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Health and Social Care Bill

My Lords, we have had an interesting and wide-ranging discussion on this important Bill. It is clear that the Bill will greatly benefit from the depth of insight and expertise that we have heard today. Before turning to the specific points raised, I take the opportunity to say how pleased I am that there has been general support for some of the key principles of the Bill. There appear to be some differences in the exact detail of the provisions, and I hope that I can offer some reassurances and clarifications on the specific points raised. Given the time limitations that I face and the number of speakers whom we have had the benefit of hearing today, I will try to answer the key points raised thematically and, of course, write to address any points that I am not able to cover now. I shall deal with the Care Quality Commission first. I was pleased to hear the support for a more intelligent, light-touch approach to regulation. Most importantly, I take the opportunity to once again reassure those who doubt that social care will be properly represented. The Care Quality Commission will build on the good work of all three current regulators. I emphasise that, in fact, the social care world has a head start—it has more providers and much greater familiarity with registration, which will be completely new to the NHS. I also reassure the noble Earl, Lord Howe, that we are working hard with the current regulatory bodies to make sure that we minimise disruption in the landing of the helicopter, and to ensure that the new commission builds on the success of its predecessors. It seems paradoxical—to me, at least—that there has been so much emphasis on what distinguishes social care from health and how important it is that those differences are preserved, alongside just as great an emphasis on the need for integration of services at both national and local level. However, that paradox is irrelevant, because what matters to patients is the seamless provision of services and the regulation of such, as has been eloquently described. What matters is not the virtual boundary that healthcare and social workers create, but what is perceived through the patient’s eyes. Points were raised about the salary of the chair. I agree that appropriate remuneration is necessary to attract suitable candidates, and recognise that that is an important job in a significant new organisation. I reassure the House that I will do my utmost, because principally we all agree that we are trying to attract the best talent with the right leadership, unbiased to either social or health care. I am happy to look into that further. The noble Baroness, Lady Cumberlege, questioned how independent the commission would be. The Healthcare Commission and CSCI represent models of independence in public sector inspection. We are committed to maintaining that independence and, in some areas, are giving the commission more freedom than its predecessors. For example, the commission will publish the guidance that will set out how providers can meet the registration requirements under Clause 16, the consultation on which was launched today. Crucially, the commission will also be able to tackle independent enforcement action if any provider is failing to meet those requirements. I shall deal with the relationship between the commission and Monitor, the Independent Regulator of NHS Foundation Trusts. Registration of NHS providers will be separate from the authorisation process to obtain FT status, will offer independent assurance of safety and service quality, and will be a requirement for all providers wishing to offer health and/or adult social care services. FT authorisation is a separate bar very successfully set up by Monitor to ensure that FTs are legally constituted and have the quality of governance and financial strength to operate autonomously as public benefit corporations. The greater autonomy that comes with FT status creates the need for an independent body to regulate them in these respects. This independence would be compromised were it also that body’s role to monitor safety and quality. The right reverend Prelate the Bishop of Ripon and Leeds and my noble friend Lady Wilkins highlighted the need for a better complaints procedure for those who use services. I should like to reassure the right reverend Prelate that this is precisely our intention by strengthening complaints handling at a local level. The consultation launched today includes requirements from providers in relation to complaints handling and I would encourage noble Lords to engage in this consultation. That consultation also seeks views on when primary medical care, as pointed out by the noble Lord, Lord Colwyn, could be brought within the scope of the new Care Quality Commission and how best this could be done. Many noble Lords sought reassurances that the commission will involve patients, people who use the service, carers and the wider public in its work. The Government believe strongly in the importance of engaging the public and professionals of its work. For this reason Clause 2 requires the new commission to consider the views of the public as well as the patients and service user representative groups in all aspects of its work and there will be formal mechanisms to enable this. I appreciate the extent of concern on this subject and recognise that our effort to reassure in the other place has not won over some noble Lords in this House. I hope we can explore these issues in more depth in Committee. The noble Baroness, Lady Neuberger, raised the issue of whether there should be regulatory objectives in the Bill. I should like to highlight that Clause 2 sets out three particular outcomes that the commission should encourage through carrying out its functions. One might say that these are its objectives, one of which is the improvement of services. The noble Baroness, Lady Neuberger, and many other noble Lords also queried whether the commission will be able to tackle effective measures against commissioners. In its periodic reviews the commission will assess how well the service commissioners provide and commission to meet the needs of their local population. However, it is important to differentiate between regulation and the publication of information for public accountability and performance management. In the case of PCTs it is the role of the SHA and in that role the SHAs will be expected to use information from the commissioners’ review. As a number of noble Lords have raised the issue of the Human Rights Act, let me stress again what I said in my opening speech. We undertook in the other place to consider the issue of publicly arranged care in the context of this Bill with a view to reporting back on this important issue during the further passage of the Bill. That is still very much our intention and we are currently discussing with stakeholders how best to do it. I turn now to professional regulation. I am pleased that there was so much support for the move to civil standards of proof. I know there were concerns from some quarters that the civil standard of proof will force healthcare professionals to practise more defensively. As I said in my opening speech, I do not believe this will happen as I truly believe in the commitment of health professionals to care effectively for their patients which will guard against this risk. While strongly welcoming the principle of an independent adjudicator, a number of noble Lords have asked for clarification about the funding and the cost of the Office of the Health Professions Adjudicator. The Government are providing funding for set-up and a transitional cost for the OHPA. I want to reassure the House that the Bill sets out proper safeguards to ensure that the OHPA’s costs remain reasonable and