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Health and Social Care Bill

The noble Earl, Lord Howe, and the noble Baronesses, Lady Cumberlege, Lady Tonge and Lady Barker, who did not speak to their amendments in this group, raised a number of important aspects about the enforcement powers exercisable by the Care Quality Commission and the courts. As I have already said, the commission must be able to take robust, appropriate and timely action, and use a range of sanctions to protect patients and people using care services. The commission therefore will have a flexible range of enforcement powers and will be able to use its judgment to decide which approach would be most effective in which circumstances. I shall expand on that, which I hope will answer some of the questions raised during this discussion. This range is in response to the feedback, particularly from CSCI, in devising a more flexible range of powers than exist in the Care Standards Act 2000. Initially, the Care Quality Commission might decide that it is necessary to increase only the frequency of monitoring and inspection visits, but it can escalate to statutory warning notices, penalty notices, cautions, conditions on registration, prosecution through to suspension or even cancellation of registration. The enforcement powers are an important part of the new commission’s armoury. Providers operating outside the remit of their registration could pose a serious risk to patients and service users. For example, a care home’s registration might be subject to a condition not to provide services to people with learning disabilities because it does not have appropriately trained staff in place. Failure to comply with such a condition would clearly be serious. It is therefore entirely appropriate that the penalty on conviction for each such offence can be a fine of up to £50,000. The range is up to £50,000 and multiple offences can attract multiple fines, which I hope answers one of the questions raised by my noble friend Lord Campbell-Savours. If the Care Quality Commission concludes that a fine is not the most effective way of addressing a problem, it will use its other powers—for example, suspending or cancelling registration. That fine is addressed to the corporate organisation; that is, the business, the trust or whichever part of the care and health services being addressed by that issue. On the amendment in the name of the noble Baroness, Lady Barker, I should say that we do not believe that increasing the upper limit to £250,000 is necessary because of the option to have multiples of £50,000, should that prove to be necessary. Although the fines should be significant enough to be taken seriously by the provider, the level of fines is not intended to be set at such a high level as to damage the local care economy or have a negative impact on patients or service users. But fines should have an additional deterrent effect, partly because of the stigma attached. On whether this is taking money away from front-line services, where fines and penalties are incurred by NHS trusts, we are looking for a practical administrative way to return the money to local commissioners to be reinvested for the improvement of services, so that local populations do not lose out through incompetence. I now focus on Amendments Nos. 60 to 62, which would allow for imprisonment on summary conviction. In line with Ministry of Justice guidance, sentences of imprisonment have been reserved for the most serious of offences: the offence of not having registration. That is, first, because the commission will not be able to use any of its other powers in these cases and, secondly, because operating without registration potentially puts patients and service users at great risk. This offence is therefore triable either in a Crown Court or a magistrates’ court and is punishable by an unlimited fine and/or a custodial sentence. Where a provider is registered, the commission will have the full range of enforcement powers at its disposal, and in those cases it would not seem appropriate to make failure to comply with conditions an imprisonable offence. Therefore, we do not think that these amendments are necessary. The three existing commissions, which the Care Quality Commission will replace, were outside the scope of the Macrory report—the report that proposed the regulatory powers in the Regulatory Enforcement and Sanctions Bill, recently debated in your Lordships’ House, and which form the basis of Amendments Nos. 109A and 109B. That said, the Care Quality Commission’s power to issue penalty notices is consistent with the six Macrory principles as applicable to health and social care. Penalty notices are intended to assist in changing the behaviour of the offender, to act as a punishment, and to attach public stigma to non-compliance with regulatory requirements, as well as acting as a deterrent to future non-compliance. In both the Regulatory Enforcement and Sanctions Bill and the Health and Social Care Bill, the penalty is intended to be an alternative to prosecution. However, fixed monetary penalties in the Regulatory Enforcement and Sanctions Bill are enforceable by the regulator and, therefore, subject to a notice of intent, written representations and a full appeal structure. By contrast, penalty notices under Clauses 82 and 83 of the Health and Social Care Bill require the offender to consent to pay the penalty, with the threat of something worse. The penalty notice procedure offers the recipient an opportunity to discharge liability for the offence. If they do not, the commission would, of course, be free to use any of its other enforcement powers against that person, as it considered appropriate, instead. We therefore do not believe that a provider will turn down the option of a penalty notice lightly. This Bill does not make provision for a notice of intent, written representations or a right of appeal in respect of penalty notices because it does not need to. Clauses 82 and 83 are deliberately constructed in that way, which we believe provides for an efficient and effective sanction which meets the specific needs of the sectors that are to be regulated, avoiding the potential for delay and legal expense associated with the prosecution of offences or indeed any other sanction that requires full appeal rights. In answer to my noble friend Lord Campbell-Savours, Clause 84 sets out that the commission will issue guidance on how it will exercise its function in relation to cancellation, suspension notices and penalty notices. Before my noble friend arrived, we had had a discussion about the balancing of risks that that would involve and how those decisions could not be taken lightly. I believe that the Bill already allows the commission the freedom to respond appropriately to breaches of requirements of the registration system, and I hope that the noble Earl will therefore agree to withdraw the amendment.