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Health and Social Care Bill

My Lords, I, too, thank the Minister for his succinct introduction to the somewhat disparate group of measures drawn together in the Bill. I also thank noble Lords all around the Chamber who added the points that need to be said, which could not possibly be said by the Government Front Bench. When I worked for a major voluntary organisation for older people, one of my colleagues used to say that when the last director of social services would, of his or her own free will, consent to live in a residential home under the terms of a care package funded by his or her local authority, the charity would be obsolete. I am sad to say that that day is not yet in sight, and that is the reason why this Bill, stuffed as it is with tedious organisational detail, is so important. I now work as a consultant and advise organisations on how to manage strategic change. I often advise them that when they face something called a merger but there is no obvious stated objective and it is not possible to tell what the eventual organisation will look like, then it is not merger. It is an acquisition of one organisation by another. I also give them the standard business advice that there may be many good reasons for a merger but saving money is not one of them. In 95 per cent of mergers, that never happens. Why are people so sceptical about this merger? For one thing, it confounds the hope that while permanent organisational turmoil is now the norm for health and social care providers, there might have been a chance for stability and consistency somewhere in a system which is responsible for the expenditure of £105 billion per annum. Sadly, that is not the case. The real source of the scepticism is that the regulator is, as it stands at the moment, to be responsible for regulating healthcare not health. That is an important distinction. This body is going to be responsible for regulating three radically different services, each with a different legal basis. Healthcare is determined according to notional universal entitlements. There are comparatively few providers. Care is free but demand is managed by waiting lists. Mental health is dealt with in much the same way. Yet in social care there is no entitlement nor agreement about what should be provided. There are many different, disparate providers and demand is managed by eligibility criteria. Without an express objective of this regulator being to improve health, it is inevitable that the commission will focus mainly if not exclusively on acute healthcare. That is easy to manage and can be determined objectively within the short periods that suit political convenience. I have thought all afternoon about what is wrong with this and what the analogy could be to explain it to those watching our debates. I have come to the conclusion that this merger is a bit like somebody in the world of sport suddenly announcing that there would be the same governing body for Formula 1, horseracing and athletics because they are all about getting from A to B. The big problem is that it is difficult to see how this regulator can work with health and social care as it is now, never mind how it is going to be in about five years’ time. Huge, radical changes are about to take place in health and social care. The noble Lord, Lord Darzi, said in his introduction that his review is due shortly. If, as expected, his main recommendations follow the pattern that he set in his review of services in London, there will be a greater flow of patients between primary, secondary and tertiary care. There will be a greater need to focus on standards of care and patient outcomes in terms not of the institutions where people are but of their pathway and journeys between different institutions. This regulator, perhaps above all, needs to have the function of assessing the flow of patients, patient information and practitioners between different institutions. In social care there is fundamental change, too. The extension of individual budgets and self-directed care to people who lack capacity and older people is going ahead rapidly. It is incredibly difficult to stand up and criticise individual budgets; they are so important and such an article of faith within certain parts of the social care world. Yet there is a growing concern that forms of care which work for people with learning disabilities may not be suitable for other groups of people who require social care. That includes older people. As has been said already, many older people fund their own care. However, there is no assurance in the Bill that either their care or, crucially, the advice that they may need is going to be regulated and inspected properly. People who need social care have very few legal rights. The one they do have is the right to an assessment of their needs. I am already starting to pick up instances where local authorities have given up the pretence of carrying out assessments and are simply handing out to people a self-assessment form. A number of noble Lords have spoken today about the need for the commissioning of services to fall within the auspices of the regulator, which is absolutely right, but unless assessment services are also covered in the legislation it will be almost impossible to determine whether what is being provided by way of service is right and of good quality. Without the duty to inspect assessment and a narrow focus on healthcare, it is easy to see how this legislation will lead to a great focus—perhaps an exclusive focus—on acute interventions in health and social care only. That is not healthy for the population. When the noble Lord, Lord Warner, the arch serial critic of the Government, laments the lack of detail in the Bill, I have to say to the Minister, ““Game, set and match””. It is absolutely right that the regulator cannot be independent and cannot fulfil its duty unless from the outset it has a clear set of objectives and regulatory requirements and, as the noble Baroness, Lady Meacher, said, the duty from day one to produce reports. That is what will give it its unique importance in providing strategic information across the whole of health and social care; it is essential. We agree with the many noble Lords who have criticised the extent to which the regulator will be influenced by the Secretary of State and we will resist requests from wherever they come—even from lobby groups—to try to define closely what the priorities of the regulator should be. However, we believe that it is right for Parliament to set overarching thematic functions for the regulator. These should include a duty to ensure fair access to services and to uphold compliance with human rights legislation. In addition, the regulator should have a duty to ensure that the services the NHS and social care commissioners and providers purchase, procure and provide are carried out sustainably. Sustainable delivery of healthcare is probably one of the most important health contributions that one the biggest purchasers of public services in western Europe can provide. Together with the noble Earl, Lord Howe, I had the joy of working on the Care Standards Act. It has left me with a firm belief that it is possible and right to make sure that regulation is of a light touch only if inspections are unannounced. We can ensure that vulnerable service users are protected by monitoring community treatment orders and those patients who have their liberty deprived because of Bournewood restrictions, but, throughout mental health or simply in care homes, the one thing we have to do is ensure that there are unannounced visits. Many noble Lords have received representations about the Care Quality Commission having a responsibility to deal with complaints. We on these Benches are not convinced that it is right that the Care Quality Commission should deal with individual complaints. However, it is clear that there needs to be some body in the middle of the NHS with a duty to report on, and hopefully sort out, the royal confusion and mess that is the complaints system within the NHS at the moment. Many things have been said about user involvement. I do not disagree with that; I believe that the Care Quality Commission should set an example by having user involvement at its heart. However, let us not forget that the real signal to us all that the CQC is doing its job and is fit for purpose will be the day when it turns up at a major hospital or a small care home to get rid of incompetent managers or practitioners, only to find that it is too late, because other professionals or users will have beaten it to it. I agree with what the noble Baroness, Lady Gould, said about Part 4 of the Bill and public health. We will be with her in her attempts to clarify what is clumsily written legislation with good intentions. We will support the health in pregnancy grant, because it is an extension of child benefit, which is a known way of addressing health inequalities. We will, however, wish to seek to extract from it the maximum health benefit and want to look closely at the way in which it is paid, particularly whether it should be paid as a lump sum. I shall not detain the House at this late hour with a detailed discussion of Clauses 141 to 148, but I ask the Minister to explain to me in writing why the NHS should fund social enterprises, which are profit-making business albeit with an ethical social conscience, to take on services from a universal service, which is funded by the taxpayer. That seems not so much cherry-picking as selecting the cherries oneself and presenting them gift-wrapped with a bow to one’s competitors. I do not understand it. We are about to spend a great many afternoons in the Moses Room. When we find attention wandering and focusing on Moses’ sandals, I ask noble Lords to return again and again to one simple question: will the provisions of the Bill make the life of a vulnerable person in a care home any safer or better? As the noble Lord, Lord Lipsey, said in his typically understated way, that is the test of this legislation. If any provision, whether it applies to health or social care, does not do that, we should not pass the Bill. This could be a good Bill; it is not yet. We have a great deal to do.