proportionate. In response to my noble friend Lady Jones, who queried the costs that might fall to the regulators, I assure the House that the department is continuing to discuss the figures with the GMC and the GOC, and I hope to return to this in more detail during Committee. A number of noble Lords have spoken on the provision for legally qualified chairs and legal assessors for the OHPA. Let me clarify that the Bill will allow the OHPA through its rules to dispense with legal assessors where there is a legally qualified chair. It will be for the OHPA’s experts to decide which case merits which kind of legal support. The Bill requires them to consult fully before making those rules. Related to the composition of fitness-to-practice panels, the noble Lord, Lord Walton, asked why the Bill does not require a doctor of the same specialty to sit on the panel. I hope that I can clarify the matter for him: it is not the role of the professional member to advise the panel on professional matters. If the panel needs specialty-specific advice, the Bill allows that to be provided by a specialist advisor, or by means of expert reports or witnesses, which is currently the case for the GMC and the GOC. The noble Lords, Lord Patel and Lord Colwyn, expressed concerns about the role of the responsible officer—in particular, on combining that with the role of the medical director. I reassure the noble Lords that the responsible officer role strengthens clinical governance. In the best organisations across the country much of that role is played by the medical director. We are building on what is already working well by putting current best practice on a statutory footing. However, I agree with concerns regarding how we organise that type of provision within the private sector or in areas where there might be an independent practitioner. I look forward to discussing that issue with the noble Earl, Lord Howe, in Committee. The noble Lord, Lord Colwyn, raised the issue of sharing unvalidated concerns about healthcare workers. I emphasise that we have thought carefully about the balance to be struck between protecting patients and being fair to professionals. I am confident that we have the balance right. There are circumstances in which healthcare organisations that have received serious allegations about the conduct or performance of a health worker will judge that they need to share that information with another organisation. I fully accept the need to safeguard and protect healthcare workers against unfounded or even malicious allegations, and we will set out those safeguards in detail in the regulations and guidance. My noble friend Lady Gould raised concerns that the public health protection powers can be used against individuals with HIV/AIDS. She suggested that the powers should be restricted to diseases that can be casually transmitted. However, there is no way to predict how a disease could mutate. For example, avian flu is not currently casually transmittable between humans, but there are significant concerns that it could mutate into that type of disease. If we carve out a specific disease list from the reach of this legislation, we are putting public health at risk. The all-hazard approach to dealing with infection and contamination recommended by the WHO and the international health agency is essential. I thank the noble Baroness, Lady Murphy, for raising the issue of safeguards in Part 3. I note that the Joint Committee on Human Rights today published its amendments to this part of the Bill covering these concerns. I look forward to further discussions on this issue as well in Committee. I turn to the health and pregnancy grant. The noble Lord, Lord Patel, and the right reverend Prelate the Bishop of Ripon and Leeds, both raised the important question of why the grant will not be paid per expected child. First, the health and pregnancy grant is not solely about nutrition. It aims to support a woman’s wider health and well-being during pregnancy. Secondly, I have clear advice on this subject from the Royal College of Obstetricians and Gynaecologists and from the Scientific Advisory Committee on Nutrition, which is an advisory committee of independent nutrition experts that advises all UK Governments. Both have told me that there is no reliable evidence that increasing nutritional intake has any effect on the outcome of multiple pregnancies. In light of the expertise of both these organisations, I hope I have reassured the House on this point. The noble Lord, Lord Low, raised the issue of guidance about ordinary residence disputes. It is an important issue that we want to look at as part of a comprehensive review of care and support. A Green Paper that will consider these issues is due to be published next year. The noble Earl, Lord Howe, asked how this Bill will fit in with the next stage review. I can reassure the House and the noble Lord, Lord Walton, that the review should not lead to a change in the organisational structure of the NHS. It builds on the reforms of the last few years, looking at how we can continue to improve the quality of services that the NHS and social care provide. One key feature of the new regulatory framework is flexibility. It will be able to provide the framework needed to support the work of the next stage review. The noble Lord, Lord Smith, made a point about the overlap of the legislation with the Civil Contingencies Act. The new provisions create a set of powers tailored to dealing with a significant threat to public health. These powers will introduce specific safeguards and set out the types of provision that might be made. The legislation does not overlap with the Civil Contingencies Act, which is used where other legislation is not available. This legislation provides a tailored public health protection measure. The noble Baroness, Lady Barker, raised the question of the social enterprise fund. Social enterprises have demonstrated a capacity to provide an enhanced quality of health and social care that ensures better health and well-being outcomes for patients and users. They also tend to be more innovative and flexible than traditional providers. Social enterprises have social objectives and reinvest their profits in the company or in the local communities in which they deliver services. This means that the public money spent on commissioning social enterprises can often achieve social benefits beyond the services directly procured, through regeneration and improved social inclusion. I hope that I have responded to as many as possible of the points raised in this useful debate. I will of course write to clarify any issues that I have been unable to cover in this speech. For example, I will write to the noble Baroness, Lady Gardner, about her concerns about the General Dental Council and to my noble friend Lady Gould regarding the operation of these measures in relation to people with HIV and AIDS. This debate has demonstrated the importance of quality and safety in health and adult social care, and the huge potential that these measures have to change things for the better. We have before us a Bill that will enhance and improve the regulation of the health and adult social care system as well as the regulation of health and social care professionals. It will update important healthcare protection measures so that they are relevant and fit for the purpose of the 21st century and will also introduce a new health and pregnancy grant to help to improve the health and well-being of pregnant women. In today’s debate, it has been made clear that the Bill will continue to have the benefit of detailed scrutiny as it passes through your Lordships’ House. I look forward to those further debates and I know that we will have a better Bill at the end of that process. On Question, Bill read a second time, and committed to a Grand Committee.