Oral Answers to Questions

Paul Burstow Excerpts

Tuesday 15th July 2014 Commons Chamber

[Norman Lamb]

The hon. Lady is absolutely right. The cardiovascular disease outcomes strategy, which was published last year, acknowledges the importance of access to psychological therapies. Indeed, there is some really innovative work going on. A psychiatrist called Andre Tylee in London is doing work with heart patients, bringing in psychological therapies and improving their physical as well as their mental health outcomes, and the hon. Lady is absolutely right to make the case for that.

[Paul Burstow (Sutton and Cheam) (LD)]

14. What the timetable is for publication of a successor to the current national dementia strategy.

[The Secretary of State for Health (Mr Jeremy Hunt)]

Dementia is one of the most important issues we face at the moment and we are having detailed discussions with stakeholders about the best way to ensure that the very successful Prime Minister’s challenge on dementia continues into the next Parliament.

[Paul Burstow]

I am grateful for that answer and have no doubt that the continuation of the challenge is very important, but both the Prime Minister and the Secretary of State have told the House from the Dispatch Box that there will be a successor to the national dementia strategy. My question was very straightforward. Is there a timetable for delivering that strategy, given that the current strategy ends this year?

[Mr Hunt]

I should clarify for my right hon. Friend that the Prime Minister’s challenge was a successor to the national dementia strategy. The Prime Minister’s challenge finishes at the end of this Parliament and that is why we are having discussions about what should succeed it, because we all have an interest in ensuring that we maintain the tremendous momentum of the past few years.

--- Later in debate ---

[Mr Hunt]

I am happy to do so, because the service that he describes—I have not seen the details—sounds totally unacceptable.

[Paul Burstow (Sutton and Cheam) (LD)]

T9. Given that last year, more than 7,500 people with a mental health crisis found themselves in police cells rather than anywhere appropriate such as a hospital, given that 263 of those people were children and young people, and given that they stayed for 10 and a half hours in a police cell, is it not time that we took the evidence of street triage, which we know works, and rolled it out across the country?

[The Minister of State, Department of Health (Norman Lamb)]

The fascinating thing is that street triage is spreading across the country because forces and mental health trusts see the enormous value of it. The really exciting news is the significant reduction in the number of people who end up in police cells. That is in part due to the standards that we set through the crisis care concordat for the first time for mental health crisis care.

Health

Paul Burstow Excerpts

Monday 9th June 2014 Commons Chamber

[Gordon Birtwistle]

I am grateful to the hon. Lady for her intervention. I do not know of a company that delivers services in Burnley that has an owner who drives a Lamborghini. In fact, I do not know anyone in my neck of the woods who has a Lamborghini. I do not know many people who can spell the word Lamborghini. At the end of the day, the hon. Lady is right: there are companies that are taking money, particularly from the state, and giving a very poor service. I do not want this to be a political point. What I want is to plead with the Minister and with the people in control—I am not in control, so I cannot deliver this—and say that we are living in an age where people are getting old and need looking after. Why can we not do a little bit more to look after these people? The people who get the sums of money to deliver this service should be a little bit more considerate and compassionate. They should not just walk through the door with a metal tray with a bit of food on that no one wants to eat, because it does not feel like the proper food they used to eat. Can we not just do a little bit more?

My message today is: can we do a bit more for our old people—the people who have put us where we are today, who have delivered the prosperity of this country over the years; and who have fought for us in wars? Can we not show them a bit more consideration? If those companies with Lamborghinis exist, can we lean on some of them to train people properly to ensure that they have a bit more compassion?

[Paul Burstow (Sutton and Cheam) (LD)]

I hope my hon. Friend will forgive me for turning my back to him, but I want to tell him through the Chair that one of the places that is trying to do what he is talking about, and which I visited recently, is Wiltshire, which is using its relationships with contractors to drive out 15-minute contracting and drive up training standards, which is making a difference. That is happening now, and it needs to happen in more places.

[Gordon Birtwistle]

I am delighted to hear that, and I would like Wiltshire to become a standard that everyone else copies. I would hope that my constituency and the rest of Lancashire copies that. There are great companies—I know a few good companies that really care about the customer. These elderly people are customers: if Tesco treated people like some of those carers, they would shop somewhere else. Unfortunately, elderly people cannot go anywhere else, because a contract has been organised, and they have to use it. I urge the Minister to consider those suggestions and look at ways of improving the service that we deliver to our old people. I would be very happy if he did so, and I am sure that he would be too.

Care Homes

Paul Burstow Excerpts

Thursday 1st May 2014 Commons Chamber

[Norman Lamb]

First, I share the right hon. Gentleman’s recognition of the work that “Panorama” has done. It is interesting that two examples of appalling abuse—namely this case and that at Winterbourne View—have been exposed as a result of hidden cameras. We must acknowledge that and recognise that there might be a role for the use of hidden cameras in the CQC’s work where there is potential evidence of abuse and where we need to establish that evidence in order to take effective action.



On the right hon. Gentleman’s question about registration, my concern is that the registration of nurses did not stop awful things happening at Mid Staffordshire. It is not in itself a panacea that ensures good-quality care. For me, the most important element is proper training to ensure that everyone is trained to an acceptable standard before undertaking unsupervised care work. If we can establish that standard across the country, we can drive up standards.

[Paul Burstow (Sutton and Cheam) (LD)]

Care homes should be places of light and laughter, rather than places of fear and neglect. They should be seen as part of their communities, rather than apart from their communities. Will the Minister therefore look again at the proposals in this Government’s White Paper on care and support for commissioning a piece of work delivered by the programme called My Home Life, which is all about delivering relationship-based care? Rather than care that is just about transactions, the programme is about changing the nature of the relationship between those who provide care and those who receive it.

[Norman Lamb]

I am certainly happy to have another look at the White Paper and to discuss it with my right hon. Friend, but let me just address his key point. It is absolutely right to say that when we have closed doors, awful things can happen beyond the sight of the public. Professor Martin Green, who is a very good leader of providers of care, has argued the case for care homes to become a sort of hub in their local community, opening their doors to ensure that they become a centre of excellence for that community and providing services and support for people who may live independently at home, but who would benefit from the skills in such an organisation. Openness, transparency and ensuring that the public gaze is cast upon what goes in such places is the right way forward.

Cervical Cancer Screening

Paul Burstow Excerpts

Thursday 1st May 2014 Commons Chamber

[Paul Burstow (Sutton and Cheam) (LD)]

I will stick to your injunction, Madam Deputy Speaker.

I welcome this debate and recognise the tragic circumstances that have made it necessary. I watched Sophie’s mum on “Good Morning Britain” this morning. I saw the courage the hon. Member for Wirral South (Alison McGovern) described and the dignity with which she advanced the case for what needs to happen. The story Sophie’s mum tells of her fantastic daughter strikes a chord with Members across the House. Indeed, I am speaking in this debate because of my constituents, John and Barbara Welch. They came to my surgery because they were moved by this case and by the experience of their niece in a previous situation.

I agree entirely with the hon. Member for Liverpool, Walton (Steve Rotheram) that we have to base decisions on cervical screening, and on all screening programmes, on the evidence. It is the evidence that will provide at least some pause for thought, not for Members but for the committee that advises Ministers on screening. I want to touch on that issue; hon. Friends may elaborate on it.

The original decision to change the age restrictions on the general call-up for cervical screening was taken in 2003. The 20-to-24 age group was excluded at that point. That decision was reaffirmed in 2009 by the Advisory Committee on Cervical Screening when it reviewed the matter. The argument at the time was that it would have led to unacceptable numbers of premature births compared to lives saved, and that it would cause women anxiety. Those are very important considerations and one can understand why the committee made its original decision on the basis of evidence from research. My point to the Minister is this: since 2009 the evidence has changed, or appears to have changed, so I hope that the advisory committee will look at it again.

In 2012, a study published in the British Medical Journal, which I understand was the largest of its kind conducted in the UK, appears—I stress the word appears—to contradict the earlier findings of smaller studies. It concluded that treatment for cervical disease does not appear to increase the risk of premature birth. The hon. Member for Liverpool, Walton touched on this point. Furthermore, the same research found that, since the change in the age at which people begin to be called for screening, the number of women diagnosed with advanced-stage cervical cancer at the age of 25 has tripled. The early-stage numbers have quadrupled. I stress that we are still talking about a rare set of circumstances and small numbers, but small numbers do not, in the end, absolve us from looking at the individuals who then find themselves with this terrible disease.

Will the Minister ask the Advisory Committee on Cervical Screening to review the 2012 evidence? The evidence was produced from a study by one of the leading professionals in the area, who was also responsible for the earlier studies that led to the opposite decision. Will the Minister look at why the 2010 guidance referred to by the hon. Member for Liverpool, Walton, which should have ensured that GPs made the right decisions on symptoms to allow smear tests to take place, does not appear to have had its full intended effect? The number of women diagnosed under the age of 25 apparently continues to fall, while the number of women over 25 continues to rise. There is, therefore, something going on. I hope we can ask the experts to advise us and look at what the research is telling us, so that we can make adjustments and ensure that the trend is reversed.

The hon. Gentleman talked about the goal which must be shared across the House and in the wider community of cancer rightly no longer being seen as a death sentence. If we get early detection right and raise awareness of the early signs and symptoms of any cancer, but particularly cervical cancer, we can make a difference to the lives of thousands of our fellow citizens. As a former Minister with responsibility for cancer, I know it is important to be guided by the evidence. I took the decision to commission a further review on breast cancer to ensure that we were satisfied that screening was not doing inadvertent harm. I hope that we can ensure that we are acting on the basis of the best evidence.

The Government’s work, which began at the beginning of this Administration, in introducing the Be Clear on Cancer campaign, is critical. Awareness is critical not just to raising public awareness, but to raising GP awareness. I hope the Minister will say more on the plans in relation to cervical cancer. I look forward to hearing what she has to say.

I would like to end by offering my condolences and sympathies to Sophie’s family. I hope that some good can come out of something so tragic.

Oral Answers to Questions

Paul Burstow Excerpts

Tuesday 1st April 2014 Commons Chamber

[Norman Lamb]

I will absolutely discuss parity of esteem with Simon Stevens when I meet him very soon and I will ensure that the case for third sector organisations is taken into account, as they play an incredibly important role. I was delighted, incidentally, to be down in the south-west at the signing of the crisis care concordat to ensure that people who are suffering a mental health crisis are treated in the same way as people who are suffering a physical health crisis.

[Paul Burstow (Sutton and Cheam) (LD)]

The Minister is absolutely right to talk about the institutional bias and that is why it is absolutely right to introduce choice today and to set access standards for mental health for the first time. Will he go one step further and do something else that the previous Labour Government did not do by introducing the standards that the National Institute for Health and Care Excellence sets for mental health and ensuring that they are must-dos as well?

[Norman Lamb]

I very much share my right hon. Friend’s frustration that when a medicine is determined by the National Institute for Care Excellence as an evidence-based intervention, the system has to allow it, but when NICE determines that a procedure should be followed, it is discretionary. We must address that to ensure that we use the money in the most effective, evidence-based way.

Care Bill [Lords]

Paul Burstow Excerpts

Tuesday 11th March 2014 Commons Chamber

[Dr Wollaston]

I thank the shadow Minister for making the point that £5,000 is woefully inadequate. The financial penalties—significant ones on a sliding scale commensurate with the wealth of the individuals or organisations concerned—should be set out, but I believe that people should go to prison for such data breaches. Organisations should be clearly held accountable. It should be made clear to them that, should such breaches occur, requests from them will not be looked on favourably. There should be a clear penalty. Currently, those penalties simply do not exist.

How do we explain to the public the small risks and how we will address them? One significant risk has not been covered: the powers of NHS England to direct the Health and Social Care Information Centre to collect information when it is considered “necessary or expedient”. That could include full identifiable, confidential data. Will the Minister address one point on that? I have been told that NHS England has, in meetings with senior researchers, discussed the fact that, in the next releases of care data, it plans to include free text. Free text takes us into an altogether different area, so will the Minister give categorical reassurances on it? I support the principle of a default opt-in, but might not support it if the data included free text. Free text is deeply and intensely personal data and is not coded, and the public need specific reassurances on it.

[Paul Burstow (Sutton and Cheam) (LD)]

Given that the intention, as I understand it, is to create wholly anonymised data, surely the use of that contextual information creates the possibility of re-linking to an individual’s identity. The hon. Lady is right to make that point, and I hope the Minister can reassure us, but surely that is a step too far.

[Dr Wollaston]

I agree with my right hon. Friend. Free text takes us into a different territory. People say things in free text to their doctor knowing that it will not appear in a coded form.

There are other ways in which we can improve reassurance for the public. Perhaps we could pseudonymise data before they leave the practice, which would introduce another important layer of protection. That suggestion has been made to the Minister on a number of occasions.

--- Later in debate ---

[Barbara Keeley]

In my early career, I worked as a systems programmer and engineer for IBM. I do not usually have much opportunity to mention that, but it is probably appropriate in this debate. I have been struck in recent weeks by how many people with an IT background—as well as those with medical backgrounds—have serious concerns about care.data and the plans of the Health and Social Care Information Centre.

The Minister was not keen to take interventions last night, so I will ask my questions now. I want to touch on the important issue of consent for the uses of patient data. As I said earlier in the debate, the hospital episodes statistics database was originally an administrative database. When did any of us sign up to having our data used to recalculate the cost of insurance cover for long-term illness? Given the points I made about the use of our confidential hospital patient data in commercially chargeable systems in the US, when did we sign up to have our data used on a chargeable basis by companies such as BT and MedRed on their cloud systems in the US? I do not recall doing that, and I suspect no one else does either. Does the Minister agree that patients should have the option of having their data used only for clinical care and for commissioning that care? If the genie is not completely out of the bottle yet, that is a question worth asking.

[Paul Burstow]

The hon. Lady is making important points about the need to be clear about what these data are used for. There is an argument that anonymised and properly controlled data have a part to play in the area of medical research. Does she think that should be out of scope, or can we have safeguards that enable it to be in scope? Understanding whether a medicine works in a particular way with a population is a very powerful use of such data. In her view, is that appropriate or not?

[Barbara Keeley]

In the concerns I am listing, I am not touching on the use of data in medical research. My concern is about the revelations we have had in recent weeks. I am citing commercial uses. Those data are being used on a chargeable basis and the companies involved seem to be crowing about it.

