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Health and Social Care Bill

At Second Reading, many noble Lords raised thoughtful and heartfelt points about the need for the Bill to set regulatory objectives for the Care Quality Commission. That is an integral part of our debate on the new commission and it is therefore timely that we are discussing this at the start of our Committee deliberations. Given the nature of our discussion, I intend to focus my remarks on the broader issue of the nature of the commission's objectives and functions. I want to be clear from the outset that an overarching regulatory objective for the Care Quality Commission, with a clear reference to both social care and healthcare, is something with which I have a great deal of sympathy. It is important that we are able to discuss the best approach to setting any regulatory objectives for the commission in the Bill. The contributions that we have already heard today have been a valuable input into that discussion. As the debate has demonstrated, there are a number of models to draw on as to how such regulatory objectives can be set out in legislation. The aim should be to set out clearly the reasons why the commission is there, and its purpose, and to provide us all with a clear, shared understanding of how to gauge how successful the commission is in carrying out those functions. The model proposed in Amendments Nos. 1 and 3 mirrors the approach taken in the Legal Services Act 2007 for the Legal Services Board. This would appear to be an alternative to the current Clause 2 and be linked to Amendment No. 14, which would remove much of Clause 2. The noble Earl, Lord Howe, and the noble Baroness, Lady Masham, have in Amendment No. 4 suggested, I think eloquently, an overarching principal duty for the commission in carrying out its functions, "““to protect and promote the interests of people who use health and adult social care services, including their families and carers, in relation to the safety and quality of those services.””" This is along the lines of approaches used for the Food Standards Agency in the Food Standards Act 1999, and for Ofcom in the Communications Act 2003. My noble friend Lord Harris in Amendments Nos. 12 and 13 has proposed a general duty also closely aligned to that set out for Ofcom in the Communications Act. The Bill draws on yet another of the models raised at Second Reading—that set out for Ofsted in the Education and Inspections Act 2006—on the basis that this was probably the most similar regulator to our new commission. As is becoming apparent, noble Lords will recognise that we have each, in our differing approaches, picked up many repeating themes. It may be helpful to set out the rationale behind the Government’s approach to the key functions of the Care Quality Commission—those in Clause 2—and then come back to some of the recommendations made by noble Lords. In Clause 2, we have set out those key functions: first, by assuring that health and adult social care services are providing care to the levels of safety and quality—words that we heard many times in this debate—that patients and service users are entitled to expect, and in taking appropriate actions where they are not, through the registration and enforcement provisions in Chapter 2; secondly, by providing comparable information to patients and services users through the reviews proposed in Chapter 3; and, finally, through the vital role currently carried out by the Mental Health Act Commission in monitoring the use of provisions in the Mental Health Act. Moreover, in Clause 2 we have made it clear that in carrying out its functions, the commission must in everything it does have regard to a number of crucial issues in performing those functions. Noble Lords would agree that it is vital that the commission must have regard to the need to safeguard the rights of children and vulnerable adults when it carries out its functions. The commission must listen to the views of those who use services—patients, service users, carers—including representative bodies such as LINks. The commission must also be required to take account of the Government’s five principles of good regulation, under which regulatory activity should be proportionate, accountable, consistent, transparent and targeted where needed. In relation to the point raised by several noble Lords on Clause 2(4), I echo what my noble friend Lord Harris has said, but we will of course enjoy a longer debate on this issue when we reach Amendment No. 22. Lastly, Clause 2 makes clear that the commission is to carry out its functions for the general purpose—the regulatory objectives—of encouraging improvements in care service, user-focused care and the efficient and effective use of resources. Many of those current provisions, some of which would be removed by Amendment No. 14, would be reflected to some degree in the alternative model proposed in Amendments Nos. 1 and 3 by the noble Baroness, Lady Barker, and supported by other noble Lords. While I am very sympathetic to the issues that the noble Baroness is keen to highlight in these amendments, I have concerns about how prescriptive Amendment No. 1 is, when combined with Amendment No. 3, which would require the commission to act in accordance with these objectives. We all want the new commission to practise what it preaches, but I argue that it forms part of a broader system of other players and other mechanisms. I would not want to detract from the roles and responsibilities of those other players—not least service providers themselves—in delivering, for example, high-quality personalised services. Although noble Lords no doubt support the good intentions behind these and related amendments, they will recognise that there is a balance to be struck here. Setting too many or too specifically worded objectives may dilute the effectiveness of some or all of them, create unintended inflexibility or create difficulty for the commission in establishing its priorities as circumstances change from time to time. Overall, I would not support regulatory objectives that reached the levels of specificity set out in the model of Amendments Nos. 1 and 3. Linked to those amendments are Amendments Nos. 101 and 109, which suggest mechanisms for ensuring that the commission reports to both the Secretary of State and the public in its annual reviews on how well it is delivering against those objectives. Indeed, Amendment No. 101 would require the commission to tell the Secretary of State how it has taken the views of patients, users and carers into account in its work and how it and those whom it regulates have contributed to the efficient and effective use of resources. I believe that it is more important for the commission to tell the public directly—hence, we have already set out in Clause 79 the requirement for the commission to report annually on how it has carried out all its functions. Of course, the Care Quality Commission will already keep the Secretary of State informed—for example, through the provisions in Clause 49. It is worth restating that Clause 2 was crafted very carefully to include all the key responsibilities that we felt this new organisation should have, recognising that the commission will operate as just one part of a broader system. I am therefore unconvinced of the benefit of removing the bulk of provisions in Clause 2 as proposed by Amendment No. 14. However, I recognise that Clause 2 may need to be enhanced to be clearer, and I shall look at this matter again. As I mentioned, I am sympathetic to the cause of setting a clearer, more easily understood purpose for the new commission, but that purpose must allow the commission some flexibility. I would want to reflect carefully on how this could best be framed, but the thinking proposed by my noble friend Lord Harris of Haringey in Amendments Nos. 12 and 13, and by the noble Earl, Lord Howe, and the noble Baroness, Lady Masham, in Amendment No. 4 is worth exploring further in conjunction with enhancing Clause 2. I turn to the point raised by my noble friend Lord Patel regarding the rights of detained patients. At this stage, I express my overall agreement with his intention, but I hope that he understands that I will elaborate further on these issues when we reach the group beginning with Amendment No. 19, tabled by the noble Baroness, Lady Stern. The noble Lord, Lord Sutherland, also asked whether the commission would have any route for advising Ministers. As I said earlier, Clause 49 makes it clear that the commission can advise the Secretary of State on aspects of the provision of care. In summary, I genuinely believe that we are all working towards similar goals here. We are all using slightly different approaches in setting out the primary objectives and functions of the commission but ultimately we all want patients, service users, carers, those being regulated, the commission and, indeed, us, to have a clear, shared understanding of why the commission is there and of how well it is delivering against the overarching aims. With that in mind, I ask noble Lords to permit me to take away the views expressed today with a view to bringing back on Report a revised, clearer approach to the Care Quality Commission’s overarching regulatory objectives, which your Lordships' House will, I hope, be able to support. I reassure noble Lords—and specifically my noble friend Lord Harris—that I am working with the A team, and I shall make sure that they craft their words as closely as possible to meet noble Lords’ aspirations. I therefore hope that noble Lords who have spoken to their amendments will feel able not to press them today.