Health and Social Care (Safety and Quality) Bill

Baroness Pitkeathley Excerpts

Friday 6th February 2015 Lords Chamber

[Baroness Pitkeathley (Lab)]

My Lords, I congratulate the noble Lord, Lord Ribeiro, on his introduction of his Private Member’s Bill and on the clear explanation that he has given of its contents. Although it is a Private Member’s Bill, it has strong support from the Government—such strong support, in fact, that in another place the Minister was reprimanded by the Deputy Speaker for speaking at unusual length on a Private Member’s Bill. Even if the Deputy Speaker in your Lordships’ House had such powers, I am sure such reprimands to the Minister would be unnecessary today.

It is perhaps unfortunate that the wide-ranging Bill that many in the regulation world were hoping for, expecting and working towards has not found parliamentary time in this Session, although the Law Commission and Department of Health officials continue to focus on a Bill for a future Session, as the noble Lord, Lord Ribeiro, reminded us. Such a Bill with adequate parliamentary time would have given us the opportunity to discuss the whole regulatory framework, but that discussion will be for another Parliament.

I now declare my interest as chair of the Professional Standards Authority for Health and Social Care. I emphasise that it is in that capacity that I address the issues in this Bill, so I will confine my comments to Clause 5. The Professional Standards Authority for Health and Social Care promotes the health, safety and well-being of patients, service users and the public by raising the standards of regulation of people working in health and social care. We are an independent body working to Parliament and accountable to Parliament. We oversee—“audit” might be a good word—the work of the nine statutory bodies that regulate health professionals in the United Kingdom and social workers in England. We review the regulators’ performance and scrutinise their decisions about whether the people on their registers are fit to practise. We have other functions, but those are not the concern of this Bill.

The Professional Standards Authority is concerned that there is a misunderstanding of our functions and that the Bill will make our objectives unclear and contradictory and narrow the scope of our work, thus reducing our ability to promote the health, safety and well-being of patients, service users and other members of the public. I fear this is because the Bill conflates the authority’s role with the role of the regulators. The Professional Standards Authority is not a regulator; it is an oversight body and has no direct relationship with the professionals regulated by the nine regulators. In fact, I do not think it is too strong to say that the Bill muddles the role of the Professional Standards Authority with the role of the regulators, and in doing so is likely to provide less public safety and quality rather than more, which is its aim. Let me expand on that a little.

The authority’s current objective requires it to promote the health, safety and well-being of patients, service users and other members of the public. This formulation provides a helpful clarity that our focus should be on patients and service users first and foremost. This emphasis, of course, reflects the findings of former and recent inquiries—Bristol, Shipman and Francis—and it is vital to maintain that emphasis. Indeed, the noble Lord who introduced the Bill has also emphasised how important that emphasis is. This is particularly helpful given that “the public” includes, of course, the professionals whom the regulators regulate. We have to think about the impact of decisions and policies on individuals, as well as take account of the impact on the wider public. In our Section 29 work, for example, when we review a regulator’s decision about a case we consider it in relation to the individual patients treated or seen by the health professional, and we also consider the wider public interest implications of the case.

I do not understand why it is considered necessary for Clause 5 to refer to “the public” rather than to patients, service users and other members of the public, or what additional benefit would be gained. It seems an unnecessary and unhelpful contraction that reduces our focus from individuals and population to population alone. I would be glad to receive an explanation from either the Minister or the noble Lord of why that is considered necessary. I must seek a strong assurance from the Minister that this change will never take the focus of the Professional Standards Authority away from patients and veer it towards the interests of professionals. When the Council for Healthcare Regulatory Excellence was established, and since then in launching the Professional Standards Authority, we have constantly emphasised the patient and user focus of our work, and we do not wish to put that focus at risk in any way.