Can a project such as care.data guarantee that what patients sign up to now—or at any point in time—will not mean something different in future months when new datasets are gathered? The hon. Member for Totnes (Dr Wollaston) touched on some of the exciting possibilities for data, but new uses are being planned all the time. I mentioned systems in the US, but the Health Secretary recently signed a memorandum of understanding with the US Health Secretary for secondary uses sharing. The Minister last night said that he would not comment on a US system, but our hospital patient data is on those systems being used on a chargeable basis. Should patients have the right to withdraw their consent if new uses are developed that they do not approve of? The data have gone, and people are developing new uses for them, way beyond what any patient may have felt they consented to.

My right hon. Friend the shadow Health Secretary raised the issue of lack of transparency over the patient’s right to opt out. He asked about the junk mail leaflets— as they have been called—that were not even delivered to every household. What do Ministers propose to do to explain to all patients about the extraction of their identifiable personal data, and what precisely the dissent codes mean? We touched on this in our Health Committee inquiry sessions, and it was not clear, although some people thought they knew. It is a pity that Ministers have not taken the opportunity to answer the questions that were put to them in Health questions—the information changed on the HSCIC database on the very day we had Health questions in the morning.

We know that NHS England and the HSCIC can require GPs to upload patient data in an identifiable form from every GP practice in England, to be linked with the hospital episode statistics and other datasets. That is concerning enough, because it is a powerful new use of a lot of data, but the hon. Lady suggested that the HSCIC is talking about free text. That is a concern, because that is the place where people open up to their doctor and might give information that they do not want to be shared.

It is important that we know exactly how the HSCIC is funded. In the spirit of transparency, will Ministers request full disclosure of all funding sources of the HSCIC, including outside earnings from third parties for the use of data? I have talked about seeing our hospital data now being used on a chargeable basis by companies such as BT in the US. Who pays for the HSCIC’s staff? Are staff seconded to the HSCIC? Who pays the transaction costs? We have seen examples recently of networks of private organisations coming into NHS England to write and fund reports and lead consultations. Who pays for staffing and transaction costs, if it is third parties, is a key aspect of transparency.

The Health Committee has held an initial inquiry into care.data, and I and other Committee members expressed real concerns about the scheme and the impact it could have on the trust between patient and doctor. Our concerns have been compounded by news that commercial companies have been allowed to pay for NHS patient data, and use them for purposes unknown to the public. The use of our data has gone beyond our control, the data are in other countries and uploaded to cloud servers, and we do not know where they are.

--- Later in debate ---

[Mr Dorrell]

I was told a long time ago that it is important in certain circumstances in life to be careful with pronouns. It is fair to say that in the evidence we heard last week not all the witnesses were as careful as they could have been with their pronouns. However, I do not want to follow the hon. Lady too far down that road. Instead, I want to make a couple of broader points that I think are important if we are to deliver the objective of the efficient use of data within the health and care system in a way that respects the sensitivities of patients and the people who work in the system.

In the policy arena, when we talk about data and the safeguards around data, there is quite properly an instinct to be concerned about the power of information technology to make information available on a scale that was undreamt of a generation ago and to recognise that that requires proper safeguards. The default question is: what are the safeguards? That is a perfectly proper question, which has to be answered, but it is important that we do not lose sight of the benefits that can come from proper and efficient use of data.

I want to dwell on one illustration of that in the context of the health and care system. Traditionally we have been moderately good, in particular in the hospital service, at measuring episodes of care. What we have been almost completely blind about are the patterns that link one episode of care to another along an individual patient’s life journey. Care.data, as I understand it, is designed to address that weakness in a properly anonymised way, recognising that if we connect the patterns, one episode of care is often linked to another, and another and another, in that patient’s life journey. If we are to build a health and care system that is more joined-up, to use one bit of jargon, or, to use another cliché that is often repeated, treats patients or people not conditions, we need to equip ourselves with an information system that traps, and allows us to see, the experience of those people around whom we are trying to build the system.

The current information systems available to the health and care system simply leave that gap wide open. They do not connect up the individual episodes of care experienced by individual patients. They measure the numbers of people who go in for diagnostic services or the numbers of people who are treated for a particular condition or the number of attendances of care workers at home. They measure all those things, but they do not connect the individual patient-person experience through the line. Addressing that weakness is fundamental to what we are trying to do, and we must not lose sight of that in the concern we properly have about the safeguards that are required if care.data is to proceed with the public and professional support it needs.

[Paul Burstow]

The right hon. Gentleman is making an important point about why the programme has to succeed. Given that about 70% of what the NHS spends goes on the management of multi-morbidity—on people suffering from long-term conditions, often physical and mental—the ability to look at those data across the journeys people make through our care system is an essential part of good commissioning for population health.

[Mr Dorrell]

The right hon. Gentleman is 100% right. That is precisely what the care.data programme is designed to address.

--- Later in debate ---

[Jim Dowd]

My right hon. Friend is right; that is precisely the point and that is precisely what this Government intend. I have absolutely no doubt about that; their writ will run whether people want it or not.

After all that, what is the current position of South London Healthcare NHS Trust—after that £5 million? Princess Royal in Orpington is now an adjunct of King’s College hospital. The TSA was quite happy to say the whole thing should be passed lock, stock and barrel to King’s. There was a rather unseemly squabble about the size of the bung King’s should get for taking on Princess Royal, but there was no specification about the services that should be provided there or anywhere else; that was entirely up to King’s. Queen Mary’s, which of course is not a fully functioning district general hospital, is now being managed by Oxleas NHS Foundation Trust, the primary care trust in that part of the world. Again, the TSA made no recommendations about what services, or what range of services, should be provided there.

Queen Elizabeth, which, of course, is the biggest problem in what was South London Healthcare NHS Trust, has now merged with Lewisham university hospital in the Lewisham and Greenwich NHS Trust. It is now managing a very difficult proposition; I do not dispute that for a moment. I have my doubts about whether that is the best move for the people of Lewisham, but I understand why it has been done. Yet, the board at university hospital Lewisham was prepared to enter into that agreement before the TSA even set foot in the area. So what we have now in south-east London was entirely possible by rational argument and reasoned consent without the need for the TSA and all the disruption, anguish and distress he and his acolytes have caused. I say to Members voting on this tonight, “Remember; you may not want to visit a TSA and I don’t blame you, but that won’t prevent them from visiting you if this clause goes through.”

[Paul Burstow]

I start by acknowledging the receipt of a petition handed to me yesterday, containing 159,000 signatures collected by members of 38 Degrees, expressing their concerns about the matter we are debating today. I know that a great many Members will have received e-mails about that and will have their own opinions, and I want to discuss the issues.

[David T. C. Davies]

Will the right hon. Gentleman refresh my memory? Is that the same pressure group that a few years ago was saying that the NHS was going to be privatised, which is completely untrue, and which a couple of months ago was saying that it was about to be silenced by some Bill the Government were pushing through yet is now very noisily campaigning once again? Surely this cannot be the same completely unreliable group of left-wingers with links to the Labour party, can it?

[Paul Burstow]

That was a lot of accusations and I will leave 38 Degrees to answer for itself. All I wanted to do was formally announce that it had given me this petition because, out of conscience, I thought that was the right thing to do. I want now to share my concerns about, and view of, new clause 16.

First, however, I want to reflect on what the shadow Secretary of State, the right hon. Member for Leigh (Andy Burnham), said. He made the point, on which I think there is consensus, that we should not reach the stage at which a trust special administration process is embarked on, and that we need to take every possible step to avoid that. That means that we must learn the lessons from the successful reconfigurations and reorganisations. Unfortunately, there are too few successful reconfigurations that do not lead to people mounting the barricades to oppose the change. The right hon. Gentleman referred to the example of stroke services, but such successes are few and far between. Part of the reason for that is that, historically, the NHS has not been good at engaging with its population in a way that brings them with it and gives them a feeling of being jointly involved in the process. People need to feel part of a shared endeavour and that their health services are fit for their community. That is what we need to instil in the process if we are to avoid the need to use the power that the Government are proposing.

--- Later in debate ---

[Bob Stewart]

What worries me is the trigger for the process. What level of debt would have to be achieved in order for one of these extraordinary witchfinders-general suddenly to appear in our area to sort out our hospitals?

[Paul Burstow]

The hon. Gentleman anticipates my next point. It is far from clear how the judgment should be made that a trust is failing. In my view, the gateway to the process should be a narrow one, and it should be jealously guarded. My concern is that so many trusts are sitting on top of private finance initiative debt, and that hospitals could be at risk as a consequence. That debt amounts, over time, to about £70 billion; a significant burden has been hung around the neck of the NHS. I want to ensure that we have processes that can recognise and manage that without tipping organisations into crisis unnecessarily.

[Joan Walley]

Does the right hon. Gentleman agree that trust special administrators coming in and making recommendations, as they have done in the case of Staffordshire, can completely undermine the hospitals that are being asked to take over the failing hospitals? Such a process brings about no resolution to the problem at all.

[Paul Burstow]

I think the hon. Lady will find some sympathy for that view.

Local commissioners and trusts should be responsible for sorting out difficulties that could lead to a failure. Again, it needs to be clearer what happens at the pre-failure stage, and Ministers need to work with NHS England and Monitor to set out the pre-failure regime so that it is crystal clear what needs to happen to avoid triggering the TSA process. It might be argued, as Labour did in 2009, that when an NHS trust fails, there needs to be a fast way of making decisions about its future. Those decisions might have knock-on effects, but that should not mean that one trust’s failure triggers a wholesale re-engineering of local health services without proper checks and balances and accountability. Decisions about local health services should be taken by clinical commissioning groups.

I have tabled new clause 16 because I believe that two principles established by the Health and Social Care Act 2012 deserve to be protected. The first principle is—

[Andy Burnham]

Will the right hon. Gentleman give way?

[Paul Burstow]

If I may develop my point, I shall be happy to give way to the right hon. Gentleman.

The first principle is that, in the absence of failure in the arrangements set up by local commissioners, decisions about what services should be provided at an NHS trust or an NHS foundation trust should be taken by local commissioners working within their local health economies, and should not be foisted on the local NHS from outside. This autonomy principle is reflected in the absence of any general right for the Secretary of State or NHS England to direct local commissioners about the discharge of their functions. The previous position under the Labour Government was that the Secretary of State could issue directions to primary care trusts. We did not replicate that in the 2012 Act.

[Andy Burnham]

The right hon. Gentleman has made an outstanding contribution to proceedings over the past couple of days and I pay tribute to him for that. He was centrally involved in the development of coalition health policy after the last election. Does he agree with us that clause 119 represents a major departure from some of the statements that were being made by him and by others in this House when the Health and Social Care Act was going through?

[Paul Burstow]

I am grateful for that intervention. As I develop my argument, I think the right hon. Gentleman will hear where I sit on the spectrum of viewpoints. He may be interested in what I am about to say.

The second principle is that commissioners who have successfully managed the quality and demand in their area should not have decision making taken away from them. Decision making can be removed from the trusts that are failing, and this may mean that commissioners of such bodies have to accept unwelcome changes. But local decision making should remain in place where a local commissioner and provider are working successfully together. Thus the first purpose of my new clause is to seek to place with the commissioners of services at NHS foundation trusts and NHS trusts that are not in special administration the same decision-making powers as are given to commissioners of services of NHS trusts that have been found to fail and are in special administration.

At present the Bill creates two classes of commissioner. Where there is a trust in special administration, the clause provides that commissioners of services at that trust are able to define the services that the failing trust should continue to provide. The commissioners are thus entitled to ring-fence certain services that they feel must be preserved for the benefit of local patients. They are, in effect, given a veto on the extent of changes that can be made to a troubled trust because of the statutory objectives set for the administrator. The commissioners are thus able to act to preserve local services.

However, the present text of section 65DA does not give the same rights to the commissioners of adjoining trusts. They are relegated to second-class status. Clause 119 as drafted envisages that a special administrator is entitled to make recommendations for changes at trusts other than the trust in special administration which are not approved by local commissioners. In its present form clause 119 does not provide that the commissioners of the services at trusts other than the trust in special administration enjoy the same veto over the extent of any changes as the commissioners of a trust in special administration. There is a fundamental lack of parity of esteem between the different organisations and the different commissioners in a locality. It is that inequality that I am seeking to change.

[Heidi Alexander]

rose—

[Paul Burstow]

I give way finally to the hon. Lady.

[Heidi Alexander]

I am grateful to the right hon. Gentleman. Will he explain to me whether, if his new clause had been on the statute book at the time of the south London TSA process, only Lewisham clinical commissioning group would have had a veto over services at Lewisham hospital that it was proposed to change, or whether commissioners of services at Lewisham hospital, such as Greenwich, Bexley or Southwark CCGs, would also have had such a veto? Exactly who is he talking about?

[Paul Burstow]

What I am saying is that in a situation where trusts that are not themselves in special administration are being brought into the process, the commissioners of those trusts should be given equal standing in the process. At present they are not given the same standing as the commissioner of the failing service. The commissioner of the failing service is given a greater role in determining the outcome of the process. I want to ensure that if we use this process in future, in the way the Government intend, there is a parity of esteem between all commissioners, representing the clinical interests in the area and the interests of patients.

[Heidi Alexander]

Will the right hon. Gentleman give way?

[Paul Burstow]

Forgive me, but I will not give way. I want to ensure that others have a chance to debate the clause and my new clause, and I need to make some progress.

Why therefore should responsible commissioners who have worked successfully with their local NHS trusts to produce a sustainable set of NHS services be prejudiced by the failure of a commissioner who has not secured such an outcome? Clause 119 risks penalising responsible co-operation between commissioners and providers, and it gives a veto to the potentially irresponsible. My new clause removes that inequality by providing that commissioners of services at an NHS trust that is affected by any proposed changes should be placed in the same position as the commissioner of those services covered by the administration process.

Secondly, my new clause makes it clear that, if the special administrator issues a final report recommending changes at a trust that is not in special administration, the decision makers to decide whether those changes ought to be accepted should be the commissioners of services at the successful trust and not the trust special administrator, the Secretary of State or Monitor. Clause 119 envisages that the TSA can recommend changes at an NHS foundation trust which is not in special administration, but fails to provide any mechanism to put those changes into effect. It follows that the recommendation from the TSA is left hanging in the air. The TSA cannot impose decisions on a reluctant CCG, because the Secretary of State is unable to direct CCGs and cannot, through Monitor, require changes to the services by the foundation trusts.

