’s commitment in relation to a committee chaired by my honourable friend to review the guidance still stands. The guidance is still important for setting out in detail how the statute should operate. The Government believe that there is significant value in advice from the committee about the guidance. She was right to say that that process should give the public and patients confidence that this is not a set of guidelines dreamt up by Ministers and civil servants on their own.

The amendment of the noble Lord, Lord Hunt of Kings Heath, suggests that the guidance should be laid before Parliament. I need hardly say that that idea falls considerably outside what is usual practice. It is not usual practice to lay statutory guidance before Parliament in the way that the amendment envisages. However, in recognition of the keen interest of parliamentarians in both Houses, we invited my honourable friend Mr Burstow MP to chair a committee of MPs and Peers to consider the guidance. I hope that that mechanism will be sufficient for the kind of buy-in from patients and the public that I have referred to, and will command confidence.

The noble Lords, Lord Turnbull and Lord Hunt of Kings Heath, referred to the situation where commissioners or providers declined to accept the administrator’s recommendation. The noble Lord, Lord Hunt of Kings Heath, asked whether a clinical commissioning group has a veto. Each commissioner of services provided by the trust under administration and affected trusts has to give agreement for the draft and final TSA reports to go forward, but NHS England has a role—which is already in statute—in deciding whether to agree the TSA reports if not all the CCGs agree. I believe that that is right. We cannot expect or oblige every CCG to agree to the TSA proposals in every single case. There has to be a way of resolving any lack of unanimity and this is the mechanism that we believe is right.

Abortion

Lord Mackay of Clashfern Excerpts

Thursday 3rd April 2014 Grand Committee

[Lord Mackay of Clashfern (Con)]

My Lords, I am grateful to my noble friend for raising this debate. I want to deal very briefly with two points. First, I have seen it suggested that abortion on the ground of sex selection is lawful, or not unlawful, in this country. I do not believe that is correct. The law is quite clear that an attempt to procure abortion before the Act was unlawful and now the Act allows abortion to be lawful on four grounds, none of which is sex selection. Therefore it is absolutely clear that the law prohibits that as a ground of abortion in this country.

Responsibility for seeing that the law is observed in this area, as in other areas, is with the prosecuting authorities, including the police and the DPP. The DPP has drawn attention to difficulties in relation to the arrangements that have been sanctioned by the Department of Health in this connection. My noble friend Lord Howe may have some comment to make on that. I cannot see how a medical practitioner could pre-sign the form in a way that conforms with the statute. My noble friend said that the law is construed in such a way as to allow abortion on demand, but the law does not do that at all. It is quite wrong to suggest that the signing of the form could be done responsibly without proper knowledge of the situation of the patient at the time.

Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 21st October 2013 Lords Chamber

[Lord Patel (CB)]

My Lords, I find myself in a strange position, because I agree in part with the amendment moved by the noble Earl and in part with the amendment moved by the noble Lord, Lord Hunt, although that is not a solution.

I agree with the noble Earl that we need to find a way of reconfiguring NHS services. That reconfiguration cannot just be done through dealing with failing hospitals. It must include other hospitals which currently seem to be delivering good-quality services. We have to find a way out of that. The question is therefore whether the amendment allows us to move forward with reconfiguring NHS services. This is where I find myself more in tune with the suggestion of the noble Lord, Lord Warner, that it may not and that more is required.

Another concern I have is that the commissioners may express views. I would like some explanation of why the commissioners of the NHS foundation trust are to be treated separately from those who commission services from other hospitals. Another issue is that, if the commissioners disagree, NHS England would make the decision. That means that, ipso facto, they will agree with a special administrator—or they will not. In that case, what happens?

Another issue is consultation. Clearly, none of the configuration can occur smoothly unless the public are consulted. At what point will the special administrator consult both the public served by the failing hospital and the public served by the hospital that is not failing but whose services may require reconfiguration?

In summary, therefore, there is a need for amendments that will allow us to move forward with the reconfiguration of services throughout England. In that respect, I am with the noble Earl, but I wonder if he needs to go a bit further. He might consider looking at this further and tabling more amendments at a later stage.

[Lord Mackay of Clashfern (Con)]

My Lords, there is of course quite a long process still to be gone through on the Bill. As the noble Lord, Lord Warner, has said, it seems clear that there is a serious problem. It occurs to me that the special administrator’s primary emphasis will be on the trust to which he or she has been appointed. It is also obvious that changes to one trust may affect neighbouring trusts. Some solution to the problems in the special administrator’s trust may rely on something done in a neighbouring trust.

On the other hand, in that situation it is extremely important that concentration on the problems of the neighbouring trust is given considerable emphasis. Otherwise, the situation may be distorted by too great an emphasis on the special administrator’s trust at the expense of neighbouring trusts brought in to try to help. I wonder whether the wise course might be for us to accept the amendment, in so far as it goes, with an undertaking that, as the Bill proceeds in the other place, that matter would be seriously considered.

This may be an opportunity for legislation that will not quickly arise again. As the noble Lord, Lord Warner, said, there is a serious problem and it might not be wise to put it off indefinitely. I can see the difficulties and understand the situation of the noble Lord, Lord Patel, but it is very difficult to see how to sort this out today. On the other hand, it might be unwise to lose the opportunity to take a step forward in the hope of improving the situation in later stages of this Bill.

--- Later in debate ---

[Lord Patel]

I concur with what the noble Lord, Lord Willis of Knaresborough, just said. All of the research councils and charities support these amendments. There are the caveats to which he referred, particularly related to clinical trials and data. There is another important issue about the summary given at the conclusion of the research, which not only has to protect the confidentiality of the patients but also needs to be brief, because otherwise it is too cumbersome. On the whole, these amendments that we debated long and hard are most welcome.

[Lord Mackay of Clashfern]

I also agree with the view that these are important headings. The precise detail has been mentioned by the noble Lord. Regarding paragraph (c) of Amendment 167, I think that access to the data is quite important although it requires consideration. It is important that the experiment or trial can be repeated. One of the difficulties in the past has sometimes been the announcement of research findings. When those in the same area tried to find out exactly what the findings were based on, there was some difficulty in repeating the experiment and occasionally there was something seriously wrong with the research. Therefore, access to the data certainly has to be kept in view if one is going to have proper transparency. However, I accept that, like paragraph (c) of Amendment 167 and the other paragraphs, it requires an amount of restriction in certain cases.

[Baroness Wheeler]

My Lords, I welcome the Government’s decision in Amendment 167 to support the recommendation of the Joint Committee on promoting transparency in research and ensuring full publication of the results of research consistent with patient confidentiality. It is right that this should be a statutory objective of the Health Research Authority. The arguments in support of this at the Committee stage from noble Lords were very compelling and, since then, have been strongly reinforced by the House of Commons Science and Technology Committee report into clinical trials and, indeed, the strategy and ongoing work undertaken by HRA itself.

In particular, HRA’s September announcement requiring registration of clinical trials in a publicly accessible database as a condition of ethical acceptance—taking up a longstanding recommendation of the Association of Medical Research Charities—recognises the overwhelming support for this agenda. The HRA has much to do in the coming months to develop its guidance into practical measures, but the Bill now gives clear and explicit direction to its work. The HRA has stressed that it expects the vast majority of researchers, sponsors and funders to embrace the plans to realise greater openness, responsible data sharing and publication of all results, and this is very welcome news.

