Care Bill [Lords]
Debate between Paul Burstow and Lindsay Hoyle(10 years, 8 months ago)
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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.
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—
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.
Children and Families Bill
Debate between Paul Burstow and Lindsay Hoyle(10 years, 9 months ago)
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Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. May we have less chatter during speeches. It is getting difficult to hear.
Paul Burstow (Sutton and Cheam) (LD)
I rise to support the Government amendments to put the two regulation-making powers in the Bill, and to support the initiatives taken by Cross Benchers in the other House and by a cross-party group in this House. I speak as chair of the all-party group on smoking and health.
We have been asked to be clear about the evidence. One area in which the evidence is absolutely clear is that smoking is a childhood addiction, not an adult choice: 40% of smokers are addicted by the age of 16 and two thirds by the age of 18, while 200,000 children take up smoking every year. That is why I strongly support, and urge hon. Members on both sides of the House to support, the Lords amendment to provide for the power to regulate and standardise packaging. I do so not least because of the evidence from the tobacco industry’s campaign against it, and from documents released through court cases that have demonstrated that it knows that packaging is a way of driving market share, as well as of driving people to smoke in the first place.
On passive smoking in cars, both the NHS and the World Health Organisation are very clear about the dangers of second-hand smoke for children. Other hon. Members have already listed that evidence. I do not know where the hon. Member for North Antrim (Ian Paisley) was in relation to the data. Every week, 430,000 children aged 11 to 15 are exposed to second-hand smoke in their family cars. That is not their choice. The hon. Member for South West Bedfordshire (Andrew Selous) is absolutely right. This issue is not about a child’s choice, because they have no choice. They have to get into the car if their parents want them to do so.
The concentration of toxins in a car makes it a significantly different environment from a smoky pub or home. The evidence demonstrates the impact that that environment has on a child’s health. That is where the Millsian test applies. The harm to the child should trigger us to act in the way that I hope the House will act tonight. That is why I support the free vote.
Mental Health
Debate between Paul Burstow and Lindsay Hoyle(11 years, 6 months ago)
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Mr Deputy Speaker (Mr Lindsay Hoyle)
Can I help the right hon. Gentleman? We said that he would have 15 minutes, but we are now on 20 minutes and other people are waiting to speak.
Health and Social Care (Re-committed) Bill
Debate between Paul Burstow and Lindsay Hoyle(13 years, 2 months ago)
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Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. We must have shorter interventions, as we have a lot to get through. Hon. Members should not take advantage of the Minister’s generosity in giving way.
Paul Burstow
I am grateful for your protection, Mr Deputy Speaker. I will take that as advice in relation to further interventions.
I have heard my hon. Friend’s comments and I think he needs to look again at what I have said. I have been very clear that we are listening and that, if necessary, we will offer clarifications or further amendments, and I am very happy, as is the Secretary of State, to carry on those discussions.
There are a number of amendments regarding other duties on the Secretary of State that I believe would not improve the drafting of the Bill. Amendments 1240, 1241, 1169 and 1183 seek to revise the duties of quality and inequality. I know that the amendments are well meant, but they would make the duties undeliverable. The Secretary of State cannot improve quality and reduce inequalities in isolation, and the duties have to reflect that. Amendment 1194 is unnecessary as the Bill already recognises the need to promote research and the use of research evidence, and creates, for the first time, responsibilities for taking a whole-system approach to achieving this. Amendments 1184 to 1193, 1195, 1196 and 1198 seek to change the extent of similar duties on the board and the clinical commissioning groups. Each of the board’s and clinical groups’ duties has been drafted to ensure that the duty is suitably strong, realistic and appropriate.
Let me address the role of the Secretary of State in relation to another issue that has been misunderstood—charging. I want to be very clear that nothing in the Bill enables the board or clinical commissioning groups to charge for services provided as part of the comprehensive health service. Services will remain free at the point of need, except where legislation specifically allows for charges to be made—for example, prescription charges and charges for dentistry. The Government have also committed not to introduce any new charges.
Amendment 48, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), who is not in her place at the moment, would prevent charges from being imposed for any service provided by the NHS. It has always been possible for Ministers to provide for charges for certain health services. There are limited provisions for charging even in the original NHS legislation introduced by Nye Bevan and the Labour Government of 1946. Under the current system, there are extensive exemptions: about 60% of the English population do not pay prescription charges, but—it is an important but—NHS charging raises over £1 billion a year of revenue that is ploughed back into services for patients, and it does make an important contribution to the overall affordability of the NHS. Therefore, I cannot accept the amendment.
The hon. Member for Brighton, Pavilion also tabled several amendments on direct payments. The amendments are unnecessary and too restrictive. Amendment 1247 would restrict direct payments to being spent on services approved by the National Institute for Health and Clinical Excellence. The great opportunity of personal budgets is that they allow people in areas where less medicalised services are provided to have much greater control over aspects of their care—those community-based services that are so important in maintaining the quality of life for many people with long-term conditions.
Finally, amendment 1248 would remove the power to extend direct payments nationally following the pilots, which are continuing. The Health Act 2009 provided that direct payments could be extended with the active agreement of Parliament using the affirmative procedure, and that seems a perfectly reasonable way of having a parliamentary check over the outcomes of the pilots that will be reported to the House next year. Amendment 1247 would prevent direct payments from being used for private health care or health insurance. The amendment is unnecessary. NHS funds could never be used to pay people’s private health insurance premiums.