When making submissions to the Court of Appeal in the Lewisham case, leading counsel for the Government accepted that chapter 5A of the Health Act 2009 was a purely procedural statute. Chapter 5A does not provide any additional powers for the Secretary of State or Monitor. It simply defines the process that must be followed before existing powers may be exercised. The TSA takes over the role of the board of the trust in administration, so that it can make decisions about that organisation. The Secretary of State and Monitor have powers to dissolve NHS bodies, but the TSA does not have a role with regard to any trust that it is not administering. There is therefore a fundamental problem with clause 119 in that particular case, and that is what my new clause attempts to address.

I am proposing a new clause that would make it clear that a TSA report is to be provided to commissioners of services at any affected trust who are the decision makers as to whether they wish to accept or reject the recommendations. They are the relevant decision makers —in other words, the local commissioners.

[Heidi Alexander]

Will the right hon. Gentleman give way?

[Paul Burstow]

I will conclude, because I want to ensure that there is time for other people to speak. I am sure that the hon. Lady will make a speech. If she comments on my remarks, she might be gracious enough to allow me to intervene to clarify if she is still unclear.

Obviously, if the local commissioners decide that they are minded to accept recommendations, local people who use services provided by trusts that are not deemed to be failing should not have changes foisted on them without proper consultation.

In conclusion, I am grateful to the Government for what they have already done by including Healthwatch and local authorities as consultees in the process, but we need to go further to ensure that all the commissioners who we in this House, under the 2012 Act, said should be the primary decision makers in arranging health care should be treated the same and have a genuine say in any trust special administration process. That is an essential safeguard, but it is not clear at the moment; it needs to be clear in the future, so that we ensure that this process works in the interests of patients and the local public.

[Heidi Alexander]

I want to do two things in my contribution: first, to speak in support of amendment 30, which would delete clause 119; and, secondly, to make a few comments on new clause 16, which was tabled by the right hon. Member for Sutton and Cheam (Paul Burstow). I would be content to support the right hon. Gentleman’s new clause, but I have some reservations and some questions that I would like his assistance in answering.

I do not want to rehearse everything that has been said about the case of Lewisham and the trust special administration process that took place in south London. My hon. Friend the Member for Lewisham West and Penge (Jim Dowd) summed up well the feelings of frustration and anger that existed in Lewisham at the time. Like him, I do not wish to inflict that process on other communities across the country.

--- Later in debate ---

[Heidi Alexander]

That is useful. I am sure that Members are grateful to hear that from the Minister, but we know that there are many trusts in serious financial difficulties. Given the huge pressures on the NHS at the moment, this regime could be applied in many more places in the future. The truth of the matter is that the TSA regime will be used as a steamroller to force through the closure and downgrading of hospital services with limited public consultation, using a process that is set up in a way that creates public scepticism and mistrust from the word go.

The Government want to change the law to allow them to do elsewhere what the courts told them they could not do in Lewisham. As I have said already, I would not want to inflict that chaos on anyone else. It damages trust not only in NHS leaders who are meant to be leading change but in our democracy.

I wish to say a few words about new clause 16. As I have already said, I will vote for the new clause if the right hon. Member for Sutton and Cheam pushes it to a vote this evening, because it offers a limited improvement on clause 119. None the less, it raises its own set of questions. The new clause leaves clause 119 in the Bill, so it still allows an administrator appointed to a failing hospital trust to make recommendations about services provided at successful neighbouring hospitals, which are not part of the trust to which the administrator has been appointed.

As I understand it, the right hon. Gentleman’s new clause would give power to the commissioners of such services at the affected hospital outside the failing trust to have some sort of veto over whether the recommendations go any further. It suggests that if the commissioners of services at the affected hospital, such as Lewisham, agree with the changes being proposed, full public and patient consultation would kick in, consistent with the normal levels of communication and engagement that are required in full-service reconfigurations. If the local commissioners disagree with the recommendations, they can, if I understand his new clause correctly, call the process to a complete halt. I can see why that has some attractions, because it seems to provide some kind of brake on the all-encompassing powers of an administrator, and for that reason I am content to support it. However, it does not provide an entirely coherent solution to the problem that lies at the heart of clause 119.

[Paul Burstow]

The hon. Lady is helpfully setting out her concerns and her support for the new clause. The first proposition must be that we should never even get to that stage, so we need to have much better processes in place beforehand, and I hope that we will hear something about that from the Minister. More importantly, the commissioners, all of whom have a stake in a local health economy—the different trusts—ought to be around the table to sign off on what a TSA will actually do.

[Heidi Alexander]

I am grateful to the right hon. Gentleman for that answer, but I am still not clear whether the new clause would provide a direct veto to commissioners of services at a hospital located outside the trust to which an administrator has been appointed.

[Paul Burstow]

That is the intention, so the new clause has been drafted to have that effect. We will hear shortly whether the Government find it to be technically deficient.

[Heidi Alexander]

I am sorry to be down in the detail of the new clause, but I think that it is very important, not least because many of us have received hundreds of e-mails about this. We need clarity on which commissioners are being given an effective power of veto by the new clause. Is it just the primary commissioner of services at a hospital, or does it go wider than that? To take the Lewisham example, it is not clear whether the power of veto would be given only to Lewisham CCG or also to the commissioners of services at Lewisham hospital, such as Greenwich or Bexley CCGs.

It is also not clear from new clause 16 whether there is a definite guarantee that full consultation would kick in if commissioners agreed to the recommendations of the TSA, because with reference to commissioners it includes the words

“if they are so minded”.

It is not clear what would happen if they were not so minded. Where is the redress for the public in that?

Another concern about new clause 16 is that if commissioners of services at a trust outside the failing trust disagree with the TSA’s proposals, potentially millions could have been spent bringing in the administrator and the management consultants and working up a whole series of proposals, but it could then be brought to a halt by a group of commissioners. I cannot help but question whether it would not be better either to apply the TSA regime to one individual trust or to go through a proper reconfiguration process, with all the safeguards that would include.

I am also intrigued as to why the right hon. Member for Sutton and Cheam tabled new clause 16 at this time. It is quite detailed, and given that he was a member of the Public Bill Committee, it might have been wise to introduce it in Committee and thrash out the detail there. I would like to add that he has always struck me as a man of principle. He has a deep understanding of how the NHS works and, I believe, a deep commitment to tackling the care crisis we face. However, tabling the new clause as some kind of alternative to voting against clause 119 seems to me to be tinkering at the edges. What we really need to do is vote to remove that clause from the Bill, because it poses a significant danger to hospitals across the country.

I am conscious that I have spoken for a long time, so I will say just a few words in conclusion. We know that the Conservatives stated in their manifesto that they would stop the forced closure of A and E departments and maternity wards. We know that in the coalition agreement both the Liberal Democrats and the Conservatives talked about stopping the centrally dictated closure of A and E departments and maternity wards. The truth is that neither the Lib Dems nor the Conservatives are stopping these closures; instead, they are legislating for them. They are paving the way for a wholesale programme of hospital closures and downgrades. We might stop them if we vote for new clause 16, but for me “might” is not good enough. In my view, amendment 30, which would delete clause 119, is our best hope for putting the Lewisham debacle behind us and providing the public with a fair and transparent means of making decisions about the public service that matters most to people—the NHS.

--- Later in debate ---

[Mrs Lewell-Buck]

I could not agree more with my hon. Friend.

TSAs can consider the impact on neighbouring authorities when making their recommendations, but they cannot and should not reconfigure services in well-performing trusts. Well-run trusts can and do collaborate with their neighbours, and play a role in reconfiguring services to help to achieve financial stability, but that must be voluntary. It is wrong for the Government to act through TSAs to reconfigure services in well-run trusts, and to do so against the wishes of local people and clinicians. It is also wrong that the opinions of health care professionals should be overruled by financial concerns, especially when the decisions being made affect trusts that are not at financial risk. That undermines the ability of health care professionals to act in the interests of their public.

The Government’s defence of the proposal is that clause 119 is a clarification of existing law, and yet the amendment was tabled in the other place while the Government’s appeal over the downgrading of services at Lewisham was still being considered. Surely it is the role of the courts to interpret and therefore clarify the law. It is more likely that the Government anticipated that their appeal would be rejected, as it was, and acted to expand the powers of TSAs so that reconfigurations such as that proposed for Lewisham could go ahead in future. I want to be clear: when any Government amends legislation so that it can be interpreted differently in the courts, they are not clarifying things but changing them.

[Paul Burstow]

I take the hon. Lady’s general point and understand why she is making it, but yesterday we debated new clause 11, which would have made clear a mistake that hon. Members on both sides of the House believe the courts made on the applicability of human rights legislation to social care that is publicly provided within private institutions. In that instance, we were not changing the law, but trying to ensure that the courts interpreted it correctly in the first place. There are instances when we do that.

[Mrs Lewell-Buck]

I agree with the right hon. Gentleman, but I do not believe it applies to clause 119.

My constituents are not especially concerned by the technicalities of legislation. The letters and e-mails I receive show concern with the practicalities of clause 119. People tell me that they fear for local services because, as more trusts fall into financial difficulties—more than 30 are reported to be in serious danger of doing so—the Secretary of State’s power will spread over a wide region. Perhaps the trusts that those people or their relatives use will not have a TSA appointed, but it is likely that services in their area will collaborate with trusts that do have one appointed. That makes them a target.

If the heroic efforts of the people of Lewisham and my hon. Friends are anything to go by, public concern will quickly turn to public outrage and protest if clause 119 makes it to the statute book. Lewisham has shown the Government the strength of opposition they can expect when they attempt to force unpopular reconfigurations on local communities. It is difficult to understand why they propose using that model throughout the country, but it appears that that is their intention.

I am concerned that, by taking that approach and using the TSA regime for a purpose for which it was never intended, the Government will make it more difficult to have a level-headed discussion on meeting financial challenges. We need a mature debate on how to adapt services to improve sustainability, but clause 119 will lead to pitched battles up and down the country over the closure of individual departments. The clause has attracted more controversy than any other in the Bill, and with good reason. It ignores the will of clinicians and the communities they serve. It puts at risk services in every corner of the UK. The Government must change course now.

--- Later in debate ---

[Dr Poulter]

The spirit of the previous Government’s legislation was to look at the wider health economy when a trust is in extremis and has reached the point at which it is failing patients, either because of its financial failure or the direct effect that has on the quality of patient care. There then needs to be a wider look at the whole health economy. I know the Princess Royal university hospital in my hon. Friend’s constituency very well. I also know Lewisham hospital very well, having done some of my medical training there. They cannot be seen in isolation from King’s college hospital, Woolwich, Sidcup and all the other hospitals in the area, because they look after patients in that part of London as part of an integrated health and care service. When a hospital fails in that way, it has to be looked at holistically. It is a power of last resort, to be used when a trust is in extremis, not a routine power, which is why we have the TSA process set up by the previous Government.

[Paul Burstow]

I am grateful to the Minister for some of the clarifications he has given so far. When he concludes his comments on new clause 16, will he confirm that the review of the guidance that he has invited me to chair will also consider the issue of consultation to ensure that it is genuinely pervious to public opinion and other clinical opinions in the area?

[Dr Poulter]

I am happy to give my right hon. Friend that assurance. It will be for him to lead the review, and we look forward to the work he does.

New clause 16 would make a second key change: to prevent the Secretary of State or Monitor from making decisions about recommendations affecting other trusts. Instead, local commissioners would have to undertake a further process of consultation and make their own decision. The effect would be to completely undo the changes that clause 119 is seeking to make—

[Dr Poulter]

It would take outside the administration process and the timetable recommendations that affect other trusts. It could mean that a complete solution for the trust in administration and local patients could not be found. As before, my right hon. Friend the Member for Sutton and Cheam said that examining in isolation a trust that is failing significantly would be like throwing it to the wolves on its own. New clause 16 would render the strict legal timetable for the regime ineffective by significantly delaying resolution. I know that it is not his intention, but the new clause would undo the core purpose of clause 119 and the very aims of the regime, which are to put in place sustainable and safe health care services for patients when a trust has significantly failed.

[Paul Burstow]

I think I have heard the Minister tell us that there will be an equivalency between commissioners whereby they will all have to agree to changes being led by a trust special administrator, that there will be further examination of the consultation issues, and that we will make sure that the process is used rarely and exceptionally. Given his confirmation of those things, I want him to know that I am satisfied that my concerns are being addressed. On that basis, I do not intend to press my new clause, and I urge colleagues to do likewise.

[Dr Poulter]

I am very pleased that my right hon. Friend is reassured. I pay tribute to the tremendous work that he has done throughout the passage of the Bill in scrutinising and pushing the Government to ensure that we produce better, and good, legislation. I commend him for the work he has done on that.

It is important to point out that clause 119 makes a number of changes to strengthen patient, public and commissioner involvement in the process. In concluding, I shall draw out its important aspects. First, the clause would extend the public consultation period from six to eight weeks so that the public and others in the wider health economy can give their views and improve the recommendations. It would also give the administrator more time than the previous Labour Government did to produce draft recommendations, extending the period from 45 to 65 working days.

Secondly, the clause would allow a more holistic view to be taken of the wider local health system by allowing an administrator to make wider recommendations, but only as long as those recommendations are necessary for, and consequential on, primary recommendations about the failing trust.

Thirdly, the clause would widen consultation to affected trusts, their staff and commissioners. In addition—I thank my right hon. Friend the Member for Sutton and Cheam for suggesting this—we are providing in amendments 11 and 12 greater public and patient representation in the regime by requiring the administrator to consult local authorities and healthwatch organisations. That will ensure that the voice of local communities is at the front and centre of the administrator’s final recommendations. This important clause makes sure that patients and local commissioners are properly consulted. Indeed, we make sure that Healthwatch is put at the heart of everything that happens. The clause also improves arrangements for the administrator in seeking the support of commissioners affected by their recommendations, as we have discussed. That means that an administrator could develop recommendations that provide a solution for the future of failing trust services, ensuring that all those affected are fully involved. That has to be the right action.