It is so important for patients and the public to have confidence that the research they have been involved in will be used in the best way to improve understanding and health outcomes for the groups involved. Improved transparency is vital if more patients are to be encouraged to become involved in clinical research—one of the key ambitions of AMRC’s excellent vision for research in the NHS. The noble Lord, Lord Willis, referred to reservations. I was going to raise them and I am glad he did. I look forward to the Minister’s response. He may need to write to us in detail about those reservations and his response to that, or there might be a need for some small rewording of the draft provisions before Third Reading.

Finally, we recognise that the HRA is strongly committed to working with other bodies to overcome the barriers to transparency and create a culture of openness. Changing culture is, however, a tough call in the NHS. We also know from the AMRC research survey covering both doctors and nurses that we have a long way to go to get NHS staff to take part in research in the first place, let alone sign up to the transparency agenda. GPs are an important gateway for getting patients involved in research. However, although a majority of GPs surveyed believed it very important for the NHS to support research and treatment for their patients, only 32% of those surveyed felt it was very important for them to be personally involved. Will the Government ensure that HRA and HEE work closely on this very important issue of buy-in to research and transparency by NHS staff? How will they ensure that the CCGs fully engage in this agenda?

Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Wednesday 16th October 2013 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I will speak briefly in support of Amendment 83. I would have spoken on this in Committee, but unfortunately I was drowning in continuity of care. I feel that we are missing an important aspect in the debate: namely, the provider’s voice. I will give noble Lords an example from the Joint Committee on Human Rights. We ran an inquiry into Article 13 of the UN convention on the rights of disabled people. We took evidence from a range of providers, including private sector providers. We heard very good evidence from a private sector provider. When they were questioned about the Human Rights Act, it became evident that there was a great deal of confusion about when their homes were covered and when they were not. They erred towards saying, “No, we don’t think we’re covered because we haven’t been trained in that area”.

It became very evident to me that there was a crying need for clarification in this area. I asked a very simple question about what the witness thought that this meant for her private sector homes. She said, “Well, to be honest, we already do it. We allow our residents to go to bed at whatever time they like before 10 pm”. I feel that the misunderstanding of how the Human Rights Act covers private sector care homes was illustrated in that one moment. Therefore, the law needs clarifying—and this clarification would be welcomed not only by private sector care home providers.

[Lord Mackay of Clashfern (Con)]

My Lords, my name is on the amendment and, of course, I warmly support it. My noble and learned friend, Lord Hope of Craighead, analysed the situation in full, and in a way that in my view was absolutely correct and worthy of being followed. It is quite something for me to realise that my pupil has returned here as a result of his age, but obviously so far his acumen has been in no way affected.

The department says that people who provide this sort of care should consider themselves bound by the Human Rights Act. Why? Is that a mistake? No. So let us make it correct. Let us make sure that they are bound by the Human Rights Act. We are doing exactly what the noble and learned Lord, Lord Neuberger, suggested: where a particular function is to be regarded as of a public nature, the easiest thing to do is to say that. That is exactly what the amendment of the noble Lord, Lord Low, does.

I do not wish to get into the history of the previous Administration. The noble Lord, Lord Wills, came to the battlefront on that on previous occasions in my hearing. I do not know anything at all about that. However, there are two ways of approaching this. One is to consider amending the Human Rights Act, which I think was happening until the demise of the previous Government put an end to their considerations. The other is what the noble and learned Lord, Lord Neuberger, said: do not trouble with trying to provide a better policy in the Human Rights Act but say when you want it to apply. That is exactly what is required here.

I sincerely hope that the Minister will be able to accept the amendment—or that he will table his own amendment at Third Reading. I also hope that this will not be a matter on which we will have to test the opinion of the House, because we agree on the policy that the Human Rights Act should apply. The only question is whether the law has been properly framed to deal with that—and we can have no higher authority speaking on that matter in this House than a retired member of the Supreme Court.

--- Later in debate ---

[Lord Faulks (Con)]

My Lords, I share, of course, the concern of all noble Lords that we should take all reasonable steps to protect vulnerable people who receive social care in whatever circumstances. I enter this debate for the first time with considerable trepidation, having regard to the great distinction of those, both present and absent, who support this amendment. I have to express some real doubts about it.

As far as I am aware this is the first time an attempt has been made to include, within the scope of the Human Rights Act, what may be a purely private function. Those who receive care may not be overly concerned with whether it is being provided by a public authority, a private provider, or in some hybrid arrangement. Nevertheless, this amendment is in effect extending the scope of the convention beyond the terms of the Human Rights Act.

It is important to consider what protection would be available anyway, in the absence of this amendment. If a poor standard of care is provided to an individual, it is likely that the provider will be in breach of an express term of any contract or in breach of a term implied by the Supply of Goods and Services Act 1982. There will almost certainly be a claim in tort, probably relying on the tort of negligence. There is, of course, a further safeguard in relation to all providers of publicly arranged care, in that all such providers have a duty imposed by Section 6 of the Human Rights Act, at least following what I would submit was the closing of the YL loophole by Section 145 of the Health and Social Care Act. The CQC, as a regulator and a public authority, is subject to the convention.

However, the amendment would, as I understand it, purport to provide some additional remedy; presumably some award of damages. The noble Lord should be aware of the relatively limited scope of damages awards under the Human Rights Act. As Lord Bingham said in the Greenfield case in 2005,

“the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official”.

The House of Lords also emphasised that the Human Rights Act was not to be regarded as a panacea. Indeed, Lord Bingham went on in Greenfield to say that the purpose of the Act,

“was not to give victims better remedies at home than they could recover in Strasbourg”.

However, that would be the position here if this amendment was passed. My conclusion is that the amendment amounts to an illegitimate extension of the Human Rights Act and would not, in reality, provide any significant extra protection for those who, quite understandably, we wish to protect.

The future of the Human Rights Act will have to await the outcome of the next election. However, amending the Act, which is what in effect this will do, would be inappropriate and, I have to say, unnecessary.

[Lord Mackay of Clashfern]

Before the noble Lord sits down, can he explain what, in his view, the remedy is for the case to which the noble Lord, Lord Warner, referred?

[Lord Faulks]

I understand that in the case to which the noble Lord referred, there was a private provider. There would therefore be the remedies I referred to earlier in my remarks—the normal remedies that those who receive services through a private arrangement would have. The Human Rights Act of course is concerned entirely with remedies against public authorities. I respectfully suggest that one must not lose sight of the remedies that exist, and have always existed, in relation to breaches or violations of anybody’s rights in the circumstances described.

--- Later in debate ---

[Lord Mackay of Clashfern]

The noble Lord sat down without answering the question that I asked him, which I am very keen for him to answer. My understanding is that this elderly lady was in a home and she was given full notice to leave; there was no question of any breach of contract or anything of that kind. Therefore, the sorts of remedies to which the noble Lord has referred would not be available, whereas under the Human Rights Act there is at least a very considerable probability that she would have some protection.

[Lord Faulks]

I am sorry that I did not answer the question adequately for the noble and learned Lord. My response is that actually the Human Rights Act remedies, which I endeavoured to deal with in my remarks, would not of themselves provide the sort of remedy that the noble Lord, Lord Warner, had in mind. As was outlined by Lord Bingham in the Greenfield case, the remedies are in fact very limited, very often amounting to a decision that there has been a violation, rather than the sort of practical remedy that I understand the noble Lord to have in mind. That is my response.