I shall now turn to education and training. We have already committed to introduce at a later stage in the Bill’s proceedings an explicit duty for the Secretary of State to maintain a system for professional education and training. Work is ongoing and an amendment will be tabled in the House of Lords. That will be more effective and more precise than the long-term measure of simply blocking the abolition of strategic health authorities, so amendments 7 and 47 will not do.
Our vision of a modern NHS has clinical commissioning at its very heart. We want clinicians, GPs, nurses and other health care professionals to have the autonomy to commission innovative new services, and to have the true responsibility that the previous Government denied them. That involves striking the right balance between freedoms for clinical commissioning groups and their essential responsibilities to other parts of the health care service.
We made many changes in response to the recommendations of the NHS Future Forum report. We always wanted clinical commissioning groups to have a robust set of governance arrangements, to involve a wide range of other professionals and to be transparent in how they conducted their business, and we have now further strengthened those parts of the Bill so that they are very much improved.
As I said at the start of my remarks, I should like to speak briefly to a number of amendments, as I am conscious that many other hon. Members wish to speak. First, I will address some amendments that are very similar, if not identical, to those that we had the opportunity to debate at least once, and possibly twice, during the first stage of the Committee and in the re-committed Committee.
Amendment 1181, which is like amendments 45 and 46, seeks to restrict clinical commissioning groups’ powers to raise additional income. As was explained in Committee, those amendments are unnecessary. The Secretary of State has already published guidance, which can be easily updated, specifically on the powers to generate income, which applies to current NHS bodies, including primary care trusts.
Amendments 37 and 38 are on conflicts of interest. We have listened to the concerns that were expressed in the listening exercise and made changes, so the Bill already requires clinical commissioning groups to make provision for dealing with conflicts of interest.
Amendments 31 and 32 would prevent any property currently held by PCTs or strategic health authorities from being transferred to any provider that is not a public authority. As we said in Committee, we have no intention of giving away NHS property to private companies. That will not be the case and, given the safeguards that are in place, it cannot happen.
Several amendments have sought to probe accountability within clinical commissioning groups. I repeat what we said in Committee. A clinical commissioning group is not able to delegate its statutory responsibilities for carrying out its functions. It cannot palm them off or pass them on to others. Amendment 1245 would limit representation on CCG committees and sub-committees, preventing those clinical commissioning groups from inviting other professionals and experts to participate—something that we were told during the listening exercise was widely welcomed and wanted.
Amendment 1249 restricts the use of sub-committees—an essential part of any organisation with a wide range of functions. Similarly, amendment 1234 would prevent GPs or their employees from working on behalf of a clinical commissioning group, which would be a severe constraint on those groups’ ability to function. Amendment 1244 would prevent a clinical commissioning group from delegating its functions to anyone other than its employees. That would make it very difficult for those groups to carry out their statutory functions effectively.
New clause 20, tabled by my hon. Friend the Member for St Ives, similarly would restrict the support that clinical commissioning groups can draw on. We want to allow those groups to access the best support and advice available—to be able to work with local authorities, third sector organisations and charities, research organisations and the independent sector. I mentioned in Committee several times, and it is worth repeating, that the support organisation established by the Neurological Alliance is proving of invaluable assistance to commissioners, and amendments such as new clause 20 would prevent it from doing the work it does for the clinical commissioning groups. I can follow the intention behind the amendments, but I hope my reassurances about the final responsibility—the statutory responsibility—for decision making in clinical commissioning groups resting with their members and the governing body are clear.
There is a raft of amendments dealing with the relationship between local authorities and commissioning groups. We want that to be a dynamic relationship, with constant dialogue and collaboration, which is precisely why the Bill proposes the establishment of health and wellbeing boards. Amendments 1202, 1171 and 1250 would introduce a new, centrally imposed procedural requirement on health and wellbeing boards and clinical commissioning groups. Clinical commissioning groups will have a duty to have regard to the relevant joint health and well-being strategy.
Where commissioning plans vary significantly from the joint strategy, the group will need to justify or consider amending its plans. Health and wellbeing boards also have the power to refer their views and concerns to the NHS commissioning board when they feel that the plans have not had proper regard to the joint health and well-being strategy. That indicates to the NHS commissioning board that the health and wellbeing board believes the CCG is actively failing to fulfil its duties. Anything further would undermine the important balance that needs to be struck in what is fundamentally a partnership relationship between two organisations that have separate sets of sovereignties and responsibilities.
The importance of that partnership approach highlights why it would be impossible to create an obligation on clinical commissioning groups to act alone to secure integration of services. How can one body decide to integrate with another against the wishes of the other? A duty cannot be imposed on one side unless the relationships exist that will allow that to take place. That can be achieved only by both parties working together, and for that reason amendments 1230 and 1231 do not contribute to that relationship’s working well.
Amendment 1211 seeks to make the clinical commissioning groups coterminous with local authorities. We have accepted the NHS Future Forum’s recommendation that the boundaries of local clinical commissioning groups should not normally cross those of local authorities, with any departure needing to be clearly justified as part of the establishment process set out in the Bill.
Amendment 1213 would prevent a clinical commissioning group that had received a reward under the quality premium from using that money without first securing the agreement of the local health and wellbeing boards. That would severely limit the CCG’s freedom to spend its quality payment as it saw fit. Health and wellbeing boards will shape commissioning priorities through the joint health and well-being strategy, by being consulted by the CCG on their commissioning plans. Under the duties set out in proposed new section 14Z14 of the National Health Service Act 2006, the NHS commissioning board must also consult each relevant health and wellbeing board in making its annual performance assessment of those CCGs.