We have heard a lot from Labour Members about the trust special administrator regime. Let us remember that this was their provision and their regime. We are putting in place measures that are true to their intentions when they put this in place, so that a trust is not thrown to the wolves when it meets their circumstances of severe failure. We will make sure that we always act in the best interests of patients. The right hon. Member for Leigh (Andy Burnham) is good at playing politics and good at spin. I am a doctor. I will always do what I believe is in the best interests of patients, and that is exactly what clause 119 will achieve.

--- Later in debate ---

[Andy Burnham]

I begin by thanking my shadow team, particularly my hon. Friends the Members for Leicester West (Liz Kendall) and for Copeland (Mr Reed), who have spent many hours trying to make sense of this unwieldy piece of legislation. I, too, want to thank members of the Public Bill Committee for their work, as well as the officials, Officers and staff of the House who enabled the Committee’s work to take place.

It is right also to pay tribute at this point to the Care and Support Alliance, a very important association of organisations working to be advocates and champions for some of the most vulnerable people in our society. The alliance worked with the previous Government and is working with this Government; indeed it works with all sides of the House. It can take some credit for some of the steps forward that are coming as a result of the Bill, and it is fair to say that there are some steps towards a better social care system.

I would argue that the Bill builds on the work of the previous Labour Government in that regard, particularly in the overdue recognition of carers. We welcome stronger legal recognition and rights for carers. We welcome better access to information and advice, which will make a difference to some people using the care system. The idea of portability—that if people move from one place to another, their entitlement to care goes with them—is a good principle and one that I put forward. We welcome the fact that it has been carried into the Bill. The principle of a cap on what people should pay for social care is in itself an important step forward. I recognise that but, as I will go on to say, we do not believe that all is at it seems.

There are measures in the Bill, as the Secretary of State said, to implement parts of the Francis report, such as the organisational duty of candour and moves to strengthen regulation. We welcome these steps but we would have encouraged the Government to go further.

The big problem with the Bill is the gap between what Ministers claim it does and what it actually does. It is not what it seems and it will not deliver on the claims made for it. Worse, it is no answer to the problems posed by an ageing society, and it is not equal to the scale and urgency of the care crisis that the country faces.

[Paul Burstow]

The right hon. Gentleman expresses concern about the care crisis. Why did he abstain in yesterday’s vote on the Local Government Association’s proposal that there should simply be an assessment of the adequacy of funding?

[Andy Burnham]

I do not think that the right hon. Gentleman is in a very strong position to talk about Members’ abstaining in votes on amendments. I shall say more about that shortly.

Let me now list three reasons for our argument that the Bill is not what it seems. First, as I have said, it is no answer to the care crisis. It proposes that a cap should be paid for by the restriction of eligibility for care, and the removal of care from some people who are already receiving it. Last week we heard from Age Concern that 800,000 people who had previously received support no longer received it. The problem is that local authorities are being asked to implement the system with no additional resources, and are therefore having to move funding from preventive social care to the administration and funding of the cap and the deferred payment scheme. Rather than taking from one area of social care to give to another, the Government should have put new resources into social care.

--- Later in debate ---

[Paul Burstow]

The Bill deserves a Third Reading because it replaces 60 years of piecemeal, dog’s breakfast legislation. In place of that it will put a system focused on promoting the well-being and quality of life of the individual. It provides a foundational set of changes of the sort that my right hon. Friend the Member for Charnwood (Mr Dorrell) was talking about.

My 18 years in this place have been about campaigning for the changes that the Bill brings about. I have seen countless Green Papers and heard countless promises of reform. This legislation brings that reform home and delivers change—change that I hope all Members will support, because it is for the good of our constituents that we are here and the Bill delivers a lot of good.

Question put and agreed to.

Bill accordingly read the Third time and passed, with amendments.

Care Bill [Lords]

Paul Burstow Excerpts

Monday 10th March 2014 Commons Chamber

[Paul Burstow (Sutton and Cheam) (LD)]

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

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 2—Review of the case for establishing a commissioner for older people in England

‘(1) The Secretary of State shall establish an independent review of the case for establishing a statutory office of Commissioner for Older People in England.

(2) The review will consider the—

(a) increasing diversity of the older population in England;

(b) UN Principles for Older Persons in 1991 (UN 1991) and other relevant developments in international policy on ageing;

(c) lessons from the establishment of such offices in Wales and Northern Ireland;

(d) balance of advocacy, investigatory and enforcement duties and powers to be granted to the office in statute;

(e) jurisdiction of the office in relation to other public bodies;

(f) relationship of the office to Ministers;

(g) accountability of the office to Parliament;

(h) appointment of the office holder;

(i) human and financial resources necessary to support the office; and

(j) any other matters the Secretary of State sets out in the terms of reference of the review.

(3) The review will report and make recommendations to the Prime Minister, Deputy Prime Minister, Chancellor of the Exchequer and the Secretary of State by December 2014.’.

New clause 3—Duty to identify carers

‘Each NHS body in a local authority’s area, as defined in section 6(8), shall co-operate with the local authority to ensure that effective procedures exist to identify patients who are or are about to become carers and make arrangements for carers to receive appropriate information and advice.’.

New clause 4—Local authority duty to make reasonable charges

‘Where a local authority that meets an individual’s needs under sections 18 to 20 of Part 1 of this Act is satisfied that the individual’s means are insufficient for it to be reasonably practicable for the individual to pay the amount which would otherwise be charged, the authority shall not require the individual to pay more for it than it appears to them that it is reasonably practicable to be paid.’.

New clause 5—Portability of care

‘(1) The Secretary of State must prepare a report containing an assessment of what primary or secondary legislation would be required to ensure people in receipt of care and support in the community in the UK receive continuity of such care and support if they change their place of residence, with particular reference to moves between countries of the United Kingdom.

(2) The report under subsection (1) must be laid before each House of Parliament six months after this Bill receives Royal Assent.’.

New clause 7—Independent review of future demand for social care and healthcare

‘(1) The Secretary of State shall make arrangements for an independent review of, and report on, the likely demand for adult social care, public health and healthcare services in England over the next twenty years.

(2) The objective of the review mentioned in subsection (1) shall be to identify the key factors determining the financial and other resources required to ensure that social care and health functions as a cost effective, high quality, equitable, integrated and sustainable single system which—

(a) promotes individual well-being (as defined in Part 1 of this Act),

(b) enables access to be determined on the basis of need, and

(c) can meet forecast demand.

(3) The arrangements for the conduct of review shall include provision for a fully integrated modeling and analysis of health and social care including examination of—

(a) the technological, demographic and health status trends over the next two decades that may inform or affect demand for adult social care and health services;

(b) the inter-dependencies between adult social care, public health and healthcare and the appropriate balance between different types of intervention, in particular between:—

(i) health and social care,

(ii) primary and secondary care,

(iii) physical and mental health, and

(iv) treatment and prevention; and

(c) any other matter that the Secretary of State sets out in the review‘s terms of reference.

(4) The Secretary of State shall lay before each House of Parliament a copy of an interim report on emerging themes and trends identified by the first such review by the end of November 2014 and make arrangements for a consultation process to be undertaken in relation to those interim findings.

(5) The Secretary of State shall lay before each House of Parliament a copy of the final report by the end of July 2015.

(6) At no more than five year intervals, the Secretary of State shall make arrangements for the updating of the report of the review mentioned in subsection (1) with the same objective and approach as mentioned in subsections (2) and (3), and including such matters as are provided for in paragraph (3)(c), and shall prepare and lay before each House of Parliament a report on the outcomes.

(7) The Secretary of State shall prepare and lay before each House of Parliament, as appropriate, a statement on the extent to which the reports mentioned in subsections (1) and (6) inform the Government‘s wider fiscal and economic strategy and decisions in each public spending review.’.

New clause 9—Reporting on the funding for new costs arising from the Care Act

‘(1) The Joint Care and Support Reform Programme Board must inform the Secretary of State by an annual written report that it is satisfied whether sufficient funding is in place to ensure that social care is adequately funded and that the provisions in the Act can be implemented satisfactorily.

(2) In subsection (1), the “Joint Care and Support Reform Programme Board” means the board of that name consisting of representatives of (but not limited to): the Local Government Association, the Association of Directors of Adult Social Services and the Department of Health.

(3) The report mentioned in subsection (1) should include a statement of the satisfaction of the Joint Care and Support Reform Programme Board with (but not limited to)—

(a) adequacy of the funding of the provisions in this Act,

(b) on-going costs of implementation,

(c) an additional five yearly review of the short and medium term cost of setting the eligibility criteria at the level set out in regulations.’.

New clause 11—Provision of certain care and support services to be public function

‘(1) A person (“P”) who provides regulated social care for an individual under arrangements made with P by a public authority, or paid for by a public authority, is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature in doing so.

(2) This section applies to persons providing services regulated by the Care Quality Commission.

(3) In this section “social care” has the same meaning as in the Health and Social Care Act 2008.’.

New clause 13—Deferred payment data

‘The Health and Social Care Information Centre shall make arrangements to collect and publish data including, but not limited to—

(a) the number of individuals entering into a deferred payment arrangement,

(b) the proportion of those individuals who received—

(i) regulated financial advice,

(ii) other forms of advice, and

(iii) no advice

before entering into a deferred payment arrangement,

(c) the average length of time a deferred payment arrangement is held,

(d) the numbers of individuals holding such arrangements broken down by different periods of time held, and

(e) the amount of money deferred under such arrangement.’.

New clause 15—National framework for local authority fees for care providers

‘(1) The Secretary of State shall establish an indicative national formula with which local authorities shall determine the costs of care provision in their area.

(2) In having regard to the matters mentioned in section 5(2)(b), a local authority must derive fee levels for independent providers of care and support services from the formula mentioned in subsection (1).

(3) The Secretary of State shall make arrangements for the audit of local authority fee levels to determine their compliance with the duty mentioned in subsection (2) and the extent to which this contributes to the effective delivery of the requirements of section 5(2), with particular reference to paragraphs (b), (d), (e) and (f).

(4) The formula in subsection (1) shall be made by regulations laid in pursuance of section 123(4) of this Act.’.

New clause 17—Duty to review economic, financial and other factors affecting provision of care services

‘(1) The Secretary of State shall make arrangements for—

(a) a review of the economic and financial factors affecting the employment (including recruitment, training and development, effective deployment and retention) of care workers and the extent to which current policies, mechanisms and relevant compliance by regulated providers of care services make it more or less likely that the objectives of this Act will be realised; and

(b) a public consultation on the conclusions and recommendations of the review.

(2) The Secretary of State shall lay a report of the review and public consultation before each House of Parliament by 1 September 2014.’.

New clause 18—Impact of working conditions on quality of care

‘(1) In exercising their functions under Part 1 local authorities must assess and consider how working conditions for people employed in care and support services impact on the fulfilment of local authority duties under Part 1 of this Act.

(2) “Care and support services” means—

(a) services provided by a local authority; and

(b) services commissioned by a local authority.

(3) Regulations may specify particular matters local authorities must have regard to in relation to subsection (1).’.

New clause 19—Promoting health of carers

‘(1) In exercising their functions health bodies shall—

(a) promote and safeguard the health and well-being of carers;

(b) ensure that effective procedures exist to identify patients who are or are about to become carers;

(c) ensure that appropriate systems exist to ensure that carers receive appropriate information and advice; and

(d) ensure that systems are in place to ensure that the relevant general medical services are rendered to their patients who are carers.’.

New clause 20—Local authorities: duties with respect to young carers

‘(1) A local authority must ensure that it takes all reasonable steps to ensure that in relation to—

(a) any school within its area and under its control; and

(b) any functions it discharges in pursuance of its responsibilities as a children’s services authority, there is in place a policy that both identifies young carers and makes arrangement for the provision of support for pupils who are young carers.

(2) In discharging its duty under subsection (1), a local authority must have regard to any guidance given from time to time by the Secretary of State.’.

New clause 21—Further and higher education: duties with respect of student carers

‘(1) The responsible body of an institution to which this section applies must identify or make arrangements to identify student carers and have a policy in place on providing support for student carers.

(2) This section applies to—

(a) a university;

(b) any other institution within the higher education sector; and

(c) an institution within the further education sector.

(3) A responsible body is—

(a) in the case of an institution in subsection (2)(a) or (b), the governing body;

(b) in the case of a college of further education under the management of a board of management, the board of management; and

(c) in the case of any other college of further education, any board of governors of the college or any person responsible for the management of the college, whether or not formally constituted as a governing body or board of governors.’.

New clause 22—Duty for Financial Services Consumer Panel

‘(1) The Financial Services Consumer Panel at the Financial Conduct Authority shall have a duty to review the availability, quality, adequacy and effectiveness of financial advice being provided to care users and their families on the implications of the relevant provisions of this Act, and make an annual report thereon to the Secretary of State containing recommendations for steps to take to remedy any deficiencies identified by the Panel.

(2) The Secretary of State shall lay a copy of the report mentioned in subsection (1) before each House of Parliament. The first such report must be so laid within 12 months of this Act receiving Royal Assent.’.

New clause 23—Financial advice for care users: qualification to provide

‘(1) The Financial Conduct Authority shall prepare and conduct a review of the implications of the relevant provisions of this Act for—

(a) training and development; and

(b) the level of the required qualifications

for advisers seeking licences to provide financial advice to care users and their families.

(2) The Authority shall submit a report of the findings of the review mentioned in subsection (1) to the Secretary of State, along with recommendations.

(3) The Secretary of State shall lay a copy of the report mentioned in subsection (2) before each House of Parliament. The first such report must be so laid within 12 months of this Act receiving Royal Assent.’.

New clause 24—Public awareness

‘(1) Local authorities shall have a duty to prepare, publish, consult on and implement a plan for raising and maintaining awareness amongst the residents of their areas of the arrangements for social care, and in particular of any changes to such arrangements brought about by Part 1 of this Act.

(2) The Secretary of State shall prepare and lay before each House of Parliament an annual report on the level of public awareness and understanding of the arrangements for social care, in particular—

(a) awareness and understanding of the changes brought about by the provisions of this Act; and

(b) the effectiveness of local authorities’ implementation of their plans for raising public awareness in their areas.’.

New clause 26—Declassification of a police station as a place of safety for the purposes of section 136 of the Mental Health Act 1983

‘(1) The definition of a place of safety in section 135(6) of the Mental Health Act 1983 shall no longer be read to include a police station for the purposes of section 136 of that Act.