I have further concerns about the Bill setting up competing objectives for the authority when we identify a poorly performing regulator, which is what our performance process aims to do. Currently, the authority has no role in promoting and maintaining public confidence in the professions regulated by the regulatory bodies. That is for the regulatory bodies themselves to do. Here again, I am concerned that the Bill conflates the role of the authority with that of the regulators. If the Professional Standards Authority is required to protect, promote and maintain the health, safety and well-being of the public by reporting the poor performance, followed, we hope, by improvement in the regulators, as proposed new subsection (2B)(a) requires, could it not also be said that the public would be better protected if the regulators’ poor performance was not reported, because highlighting it might harm public confidence in the profession it regulates and consequently increase the risk of people not seeking and trusting treatment and care when they need to do so? If a conflict between these two objectives arises, we need to be assured by the Minister that the Professional Standards Authority’s priority will always be understood to be to protect, promote and maintain the health, safety and well-being of patients and public, not that of the professionals who deliver the care.

Under current legislation our role is clear, as I have set out. I am sorry that the Bill raises questions about the clarity of that role, and I repeat that I think this has occurred because of muddling the role of the authority with that of the regulators. My aim is to ensure that the authority’s role is entirely understood to be for the benefit of patients, users and members of the public. I seek the Minister’s reassurance on the points I have raised.

That is all that I wish to say about Clause 5, but I cannot sit down without registering my dismay at the way in which the Bill is being handled in your Lordships’ House. We are all realistic enough to know about government hand-out Bills, but a government “take it or leave it” Bill is another matter. It is not acceptable to be told by officials, not Ministers, not only that the Bill cannot be amended but that we cannot have a Committee stage for the discussion, negotiation and scrutiny that is such a proud tradition in your Lordships’ House. There are some complex and difficult issues in the Bill that could affect patients for years to come. The parliamentary process should not be short-circuited for the convenience of business managers. We would be failing in our duty as a revising Chamber if we agreed to that.

Care and Support (Business Failure) Regulations 2014

Baroness Pitkeathley Excerpts

Tuesday 3rd February 2015 Grand Committee

Although I have no substantial objection to these regulations, this is the beginning of the story, not the end of the story. There is a great deal to be worked through here and a great deal to be thought through by the Government, by local government and by the organisations that represent those in need of care. I am sure that it will need to be debated in the House—and further action taken as the months and the years go by.

[Baroness Pitkeathley (Lab)]

My Lords, I will speak briefly on two of these regulations: those relating to the eligibility criteria, following on from my noble friend Lord Lipsey, and, first, the children’s carers regulations.

Some noble Lords in the Room will remember, when the Children and Families Bill went through this House, the struggle that we had to get parent carers recognised at all in the legislation. All credit to the Minister for finally recognising that parent carers had rights. However, there is now a serious problem because the regulations that we were promised would be issued along with the regulations under the Care Act have not in fact been issued. We have therefore left local authorities without clarity or direction about how to implement these new rights for parent carers—rights which we won with such difficulty but with eventual recognition from the Minister.

I ask the Minister, as did my noble friend, when the Government intend to publish statutory guidance on the new rights for parent carers under the Children and Families Act, why the statutory guidance was not issued at the same time as the guidance under the Care Act, and what plans they have to support local authorities in implementing the new rights for parent carers and young carers. I also support what my noble friend Lady Wheeler said about those carers who are left high and dry—the carers of disabled children who do not have parental responsibility. They are not covered by either piece of legislation and are left with a rump of rights under the long-outdated Carers (Recognition and Services) Act 1995. We really do need to clear that up.

I turn to the issue of eligibility criteria. As everybody knows, the Care Act creates an equivalent duty on local authorities to meet the care and support needs of adults and carers alike. In doing so, it puts carers of adults on the same legal footing as adults with care needs. This was a hugely significant legal development, giving carers the clearest rights ever to support in their caring role, and it is greatly welcomed. However, the Government’s decision to set the minimum threshold at the level at which local authorities are already providing support is a cause for huge concern. As we heard from my noble friend, the historic underfunding of social care has left thousands of older and disabled people without access to the care that they need, and has heaped pressure on to family carers, who are increasingly stepping in to provide care at great personal, societal and economic cost.

ADASS reports that spending on social care has been reduced by some 26% in the past four years. It is absolutely vital that a sustainable level of funding is put in place for social care, setting the funding mechanisms which will deliver the amount of money that we need to tackle the existing gap between need and supply and to keep pace with growing demand—and the demand is growing. The number of carers who care for 50 hours or more per week is rising faster than the number of the general carer population—Carers UK estimates that there has been an increase of 25% over the past 10 years. Despite the ongoing rise in the number of carers in the UK, the number receiving carers’ assessments and carer services from their local authorities is falling. I fear that that situation will only get worse. Carers are going without food and cutting back on essentials. Those who care for 35 hours or more a week are twice as likely to be in bad health as non-carers, with the knock-on effect that that will have on their own health in the future. Therefore, I believe that we have to look very carefully at the levels of funding and at what the eligibility criteria mean.

