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Health and Social Care Bill

My Lords, after such an excellent debate as this, the amount of value added by a summing-up is perhaps questionable, but I begin by making the observation that the overriding characteristic of the speeches we have heard today has been one of support for the Bill as regards its principal aims, but constructive criticism as to its detail and likely implementation. My own view of the Bill is indeed of that kind, but the emphasis which noble Lords have placed on some of the detail is one reason why we can look forward to the later stages of our deliberations with particular interest. This is a Bill of varied content, but which can be said to have a unifying theme: the well-being and safety of the public and a desire to promote the highest standards of care for those who, in whatever way, are in receipt of it. In that sense, the aims of the Bill cannot be faulted; the question, as so often, is about means rather than ends. Perhaps the greatest amount of attention today has been focused on Part 1, which deals with the creation of the Care Quality Commission. With the single exception of the noble Lord, Lord Lipsey, few noble Lords have argued against the idea of bringing together the regulation of health and adult social care under a single structure. The concerns are all about when and in what manner this is done. This is the fourth Bill in 10 years to deal with the regulation of health and social care. The old Commission for Health Improvement lasted just four years before it was abolished in favour of the Healthcare Commission. My noble friend Lady Bottomley reminded us that the National Care Standards Commission was a mere 17 days old when plans were announced for its replacement by what is now CSCI. Those two replacement bodies are today barely four years old and are now to be scrapped. Ministers may justify this in terms of the evolving delivery of health and social care, but it does seem extraordinary that we have needed four bites of the cherry before arriving at what is now trumpeted as being the last word in regulation. Ten years ago, and again in 2003, I remember asking the Government why it was not possible for the NHS and the independent healthcare sector to work to an identical set of standards. The answer I got was that there was a fundamental difference between a managed service and a regulated service: ergo, the standards to be applied in each context could not possibly be the same. Suddenly it seems that the apparently insuperable differences between a managed service and a regulated service are not so insuperable after all. I welcome that conclusion, but it is a pity that nobody could have reached it a bit sooner. The regrettable prospect we are faced with, as so many noble Lords have pointed out, is regulatory disruption. When the chopper comes down on the three existing regulators, the excellent work being done by those bodies is going to be halted in its tracks. Whatever attempts are made to ensure continuity of work programmes and working practices, it is inevitable that the first two years of the life of the CQC will be devoted in large part to organisational issues. Many people feel that if the Government really had put the welfare of patients and the public first, they would have done much better to wait until the systems and working methods which the Healthcare Commission and CSCI have introduced had had a chance to embed themselves properly. But no: the Government decided that they were in too much of a hurry. I was reassured but slightly surprised to hear the noble Lord, Lord Darzi, say that he was happy with this degree of speed in the context of his own next stage review. Every other proposal for change has been put on hold in case it should pre-empt the noble Lord's conclusions; but for some reason not this one. The timetable for bringing the CQC into being really is extraordinarily tight. What sort of a body is it going to be? We do not yet know the scope of its remit. Ministers say that they want it to be an independent voice acting on behalf of patients and the public. But how independent will the commission really be if it has no objectives defined in statute, other than a duty to have regard to government policy; if it is subject to powers of direction from the Secretary of State; if its freedom to set its own work programme is to be curbed for at least the first 18 months of its life; and if its chairman is apparently to have the status, judging by the salary on offer, of a medium-ranking civil servant? Taken together, these are worrying features; so I am at one with other noble Lords in wanting to see the independence of the commission clearly safeguarded in the Bill, together with a much greater emphasis on the need to involve, and listen to, service users and the public. We are all conscious of the increasing overlap that exists between health and social care, which is one good reason for having a single regulator. But we should not exaggerate that overlap. The noble Lords, Lord Low and Lord Lipsey, pointed out that the regulation of healthcare is largely information-based, whereas the regulation of social care is based much more on inspection and talking to people. Of course, the two methodologies can draw from each other, but the essential differences will surely remain. A small care home is a closed community of the vulnerable where the user experience is everything. A large general hospital is assessed on a whole range of technical indicators, which may or may not give rise to an inspection. In a real sense, the purpose of each sort of assessment is quite different. Equally, as the noble Lord, Lord Patel of Bradford, reminded us, the work undertaken by the Mental Health Act Commission is of a different nature again from that of the Healthcare Commission or CSCI. It is partly with that thought in mind that, again like other noble Lords, I believe we need to find a way of reassuring ourselves that within its unified regulatory structure proper weight is given by the CQC to all three of its main areas of activity, without any one of them assuming an undue ascendancy over the others. A number of speakers have been eloquent on that theme, not least the noble Baroness, Lady Barker. It was unfortunate that the advertisement for the chairman of the commission displayed a blatant bias towards healthcare while, downplaying social care. It would be more than unfortunate, if that sort of bias were to be translated into the operational priorities of the new body. When we come to Grand Committee, I believe that there are various ideas that we can explore to try to prevent that from happening. There has been a general welcome for Part 2. For my own part, I believe that the principle of what is proposed is right. With the creation of the Office of the Health Professions Adjudicator, we will have a visible separation of fact-finding from fault-finding—a principle that the Government fiercely resisted in the NHS Redress Act. The real issue is to make certain that the changes work and are seen to work fairly. Even without this Bill, fitness-to-practise committees at the GMC are moving to the civil standard of proof, so that change will go through no matter what we decide here. There are some perfectly legitimate concerns about the way that the sliding scale will operate and how the Office of the Health Professions Adjudicator will relate to other bodies such as the CHRE, the GMC itself and, crucially, the Government. The whole point of setting up OHPA is to have an independent adjudicating body. So, just as it is important for it to be seen to be operationally separate from the GMC, it is important for it to be seen to be operationally independent of Ministers and the Department of Health. We need to satisfy ourselves that it will be. There are some practical questions about the transition from the present system to the new one. All these are issues that we can look at in more detail in Grand Committee. Noble Lords have devoted comparatively little time to the other matters in the Bill, and I feel that I need mention only a few. I feel sure that we will wish to debate the role of the responsible officer and, in particular, how the new arrangements will embrace those practitioners who work independently. On Part 3, I join the noble Baroness, Lady Gould, in believing that we need to consider carefully the extent of the powers to be vested in justices of the peace in relation to public health hazards. We also need to look at whether it is appropriate for there to be further transparency in the way that these powers are exercised, since at the moment the Bill is largely silent on that issue. We shall certainly need to look in some depth at the proposals in Part 4 for a health in pregnancy grant. The health of pregnant mothers is, of course, of enormous importance, but what evidence is underpinning the policy? The grant will be available from the 29th week of pregnancy, apparently on the grounds given by the Prime Minister who said that he had received powerful representations that nutrition was ““most important”” in the last months of pregnancy. However, when giving evidence in the other place, the Minister, Mr Bradshaw, admitted that Mr Brown was wrong about the nutritional benefits the grant would give in the later stages of pregnancy, and that the payment would have been more beneficial in the early stages of pregnancy. Well, if that is the position, we have to ask the obvious question: are the Government satisfied that this grant represents the best use of £100 million? I shall be very interested to hear the Minister’s reply. In common with other noble Lords, I look forward to the later stages of the Bill with considerable anticipation. In doing so, I am confident, on the basis of today’s debate, that with the benefit of constructive contributions we will be able to shape and refine some of the Bill’s rougher edges and, in so doing, perform the task that we are put here to do. I hope that the Minister, for his part, will show himself to be a willing listener.