(2) With regard to persons removed to a place of safety under section 136(1) of the Mental Health Act 1983, subsection (1) above shall have effect from—

(a) 1 April 2015, where such a person is aged 18 years or under; and

(b) 1 April 2017, where such a person is aged over 18 years.

(3) By 31 March 2015 the Secretary of State shall prepare and lay before each House of Parliament a report setting out the progress made by that date towards fulfilling the objective set out in subsection (1) above.’.

New clause 31—Register of persons who provide regulated social care

‘(1) Health Education England must make arrangements for the compilation, publication and maintenance of a register of persons as set out in section [Provision of certain care and support services to be public functions] who provide regulated social care for an individual under arrangements paid for by a public authority that have undertaken education and training in accordance with the duty set out in section 95.

(2) This duty may be delegated by HEE to Local Education and Training Boards established under section 101.’.

New clause 32—Funding and remuneration of home care workers

‘(1) The Secretary of State shall establish an independent review of the funding and remuneration of home care workers with a view to a report making recommendations regarding—

(a) hourly salary,

(b) remuneration of travel time,

(c) remuneration of travel costs,

(d) minimum time required properly to fulfil each of the care tasks and duties to be performed,

(e) establishment of an efficient means of recording arrival and departure times at residential settings, and

(f) the charging basis of the agency employing the care worker with a view to ensuring that all the costs of providing for (a) to (e) above are adequately met.

(2) The Secretary of State shall lay a copy of the report of the review mentioned in subsection (1) before each House of Parliament.’.

Amendment 26, in clause 1, page 2, line 5, at end insert—

(j) the right to living independently and being included in the community.’.

Amendment 21, in clause 5, page 6, line 2, leave out from ‘must’ to end of line 4, and insert—

‘(a) have regard to the need to ensure that sufficient services are available for meeting the needs for care and support of adults in its area and the needs for support of carers in its area; and

(b) ensure that the fee levels provided to independent providers for the delivery of care and support services are derived from a national formula which determines the accurate cost of care in each local authority area, the result of which will mean that the provisions of paragraphs (2)(b), (d), (e) and (f) can be delivered effectively.’.

Amendment 20, in clause 12, page 11, line 31, at end insert—

‘(aa) require the local authority, when carrying out the assessment, to capture an individual’s main and other disabling conditions.’.

Government amendments 1 and 2.

Amendment 31, in clause 24, page 22, line 39, at end insert—

‘(3A) The Secretary of State shall, after suitable consultation, establish by regulation a specified timeframe for the conclusion of the steps required of local authorities by virtue of this section.’.

Government amendment 3.

Amendment 32, in clause 27, page 25, line 8, leave out ‘keep under review generally’ and insert ‘review regularly’.

Amendment 33, page 25, line 42, at end insert—

‘(5A) The Secretary of State shall, after suitable consultation, establish by regulation appropriate arrangements and timetable for the regular review of care and support plans and of support plans by local authorities provided for in subsection (a).’.

Government amendments 4 and 5.

Amendment 27, in clause 42, page 38, line 24, at end insert—

‘(2A) There are different types of abuse, as defined in guidance.’.

Amendment 28, page 38, line 29, at end add—

‘(4) A relevant partner, as defined in section 6(7) has a duty, where it has reasonable cause to suspect a person is an adult at risk of abuse or neglect, and the adult appears to be within the local authority’s area, to inform the local authority of that fact.’.

Government amendments 6 and 14.

Amendment 22, in clause 76, page 69, line 33, after ‘adults’, insert ‘and children’.

Amendment 23, page 69, line 37, after ‘adults’, insert ‘and children’.

Amendment 24, page 69, line 42, after ‘adults’, insert ‘and children’.

Amendment 25, page 69, line 44, after ‘adults’, insert ‘or child’.

Government amendment 7.

[Paul Burstow]

I hope that the House will forgive my having a number of new clauses to explain in the time available to discuss part 1 of the Bill. I will try to crack on as quickly as possible to explain the thinking behind each of them. I will do so not in numerical order, but in order of importance, starting with the new clauses on which I particularly want to hear the Minister’s response.

First, I wish to discuss new clause 11, which deals with the Human Rights Act 1998 and its application to social care. The Act has enormous potential to improve the lives of those most vulnerable to human rights abuses in social care settings. People who are being provided care in their own homes or in care homes face risks in respect of their privacy, their family life, being safe and not suffering degrading treatment. Such matters are all very much at the heart of how we ensure that we provide dignified care.

I am sure that the Minister knows, as do other hon. Members, that a loophole has opened up in our law as a consequence of a judgment made by the courts some years ago. It arose in 2007 following the decision by the House of Lords in the YL v. Birmingham city council case. The Law Lords held that a private care home providing residential care services under contract to a local authority was not performing a “public function”, so its residents were excluded from the protections of the Human Rights Act. In practice, that means that domiciliary care users, or their families or carers, can complain to the care company, depending on the terms of their contract, but in many cases they will not be able to take their complaint any further. Contractual terms and conditions are important, but they can often fail to give the protection that we would want to see, and residents in care homes have no security of tenure and are often afraid to complain because of fear of eviction. Many people with care needs face additional challenges asserting their contractual rights, particularly if they lack the capacity to do so because of dementia or learning disabilities.

The decision that private and third sector care home providers were not directly bound by the Human Rights Act meant that thousands of service users had no direct legal remedy to hold their providers to account for abuse, neglect and undignified treatment, even though the public body commissioning those services remains bound in law by the Human Rights Act. There is need for change in this area. The loophole was partly closed by the previous Government, with cross-party support, through section 145 of the Health and Social Care Act 2008, which covers residential care services. However, under changes that this Bill will introduce, it will need to be reinstated by order, but there is a far better and more elegant way in which that could be done—by implementing new clause 11.

New clause 11 seeks to clarify the law so that all providers of publicly arranged or paid-for care are within the scope of the Human Rights Act. Service users who experience serious human rights abuses will then have direct means of legal redress. However, this is not just about going to law; it is about what goes on in the hearts and minds of those organisations and the attitude they take towards how they provide services, so the Human Rights Act has a part to play in culture change as well. For example, the Act has been successfully invoked in an argument about a local authority’s refusal to place a married couple in the same nursing home.

The Government have accepted that there is a loophole, and we very much welcome that. We raised the matter during consultation on and scrutiny of the draft Bill, and we offered up a suggestion, which their lordships adopted. In response to the Joint Committee, the Minister told us that organisations that were not covered by the Act should none the less consider themselves bound by it. Lord Hope, the recently retired Deputy President of the Supreme Court had this to say about that:

“Comments of the kind that were made, that people should consider themselves bound by a convention right, however well intentioned, do not have the force of the law”.—[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 549.]

That is why we need to give it the force of law, which is what new clause 11 attempts to do. It puts back the law to where Members of all parties expect it to be, and ensures that a poor judgment by the court is corrected.

New clause 1 deals with the issue of power of access. Last week, I handed in a letter to the Prime Minister, setting out the case for the measure. It was signed by 602 organisations and individuals, including Age UK, Mencap, the National Autistic Society and many others with expertise in the area of adult safeguarding. They all share a common concern that there is a gap in the law when it comes to protecting vulnerable people who have the ability to make decisions for themselves but who are living in a home with someone else who is abusing them or neglecting them and who is denying them, because of their ability to exert their authority over that person, the ability to get the protection that they need. The Law Commission took that view in its review of mental capacity legislation, and the Equality and Human Rights Commission also took that view in its analysis of the legislation.

In our debates in Committee, my hon. Friend the Minister of State said that when officials were asked to provide the evidence behind their advice that the new power was unnecessary, there was an opaqueness surrounding the issue. There was not the necessary level of clarity to understand what powers could be used and in what scenario. I must say to the Minister that the scenarios that have been offered up to justify the position that there is no need for legislation do not address the circumstance that I and my new clause 1 seek to address. I am talking about someone who legally has capacity but who is under duress and unable therefore to exercise their individual right to seek protection. As a consequence of that, we need this power.

[Meg Munn (Sheffield, Heeley) (Lab/Co-op)]

I added my name to the right hon. Gentleman’s new clause. Does he agree that the Bill is putting in place a range of measures on new safeguarding boards, and that this power would complement the work that is now being done to raise the whole issue and to ensure that vulnerable people get the protection they need and their circumstances properly investigated?

[Paul Burstow]

The hon. Lady is right, and with her own experience in social work practice, she will know why this matters so much. She is right to say that in the Bill, for the first time, many aspects of adult safeguarding are put on a statutory basis, which is welcome. None the less, there is still a gap, which the Government with this Bill should seek to fill. We have had a lot of back and forth between the Minister of State and his officials, and I am grateful to him for the patience that he has shown. I just hope that the patience translates into something else. However, he has told Members that there is a balance of risks, and his judgment is that the powers are not needed. I say to him and to officials that if that is the case, why, in the scenario that I have described, can he not produce the evidence?

I welcome the fact that the Social Care Institute for Excellence has been commissioned to do work on this issue, but if there is a gap in the law, that will not fix it. It has been suggested that the problem is that practitioners are ignorant of the law. Again, I have to ask where the evidence is for that. Thanks to Action on Elder Abuse, which instituted a freedom of information request, we know that the evidence does not support that line either. So far, 84 out of 152 local authorities have responded. Twenty-nine councils have reported at least one instance in the past 12 months in which they have been unable to gain entry because a third party had denied them access. In 21 of those cases, they never gained access. Therefore, all the arts of negotiation and relationship building that are essential to good social work practice did not gain those people access, and who knows what happened to those individuals. Let us hope that they do not find their way on to the front page as a tragic story.

Not a single one of the 84 authorities that responded to that request have suggested that a failure to gain access was the result of a lack of knowledge. It is really about a lack not of knowledge but of that backstop power, which the new clause provides. In a survey of front-line practitioners, 365 of whom have responded, 82% believe that the power is necessary.

New clause 1 provides a proportionate power for a circuit judge, approved by the Court of Protection, to determine whether an entry warrant should be granted where a person is believed to be under duress and a victim of abuse. Let me be clear that the measure should be rarely used, but it is required for those circumstances in which a person is in the situation that I have described. I agree with the Minister about good social work, but just talking about good social work is not an adequate answer.

[Mr John Redwood (Wokingham) (Con)]

Who drafted new clause 1 and which main outside organisations support it?

[Paul Burstow]

Organisations that have supported the new clause, which I have drafted, include people with a legal background, social workers, Age UK and Mencap—those who often provide a voice for the voiceless. One of my concerns is that the people whom the Bill seeks to benefit are very likely to be those who are under duress and therefore unlikely or unable to express an opinion. That is why the new clause has been crafted to try to ensure that the necessary safeguards are built in.

New clause 3 addresses the issue of carers, particularly the identification of carers. Carers are the backbone of our care and support systems. Without them, those systems could not function in delivering the quality of care that we would expect. Those carers make huge sacrifices to care for their loved ones. Their health, their wealth and their lives are often sacrificed as a result of what they do. We know from the census that a carer is twice as likely to be in bad health as a non-carer.

The Government should be applauded for the fact that in this Bill and in the Children and Families Bill they have taken great strides to improve the rights of adult carers, parent carers, and young carers. They have listened, engaged and responded to the concerns that Members in all parts of this House and in the other place, and many carers’ organisations, have raised with them. However, all this hinges on whether carers are aware of these new rights and whether their council is successful in its new duty of identifying them, as required under the Bill. The problem is that the NHS is still left untouched. Millions of people caring for someone with a health problem may never come into contact with their council or be aware that that would be the next step in coping with their situation.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I welcome the right hon. Gentleman’s conversion to the identification of carers by NHS bodies, because when he was in the role of Minister he did not support that. I hope that he can convert the current Minister. Is it not the case that, as Macmillan Cancer Support has said, 95% of carers for people with cancer, who may care for only a short time but for people with terminal illness, do not have any contact with local government and do not have a carers’ assessment, and is not that the key? Are we just going to let those people struggling in those difficult circumstances carry on doing so?

[Paul Burstow]

The hon. Lady is not a convert. She has been consistent and clear in her pursuit of this provision, both with her own Government and with this Government, and I hope that eventually her persistence will pay off. It has persuaded me, along with many carers’ organisations, of the need for such a change.

Institutionally, the NHS is not good at grasping the different responsibilities it has towards carers compared with those who are its immediate concern—the patients. As a result, it lets carers down institutionally, and that is what the new clause says we need to address. We need to change the NHS’s mindset institutionally to make sure that it recognises its responsibility for millions of people with caring responsibilities and asks the necessary questions. Macmillan Cancer Support has found that 78% of health care professionals have come across a cancer patient who has been admitted because their carer could not cope at home. Here is why the NHS must fully engage with carers: only one in three professionals who sees an accompanied patient always goes on to check whether the person with them is their carer.

[Sarah Newton (Truro and Falmouth) (Con)]

I, too, have supported my right hon. Friend’s new clause, because this is an essential point. This Government should be proud of the support that they have introduced for the legion of unpaid carers who do such a fantastic job, but if their doctors, district nurses and health care professionals do not let them know about these rights, they are not really worth having.

[Paul Burstow]

That is absolutely right. This is not, as it can sometimes be portrayed, a case of “Let’s just have a tick-box”; it is about signalling a set of changes that need to happen in the culture of the organisation, so that when a patient visiting their GP or a consultant is accompanied by a member of their family or someone else who is supporting them, that instinctively forms part of the conversation about signposting and information about carers.

At the moment, just 7% of practitioners always signpost for a carers assessment. That is why we need to make sure, through this new clause, that we place a simple duty on the NHS so that it plays its part in identifying carers. One of the most shocking statistics is that 64% of health professionals think that that is necessary. They think that it will help them in their day-to-day practice and in ensuring that the issue is put up the agenda.

--- Later in debate ---

[Mike Thornton (Eastleigh) (LD)]

My right hon. Friend mentions Laing and Buisson. I believe that it has come up with a formula that should enable people to work out a fair funding system in advance. Is that something we could look at?

[Paul Burstow]

My hon. Friend is absolutely right. That is the basis of the average fair rate, which I mentioned. New clause 15 would provide a mechanism for establishing a formula by which fee rates are set transparently for both domiciliary and residential care. The organisations representing the sector believe that that would lead to much greater transparency, and I think that it would deal with some of the rather toxic relationships that sometimes appear to exist, both nationally and locally.