So far as carers are concerned, the Care Act is all that I could wish for—and have been working for for almost the last 30 years. It is ironic that it is being implemented at a time when budgets are so tight that the rights of carers may be threatened, not enhanced.

[Earl Howe]

My Lords, I am grateful to all noble Lords who have spoken for their questions and comments on these regulations. I turn first to the regulations relating to business failure duties and market oversight criteria, and in particular to the question posed by the noble Lord, Lord Lipsey, about why we have chosen the CQC as the regulator in this regard. I say openly to him that it was a finely balanced decision. We were confident that we had a choice between the CQC and Monitor. Either could have performed the role. Last year, the Health Select Committee recommended that the Government should reconsider their decision to choose the CQC rather than Monitor to undertake this regulatory function.

However, as set out in the committee’s report, there is a close correlation between poor quality and poor financial performance. It recognised that for this reason the CQC is well placed to perform the function. The CQC is gearing up to do that. It recognises that it needs additional skills to assess the financial sustainability of providers. It does not yet have these core skills in-house. The CQC has procured external consultants to assist in designing its new regime and the resources needed to operate it, which will comprise a mix of internal and external expertise. That will ensure value for money. It is recruiting a number of highly experienced specialists in accounting and insolvency who will be responsible for undertaking the financial sustainability assessments of providers in the regime on an ongoing basis.

The department will support the CQC to carry out this function by providing additional funding. I hope that that provides the noble Lord with some confidence that the CQC is well capable of undertaking this task. The CQC has published draft proposals on how the market oversight regime should operate. A four-week public consultation began on 29 January. Revised final guidance will be published in early April.

As regards the process of gathering financial information, which was referred to by the noble Baroness, Lady Wheeler, the CQC has the power to require a provider to supply the information specified. The provider cannot refuse without risking enforcement action by CQC. The CQC’s aim is that the information it requests from providers will be the same as the provider’s own board would use to assess how the business is faring. It will be light touch in the sense of not onerous. The CQC has a duty to minimise burdens on businesses. However, its overriding duty is to protect vulnerable people by understanding providers’ finances and sustainability, and giving early warning of any likely failure to local authorities to help them intervene. It will require information in a proportionate way to deliver this duty.

The noble Baroness also referred to the need to support local authorities to carry out their temporary duties when a care provider fails. We recently published statutory guidance outlining local authorities’ roles and responsibilities in the event of business failure to support them in this area. In addition, the department plans to work with the Association of Directors of Adult Social Services to develop further guidance on contingency planning for provider failure, which should be available by the summer of 2015. The department has also commissioned guidance which will help local authorities to assess the financial sustainability of their local care market and individual providers within it that are not subject to the market oversight regime.

As regards the Care and Support (Children’s Carers) Regulations, concerns were raised by the noble Baronesses, Lady Wheeler and Lady Pitkeathley, around children’s carers, and in particular the new right to assessment for carers in the Children and Families Act which covers adults caring for disabled children only when they have parental responsibility. The Government will address this issue through the Care Act 2014 and the Children and Families Act 2014 (Consequential Amendments) Order 2015, which will be laid in draft before Parliament very shortly. The order will effectively save Section 1 of the Carers (Recognition of Services) Act 1995 in so far as it applies to adults caring for disabled children who do not have parental responsibility. This means that such adults will continue to have a specific right to ask for an assessment under the 1995 Act if they are caring for a child being assessed under the Children Act 1989 or the Chronically Sick and Disabled Persons Act 1970. I hope that that is helpful.

