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Health and Social Care Bill

moved Amendment No. 1: 1: Before Clause 1, insert the following new Clause— ““The regulatory objectives In this Part a reference to ““the regulatory objectives”” is a reference to the objectives of— (a) protecting and promoting the public interest; (b) protecting and promoting the interests of people who use health and adult social care services and their families and carers, including in particular the need to safeguard and promote the rights and welfare of children in relation to their health and health care; (c) promoting safe, high quality and personalised health and adult social care services; (d) protecting and promoting the exercise by people of choice, control and power over the health and adult social care services they receive; (e) protecting and promoting the human rights, dignity, welfare and independence of people who use health and adult social care services; (f) protecting and promoting the rights of people detained under the Mental Health Act 1983 (c. 20), or otherwise deprived of their liberty on the grounds of their mental health or capacity; (g) encouraging improvement in the quality and provision of social care services in England; (h) encouraging improvement in health for all citizens and in the provision of health care by regulated bodies and, in doing so, ensuring that standards set by the Secretary of State under Chapter 3 of this Part are given effect.”” The noble Baroness said: It is an honour to open the batting. I welcome the noble Baroness, Lady Thornton, to her first Grand Committee as a Minister. I am sure that she will enjoy it immensely. There is no need to extend the same courtesy to the noble Lord, Lord Darzi, because he is by now a veteran. In addressing this group of amendments, I take the Committee back to Second Reading, which was held just before the recess. As noble Lords will recall from that lengthy debate, in which a great many speakers took part, there is consensus that the underlying aim of the Bill is to be welcomed. The bringing together of health, social care and mental health care is something with which noble Lords agree. However, since the Bill entered another place, there has been persistent and underlying concern that the framework as set out in the Bill is insufficient to carry the expectation of bringing together the regulation of three considerably different activities—health, social care and mental health—in a way that would not only ensure the ongoing work being done by the individual commissions to a very high standard but set a framework for the future. It is customary on these occasions in this Room for the Opposition to spend many hours insisting that to ensure that Parliament’s intentions are implemented, measures must be in the legislation. It is equally customary for the Government to argue that the inclusion of any such measures in statute is unnecessary, either because that would be too detailed or because, following a classic line of legal argument, it is preferable to omit stuff from law as putting it in that means you are being exclusive. This time, that argument will not stand; it was comprehensively and fatally undermined by the Government when they published the job description and the recruitment materials for the chair of the Care Quality Commission. The bias in that job towards healthcare and acute healthcare was unmistakable. The job was described in terms equivalent to the chair of a strategic health authority. The bias was unmissable in that it completely failed to require that candidates have any experience or knowledge of local government and failed to mention the introduction of comprehensive area assessment, the key measure under which most social care services will be commissioned and which will stand from next year. The message could not have been clearer that this was going to be a health body and that social care and mental health care would be tacked on—not quite as an afterthought, but very much as poor relations. As anyone who sat through Second Reading knows, that is simply not acceptable. It is not the basis on which health and social care services are going to be developed in this country in the foreseeable future, not least because all political parties and almost all practitioners and users are of the view that health and social care and mental health care services should be brought together but that this needs to happen on a basis of clarity. In light of that job description—one of the most memorable of all time—it would have been understandable if opposition Members had reacted to the Bill in ways that were understandable but inappropriate. It would have been reasonable for opposition Members to insist on tying down the nature of the commission in great detail, but I hope the Minister will agree that the amendments we have tabled, with the exception of those probing specific issues, show that we have not done that. We have sought to address what remained as the key outstanding issues on what an independent regulator for these three functions should be like. I hope that on that basis we can dispense with our traditional arguments and proceed to a worthwhile discussion about exactly what the purpose, nature, structure and remit of this organisation should be. It has a hugely important job to do. It will regulate expenditure of more than £100 billion—10 per cent of our gross domestic product. It will oversee the registration and performance of 28,000 providers of care, which vary from acute teaching hospitals, such as the ones over the water, through to tiny