New clause 2 is about older people, particularly the proposition that we should take a leaf out of the book of our colleagues in Wales and Northern Ireland in relation to having a commissioner for older people. Ageism and ageist attitudes are endemic in our society and, indeed, in public services. Our society is ageing, with life spans increasing, and that profound change will affect us all. It has implications for how the NHS and care services behave, but it goes far wider.

My new clause simply calls on the Government to work on the mechanics of establishing such a post so that there is someone to listen to and give a voice to older people; to champion their vital contribution to our economy—in work, as care givers and as volunteers, mentors and community leaders—rather than their being seen as burdens, which is how older people are all too often portrayed; to challenge the complacent and lazy stereotypes; and to hold public services to account.

Such a role already exists in Northern Ireland, Wales and other parts of the world. It would involve asking such questions as: why do the 360,000 cases of abuse suffered by older people every year lead to so few prosecutions, why are older people excluded from clinical trials and other research, and why do we stop reporting people’s cancer survival rates once they pass the age of 75? I hope that the Minister is open to the idea, and I look forward to his response.

New clause 26 deals with the issue of mental health, which came up very briefly in Committee. I know that the Minister is a passionate champion of mental health concerns. The new clause simply says that if a person has an accident—for example, breaks their arm—suffers a stroke or has a heart attack, the last place they would expect it to be sorted out is a cell in a police station, but that that is exactly where people who have a mental health crisis find themselves. The statistics are stunning: 36% of all people who are taken to a place of safety find themselves in a police station and stay there for more than 10 hours. Not only have adults been subject to that process, but 263 children, on the most recent figures. My new clause simply seeks to place a sunset provision on the definition of a place of safety, including a police station, which should create a way of concentrating minds to ensure that services are provided in the right place at the right time for children and adults.

I come to new clauses 7 and 9 last because they are about addressing what we might regard as the elephant in the room in any conversation about care services and the Bill’s noble intentions of improving the quality of care and of driving well-being into the heart of how care and support are delivered. The new clauses raise interconnected questions about the future funding of care and support, and about the independent nature of our health and care systems. Social care has for far too long—for decades—been the poor relation to health in decisions about public expenditure. Today’s funding challenges are chronic and are not simply the result of deficit reduction.

New clause 9 reflects the concern of a remarkable coalition of interests outside this place, including the Local Government Association, the Care and Support Alliance, hundreds of non-governmental organisations, directors of social services and chief executives, and many more besides. They all want to serve notice on the Government that they are concerned about the serious impact that the continuing pressure on local government spending will have on the ability of councils to deliver the care and support that everybody in this House wants to be delivered under the Bill. The picture is complex. Different councils are coping differently—some are overspending their care budgets and some are underspending them—but the trend is clear, despite the extra £7.2 billion that was allocated in the 2010 spending review and the transfer of money as part of the better care fund in the most recent spending review.

New clause 9 simply provides for an assessment to be made and signed off by the programme board that oversees the implementation of the Bill. It is not an unreasonable request that we check that the sums add up and that the money is sufficient to deliver what the Bill is about. I hope that the Minister will reassure us about how transparent that process will be. Impact assessments are one thing; this process would be another. I think that it would provide considerable reassurance to those who will have the job of implementing the legislation.

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

I apologise for breaking the right hon. Gentleman’s flow. I agree with virtually everything that he has said. On the need to ensure that the Bill does everything that it says on the tin, may I draw attention to the fact that when I met my constituent, Jason Roche, who is very active in the Royal National Institute of Blind People, he pointed out that 43% of blind and partially sighted people in England have lost access to adult social care services since 2005. Does the right hon. Gentleman agree that the Bill must address the needs of working-age adults who suffer from disabilities?

[Paul Burstow]

I am grateful to the hon. Gentleman for that intervention. He makes an important point. If one looks at the trends, one sees that there is no doubt that there are questions to be asked about why some people are not receiving the service that one would expect. Some of that—although I do not pretend that this covers anywhere near all of it—can be explained by the changes to the way in which services are organised. Some of it can be explained by the need to do more to re-able people and to enable them to maintain their independence. I do not say that to evade the question. That is why I have put new clauses 7 and 9 before the House. I genuinely think that whoever is in government in future will have to have a much more systematic approach to making decisions about how we meet demand.

That brings me on to new clause 7, which simply says that the Government should take a longer-term view. It states that every five years, the Government should look 20 years forward and take an independent assessment of the future demand for care and health services. That could be done by the Office for Budget Responsibility. It could provide modelling for the whole health and social care system that looks at the impact on demand, technology, demography and health status, and at the balance between all those factors. It could also look at the interactions between health and care, primary and secondary care, physical and mental health, and treatment and prevention. That would finally implement a recommendation that was made by Derek Wanless in his review for the Government in 2000. That is supported by the King’s Fund, which has suggested much the same thing.

In Committee, neither the Government nor the Opposition were able to make any funding commitments about part 1 of the Bill. I entirely understand why that is the case. However, we know that as the eligibility criteria are drawn more tightly, more people are excluded from help. In the long run, that does not save money, but shunts the costs. It pushes people away from living an independent life and towards a life of dependency. I hope that all parties will, in the end, sign up to something like new clause 7 as a good part of the future sound governance of our health and social care system. I hope that the Minister will support that.

I apologise to the House for speaking at such length, but I have put forward a number of issues that I hope will provide a framework for debating this important set of reforms. I look forward to the Minister’s response.

[Liz Kendall (Leicester West) (Lab)]

We are discussing a huge number of new clauses and amendments, and I will try to keep my comments brief to allow Back Benchers on both sides time to speak. I want to start with our new clauses 17 and 18, which deal with the critical issue of linking the quality of care with standards in the care work force. New clause 17 would require the Secretary of State to review the economic and financial factors affecting the employment of care sector workers, including their recruitment, training, employment and retention, and the extent to which the policies of care providers were making it more or less likely that the aims of the Bill were being achieved.

--- Later in debate ---

On new clause 2, I sympathise with the case for an older person’s commissioner. I have communicated with the Care Quality Commission, Healthwatch England and NHS England to ensure that the organisations that are responsible for functions that guarantee, or seek to guarantee, good care for people take absolutely seriously their responsibilities towards older people. I have had initial responses that I am happy to share with hon. Members. I am also happy to set up a round table meeting with our system partners and interested parties to discuss this matter further if that would be helpful.

[Paul Burstow]

That is a helpful way forward, but I ask the Minister to say a little bit more about new clause 11 and the Human Rights Act issue.

[Norman Lamb]

I have already confirmed that we will return to the matter later in the process, and I hope that we will then end up in a satisfactory place.

Turning to new clauses 7 and 9 to which a number of hon. Members have spoken, the spending review considers spending pressures across adult care and support, the NHS and public health. In the current spending review period, we allocated significant additional funding to local authorities for adult care and support, including a transfer from the NHS of £1.l billion a year by 2014-15 to be spent on social care with a health benefit. That is not to say that I do not recognise how challenging the financial environment is for local authorities, but we know from figures provided by the local authorities themselves that the vast majority of cost savings have been achieved as a result of efficiencies and not of cutting services for people.

However, as the hon. Member for Leicester West (Liz Kendall) said in Committee, the answer is not just to throw more money at the system, but to look at how public funding is spent and to deliver a more radical reform of health and social care. That is why, in the spending review for 2015-16, we announced the better care fund, which is a £3.8 billion pooled budget for health and social care. That not only provides the resources needed to protect access to social care, but breaks absolutely new ground in establishing structures that will drive further and faster integration between health and social care.

As hon. Members have noted, the better care fund includes £135 million of additional funding for implementing the Bill in 2015-16. Some have argued that including that in the better care fund means that local authorities will face a choice between implementing the Bill and investing in integrated services. In my view, that is a false choice. On the contrary, our reforms are part of the same agenda, and we cannot afford to see those as separate issues. Both systems need to work more effectively together to help people live independently for longer.

[Norman Lamb]

I am conscious that I owe it to hon. Members to respond to all the issues that have been raised.

The reforms in the Bill to extend assessments and support for carers can play a big part in keeping people out of hospital. The spending review provided £335 million in 2015-16 to help local authorities’ transition to the capped cost system and to offer universal deferred payments. Locally, health and wellbeing boards have a statutory responsibility to analyse current and future health and care needs and to develop a strategy to address them. Given such an approach, there is no need for the proposed amendments.

[Paul Burstow]

rose—

[Norman Lamb]

I am sorry; I must ensure that I get through all the amendments.

On new clause 13, I am clear that the current lack of good information on deferred payment agreements is not acceptable, given the importance of the scheme. That is why we are working with national partners in local government and the National Association of Financial Assessment Officers to develop a range of questions that will improve and expand the data we already have. The new clause is therefore unnecessary as we already have plans under way to achieve a similar goal.

On new clause 4 on local authorities making “reasonable charges”, the Government’s proposal to set a clear amount beyond which a person’s income cannot be reduced is much clearer and provides stronger protection. I have written to my right hon. Friend the Member for Sutton and Cheam and other Committee members on this subject, and I would be happy to share the letter with other Members. I have nothing to add to that analysis and do not agree that the new clause is required.

On amendment 21 and new clause 15, the Bill makes it clear that local authorities must work to maintain a sustainable market that delivers a wide variety of high quality services for people who need care and support in the local area. Local authorities’ own commissioning is an important part of this process. Additionally, local authorities will have to have regard to the well-being of individuals when commissioning services. Therefore, any local authority that commissions inappropriately short care visits or does not consider the actual cost of care when setting fee levels is highly unlikely to be fulfilling their duties. These matters will be set out fully in statutory guidance. It would not be appropriate to have a nationally set formula that would lead to standard rates or “tariff prices” for care and support, as this is best left to local negotiations in the open market.

On new clause 24, local authorities are already under a duty to work with their local clinical commissioning groups and others through the health and wellbeing boards to undertake joint strategic needs assessments and to develop joint health and well-being strategies. Statutory guidance published in March 2013 makes it clear that these must be published and have specific regard to

“what health and social care information the community needs, including how they access it and what support they may need to understand it”.

Awareness-raising will be an important part of the Bill’s implementation. The Department will co-ordinate involvement of wider interests, including local authorities and the private and voluntary sectors, to raise the public’s awareness of the new arrangements, specifically on the need for people to plan for care costs. We will add to what is already available to monitor the effectiveness of information and advice, public accessibility and public awareness.

On new clauses 22 and 23 about financial advice, the Financial Conduct Authority already has a responsibility to keep under review the financial advice market as regards how it is serving customers, and qualifications for advisers, and this includes those looking to fund long-term care costs. These requirements are published in FCA rules. Such an addition to the Bill would therefore be unnecessary.

I understand the intention behind new clauses 17, 18 and 32—it is to ensure fair payment for care sector workers. In response to the Cavendish review, statutory guidance for the Bill will include guidance to local authorities on commissioning services and arranging contracts that will explicitly require them to have regard to ensuring that provider organisations adhere to minimum wage legislation, including, crucially, the payment of travel time between social care visits. We are also working closely with Her Majesty’s Revenue and Customs to ensure that the national minimum wage guidance is appropriate to the care sector. We have amended the Bill to enable specified bodies to provide training standards for groups of workers, initially focusing on health care assistants and social care support workers. This will form the core of the new care certificate.

New clause 31 is outside the remit of Health Education England, which has a delegated duty under the National Health Service Act 2006. The duty relates to education and training in relation to persons working, or considering working, in connection with the provision of services as part of the health service in England. The duty does not extend to regulated social care, which is taken to mean social care delivered by providers registered with the Care Quality Commission.

On new clause 5, given the inherent complexity presented by the different legislative frameworks operating in the different territories of the United Kingdom, we will look to develop principles on cross-border continuity of care that achieve the same practical effect as further legislation. I absolutely agree with the hon. Member for Edinburgh East (Sheila Gilmore) about the importance of this issue. We have started discussions with colleagues in the devolved Administrations and we will aim to publish the principles by November. I hope that that helps her.

On new clauses 3 and 19 about NHS work to identify and promote the health of carers, I can confirm that the guidance will absolutely reinforce the importance of co-operation between the NHS and local authorities on local authorities’ duty to identify carers. NHS England is developing its own action plan for identifying and supporting carers. In addition, our vision for out-of-hours hospital care, which will be published in April, will build on changes to the GP contract for 2014-15. All patients aged 75 and over will have a named accountable GP with responsibility for their care, and we will consider how we can extend this approach to all people with long-term conditions. The plan will emphasise the importance of GPs identifying carers and supporting them in their caring role by directing them to information, advice and support.

On new clauses 20 and 21, a legislative approach that compels schools, universities and colleges to identify young carers and student carers would not be in keeping with the Government’s drive to reduce burdens. The Department for Education has already been doing a lot in this regard, and it is now working with the National Governors Association in raising awareness in schools. The Department of Health has invested in many initiatives to help to identify and support young carers. We have trained over 150 school nurses as young carers’ champions. Along with other Departments, we will also explore the factors that are challenging in young adult carers’ transition from school to college or university. Along with ministerial colleagues, I will shortly write to Universities UK and the Association of Colleges to seek their engagement in this work.

Amendment 20, tabled by the hon. Member for Islington North (Jeremy Corbyn), is not required because the scope of the new powers in clause 12 already allows for the collection of such information if we choose to require it.

On amendments 31 to 33, we have carefully considered the issue of time frames in the care planning process, including reviews. On balance, we feel that a flexible approach is best. It is important for local authorities to retain the ability to be proportionate to the needs to be met. For some people—[Interruption.]

--- Later in debate ---

[Norman Lamb]

I do not have time, I am afraid.

We will set out in guidance best practice on conducting care plans. I hope that that reassures the hon. Member for South Shields (Mrs Lewell-Buck).

Amendment 26 is unnecessary because the concepts of independent living and inclusion in the community are already core parts of the duty to promote individual well-being. We have merely captured them in more concrete ways rather than using those terms, which are too unclear, as the Law Commission agreed.

Schedule 2 to the Children Act 1989 requires local authorities to keep registers of sight-impaired children, and amendments 22 to 25 would only duplicate that. We have committed to explicitly reinforcing this duty in the forthcoming code of practice for children and young people with special educational needs or disabilities.