--- Later in debate ---

[Baroness Bakewell (Lab)]

My Lords, I wish to address the one word “otherwise”. I come under that category of otherwise. Since arriving in the House—let me see now, when was it? I am getting quite old; I can put the wrong statistics down on pieces of paper. Yes, I think it was 2011. I have in the course of the time since then turned up at the House on the wrong day. I got it wrong—not deliberately, not fraudulently, but for “otherwise” reasons—because I am old. I forget to have my post redirected during the Recess and come back to a mountain of post which I have not been able to answer, all because I get the dates wrong. That is because I am old.

As people get older, life gets more threatening. The bureaucracy weighs down on us more and we are frightened of authority. That is why I choose to support my colleague in—which amendment is it? Yes, Amendment 120.

[Lord Mackay of Clashfern]

My Lords, it occurs to me that the problem has been created by the use of the word “fraudulent”. It tends to suggest that the word “otherwise” is in some way connected with that. I wonder whether one could not take out that whole phrase in brackets. The idea is that, because of some mistake, something extra has been paid out. Ordinarily, it might be perfectly all right to recover that. You do not need to look into the detail of why it was wrong. The person in question—vulnerable people particularly, and those who are not so vulnerable, more recently arrived—may fall into error. The error may result in extra payments out by the local authority which, in ordinary circumstances, it should be able to recover. “Fraudulently” gives an idea of people trying to put something over on someone, and “otherwise” tends to be coloured by the same adverb. Perhaps this problem could be dealt with in that way.

[Earl Howe]

My Lords, we agree with the general view expressed by noble Lords that we must ensure that vulnerable elderly people are protected and are not discouraged from seeking help when they need it. However, I do not agree with the conclusions reached by the noble Lord, Lord Lipsey, and I regret to have to say that the manner in which he has expressed his concerns risks causing unnecessary worry to people who need care and support. Let me be clear: this power is not there to punish people, as the noble Lord put it, and should be used by local authorities only as a last resort, as I shall explain. Its purpose is to ensure that any charges that should have been paid can subsequently be recovered. It is not to penalise people unduly. But neither should the system reward mistakes or prevent unpaid charges being recovered. This would not only undermine the principle of personal responsibility, it could also result in local authorities having less money to provide care and support to those who need it the most. In practice, it means in some cases a licence to subsidise the better off at the expense of the worse off. Is that really what the noble Lord wants? The use of this power is to recover a debt and is not intended to imply a judgment about the person’s culpability. It does not look for the mens rea; it exists to ensure only that charges not paid can be recovered, as the equivalent current powers do now.

The principle of this provision is not new; the power is 60 years old. The noble Lord likes to make out that we are doing something radically new, but that is not the case. We recognise that there may be a number of reasons why someone has not paid the full amount of the charges due to the local authority, including misrepresentations of their assets which were entirely unintentional. But even where the reason is an accident or a mistake, local authorities still suffer a loss and must be able to recover that loss if there is no other means of doing so. This is public money.

One of the objectives of the Bill is to make access to care and support easier and more focused on people with care and support needs and their families. We expect local authorities to help and support people with care and support needs, discussing any concerns they have and providing advice and assistance as appropriate. This would include advice to help people understand the process of financial assessment and their responsibility to disclose financial assets. I absolutely fail to see why the noble Lord thinks it is socially just to allow people who misrepresent or fail to disclose their assets, whether intentionally or not, to receive more than their fair share of financial support. I reiterate that to do so would reduce the resources available to other people with care and support needs. That is what his prescription amounts to. I am concerned that this amendment would risk making it much easier for people to take advantage of the system and avoid charges and subsequent legal action. What the noble Lord is suggesting is that people could be as careless as they liked when filling out the form. Is that what he wants? The high evidential burden that local authorities would have to meet to recover debts risks making this power largely useless in practice. It would leave local authorities facing costly and uncertain legal action if they chose to pursue the matter.

Let me be clear on another point. A local authority should not, as a matter of course, use these powers to recover debts without first having discussed other options with the individual concerned. In most cases, especially those where the failure to pay the correct charges was inadvertent, there would be other simpler routes to follow, such as agreeing a repayment plan which allows for recovery over time in a way that is manageable. The noble Lord suggests that local authorities may exercise these powers in a way that will drive people out of their own homes. Quite aside from the fact that we have no evidence that local authorities behave in that way and have used their existing powers like that, I have to say that I find that assertion particularly unconvincing.

Local authorities are bound by the public law principle of acting reasonably at all times and must act in accordance with human rights legislation, as well as the well-being principle, which we have already debated. That alone should prevent a local authority using this power to force someone out of their home. The noble Lord is stretching our credulity if he is asking us to imagine a set of circumstances in which a court would make an order in favour of a local authority knowingly to evict a person from their home in this kind of situation. It would be counterproductive in the extreme. Should there be any possibility of this happening, we would use statutory guidance to make the position clear. Indeed, where I do think further action is needed is in the form of guidance. We will use statutory guidance under the Bill to set out the steps that we expect local authorities to take. For example, we would expect a local authority to discuss the situation with the cared-for person and their family when appropriate to establish what, if anything, is owed to the local authority; if there is a debt, to establish whether it is appropriate to recover it, because the local authority does not have to recover it—it can choose not to do so; and, lastly, if money needs to be recovered, to find an affordable way for the money to be repaid. As I have said, whether or not the person could have been reasonably aware of something that needed to be included in the financial assessment is one of the factors that the local authority should consider when deciding whether it is appropriate to recover a debt.

We plan to engage with local authorities in the wider sector on what happens at present and how this could be improved. I accept the need for effective communication about financial assessment and the recovery of charges. This highlights the importance of high quality information and advice, including financial advice, which was debated last week, and the importance of the new duties we are placing on local authorities in this regard. Should mistakes be made, people will not be criminalised, nor will any punitive charges be imposed, but ultimately it is right that mistakes are rectified so that individuals do not benefit from any errors they make, whether they were intentional or not. Neither local authorities nor those who rely on their services should be disadvantaged, but the amendment as it stands runs the risk of failing on all these counts.

I hope that I have reassured noble Lords that the debt recovery power, while to be used only as a last resort, remains important. There is nothing that people should fear from its use. I therefore hope that the noble Lord, on reflection and at this late time, will feel able to withdraw his amendment.

Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 14th October 2013 Lords Chamber

[Lord Dubs (Lab)]

My Lords, I welcome how far the Minister has moved from Committee to today. I hope that noble Lords will not think it churlish of me to say that perhaps he might be persuaded to move a little further. I will speak first to Amendment 60, which seeks to oblige a local authority to provide advice and information about what can be done in the event of an emergency, or if needs change. I am specifically talking about what I think we have referred to before as people with fluctuating conditions and needs. We know that there are many millions of people in the country who have fluctuating conditions such as multiple sclerosis, rheumatoid arthritis, HIV, Crohn’s, colitis, epilepsy and Parkinson’s disease, and there may be many others. Therefore, we are talking about a significant number of people who will be affected by the provisions of this Bill.

Not long ago I was talking to a woman in a wheelchair who had MS. She was very lively, bubbly and sparky, and she said to me: “You know, I’m not always like this. Some days I go down and I can’t even get out of bed, so don’t judge my condition by the way you see me today”. I took that very much to heart, and it is clearly the sort of situation that this amendment is about. As the Bill is currently drafted under Clause 25, it would not really make provision for such situations.

This amendment is actually operationally simple. It would help to ease the pressure placed on formal and informal carers, and would give them more certainty. Not only will it ensure that individuals get the timely care that they need when they need it but, equally importantly, it has the potential to prevent costly and unnecessary hospital admissions. If this amendment is not in place, there is always the possibility that with a downward fluctuation in condition, the person without the support will then have to be hospitalised. That in itself is costly and is utterly undesirable from the point of view of the person who could be helped in the home if this amendment were to be passed.