As to the specific right of adults caring for children to support to meet eligible needs, care and support for children and their carers takes place in a different context to that covered by the adult statute. Children’s legislation rightly gives primacy to the welfare of the child and this is reflected in the way the legislation works. With that said, of course the Government recognise the enormous contribution of carers of disabled children and the sacrifices they often make in taking on these caring roles. That is why the Children and Families Act includes a specific right to assessment for parent carers of such children and a requirement that in carrying out these assessments local authorities must now have regard to the well-being of a parent carer. This mirrors the definition of well-being in the Care Act, which is of course also the basis for considering the impact on well-being through the eligibility criteria.

Health: Mental Health

Baroness Pitkeathley Excerpts

Tuesday 28th October 2014 Lords Chamber

[Baroness Pitkeathley (Lab)]

My Lords, following on from the noble Earl’s question, does the Minister agree that in the context of child mental health—and many of us are increasingly concerned about the younger and younger age at which people are being diagnosed with mental illness—prevention is as important as treatment, particularly in view of today’s news that less is being spent on prevention?

[Earl Howe]

I agree with the noble Baroness. This is a crucially important area. She may like to note that in the current year we are investing an additional £7 million to end the practice of young people being admitted to mental health beds far away from where they live, or being inappropriately admitted to adult wards.

NHS: Cancer Diagnosis and Treatment

Baroness Pitkeathley Excerpts

Monday 13th October 2014 Lords Chamber

[Earl Howe]

My Lords, the noble Baroness makes a number of important points. In August, my right honourable friend the Secretary of State announced a joint piece of work with Cancer Research UK and Macmillan, which will see GPs offered more support to ensure that cancers are diagnosed as quickly as possible. More generally, NICE is updating its referral guidelines for suspected cancer to ensure that they reflect the latest evidence. GPs already have a guide related specifically to direct referral for diagnostic tests, for which we have provided extra money, and early last year the department part-funded a six-month pilot run by Macmillan of an electronic cancer decision support tool for GPs. That pilot is being evaluated, but Macmillan is working with IT software companies to disseminate an updated version of that tool.

[Baroness Pitkeathley (Lab)]

My Lords, given the importance of early diagnosis and of the significant role that GPs play in that, is the Minister concerned that some patients facing the problems that many now have of finding a GP quickly will be put off presenting with those early symptoms? That will thus get in the way of the early diagnosis that is so important.

[Earl Howe]

My Lords, I am aware that in some areas of the country access to GPs is proving problematic and a number of work streams are under way to address that. But we are confident in the light of the statistics that patients are not holding back in presenting to their GPs. As I said, referrals have gone up dramatically over the last few years and the NHS is treating a record number of patients.

Health: Midwives

Baroness Pitkeathley Excerpts

Tuesday 22nd July 2014 Lords Chamber

[Earl Howe]

My noble friend makes two important points. As I said, we attach great importance to each mother being able to have throughout the care pathway a named midwife. Improving diagnosis and services for women with pregnancy-related mental health problems is one of our objectives for maternity care. The mandate from the Government to NHS England includes an objective for NHS England to work with partner organisations to reduce the incidence and impact of postnatal depression through earlier diagnosis and better intervention and support. We are clear that midwives have a key role to play in that.

[Baroness Pitkeathley (Lab)]

My Lords, what have we done to address demographic inequalities in the experience of childbirth, particularly for black and minority ethnic women, who often express a great lack of satisfaction with the treatment they receive during labour?

[Earl Howe]

My Lords, helping commissioners to reduce unwarranted variation in service delivery is one of the key roles of maternity and children strategic clinical networks, which are being established and supported by NHS England. We know from experience that these networks have a tremendously beneficial effect in ironing out inequalities in access.

NHS: District Nurses

Baroness Pitkeathley Excerpts

Thursday 10th July 2014 Lords Chamber

[Earl Howe]

These matters are locally determined by commissioners, but my noble friend makes a valid point. It is important to understand that district nursing services involve qualified district nurses leading and supporting multidisciplinary teams which often include staff nurses, community nurses and healthcare assistants, working with allied health professionals. We also need to recognise that social care relies on the same pool of registered nurses for local authority-funded care, and in fact nurses employed by local authorities are not counted in the statistics.

[Baroness Pitkeathley (Lab)]

My Lords, I recently came across a district nursing service which had been contracted out to the private sector, to the considerable confusion of some of the patients using it. Does the Minister have the figures for how many district nursing services have been contracted out in this way?