I turn briefly to the Government amendments. Amendments 1 and 2 simply clarify the scope of the regulation-making powers as set out in the other place by Lord Howe, the Under-Secretary with responsibility for quality. They ensure that regulations can specify where local authorities do have the power to be more generous and contribute to the costs of an adult with resources above the financial limit, as well as where they do not.

Amendment 3 allows regulations to specify where certain costs do not have to form part of the personal budget and thus do not count towards the cap on care costs. It has always been the intention that some provision, such as reablement, should be a universal, free service and therefore should not be incorporated in the personal budget. Such exemptions will not apply to general care and support that a local authority can charge for.

Amendments 4 and 5 correct small drafting omissions in clause 34. Amendment 6 will enable us to make provision in the regulations for the appeals system for the investigation of the appeals body itself—for example, regarding allegations of maladministration. Amendment 14 sets out that, as per usual practice, we will use affirmative regulations if we need to amend primary legislation as part of the appeals regulations.

Finally, on amendment 7, the feedback from local authorities is that it would make sense for them to have flexibility to be able to delegate functions relating to direct payments if they so wish. We agree and have accordingly tabled an amendment to remove the prohibition related to that.

[Paul Burstow]

I give notice that I would like to press new clause 9 to a vote and beg leave to withdraw new clause 1.

Clause, by leave, withdrawn.

--- Later in debate ---

Brought up, and read the First time.

[Paul Burstow]

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

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

New clause 10—Exercise of functions—

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

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

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

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

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

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

where it considers that this—

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

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

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

New clause 27—Corporate responsibility for neglect—

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

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

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

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

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

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

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

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

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

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

(2) The review shall take account of—

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

(b) the available evidence on—

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

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

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

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

New clause 29—Duty to minimise harm—

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

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

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

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

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

(i) death;

(ii) unexpected deterioration of condition; and

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

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

New clause 33—Candour Commissioner—

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

(2) The Candour Commissioner shall have duties to—

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

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

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

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

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

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

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

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

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

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

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

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

(c) publish a report of its assessment.

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

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

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

[Paul Burstow]

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

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

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

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

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

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

[Mr Stephen Dorrell (Charnwood) (Con)]

Does my right hon. Friend agree that it is a matter of not only looking at how competently a local authority commissioning process is commissioning the service as we know it, but thinking beyond that and enlarging the role of commissioning in changing the balance in the system of care delivery?

[Paul Burstow]

Absolutely. That is why the duty on market shaping set out in the Bill is about stretching the local authority to take that wider population-level interest, and not only for the people for whom they will arrange care and for whose care and support needs they will pay, but for the whole population who might need care and support but will be funding it themselves. I do not see how local authorities can satisfactorily discharge that new and important responsibility if there is not also a fairly critical examination of commissioning practices themselves. That is why I have tabled the new clause.

[Andrew George]

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

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Paul Burstow.

[Paul Burstow]

My hon. Friend makes an important point—

[Mr Deputy Speaker]

I think he made a speech.

[Paul Burstow]

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

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

--- Later in debate ---

[Mr Dorrell]

I want to speak primarily to the new clauses moved by my right hon. Friend the Member for Richmond, but first I wish to comment on the speech by my hon. Friend the Member for Bristol North West (Charlotte Leslie), who has been a consistent advocate of the importance of ensuring that we have a culture in our health and care system that creates space for whistle- blowers, not because we want a world full of whistleblowers, but because we want an open culture—as she rightly says—in which the whistleblower is redundant.

The example often cited in this area comes from the US Navy. A junior rating prevented flying from an aircraft carrier because he was concerned about a safety element. As it happened, the concern was misplaced, but the rating was celebrated because he had the courage to raise it. The culture of the ship was such that it allowed that individual to take the steps necessary to cover the risk. In a sense, the story is most telling because the concern was misplaced but the individual was celebrated for having had the courage to take action. That is the kind of culture that we should have in the health and care system.

I do not agree that we need a candour commissioner: it is part of the core function of the Care Quality Commission’s inspections of health and care provider institutions to make an assessment of whether that culture exists in an institution. If that culture does not exist, it is hard to see how that institution can deliver the standards of care that we would all want to see.

My main reason for speaking is to pick up the points raised by my right hon. Friend the Member for Richmond—

[Paul Burstow]

Sutton and Cheam.

[Mr Dorrell]

Forgive me—the right part of London, but the wrong constituency.

My right hon. Friend is on to an important point and I shall listen with care to what the Minister has to say in reply. We have been arguing for the best part of a quarter of a century about the role of commissioners, not just in the social care sector but across the health and care sector. As my right hon. Friend said, in different parts of the Health and Social Care Act 2012 this commitment to what is, in the jargon, called integration, but what I prefer to call joined-up services, is introduced into different parts of the system. Rightly, my right hon. Friend wants to include it in the terms of reference of the Care Quality Commission, but we need to think beyond just introducing it as an add-on into bits of legislation, the prime purpose of which lies elsewhere.

In my view we have no choice—and I do not particularly want a choice—but to create a health and care system that puts more emphasis on prevention, on community services and on joining those services to the rest of the health and care provider network. For a quarter of a century we have been seeking, rather spasmodically and under Governments of all political complexions, to build a commissioner system charged with delivering that type of care system. Ministers need to rise to the challenge of showing how we move from where we are today towards a commissioning system that is fit for purpose to deliver that type of care outcome. The system that we operate is often described as fragmented, and we all know that different parts of the system are indeed fragmented. But the fragmentation is worst in the commissioning institutions. We have social service authorities that are responsible for commissioning social care, and in the next sentence of our speeches we say that that is the same thing as community services, but those are commissioned by CCGs. In the next breath, we say that community health is the same as primary health, but that is commissioned by NHS England. As they say in the modern jargon, “Talk me through it.” How do we deliver properly joined-up services if the people responsible for commissioning the service are so fragmented?

[Paul Burstow]

My right hon. Friend is making a very important point, which he has pursued vigorously as Chair of the Select Committee. Does he agree that part of the evolution that needs to take place is an extension of the role that we originally envisaged for health and wellbeing boards, so that they become the place where these matters come together? The default should be changed to one that presumes integration and joined-up services, rather than the other way around.

[Mr Dorrell]

I agree with the thought that my right hon. Friend identifies. I have been choosing my words with care—I hope—in inviting the Minister to chart a course towards a more joined-up concept of commissioning. Almost as I offer my critique of the commissioning structures, I can feel officials in the Box writing the next version of the legislation that will have another go at providing the perfect solution to deliver something that is better than we have ever dreamt up before. I emphasise that what I am looking for from the Minister is a route map or journey—a process, not an event—and preferably one that builds on existing institutions rather than committing what I regard as the mistake of starting again with a clean sheet of paper.

--- Later in debate ---

[Norman Lamb]

Let me begin by thanking all Members for their contributions to the debate.

Part 2 of the Bill contains a range of measures to implement the Francis recommendations following the awful events at the Mid Staffordshire NHS Foundation Trust. The changes that we are introducing are intended to make a reality of Robert Francis’s recommendation that the NHS, and indeed all care services and those who work in them, should adopt and demonstrate a shared culture in which the patient is always the priority.

I accept the principle that lies behind new clause 8 and amendment 19, but the oversight of commissioning is not the core purpose of the CQC. I want the CQC’s main focus to be on providers and the quality of care provided for patients and service users. Any review or investigation of commissioning of services by the CQC will have an impact on its capacity to oversee service provision, and should be selected with care. It is therefore right for any CQC special review or investigation of commissioning to continue to be either at the request of, or subject to the approval of, Ministers—in the case of reviews of local authority commissioning, the Secretaries of State for both Health and Communities and Local Government.

I want to make my position absolutely clear. If there is strong evidence of a link between commissioning and poor care, the CQC will be able to examine it.

[Paul Burstow]

rose—

[Mrs Lewell-Buck]

rose—

[Norman Lamb]

I will give way to my right hon. Friend the Member for Sutton and Cheam (Paul Burstow) first.

[Paul Burstow]

I apologise for getting in just before the hon. Lady.

May I return to a point that I raised in my opening remarks? At present, inspectors disavow the opportunity of providers to give them the evidence to which the Minister has referred. They say that they are not interested in it. Will the Minister ensure that the CQC and its inspectors are open and receptive to such evidence when providers offer it to them?

[Norman Lamb]

Subject to the fact that the CQC is an independent body, I will certainly reinforce that point in my discussions with it. In the context of mental health, we were discussing with the CQC only last week the importance of the role of commissioning as well as that of provision. I entirely accept that good care can be provided only if we get both the commissioning side and the provider side right: the two must go together.

Is it appropriate to set out the specifics of a review of commissioning in the Bill? I do not believe that it is. Flexibility is vital. While the CQC has a power to conduct special reviews and investigations of commissioning, that must be set in the context of other measures in the Bill that will strengthen the duties that local authorities must fulfil in exercising their care and support functions.

--- Later in debate ---

[Paul Burstow]

The Minister mentioned that a number of measures may be taken pre-failure in order to avoid the failure regime being triggered. Before tomorrow’s debate on clause 119, will he supply the measures by way of example, so that we can debate those very issues?

[Norman Lamb]

I am happy to ensure that a note goes to my right hon. Friend and other Members, as he requests.

New clauses 29 and 30 would introduce a power to create new requirements for registration with the CQC, one requiring providers to minimise the risk of harm to patients and service users, and the other requiring providers to inform patients and their representatives where treatment leads to harm, and to prepare a safety management plan. Section 20 of the Health and Social Care Act 2008 sets out the areas in which the Government may impose, through regulations, requirements on providers registered with the CQC. It is a broad power and expressly allows regulations for

“securing the health, safety and welfare of persons”

for whom services are provided. This is broad enough to include minimising harm to patients. In addition, it expressly includes a power for the registration requirements to cover

“the manner in which a regulated activity is carried on”,

which would cover a requirement to prepare a safety management plan.

Clause 80 also places a duty on the Government to introduce a new registration requirement of informing patients and service users where there have been failings in their care—the duty of candour. I hope that I have reassured my hon. Friend the Member for Bristol North West that the power already exists to include the proposed areas in the CQC registration requirements.

My Department is consulting on draft regulations to put in place new fundamental standards as requirements for registration with the CQC. These would require providers to take “appropriate steps” to mitigate the risks of service users receiving care that is “inappropriate or unsafe”. We plan to consult shortly on a new duty of candour requirement. We will, of course, develop the final regulations, which will be subject to the affirmative procedure, in the light of the comments received in the planned consultation.

Finally, I support the sentiment behind new clause 27, that providers of care services should be held to account where they allow abuse or neglect, and that there should be serious consequences where this occurs. Under the fundamental standards on which we are consulting at the moment, all providers registered with the CQC must take steps to avoid abuse and neglect, and take action where those occur. Where providers are responsible for abuse, the CQC will be able to prosecute them. In fact, in response to Winterbourne View, I took the view that there was a gap in the regulatory framework, which did not allow for proper corporate accountability. I felt that we had to change the arrangements to ensure that companies, trusts and other providers were held to account where they were responsible for abuse or neglect. We are achieving that objective.

In addition, we have brought forward proposals to respond to the most egregious failures of care. On 27 February, we published our consultation on the detailed proposals for a new criminal offence of ill-treatment or wilful neglect. The Berwick report was clear that this offence should apply to individuals and organisations, whether or not they are registered with the CQC. We agree with that approach, and are consulting on the proposal. The new criminal offence, together with the CQC’s responsibility to respond to poor quality care, is sufficient to ensure that action is taken against unacceptable standards of care, and that there are serious consequences where this occurs.

[Paul Burstow]

I am grateful for the Minister’s responses to my three new clauses. I look forward to hearing what other hon. Members have to say about their provisions, but on the basis of the assurances I have been given, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.



New Clause 27

Corporate responsibility for neglect

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

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

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

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

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

Brought up, and read the First time.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Grahame M. Morris]

On an individual basis, I do not see a problem with that. The problem arises when dealing with large volumes of harvested data that include not just primary care records of patients in the community but hospital records, where pharmaceutical companies are perhaps able to benefit. Whether that is in patients’ best interests needs further consideration. I do not think that there is any such concern about individual conversations with GPs or pharmacists, but there are still major holes in the Government’s proposals. They need to be tightened further. A good starting point would be Labour’s new clause 25.

[Paul Burstow]

The hon. Gentleman has been incredibly gracious in giving way on several occasions. He has said that new clause 25 should be commended. I wonder whether he has considered amendment (b), which suggests that one of the other issues about safeguarding data is people being satisfied of the competence of the organisations that will receive that data and that they comply fully with the data protection obligations.

[Grahame M. Morris]

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

St Helier Hospital

Paul Burstow Excerpts

Monday 10th March 2014 Commons Chamber

[Jane Ellison]

The trust has announced its intentions, and a proper process will be followed. I am trying to make the point that it is wrong to suggest that there are no plans to invest in and enhance services at St Helier. That process will be followed and we will respond in due course. That is my understanding of the trust’s plans and it wants to progress with them.

[Paul Burstow (Sutton and Cheam) (LD)]

I am grateful to the hon. Member for Mitcham and Morden (Siobhain McDonagh) for calling for this debate. Will the Minister use her good offices to ask the trust to set out very clearly to all hon. Members representing constituencies with an interest in St Helier its plans and the timeline for this capital investment?

[Jane Ellison]

That is an entirely reasonable request and I will, of course, convey it to the trust following this debate.

The local CCGs have listened to feedback from local people and they have now told us that they want to look at local health services in a more holistic way. Although they have decided against proceeding with BSBV, the local CCGs have unanimously supported the clinical case for change in south-west London and propose to use the detailed analysis provided by that exercise to plan their future strategy. I accept that that is a broad-brush explanation and that we have yet to see the detail, but that is essentially the direction of travel. Obviously we are not as far forward as we would have wanted to be after all the consideration given to the issue over the past few years.

The CCGs have also made it clear that if they do not address the challenges identified under BSBV or, at a national level, those in NHS England’s “Call to Action”, local services might decline in quality and not be able to meet the required safety standards. The CCGs have agreed that all future hospital services should be commissioned against the London quality standards and that all hospitals must provide seven-day-a-week, consultant-led services.

I referred earlier to events overtaking the BSBV programme, and the CCGs need to take into consideration some of the more recent developments, not least Sir Bruce Keogh’s review of urgent and emergency care. We need to look at the whole of the south-west London health economy in the light of those new expectations, particularly that for seven-day-a-week, consultant-led services. That is a challenge right across the NHS, not least for those of us in south-west London. Hospitals are expected to comply fully with the recommendations set out in the Keogh review and, of course, to be financially sustainable.