Local authorities are surely in a position to provide better tailored care, to promote confidence and control and allow people to prepare for such rises and falls in their care needs. The current drafting does not allow for it. A snapshot was taken by the NRAS—the National Rheumatoid Arthritis Society—which indicated that currently more than 30% of respondents with rheumatoid arthritis have been admitted to emergency care as a result of a flare-up in the disease in the past year. This is something which I trust could be prevented if we changed the way in which this clause was to operate. A survey of 1,000 people with MS revealed that 95% of respondents felt that better services during a relapse or a sudden deterioration of their condition would help them to maintain their independence. More than 80% said that they want to be able to plan their care and support in advance of that care being required. This amendment would help people whose conditions might suddenly worsen and, as I said earlier, would potentially prevent unnecessary and costly hospital admissions.

I turn to Amendment 61. As the wording of the Bill in Clause 27 states, local authorities have the power to generally review care plans. However, they are not required to specify when they anticipate that these reviews will take place. This amendment seeks to put some certainty into the process. There should be an agreed date between the adult and the local authority upon which a review of the care and support plan would be offered. I envisage a discussion between the local authority and the person concerned about the best way in which their care needs can be met.

An anticipated review date, agreed between the local authority and the adults, would provide stability and certainty to those being cared for. It is not a large change but it would be beneficial for the people concerned. I do not want to spell out with examples where people have said what a difference it would make if they had this element of certainty. I would like this amendment to be passed, which will give the adult the confidence that their care would continue as agreed until the specified date or until the adult themselves chooses to request a review in line with Clause 27(1)(b).

[Lord Mackay of Clashfern (Con)]

My Lords, I generally support these government amendments, and thank the Minister for introducing them. There is just one small point I want to mention, which has been raised in my mind by the observations made by the noble Baroness, Lady Pitkeathley, in relation to Amendment 33.

I had understood paragraph (b) of Amendment 33 to carry the implication that if something was found that would benefit the person in question as a result of examination of what is in (b), the needs assessment would include that. However, I just wonder whether the last part creates the possibility that if the benefit can be received from something in the community, outside the provisions that the local authorities have made, that would be excluded; in other words, it would tend to reduce the needs assessment. I had rather thought that the proper construction of this phrase would mean that that also should be taken into account as included in the needs assessment, and that, where it was available, the cost of it should be included in the needs assessment. Perhaps my noble friend will be able to clarify that point for me.

--- Later in debate ---

[Earl Howe]

My Lords, first, I turn to Amendment 55, in the name of the noble Lord, Lord Lipsey, which concerns the circumstances in which people wish to top up their own fees to pay for more expensive accommodation. To begin with, and for the avoidance of any doubt, I will emphasise that I agree that people should be able to choose to spend their own money on more expensive care, provided it is affordable. Like the noble Lord, Lord Lipsey, I want people to be able to choose to live in more expensive accommodation and gain from a cap on care costs, so that they pay part of the cost of care from their own savings and still receive local authority support.

Through the consultation and stakeholder engagement, we are seeking to better understand the impact of relaxing the rules on self-top-ups and to determine what protections may be needed for vulnerable people.

The answer to the question posed by the noble Lord, Lord Hunt, is that consultation will close on 25 October. The Minister of State for Care and Support and departmental officials have, over the past quarter, attended a variety of events covering the care and support sector, local authorities and financial services providers. These have been broadly supportive of the principle that people should be able to contribute towards their care costs from their own assets. Stakeholders have also recognised that people need to make decisions which are financially sustainable for the long term, and that financial information and advice need to play an important role in achieving this. We will be able to provide a more comprehensive overview of the views expressed in our response to the consultation in the new year. I repeat that we are on the noble Lord’s side. Our only concern is to ensure that when we relax the rules, there are sufficient protections, both for the individual and for the local authority.

Amendment 56 concerns review of the operation of the capped-cost system. I am sure we can all agree unhesitatingly that these reforms need to be implemented effectively to deliver the outcomes we are striving for. The capped-cost system will provide peace of mind and protection against catastrophic costs and will target most help at those with the greatest need. I am confident that we can further agree that to deliver these benefits, we need good oversight. Therefore, I am with the noble Lords opposite in spirit. To that end, we will be reviewing and assuring both implementation and funding, and have committed to reviewing the core elements of the capped-costs system within each five-year period. We will also conduct post-legislative scrutiny, as the Government have committed to do across the board for all new Acts. The agreement we have with the Liaison Committee in the other place is that this should be done between three and five years after Royal Assent.

Furthermore, we have established the Joint Implementation and Programme Board with the Local Government Association and the Association of Directors of Adult Social Services. We will use this to work with local government on continuing assurance and improvement of the arrangements. We are confident that, in their totality, these arrangements provide generous opportunity for assurance and review to ensure that the reforms remain true to our vision.

For that reason, I do not believe it would be necessary or desirable to supplement these arrangements with a further review by additional oversight bodies, such as an independent ministerial advisory committee. Such additional oversight would cut across the scrutiny conducted by the Health Select Committee and cross-government planning on spending through spending rounds. I am sure that noble Lords opposite will not be totally satisfied with that, but I hope that they will be sufficiently reassured by the confirmation I have given that we will conduct a proper review of the operation and funding of these reforms through several channels. I hope that they will agree that this amendment is, therefore, unnecessary.

[Lord Mackay of Clashfern]

Before the Minister sits down, is he satisfied that, without the amendment of the noble Lord, Lord Lipsey, there is sufficient flexibility under the system as it is presently provided to allow for the sort of difficulties that are envisaged as possibly coming out after the consultation?

[Earl Howe]

I can reassure my noble and learned friend that, if we look at the arrangements we are proposing in combination, there will be sufficient mechanisms in place to take account of any unexpected wrinkles that emerge of the kind that the noble Lord, Lord Lipsey, perfectly reasonably anticipates; and to react and respond to those difficulties as appropriate. The answer, in a nutshell, is yes.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare all my interests in this field, which are listed. These amendments are incredibly important for patients who are dying. The Government’s amendment is to be welcomed; I can see no problems with it. It might sound bizarre but I have some slight anxieties over the wording in two places in Amendment 137. It refers to a preferred place of death, whereas I would rather see the words, “preferred place of care”. Many people who are dying know that they want to spend their last days, weeks or months at home. They want to have everything done to support them at home, particularly out of hours. We have debated this for some time within my own specialist teams and specialist services. We are worried that there could be two unintended consequences. People who are not yet ready to confront the fact that they really are dying will be pushed to have that conversation before they are ready, which would be traumatic. There could also be the unintended consequence of some kind of target developing and patients being whipped out of one place of care.

The difficulty we see clinically is that when clinical situations change, patients sometimes change their mind. It is not uncommon for someone who originally said they wanted to die at home to say, when they really are dying, that they feel safer where they are and want their family brought in and as much of a home environment created as possible. It may be the regulations at ward level, or the way in which they are interpreted, which are blocking that and need to be addressed. For example, it does not matter at all if you have a husband on an all-female ward, but I have occasionally known staff to think that it does and that it is not appropriate to have a man stay overnight, which is absolutely appalling. Staff need to recreate the home environment where that person is as much as possible. However, if they have complex needs or unstable symptoms, they may well feel safer in whichever place they are, whether it is hospice or hospital.

