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Health and Social Care Bill

My Lords, the Minister was so quick off his mark this afternoon that, without the same excuse as the noble Baroness, Lady Finlay, I missed the first couple of minutes of his introduction, for which I apologise. However, I heard enough to enable me to join in the congratulations of other noble Lords on his lucid presentation of the Bill. I just hope that he will not feel by the end of the debate that he has been given too much of a poisoned chalice. I hope, too, that I will be able to get through without coughing and spluttering so much that I need to invoke the Minister’s assistance. I add my thanks to those of other noble Lords to all those who have furnished us with such a wealth of valuable briefing in advance of the debate. I am not one to bash the Government merely for the sake of it. Except, perhaps, when talking about criminal justice, one usually wants to welcome the broad principles of a Bill and suggest how it might be made even better. Alas, it is not so easy for me to do that today. I very much doubt that the Minister will be able to say at the end of the debate, as I know Ministers like to, that the Bill has been broadly welcomed on both sides of the House. One would have to say, having listened to about half of those who have put their names down to speak, that the Bill has received, at best, a mixed reception. Even those who have supported it at the highest level of generality have indicated their concerns about the lack of detail, and the fact that quite a bit of the detail that is there is wrong and will need to be returned to in Committee. There are, to be sure, things to be welcomed in the Bill. I was going to mention the provisions in Part 3 on public health, until I heard the speech of the noble Baroness, Lady Gould. One can certainly welcome, with others who have spoken, the extension of direct payments, with safeguards, to people who lack—or may have fluctuating—capacity. I shall mainly concentrate on Part 1 and the Care Quality Commission, which takes up a good half of the Bill. There are even things to welcome here, such as the more focused and better targeted enforcement powers, and the fact that the new chair of the CQC will be subject to pre-appointment scrutiny by a Select Committee. These are minor alleviations of something which is fundamentally flawed. Greater integration of health and social care services is doubtless a good idea, as the noble Baroness, Lady Campbell, has so graphically illustrated, but it does not follow from this that you ought to integrate the systems of regulation. One size does not necessarily fit all. The needs of health and social care regulation are very different, as Sir Ian Kennedy said in a statement provided to the Health and Social Care Public Bill Committee in the other place. His remarks concerned not only timing, but substance: "““The health and social care sectors are significantly different, so different models of regulation will remain appropriate, despite the new legislation. Dominating the healthcare sector are large publicly funded providers with many highly technical services. The social care sector comprises 26,000 mostly smaller, privately funded providers, mostly concerned with care which is non-technical in which matters such as dignity are at the fore. As a result, legislation in healthcare is more information-based, and can, therefore, be more confidently risk-based, than in social care, which is more based on visits by way of inspection””." In merging health and social care regulation, the Government have added two and two and come up with five. Perhaps it would be more correct to say that they have tried to put 11 into four and found that it does not go. This merger of the Healthcare Commission, CSCI and the Mental Health Act Commission stems from the Government’s mania for rationalisation—specifically, in this instance, a bee in the bonnet about merging 11 public service inspectorates into a Procrustean bed which is only big enough for four. This will be the third or fourth major reorganisation in six years, depending on how you count them. The second, as we have heard, was announced just 17 days after the first had taken effect. We saw with this the demise of the Commission for Patient and Public Involvement in Health and patients’ forums, whose abolition was announced just six months after they were set up, except that they had to be extended no fewer than six times because the Government could not get their act together. This is no way to run a railroad. Nothing is given a chance to bed down properly before it is uprooted again. Even those who support the merger in principle have made it clear that they think the timing is wrong. The present commissions are working well and were just getting into their stride. Can the Minister say in what way he thinks the regulation of health and social care will be improved by this merger? Have the Government followed the recommendations of the National Audit Office regarding the merger of public sector regulators? Have they undertaken due diligence, cost-benefit or risk analyses? Have they established measurable success criteria for the merger? The upshot may be worse than a failure to produce a benefit: it may do harm. CSCI and the Mental Health Act Commission have major concerns that they will be the Cinderellas of the new CQC and be rolled over by the health juggernaut. The Government need to go back to the drawing board and rethink the whole thing. If they are bent on proceeding with the idea in some form, at the very least there need to be safeguards in governance and structure for social care in the form of a separate committee, or at least a dedicated commissioner. I prefer a statutory committee, such as the Equality and Human Rights Commission has for disability. There must also be a senior director for social care, reporting directly to the board. There are other problems with the Bill. If it is to be fit for purpose, it needs to contain a clear set of regulatory objectives, such as other commissions have. Clause 2(5) is not nearly clear enough. There needs to be a set of principles, enshrining in the Bill, such core values as the promotion of equality, non-discrimination, a human rights approach and due regard for the interests of social care. The voice of users also needs to be much stronger. They should be involved and not only had regard to. No one thinks the present advisory committee is nearly strong enough. The independence of the commission needs to be much more firmly anchored. The obligation in Clause 2(4) to have regard to the directions of the Secretary of State is unpromising in this regard. The Bill delegates too many detailed matters to secondary legislation and requires ministerial approval for a substantial range of matters where it has not been required before. I need to say a word about just one more matter. The Bill will give us another chance to discuss the problems caused by ordinary residence disputes. I raised this last year, with the support of the noble Baroness, Lady Howarth, and others, during proceedings on the Local Government and Public Involvement in Health Bill. The Minister was as helpful as she could be. She promised to make three small changes to legislation and these are in the Bill. They are largely technical and I do not think they will change a great deal. The Government promised to update guidance in 2004. Could the Minister please tell the House when they expect to fulfil that commitment? Guidance cannot eliminate disputes completely, so I am also concerned that when disputes arise they can drag on for months, and even years. I hope the Minister will be willing, in Committee, to look constructively at some suggestions for how we might improve the process for authorities and care-users alike.