Should the outcome of discussions mean major changes at any trust in south-west London, proposals will, of course, be subject to public consultation. Most importantly, the local NHS has stated that it will involve local people in the work to develop these new solutions to the longer-term challenges faced by the NHS in the area.

As well as involving local people, it is absolutely essential to involve local Members of Parliament. I take the point made by the right hon. Gentleman in his intervention. Whenever I meet representatives of NHS London, as I do from time to time—another meeting is in the diary—I always stress the importance of liaising very closely with Members of Parliament so that they can best represent their constituents and make sure that they are fully in the picture about developments. For the record, I was not particularly impressed by the notice I got of BSBV not going forward, given that I have to respond in this House about it, and I have made that view clear to some of the people in my local area.

Epsom and St Helier trust has made it clear that the broad range of in-patient, out-patient and day services remains available at its two hospital sites. Local CCGs will work together—the new umbrella name is South West London Collaborative Commissioning—to develop a five-year commissioning strategy. The trust will work with its commissioners in the coming months to contribute to those plans. I understand that the trust expects to see the strategy in June, which will give it a clear idea of the future direction of local health services and its role in delivering them. As local Members of Parliament, we all expect to see the strategy at the same time.

Once a decision has been made on which services will be located at St Helier, the trust will need to revisit its original business case for the redevelopment of the site. I realise that that is frustrating, after everything that local people have campaigned on, but that is in its nature: it was only ever an outline business case. Any new or updated business case for redeveloping St Helier would initially need to be considered by the NHS Trust Development Authority, which is responsible for approving capital funding and ensuring that the repayments are affordable for the trust. As much is likely to have changed in the four years since the business case was last considered, it will probably be reviewed again by the Department of Health and the Treasury.

It is obviously essential that any options must be sustainable in the long term, both financially and, as I mentioned in relation to the Keogh review, clinically. When local consultations have taken place and have determined a sustainable service configuration for the locality and the hospital, we anticipate that requests for capital funding will be submitted to the Department of Health for consideration.

In conclusion, I urge the hon. Lady and other Members of the House to continue to represent their constituents, engage with the process and participate in future consultations. What we all want to emerge from the process is a sustainable, safe and excellent local health economy for south-west London that works to the most modern standards of care and is sustainable for the long term.

Question put and agreed to.

Francis Report

Paul Burstow Excerpts

Wednesday 5th March 2014 Commons Chamber

[Paul Burstow (Sutton and Cheam) (LD)]

I will certainly watch the clock very carefully, Madam Deputy Speaker.

I want to pick up on one or two of the contributions that have already been made, particularly that by the right hon. Member for Cynon Valley (Ann Clwyd), with whom I agree about statistics. Given how much reliance we need to place on some of the absolutely key statistics about mortality, the manner and timeliness of their collection and publication, and the certainty with which we can then act, are very important.

The hon. Member for Stafford (Jeremy Lefroy) made a fantastic speech; it was very thoughtful indeed. His comments about the need to listen to individual stories and complaints, which is absolutely key, were echoed in subsequent contributions. It is also important, as he said, for chief executives to see and sign responses to letters of complaint and, indeed, for boards to be much more clearly sighted on, and open to, such issues. He also made it clear that it is absolutely key to join the dots between individual cases in order to identify, challenge and take cases forward.

The hon. Member for Stoke-on-Trent North (Joan Walley) made some very important points about the TSA process, which I think we will come back to next Monday or Tuesday. There are issues about how that system has always operated, how it is evolving and how it is being used, and we need to be clear about what should happen before a TSA process even starts. There are too many examples of the NHS not being very good at changing services and making compelling cases to the population. Too often, the case is made behind closed doors and then sold as a finished product to the public, rather than being co-designed by the public and stakeholders such as hon. Members, local councillors and many others. Until the NHS has a culture that is open to that sort of approach, we will always wind up with a crisis in administration, health care or finance that gives the pretext for triggering a TSA process. For those reasons, the hon. Lady is right to raise the issue.

[Paul Farrelly]

Will the right hon. Gentleman give way?

[Paul Burstow]

I cannot, because of what Madam Deputy Speaker has said.

My main point is about mental health. It is important that we discuss mental health in the context of Francis, because in their response the Government said:

“Whilst this poor care was in a hospital, poor care can occur anywhere across the health and social care system.”

That is absolutely right and we need to keep it in mind. I very much support the work the Government are doing to change the culture and to have more openness and compassion, and I think that an ethic of learning is part of that.

I want to focus on mental health because we could be in danger of missing it out in all this. I am convinced that there remains an institutional bias in how mental health is treated, and that needs to be tackled. We still have a long way to go to deliver the parity of esteem that this Government have put into legislation, that we have established in policy and that is now accepted, I think, as what we should all aspire to.

Francis talked about

“an engrained culture of tolerance of poor standards”,

which the issue of mental health throws into stark relief, including premature mortality figures that show a huge gap in life expectancy for those with severe mental health problems; the fact that only one in four people with mental health problems receives any treatment; and the absence until next year of waiting time targets, standards, choice and proper measurements for mental health.

The NHS has always treated mental health as a poor relation to physical health and it has a long way to go to catch up, but I welcome the fact that this Government are taking some of those steps. We need to take them as rapidly and as sensibly as we can. Another example is the routine failure to provide NICE-recommended treatments. The iniquity whereby some things are “must dos”, while others just become nice NICE things to do, cannot be right and must be changed. It is good news that my hon. Friend the Minister of State is leading work on changes to standards.

Francis talked about a failure to put patients first in everything that is done. We see that with the 7,700 people who end up in a prison cell, which they call a place of safety. The most recent figures include 41 children, which is a shocking indictment and is surely unacceptable. I just wonder whether the time has come to consider whether to attach a sunset provision to the use of powers under section 136 of the Mental Health Act 1983 so that, over the next three or four years, we work towards no children finding themselves in a prison cell because of a mental health crisis and, in due course, no adults finding themselves in a prison cell—

[The Minister of State, Department of Health (Norman Lamb)]

Police cell.

[Paul Burstow]

I am grateful to the Minister for correcting the record from a sedentary position.

There were 350 children on adult wards in 2013-14, including one as young as 12, and the use of restraint has been at a high level. I know that the Minister for care services is championing changes in that area. I very much welcome his leadership on the crisis care concordat. It is very important that the CQC leads on regulation to show that it is not just words, but will be backed by regulatory teeth.

The culture change also needs to be about listening to patients. The evidence again suggests that there is still a long way to go. The Care Quality Commission has found that a quarter of care plans showed no evidence of patient involvement. That cannot be right, whether for a long-term physical health condition or a mental health problem.

We have only just had a tariff for mental health. When I arrived as a Minister with responsibility for it, I found that the task of producing tariffs had already taken five years, having dragged on and on. Yet because of the difference in how we funded mental health services, it was easier to cut them in the past. The picture of spending on mental health is rather more nuanced than it is sometimes portrayed in debates in this place.

Given all that, we might have expected NHS England to ensure that its response to the Francis inquiry and to the Government response recognised that poor care can occur in mental health as well. The chair of NHS England, Malcolm Grant, has put his name to the statement of common purpose that prefaces the Government response to Francis. Yet NHS England has ignored this Government’s mandate to it to deliver parity of esteem. NHS England’s financial experts do not get it: they are delivering Francis’s agenda simply for the acute sector, and taking money away from mental health services through adjustments to how payments are made for them. That cannot be right. I know that the Minister agrees with me, but doing so is not sufficient: there must be a challenge to NHS England’s decision to take away money from mental health, given that both sectors need to make progress and to take steps to deal with the Francis agenda.

[Norman Lamb]

I just want to alert my right hon. Friend to the fact that David Nicholson, the chief executive of NHS England, has made it clear to area teams and therefore to clinical commissioning groups that they must take parity of esteem fully into account in financial settlements with mental health trusts. That clarification of the importance of parity of esteem on finances is critical, and I hope that he welcomes it.

[Paul Burstow]

I very much welcome that and what the Minister says.

The reason I have raised issues about mental health in this debate is that it would be a mistake for Members to see Francis simply through the lens of acute hospital care. As the Government said in their response to Francis, we need to be concerned right across the piece. That is why I make no apology for focusing my speech on mental health, and why I hope that the Government will continue to drive an agenda of parity of esteem and make it a reality.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)]

The publication of the Francis report was an incredibly humbling day for our national health service. It was humbling not just for those of us in this place who care about our NHS, but for the many staff who work tirelessly to look after patients and for everybody involved in looking after people as part of our health and care system.

The central plank of the report highlighted the fact that a culture had developed at Mid Staffordshire that was not in the best interests of patients. Targets and bureaucracy had got in the way of delivering high-quality care, and far too often the management of the trust did not listen to the concerns of patients or to the sometimes valid concerns of front-line members of staff.

Robert Francis made a number of recommendations in his report. The Government accepted the principles of the report and we have made great progress in implementing many of the proposals, which I will come on to later.

It is important that all parts of our health and care system learn lessons from things that have gone wrong in our health service. Front-line staff need to learn lessons where appropriate and managers need to learn to listen and respond to the concerns of front-line staff. We need to create a culture that is open and learn how to put things right in the future in order to improve patient care. That is what good health care is about, whether someone works on the front line of the service or whether they are involved as a commissioner, a manager or a Minister.

There have been many good contributions to the debate and I will do my best to touch on as many of them as I can in the time available. In particular, there has been strong advocacy for the local NHS. I pay particular tribute to my hon. Friend the Member for Stafford (Jeremy Lefroy) for his work and tireless advocacy over many years—including before he became an MP and certainly during his time in this place—on behalf of his local patients and the local hospital and staff who look after them in Mid Staffordshire. Without his long-standing efforts and those of my hon. Friend the Member for Stone (Mr Cash), we would not be where we are today and that part of the world would be less better represented. Importantly, they are the people who have asked consistently the difficult questions and allowed us to get to our current position of not just tackling poor care at Mid Staffordshire and putting right the challenges that that has thrown up, but looking at how we can improve pockets of bad care elsewhere in our health and care system.

Most hon. Members have focused on two particular themes, the first of which is the need to learn lessons from the Francis inquiry into what happened at Mid Staffs, for the benefit of the wider health and care system. We heard some very good speeches, particularly from the right hon. Member for Rother Valley (Kevin Barron), my right hon. Friend the Member for Banbury (Sir Tony Baldry) and my hon. Friend the Member for Worthing West (Sir Peter Bottomley). They discussed the broader lessons that can be learned and the importance of an open culture, of supporting clinical leadership and of recognising that perhaps staff are the best advocates of what good-quality patient care looks like in our health system.

In his constructive contribution, my hon. Friend the Member for Cannock Chase (Mr Burley) noted that the challenges and difficulties faced in Mid Staffordshire arose because the management in particular were blinded by targets, financial incentives and drivers, and lost sight completely of what matters most in a hospital at all times, which is delivering high-quality, good patient care. The biggest lesson we can learn, as my hon. Friend made clear, is that we need always to make sure that the delivery of high-quality care is the first and only driver of what happens on the ward. It should never be about meeting a financial target. Of course, the two are not always mutually exclusive, but in this case it is very clear that things went very badly wrong at that trust.

As was pointed out by the shadow Minister, the hon. Member for Leicester West (Liz Kendall), a significant speech was made by my right hon. Friend the Member for Sutton and Cheam (Paul Burstow), who talked about the importance of parity of esteem between mental health and physical health. He did a lot in his time in government, and he has always been a keen advocate of that. I know that he is very proud, as the Government are, that the 2012 Act has for the first time enshrined in law genuine parity of esteem between physical health and mental health. That was touched on by the Francis report, and the Government can be proud of doing that. As he will know, we have also invested £450 million in improving access to treatment in mental health services. I know that he took that forward in government, and he can be very proud of that record.

[Paul Burstow]

Through the Minister, may I pose a question to my hon. Friend the Minister of State who has responsibility for care services? He told us that Sir David Nicholson had issued a clarification about area teams not doing enough to deliver parity of esteem, but that has not materially changed how the finances are arranged, with money being taken away from mental health to pay for Francis delivery in acute care. Will that be addressed?

[Dr Poulter]

My right hon. Friend is absolutely right to say that the first step in addressing financial disincentives for mental health, which have been in the system for many years—in fact, for decades—was to establish parity of esteem in law. He helped to achieve what for the first time has been done under this Government. The next step is of course to make sure that other measures are in place to encourage and incentivise the system to spend money appropriately. Members on both sides of the House agree that we should take pressure off acute services, and nowhere is that more important than in mental health. It is important to invest in improving access to psychological therapies and talking therapies to support people, and to put in place early intervention for those with mental health problems. That is quite important, so the Government are investing money in it.

It is also important to collect proper data on mental health for the first time. For many years, data have not been collected effectively to ensure that we know what good mental services look like, but the Government will make sure that we can deliver that.

Oral Answers to Questions

Paul Burstow Excerpts

Tuesday 25th February 2014 Commons Chamber

[Mr Hunt]

I can assure the right hon. Lady that this Prime Minister is here to stay. Indeed, I can also reassure her that the national dementia strategy is here to stay. As she has announced that she is stepping down at the end of this Parliament, may I thank her for her campaigning on dementia, which, I think, came from a family connection with the issue? She has attended many of my dementia meetings and the G8 dementia summit. She has made a really important contribution, and I thank her for that.

[Paul Burstow (Sutton and Cheam) (LD)]

May I follow up on the question that the right hon. Lady has just asked? The Secretary of State has said that the national strategy is here to stay and that is very welcome, but the national strategy was drafted with the intention that it would expire this year. It would be useful if he now indicated the intention to refresh and update it so that we have a clear road map for at least the next decade.

[Mr Hunt]

I know that my right hon. Friend showed great interest in this issue when he was in my Department. When I say that the strategy is here to stay, I mean that it is here to be refreshed and updated. We are subscribing to some big new ambitions, including that by the time of the next election two thirds of people with dementia will be diagnosed and have a proper care plan and support for them and their families. That is a big improvement on the 39% of people who were diagnosed when we came to office. There is much work to do, but I assure him that we are absolutely committed to delivering.