In looking at the amendment I also tried to get some details of how many patients are successful under the DS1500 special rules. It is quite difficult, because I understand that the Department for Work and Pensions does not routinely collect that data. However, it seems as if in the year 2011-12, 11% of all successful claims were for the category of patients who were deemed to be terminally ill. One of the difficulties when you are looking at local authority charges for adult social care is that we cannot predict prognosis. That is always the catch with defining terminal illness. We are making our best guess, as it says in the Welfare Reform Act, as to whether someone can “reasonably be expected” to die within six months, but it is no better than that. It is a guess. There are patients who outlive their prognosis. I understand that the DWP does not push for reassessment inside three years, so there is quite a lengthy period of leeway. The potential difficulty that I can see unless this is really thought through and costed is that if somebody turns out not to be dying, what will then happen? Would they be forced to go through a reassessment? Would that then be used to try to claim back money from them afterwards? I raise those questions which would have to be thought through very carefully.

I certainly find it difficult—in fact, offensive—when people have to be assessed for care when they are quite clearly dying. However, there is that group of people you really do not know about. They appear as if they are dying. They tend to be more in the non-cancer rather than the cancer population, where their prognosis prediction becomes really difficult.

Those are just some caveats, although I support the spirit of the amendment wholeheartedly in terms of having patients where they want to be. However, as I said before, we need to focus on their place of care during their last days, weeks and months, and not only on their place of death.

[Lord Mackay of Clashfern]

My Lords, I very much welcome government Amendment 57. Of course, I have supported the recommendation of the Joint Committee on this matter, and continue to do so. Subsection (a) of Amendment 137 is important as a way forward. However, the difficulties to which the noble Baroness, Lady Finlay, has referred, are quite important in this connection. Many people in terminal situations would find a hospice one of the best places to go if that choice were open to them. Many people, of course, would prefer to die at home in a family situation. The hospices are normally able to engender a family atmosphere around death. People I have spoken to in the hospices have said, “If you have to die, this is the place to do so”; the “if” is not all that important.

There are practical questions to be taken into account, but it would be quite a step forward if the Government were able to come forward at Third Reading with an amendment which allowed some form of indication of the place of care, as the noble Baroness, Lady Finlay, says, or the place where one would wish to terminate one’s life in a way that was registered, so that those responsible would be able to give effect to it, so far as is possible, having regard to the changes that can take place in the last few months, days and hours.

[Baroness Wheeler]

My Lords, we welcome another opportunity to consider the very important issue of how people are cared for at the end of their life. The Joint Committee on the Bill urged progress on this vital matter and strongly endorsed the case for the introduction at the earliest opportunity of free social care for terminally ill people. In this context, the Government’s amendment is very much work in progress as it makes explicit the local authority’s power to treat end-of-life care as urgent, in a similar way to how fast-tracked access to welfare benefits such as the disabled living allowance is expedited and works in practice under other legislation, which the noble Baroness, Lady Finlay referred to. The amendment makes it clear that local authorities have the ability to consider the needs of terminally ill people as urgent and to meet their needs ahead of conducting assessments.

We welcome this provision. Many councils already fast track social care in this way, and I hope that this amendment will give those councils that do not the push and impetus that they need to take up this very self-evident and fundamental requirement. The new clause in the Bill is rightly welcomed by the Sue Ryder Foundation, Help the Hospices and Macmillan Cancer Support. However, as Macmillan also points out, the provision is permissive and does not legally require local authorities to meet a terminally ill person’s need for care and support without a needs or financial assessment.

We recognise that there is still much work to be done on this matter. The Government are currently undertaking a review and refocus of the end-of-life strategy and I read in the press over the summer that it was shortly to be published. It is now six years since the strategy was introduced under Labour so I would be grateful if the Minister could update the House on the timetable for that.

As we recognised during the debate in Committee, the results of the seven adult and one children’s palliative care pilots will be crucial to considering the move towards the provision of free end-of-life care as called for by the Joint Committee and as set out in Amendment 137 in the name of my noble friend Lord Warner, supported by the noble Baroness, Lady Greengross, and the noble Lord, Lord Patel. We need to understand current patterns and resource use across health and social care at the end of life, and to have the vital data—from across care provided by the NHS, social care, and the voluntary and private sectors—from which the costs of an integrated end-of-life care system can be properly assessed. The Minister reassured the House that the pilots are on track, despite the handover of responsibility to NHS England and concerns that the work was falling behind. We certainly hope that this is the case as the pilot findings will be so important to how future services can be shaped and delivered.

We acknowledge and share the Government’s concerns about the issues raised in Amendment 137 that the infrastructure may not be in place to support people’s preferences about where they wish to die; commissioners need to be sure that the right services are in place in the community to support people being looked after in their home. My own party is currently working on this as part of our policy review and whole-person care commission, and I know that my noble friend Lord Warner’s contribution to that work will be much appreciated and valued. Enabling NHS patients to have the right to die in the place they regard as home or their normal residence can be achieved only if end-of-life care is fully integrated across the NHS, local councils and hospices, to foster mechanisms to make it achievable and not simply an aspiration.

Once again, the position of carers of people who are terminally ill, as well as those they are caring for, needs to remain to the fore when we are looking at this matter. In Committee my noble friend Lady Pitkeathley cited the Carers UK survey that showed just how much more support is needed for carers to help them think and plan for the end of life of the person they are caring for—something that we can and should be taking action on now. Many carers just do not know how to plan for the death of a loved one and how to try to look ahead when caring ends—returning to or taking up work, social contact and managing financially.

One of our bereaved carers I spoke to recently through our local Carer Support Elmbridge had had a nightmare experience over funding and not being able to ascertain who was paying for what in the transition from social care to NHS continuing care before her husband died. This included two months’ overpayment by social services, which had to be sorted out after the death, at a time of great anxiety about family finances. To add to this, an ambulance turned up two months after her husband’s death to take him to his routine blood test at the local hospital. Your Lordships can imagine how devastating this experience was for the carer. Sadly, this is not an isolated case, and an integrated end-of-life strategy has to make sure that these things do not happen.

Finally, in Committee I raised the issue of access to palliative care and end-of-life care for BME groups following the recent and alarming findings of the Marie Curie Cancer Care and Public Health England survey and the shockingly low use of these services among black, Asian and ethnic minority groups. The report identified major problems involving lack of knowledge about services, misunderstanding, mistrust and a lack of cultural sensitivity on the part of providers. In his August letter to noble Lords, the Minister referred to the work that NHS England is undertaking on this in conjunction with palliative care pilots. Will the Government be responding specifically to the Public Health England report, or is it part of the strategy review and refocus? Will the Minister set out for the House the Government’s outline timetable for the review and publication consultation, the timing of the publication of the pilot’s results, as requested by my noble friend Lord Warner, and the introduction of the new funding system for palliative care as promised for 2015?

--- Later in debate ---

[Lord Warner]

My Lords, I rise again as the keeper of the Dilnot tablets on the subject of deferred payments. If we had intended that access to a deferred payment scheme was to be limited to people with assets of less than £23,000, we would have said so in our report. That was not what we intended. I commend the report to the noble Lord, and I hope the House will forgive me if I just cite a few bits of it.

I refer the noble Lord to page 41 of our report. We said:

“Evidence submitted to the Commission suggests that the availability and use of deferred payment schemes is patchy”,

and we went on to explain that. The government consultation document suggests that it will continue to be pretty patchy as well because very few people are likely to come forward for this. We said—and this was a recommendation:

“At a minimum, the Commission recommends an extension to the current deferred payment scheme so that it is a full, universal offer across the country.”

