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Health and Social Care Bill

moved Amendment No. 2: 2: Schedule 1, page 113, line 7, at end insert— ““( ) The making of appointments under sub-paragraph (1)(b), and the exercise of the power to make regulations in sub-paragraph (3), must ensure that the functions of the Commission relating to— (a) review, assessment and investigation of each kind under sections 42 and 44, and (b) the Mental Health Act 1983 (c. 20), are represented in such manner and by such proportion of the members as the Secretary of State considers appropriate.”” The noble Earl said: My Lords, I shall speak also to Amendments Nos. 5 and 6. I return to a concern which we debated at considerable length in Grand Committee without reaching a conclusion. It is how we can make sure that the three principal spheres in which the new commission will operate—healthcare, social care and the operation of the Mental Health Act—will each receive a fair and appropriate amount of the commission’s time and resources, and that the culture and ways of working which characterise those three different spheres of regulation will be respected and promoted. I confess freely that this is a very difficult aim to try to pin down in an amendment, but I am equally clear that the difficulty of arriving at an adequate form of words should not be an excuse for our doing nothing. It is an extremely important issue. I have been heartened, as I knew I would be, by everything that the noble Baroness, Lady Young of Old Scone, has said and done since the announcement of her appointment as shadow chair of the commission. She circulated a letter to Peers a few days ago, in which she gave some very helpful reassurances. However, for the purposes of today’s debate, we need to remember that the noble Baroness will not be chair for ever, and that we are legislating for the statute book. Therefore, we need to put some safeguards in place that will stand the test of time. One of the reasons why formulating an amendment is so difficult is that while in our own minds we may conveniently separate health, social care and the operation of the Mental Health Act as discrete activities, we also know that one of the benefits of the new commission, if it works as we all hope it will, is that it will look more holistically at the way in which care is delivered in a given setting, and that its working methods will reflect and take account of the increasing convergence of health and social care and the crossovers that already exist between all three areas of care. We have all acknowledged that while there are key differences between, for example, monitoring the welfare and rights of a detained mentally ill patient and assessing the welfare of residents in a care home, there are almost certainly ways in which each of those two kinds of regulatory activity is able to learn and gain from the other. The same applies to the regulation of healthcare as compared with that of social care. It would therefore be wrong to suggest that we want to preserve in aspic the methodology and culture of each of these forms of regulation, and that we somehow need to insulate them from change. Rather, we need to ensure that there are people on the commission and on its committees and sub-committees who have knowledge and experience of each field, who will take forward the development of regulation in those areas, and who will act as a defence against any potential erosion of the weight and emphasis that needs to be maintained on each principal sphere of activity. We want to make sure in particular that the resources needed to deliver the effective regulation of social care and the activities currently undertaken by the Mental Health Act Commission should comprise an appropriate slice of the commission’s budget and manpower, and that neither of those activity streams will be at risk of becoming the poor relation of healthcare regulation. The undue ascendancy of healthcare regulation, despite everyone's best intentions, has to be a risk over the longer term. The approach I have taken in these amendments is twofold. First, there should be a duty on the Secretary of State in making appointments to the membership of the commission to ensure a fair balance of disciplines in direct alignment with the commission’s key regulatory functions. Secondly, I suggest, without going quite as far as the noble Lord, Lord Lipsey, in his Amendment No. 8, that we can require the commission to take into account when establishing committees or sub-committees that the individuality of each kind of regulatory activity should be appropriately reflected in the overall way in which the commission operates. I say with great respect to the noble Baroness, Lady Howarth, that I do not think we need to be prescriptive beyond that rather generalised level. If the Minister were to accept Amendment No. 3, or something like it, I would support her very readily, but my problem with that amendment is that it singles out social care to the exclusion of the other spheres of activity and would tie down the commission to appointing one person, and one person only, as the ““commissioner for social care””. For the reasons I have given, I feel instinctively that we should try to preserve flexibility in the make-up of the membership and that the balance of disciplines is what really matters. I shall, however, listen with attention to what she has to say. I hope that the Minister will look constructively at these amendments and that she will understand that they are a genuine attempt to build in safeguards that will not prove to be an albatross around the commission’s neck over the longer term. The wording may not be right—it almost certainly is not—but I hope that it will provide a basis on which the thinking on this important issue can be taken forward. I beg to move.