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Health and Social Care Bill

My Lords, I wish to speak briefly in support of the government amendments in this group before moving Amendment No. 38. I have to move it so that I can say what I want to say. I am grateful to the Minister for responding so positively to the concerns that I expressed in Grand Committee about what I thought was the Bill’s lack of clarity over the ability of the commission to review and inspect against standards in relation to the commissioners of services. I accept the argument that the Government made then that it would be wrong to require commissioning to be a registrable activity. That would, in my view, lock the commission and the PCTs into unnecessary bureaucracy. Amendments Nos. 32, 34, 41, 42, 50, 51, 52 and 54 meet most of my concerns, I have to acknowledge, in a rather more elegant and comprehensive way than my own amendment. I would, however, like clarification and reassurance on Amendment No. 52. As I read it, it has the effect of applying the standard-setting power in Clause 41 to commissioning as well as to the provision of health services. That is an important change and means that the Secretary of State will be setting standards for commissioning under Clause 41 that the commission can inspect and review performance against in terms of PCTs. The Government’s original position was for guidelines rather than setting standards under Clause 41. As I understand this amendment, it brings the standards in relation to commissioners on a par with standard setting under Clause 41 for providers, but I would like reassurance from my noble friend. If he wrote to me on that, I would be quite satisfied. On my Amendment No. 38, as I said in Grand Committee, if we are running a risk-based regulatory system—as we will be—it has to apply to commissioning as well as to the provision of health services. Commissioners can do more damage to a community’s health through ineptitude than nearly all, if not all, providers. The registration system has a series of sanctions that can be applied to providers—the Bill provides for that and is very clear about it—as does Monitor in relation to foundation trusts. I am not completely convinced by all my noble friend’s arguments. I accept everything that he says about the performance management responsibilities of the strategic health authorities. No one is arguing—I am not arguing—that the SHAs do not have a responsibility to ensure that the world-class commissioning initiative, which I fully support, is applied and to address shortcomings in commissioning. My concern is based on history; I have often thought that history is one of the best predictors of future behaviour. In the past, there has been a considerable reluctance on the part of the NHS, and often of the Department of Health and Ministers, to act when commissioners are failing. They are much more willing to act when providers are failing. The Bill is strongly focused on providers, with a registration system and a set of sanctions accordingly. I do not want to put the noble Baroness, Lady Young, in a difficult position in her future relationships with Ministers and SHAs, but there is an issue about whether, in the Bill, the commission should be able to require some action from the performance managers of the PCTs when there are failures of commissioning. We know that there have been quite a lot of failures of commissioning in many of these areas. Many of the hospitals that have got into financial difficulties and are letting down patients and producing unsafe services are in that position because the commissioners let them get into it; they facilitated a failing health economy in their area. My concern is that we have to allow the commission to be able to require action, as it is able to do in relation to providers. The action would very much focus on the strategic health authorities. I accept most of the arguments that my noble friend has made and I can see that I may appear churlish and ungrateful in relation to the Government’s response. This is an extremely important issue, which we have not yet totally cracked. I would like to hear what my noble friend has to say in response. In the mean time, I beg to move Amendment No. 38.