That is what we said.

The Government have given the impression in various interviews—I have gone head to head with government spokesmen about this on a number of programmes—that they were going to support an extended deferred payment scheme and that it would be pretty much similar across the country. If you had a deferred payment scheme in Cumberland, it would look remarkably like a deferred payment scheme in Cornwall. It seems that we are getting into a position where none of this will be the case. It is pretty rough on the public if the Government and their spokesmen are giving the impression that they are implementing the Dilnot recommendations on deferred payment schemes when they are palpably not doing so under the present set of proposals as I understand them.

It is not too late for the sinner to repent—the consultation period is open until later this month. However, it is necessary to revisit this in terms of what government policy is on this particular issue, both in terms of access to a deferred payment scheme and on the issue of a model scheme. The two go hand in hand. It is no good having a model scheme if it is a model scheme for a handful of cases in different parts of the country. We need a model scheme that is actually available so that people who want to cope with the issue of how they fund their care can access a deferred payment scheme. It is always a risk when you are on a committee such as the Dilnot committee that, quietly and unobtrusively, the bureaucracies will nibble away at well intentioned recommendations. Some of us have had this experience ourselves, and some of us have done a bit of nibbling as well from time to time as civil servants, so we recognise nibbling when it is going on. We are in that position here.

It is down to the Minister to start some discussions about this issue, not to leave things to the marketplace, and not to give the public impression that there is going to be a widely available deferred payments scheme when, in fact, it is going to be available only to a fairly limited number of people.

[Lord Mackay of Clashfern]

I do not understand why it is necessary to have any kind of limit in relation to this matter so long as there is sufficient security to allow the deferred payment to be feasible from the point of view of the Government. The proposition that the deferred payment scheme should be limited by the amount of assets a person has strikes me as rather unnecessary. So far as a model scheme is concerned, I would have thought that there is a lot to be said for having a form of document which is universal. There would of course be the possibility of different particular provisions relating to particular cases, but the central core of a deferred payment agreement could be put in a form of universal application.

--- Later in debate ---

[Baroness Hollins (CB)]

My Lords, briefly, I support all the amendments in this group, particularly Amendment 124 to which I added my name. There were a number of voices calling for an appropriate system of redress for disputed decisions. Many people do not really understand social care systems and why decisions are taken and they feel powerless, often at a time when they are facing enormous challenges and may fear that complaining is going to lead to even more negative changes to their support. It seems to be a matter of justice to have a very clear and understood route to redress and I hope these amendments will be considered seriously.

[Lord Mackay of Clashfern]

My Lords, I support these amendments requiring a system of adjudication able to deal with the whole raft of matters dealt with under the Care Bill, including the borderline with continuing healthcare. The local authorities—152 or something of that sort—will administer the care system. It is quite easy to see that the same problems may arise in different local authority areas. Having a respected system for dealing with these matters would simplify a good deal of this area. I therefore strongly urge the Government to have in place a system which would provide reasonably rapid adjudication of all these issues. The social security commissioners provide a kind of example. One possible solution would be to extend the jurisdiction of the social security commissioners to include this area. Social security arrangements are certainly different from the care arrangements, but there may be sufficient similarity to make that possible. Something along the lines of the social security commissioners would be necessary for dealing with this and bringing into effect a system which local authorities right across the country would respect when one local authority’s decision was dealt with by this adjudicating authority.

[Lord Hunt of Kings Heath]

My Lords, I have added my name to Amendment 76 of the noble Baroness, Lady Greengross. I also support Amendments 123 and 124. Leonard Cheshire Disability put it so well when it said that it was concerned that the Bill, in placing a number of important and complex duties on local authorities, will have a substantial impact on the lives of older and disabled people without providing appropriate routes for appeal against unjust or factually inaccurate decisions. It says that there is a compelling case for the Government to set up a system to resolve cases where there are disagreements between the local authority and the individual.

When we think of the various ways in which local authorities can impact on individuals who have come within the care system—support eligibility criteria, financial assessment, operation of the cap, charges, personal budgets and the boundary between NHS continuing care and means-tested social care—surely there have to be opportunities for a person to appeal against decisions of the local authority. In Committee, the noble Earl relied first on the current complaints system of local authorities and, secondly, he went on to point out that if a complainant was not satisfied with the response from the local authority, they were then able to refer the case to the Local Government Ombudsman.

However, a complaints system is not really what noble Lords are calling for. Anyone who has seen responses from local authorities to complaints will know that they tend to find in favour of themselves and rarely reopen a question of substance. Noble Lords want an opportunity for a person concerned to put their case and for that case to be considered by a group of people who may be said to be independent of the local authority. Like the noble and learned Lord, Lord Mackay, and my noble friend Lord Warner, I am keen on the tribunal approach which deals with social security cases; I have witnessed these cases. Although the noble Earl felt in Committee that these would be expensive, I believe that it is a cost-effective way of allowing people to put their case and for that matter to be decided. I am sure that in the long term it will be more expensive if there is no proper decision. I suspect that we will see lots of judicial reviews being initiated against local authorities. They do not and will not have a proper system for dealing with appeals.

The noble Earl said in Committee that the Government were consulting on processes for providing redress. Although he thought that the results of that review would be available before the Bill had concluded its passage through Parliament, I suspect that that will be too late for your Lordships’ consideration. I therefore hope that the noble Earl might be able to give us some comfort that he will in fact give further consideration to this. I hope that we might return to this point at Third Reading.

--- Later in debate ---

[Earl Howe]

I may need to answer that question later. However, my understanding is that, yes, we can do it through secondary legislation. If I am wrong on that, I will correct myself before the end of today’s proceedings.

[Lord Mackay of Clashfern]

Again, before my noble friend finally sits down: he mentioned the principles that would seem applicable to local authority decision-making and appeals from that. I wonder whether one of the principles that should be given effect might be consistency across the country—in other words, fairness between people who live in X and people who live in Y. I suspect that there is a possibility that different local authorities will take different decisions in very similar cases, and consistency across the country would be an important element in the fairness of this new system.

[Earl Howe]

I take the point made by my noble and learned friend. We cannot iron out every kind of disparity, but we should aim for the kind of fairness that he talks about.

I have misled the House: we would not be able to establish a tribunal by secondary legislation—it would require primary legislation. However, as I said earlier, in the consultation that we are carrying out we do not rule out any solution. Clearly, if it transpires that we want to make changes for which primary legislation is needed, we would need to ensure that proposals were brought forward for consideration at the earliest opportunity. In general, we hope that the consultation will flush out any concerns in this area, not least in the area of fairness, as referred to by my noble and learned friend.

Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Wednesday 9th October 2013 Lords Chamber

[Lord Warner (Lab)]

My Lords, as the chairman of the All-Party Group on Humanism, I am not sure that I should actually be following the previous speakers. However, Amendment 5 in this group is in my name and I want to be nice to the Minister instead of telling him off. The Minister has listened to the concerns that we expressed in Committee about applying the requirement to pursue the obligation on local authorities in Clause 1 to the Secretary of State in his actions, particularly regulations and guidance, to promote well-being.

I congratulate the Minister on listening to those concerns and tabling government Amendment 138, which effectively meets the concerns that we have. I suspect that my co-signatories, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Greengross, would say that the Minister’s amendment may not be quite as elegant as ours, but we are not going to have a competition about aesthetics; he has met the point and I thank him very much for what he has done.