little independent care homes. That is a massive job. If this regulator fails to do its duty, that will impact on the lives of pretty well every older person, most children and a fair percentage of adults in the country. Many of the amendments that we will discuss in the coming days reflect the reality outside, which is that at all levels, from the strategic development of policy on the future of public services down to local operational decisions, healthcare, particularly acute healthcare, receive greater attention and a greater amount of public funding. Yet, as the Wanless report showed so clearly, it is important that social care be funded and organised in such a way that it promotes well-being, particularly for older people, rather than concentrating solely on the treatment of acute illness. If we had a regulator doing that, its priorities, as set out in the legislation, would be very different from those in the Bill. In this Bill, the House has a unique opportunity to ensure that the future of our largest public service is focused on long-term improvement of the health of the nation, rather than on acute illness. It is an opportunity that we should not let pass by. I turn to the amendment. The existing bodies, CSCI and the Healthcare Commission, have regulatory objectives set out in statute. CSCI has the objective of encouraging improvement in the provision of English local authority social services; the Healthcare Commission has a similar duty. As it stands, the Bill gives the Care Quality Commission a very weak set of duties that are tantamount to it being a registration, review and reporting body without clear objectives which is insufficiently independent of the Secretary of State. Were the Bill to pass unamended, it would be remarkable that a regulator would exist without objectives. All other major regulatory bodies in this country have clear objectives set out in statute. In his review of legal services—the precursor to the Legal Services Act 2007—Sir David Clementi said that, "““the first step in defining the regulatory regime should be to make clear what the objectives of the regime should be. This is critical … since the objectives represent the criteria against which they must determine … regulatory action; and against which they will be held accountable””." I have proposed in Amendments Nos. 1 and 3 a new set of regulatory objectives for the CQC. This will bring about clarity, not just for those who will be responsible for carrying out the regulatory function, but for all the other players in the health and social care field who will interact with this body. It will not be the only body that has concerns about improvement, complaints or user involvement, nor will it be the only one responsible for inspecting healthcare—about 60 different bodies are responsible for inspecting the NHS. It is important that the role, duties and the whole basis for the actions which the regulator will take need to be understood and clearly set out. One of the key issues addressed in the amendment is what I call ““risk versus rights””, which is shorthand used by people who work in social care. Principally, the regulation of healthcare, as it stands, is based on risk. This is not surprising given the serious nature of the work undertaken and its consequences for individual patients; it is a risk-based organisation. In social care, however, things have moved on greatly. The rights of people not only to services but to be treated in ways which ensure their autonomy, dignity and well-being are becoming so fundamental to the whole of provision that if the risk-based approach the Government are proposing for the CQC were to go ahead, the regulatory framework would represent a major step back for the development of social care services. I draw to the Committee’s attention the duties set out in Amendment No. 1 and the fact that the words ““protecting and promoting”” those issues on behalf of the public run throughout it. That is the way in which the amendment addresses the issue of rights versus risk. Amendment No. 3 is different and gives to the Care Quality Commission a duty to promote those objectives. There is no such duty in the legislation as it is set out. It would be strange if in any other field we were to set up a regulator, give it a set of objectives and then not expect it to promote those objectives within its work. If, for example, Ofsted were simply given the job of ensuring that education was not bad as opposed to promoting higher standards and improvement, we would all have something to say. The amendment builds on the work which CSCI and the Healthcare Commission have done in promoting those regulatory objectives during their short time in existence. Amendment No. 14 seeks to delete much of the wording of Clause 2, most of which is replaced by other amendments. In particular, it seeks to delete subsection (4) and has a similar effect to Amendment No. 22, tabled by the noble Earl, Lord Howe. The regulator has to be independent of government and if subsection (4) were to remain, that independence might be compromised. Why is it of such importance that a regulator should be independent? I give the example of the FSA and the Treasury, where it is of importance that the bodies have demonstrable independence and different functions in relation to the world of finance. As long as the Department of Health retains a direct involvement in the provision of health services, as it does at the moment, there is a need for the regulator to be strongly independent. That kind of check and balance is only sensible. For all these reasons, I beg to move.