[Lord Mackay of Clashfern (Con)]

I warmly support that. I am happy with the parliamentary counsel’s draft, which is what the Government are going to move, and we have to understand that some lawyers are better than others at making drafts.

So far as the amendment of the noble Baroness, Lady Barker, is concerned, I hope that the Government will pay considerable attention to what has been said about it.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise briefly to speak to government Amendment 2 on dignity and respect. I know that it was implicit in the well-being clause in the earlier versions of the Bill that we looked at, but I am very pleased that the need to ensure that all people are treated with dignity and respect has been brought out so explicitly. These are words that the man and woman in the street really understand; they get to the heart of some of the concerns about the type of social care that has sometimes been provided, which has fallen well below those standards, and caused some of the scare stories that we have heard so much about recently.

The noble Lord, Lord Bichard, and I raised this issue in Committee, but as he is unavoidably unable to be in his place today, I thank the noble Earl, Lord Howe, on behalf of both of us, for listening and for bringing this amendment forward.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I particularly support the amendment of the noble Baroness, Lady Pitkeathley. It is obviously important that the situation regarding children who are carers is properly focused. As your Lordships know, I am a vice-president of the Carers Trust and have an interest from that point of view. I have difficulty understanding exactly the scope of the clauses here, because the clause dealing with well-being talks about the “individual”. I assume that this includes the disabled child as well as the carer, and that the same is true even when the child is not disabled. If one has a carer, the child will be an “individual”, I assume. The adult definition comes in the next clause, Clause 2. Clause 1 refers to an “individual”, so I assume that children are included in that clause and therefore that the local authority, in performing its functions, has an obligation to have regard to the well-being of children.

[Earl Howe]

My Lords, as my noble friend Lady Tyler said, Amendments 7, 10 and 34 in this group about young carers provide an opportunity within our debates to welcome the Written Ministerial Statement yesterday from my right honourable friend the Secretary of State for Education about the Government’s proposed amendments to the Children and Families Bill on the assessment of young carers. They give effect to the Government’s stated intentions to consolidate and simplify legislation relating to young carers’ assessments, making rights and duties clearer to both young people and practitioners. In the Government’s view, these provisions sit most appropriately within children’s legislation.

The right to an assessment of needs would be extended to all young carers under the age of 18, regardless of who they care for, what type of care they provide or how often they provide it. Local authorities would have to carry out an assessment of a young carer’s needs for support on request or on the appearance of need. The amendments also enable local authorities to align the assessment of a young carer with an assessment of an adult that they care for.

I believe that the government amendment will achieve the desired effect of my noble friend Lady Tyler’s amendment to Clause 10 by putting a young carer’s entitlement to an assessment on a similar footing to the provisions in the Care Bill for an adult carer’s assessment. I have also tabled an amendment to Clause 12 of the Care Bill, which we will debate shortly, that makes it clear that a local authority may combine an adult assessment with a child’s assessment, including a young carer’s assessment, provided all parties agree. The government amendment to the Children and Families Bill will also achieve the desired effect of Amendment 10 by requiring local authorities to take steps to identify the extent to which there are young carers within their area who have needs for support.

Amendment 7 would extend to young carers provisions in Clause 2 that require a local authority to provide services, facilities and resources to prevent or reduce needs for support among adult carers. Prevention is an important matter to highlight, but the Bill already makes sufficient provision on this issue, as it requires local authorities to have regard to overall family circumstances when fulfilling their duties under the Bill.

Clause 1 requires local authorities to promote an individual’s well-being in exercising all their Part 1 functions, including those in Clause 2. Domestic, family and personal relationships are specifically included, and such relationships could encompass parenting responsibilities, the adequate functioning of the family and the household and the impact of providing care and support on other members of the family. We do not think that it would be appropriate to refer to preventing the needs of young carers specifically. One means of preventing their needs will be, of course, to meet or delay the needs of those whom they care for, and this is clearly covered by the existing provision. There may be other means, which could include the provision of services directly to the young carer. However, such routes would not be appropriate for adult care and support to take, and we do not believe that a duty should sit within adult legislation.

We will make it clear in statutory guidance that all these provisions should take into consideration family relationships and circumstances, and I am happy to make a commitment that such guidance will refer specifically to the importance of preventing children undertaking inappropriate or excessive caring responsibilities. In addition, in drafting regulations about an adult’s assessment under the regulation-making powers in Clause 12, we will make it clear that a whole-family approach should be adopted, where appropriate. An adult’s assessment should then take into account the functioning of the family and the household, and the impact of providing care and support on other members of the family, including children.

I turn to the position of those with parental responsibilities for disabled children, which is an important issue. However, we do not consider it appropriate to include provisions within the Care Bill about the assessment of parent carers of disabled children, as proposed in Amendments 6, 8, 9 and 35 from the noble Baroness, Lady Pitkeathley. In the Government’s view, the main provision for assessing and supporting those caring for disabled children should be in children’s legislation, so that the family’s need for support can be looked at holistically. In most cases, the best way of supporting a parent carer of a disabled child and other members of the family is by the provision of support directly to the child concerned. It would not be appropriate for adult care and support to be undertaking an assessment of those needs, when adult support is not best placed to meet them. The view of the Minister for Children and Families is that there is already sufficient provision under Section 17 of the Children Act 1989 to provide for the assessment and support of children in need, including disabled children and their parents.

I turn to Amendments 46 and 58 from the noble Baroness, Lady Pitkeathley, about charging carers for support. We remain of the view that local authorities should retain the power that they have now to charge carers for support provided directly to them. Many local authorities do not impose charges on carers because they, of course, recognise the valuable contribution that carers make to society. However, some may choose to impose a nominal fee to cover a proportion of the costs of providing a particular form of support for carers—for example, a relaxation class or gym membership—and we do not think it appropriate to remove that discretion and flexibility. Indeed, removing the ability to charge even a small amount could result in the withdrawal of such services altogether.

The noble Baroness argued that the cost of caring should not count towards the care account within the cap arrangement. Local authority assessments take the support provided by carers into account in determining the care package. We are clear that the care package should count towards the cap, because that should ensure that all people receive the support that they need. We have heard from the care and support sector that the cap will provide carers, as well as care users, with the financial support to help them decide on the right care for them to help provide, and to reassure them that their families will not face catastrophic care costs.

I have some concern about the noble Baroness’s Amendment 48, which proposes that the provision of intimate services to a person needing care cannot be provided to meet a carer’s need for support. This would create a legal barrier that could significantly hinder the provision of a much-needed type of support to carers. Let me provide one example. It may be appropriate to meet a carer’s needs by providing a service direct to the person cared for. If some type of replacement care is provided to allow the carer to take a break from caring, it may look like home care delivered to the adult needing care, even though it is provided to meet a carer’s needs. The amendment would seriously limit the ability of local authorities to make such arrangements because it would provide that the care workers could carry out some activities, but not others of an “intimate nature”. That could leave a situation where the care worker was able to sit with an adult needing care but not take them to the toilet. That is likely to lead only to confusion, I suggest. We accept that clarity is needed about when a type of support should be considered to be provided directly to the carer, and when to the adult needing care. We will produce guidance on this matter, but we cannot support an amendment that sets such an inflexible rule in primary legislation.

I also reassure noble Lords that the Bill is already very clear that carers should not be charged for any form of support that is provided directly to the person needing care. Clause 14(3) makes it absolutely clear that local authorities cannot charge carers for services provided to the person being cared for. This would include services of an intimate nature.

I hope that I have reassured noble Lords that, together, the Care Bill and the Children and Families Bill provide a clear legislative framework to support local authorities to consider the needs of young carers and protect them from excessive or inappropriate caring roles. On the important issue of assessing those with parental responsibility for disabled children, we remain of the view that they are best supported through the provisions of the Children Act 1989. However, I have noted the concerns raised about those who care for disabled children having the same entitlement to a carer’s assessment as young carers and adults caring for adults will have through the respective provisions of the Children and Families Bill and the Care Bill. Department of Health officials will explore further, with officials at the Department for Education, the issues raised by the noble Baroness. I know that my noble friend Lord Nash is always willing to listen to the concerns of noble Lords on these and other matters.

I hope that I have also reassured noble Lords that the Bill is already very clear that carers should not be charged for support provided directly to the person needing care. However, I am conscious that I have not directly answered an issue raised by the noble Baroness, Lady Wheeler, about the need for identification of carers to ensure that there is no unmet need. It is important to support people to identify themselves as carers so that they can access information, advice and support in their caring role. My department is funding the Royal College of General Practitioners to raise awareness among health professionals. Health and well-being boards should also be identifying the numbers of carers in their local population through joint strategic needs assessments.

My noble and learned friend Lord Mackay asked whether children were already covered in the scope of Clause 1. They are covered in terms of the functions set out in Part 1 of the Care Bill. The local authority must have regard to the well-being principle in discharging any function under Part 1 that relates to children. They would be “individuals” in the case of the exercise of that function—for example, in the provisions relating to the assessment of children in anticipation of their transition to adulthood. I hope that that is helpful.

I have taken a little while to reply to these amendments, but I hope that I have been sufficiently illuminating to encourage noble Lords not to press them.

Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 22nd July 2013 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, when this issue was discussed previously I had the feeling that Monitor had at least some claim to having the kind of expertise which goes some distance in this area whereas, as far as I could understand it, CQC did not seem to. I entirely agree with the noble Lord, Lord Warner, that what either of them has at the moment is probably unequal to the task of seeking out exactly what is going on and seeing how great the risks are. It is pretty obvious that to understand the risks in these financial transactions is a very difficult task. We have seen examples, not particularly in this area but in others, where serious risks have emerged which were not suspected until very close to the time of their emergence.

I also agree with the view that one great factor in the care regime is the number of local authorities that are to be involved. Some degree of understanding at least the variation across these 152 authorities is essential. During the workings of the Joint Committee, I was impressed by the skill of some of the local authority representatives we had before us but they were in quite a particular position in relation to their work. I am not sure that their knowledge, expertise and feel for the situation necessarily goes right across the sector. I do not at all decry the valuable work that local authorities do but the variety of tasks assigned to them is very great and the care situation must be among the most difficult of their responsibilities.

[Lord Hunt of Kings Heath]

My Lords, this is an important debate and the collapse of Southern Cross has brought it home to us how the risk of financial failure is likely to be a continuing problem in this sector. That is why it is important to understand whether the regulatory regime that the Government are proposing will be robust enough and whether it will have access to the kind of information that will enable the regulator to take a view on the viability of those companies which seek to do business in this area.

We are going back partly to our earlier debates when we discussed the new failure regime. At that time, I referred to the Department of Health factsheet that we were given, which said that the new failure regime will give regulators clear roles in tackling failure. However, I do not think that is actually so in practice. According to the department, the Care Quality Commission will focus on exposing problems and requiring action while Monitor and the NHS Trust Development Authority, which deal with non-foundation trusts, will focus on intervening if a poorly performing provider is unable to resolve the situation by working with commissioners. As we have heard today, the CQC retains enforcement powers for social care, general practice and independent sector providers. This whole picture is very confusing and in his Mid Staffordshire inquiry Robert Francis made it clear that regulatory complexity can contribute to system failings.

I am still unclear about the interrelationship between Monitor, CQC and the NHS Trust Development Authority so as to know whether they are going to work together to ensure that problems are acted on. I am still unclear whether when Monitor and the NHS Trust Development Authority are asked to intervene as a result of the CQC’s concern about findings in relation to safety and quality, they simply carry out the instructions of the CQC or have to go through the same process to satisfy themselves as public bodies with specific statutory duties—certainly in the case of Monitor—whether they share the concern about quality or simply take the CQC’s word on trust. As the actions of these regulators are likely to be tested in the courts, one way or another, clarity at this stage would be very welcome indeed.

My noble friend makes the case that, because of its expertise and experience, Monitor would be a better bet for looking at financial issues to do with care providers. It is very difficult to understand why bits of the system have been dealt with differently and the CQC is considered acceptable in relation to private care providers for adult social care and so on but not for NHS foundation trusts. The Government have brought a rather curious mish-mash to your Lordships’ House.

On my noble friend’s second amendment, I share his view and am not sure that NHS England is the right body to have a duty to scrutinise the commissioning plans of local authorities. However, I very much agree with my noble friend that it is very important that there is a method of checking on the performance of local authorities in their commissioning of adult social care services. My noble friend mentioned Winterbourne View as an example of where a number of local authorities placed clients but having placed them paid no attention to their experience. That was a salutary warning about the problems of local authority commissioning.

I wonder whether the CQC ought to be the body which undertakes that responsibility. Clause 5 sets out that the local authority is responsible for promoting diversity and quality in provision of services. The local authority clearly has responsibility for ensuring that there are sustainable providers in the market. I also refer my noble friend to Clause 80 which sets out the CQC’s responsibilities in performance assessment and performance ratings. My noble friend will see that under Clause 80(2) the proposed new Clause 46(3) of the Health and Social Care Act 2008 sets out that:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social service provided or commissioned by the authorities as may be prescribed”.

My reading is that the CQC is given powers to do what my noble friend wants. The question—we debated this when we debated Clause 5—is the extent to which the Government are so going to prescribe. I would like to hear from the noble Earl, if possible, that the Government have reflected on our earlier debate and have come to the view that it would be a very good thing to prescribe that all local authorities should have their commissioning performance reviewed by the CQC as a matter of priority.

My noble friend raised the question of Winterbourne View. We debated the problem of the contracts local authorities have set with private providers where they are contracting staff on very low rates of pay. These are the same providers which in some cases are giving 15-minute periods of service, with staff on zero-hour contracts and often having to pay the cost of their travel. I do not believe that those are the right circumstances in which a quality service could be given. That is why I believe that the CQC should prioritise the commissioning responsibilities of local authorities. If it did, it would answer the question posed by my noble friend.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I crave my noble friend’s indulgence. I am concerned about the warnings in advance of a collapse. That seems to be an area of very considerable importance, and I wonder whether Monitor is supposed to be responsible for trying to forecast that. Secondly, if that is correct, obviously the discussions will need to ensure that it has the necessary expertise to do that and, as the noble Lord has said, that is a pretty difficult task.

[Earl Howe]

My noble and learned friend is, of course, right. That goes back to a question posed in an earlier group by the noble Baroness, Lady Wheeler, about what the definition is of business failure. We propose to define in regulations circumstances in which a provider can be deemed to have failed. Those circumstances may include a situation in which a provider is struggling to service its debts as they fall due or has breached its financial covenants under loan agreements, or an administrator, liquidator or receiver has been appointed—which is a clear-cut case of failure. As I said, this will be defined in regulations because we want to capture these various different scenarios where a business can be deemed to have failed. We will, of course, consult on the regulations before they are laid. No doubt what I have just said will be refined and augmented during that process.