[Earl Howe]

I do not have the figures, but of course this process started under the previous Government with the “Transforming Community Services” programme, which very often hived off the community provision into social enterprises. If I have statistics on this I will gladly send them to the noble Baroness.

Health: Secondary Care

Baroness Pitkeathley Excerpts

Thursday 26th June 2014 Lords Chamber

[Earl Howe]

My Lords, I agree with the noble Baroness that early diagnosis is vital for just about every condition one can think of, particularly cancer. I am not aware that GPs are being penalised. I am very concerned to hear that, and if I may I will take the point she has made back with me and write to her about it. I would be very concerned if that practice was taking place. Particularly on cancer, we are keen to see GPs referring more. Indeed, that is what they have been doing, quite markedly, over the past four years: there was a 51% increase in cancer referrals over that period.

[Baroness Pitkeathley (Lab)]

My Lords, would the Minister agree that one of the essential elements for early diagnosis was time—time to spend with the patient and hear exactly what their symptoms are? How does that tie in with the current reports about pressure on GP surgeries and time?

[Earl Howe]

The noble Baroness makes a very good point. We know that GPs in many areas of the country are under pressure and we know how hard they are working. It was with that knowledge that we agreed with the profession that we would remove from the GP contract for 2014-15 more than a third of the quality and outcomes framework’s indicators, which GPs told us were taking up too much time and resulting in a bureaucratic burden. The aim of that was to free up more time for GPs. On top of that we have the Prime Minister’s challenge fund of £50 million, which will test out new ways for GPs to give access to patients—for example, through innovative means such as Skype and e-mail.

National Health Service

Baroness Pitkeathley Excerpts

Tuesday 17th June 2014 Grand Committee

[Baroness Pitkeathley (Lab)]

My Lords, there are few Members of your Lordships’ House who know as much as the noble Lord, Lord Crisp, about the NHS, so I am grateful to him for his focus on citizen and patient power—and indeed, carer power, which he mentioned, something with which I have been concerned for much of my working life. I declare an interest as the current chair of the professional standards authority, which prides itself on being patient-centred and public-centred and being a strong, independent voice for patients in the regulation of healthcare professionals throughout the United Kingdom.

However, I want to start with a personal experience about changes in attitudes to patient involvement. I started in the mid-1980s, when I was first diagnosed with cancer. A young registrar came to my bedside and, with no preparation whatever, told me that the tumour they had removed was cancerous but that I was absolutely not to worry because almost 40% of his patients made a full recovery. I gathered my wits and asked him what I could do to ensure I was in this 40% and he leaned across, patted my arm and said, “There is nothing you can do, my dear, just leave it all to us”. I think I got better to spite him.

Contrast that with my next experience in the early 2000s when, during a prolonged stay in hospital of over six months, nothing was ever done to me by doctors, nurses or therapists without seeking permission, asking if it was okay and what my view of it was. All right, you could say that that was about me being an assertive patient, which I am, and there not being many Baronesses on NHS wards. But, as far as I could see, the same respect and attempts to involve the patient were offered to every patient, regardless of their age, background or ability to communicate. Of course, the odd consultant swept in with an entourage and attempted to talk about me as though I was not there, but that was far from general. Therefore, my personal, as well as my professional and parliamentary experience, tells me that much progress has been made. I was very glad to hear the noble Lord, Lord Crisp, confirm that.

We all know about the reports that put patients first. We know their names and could write them in our sleep. We are all familiar with the phrases—patients first, patient at the centre, listen to patients and more patients. Yet patient involvement is not the same as patient power. “How far have we have really come?” is the question that we must ask ourselves, especially in the wake of the Francis report; patients manifestly had no power at all and those who blew the whistle on behalf of the patient—their carers and their families but not the professionals who should have been concerned—were not only not believed but ignored and vilified.

It is striking that, even with the emphasis we all embrace on patient-centred care, it is still on the whole the health professionals who lead and the patients who follow. That is in spite of the welcome growth in patients’ organisations in the voluntary sector, of which there are many, as your Lordships will know. I speak as a founder member of National Voices, which has made an important contribution in that regard.

The ideas as regards patient leaders were developed by two long-term service users, David Gilbert and Mark Doughty. They asked why patients cannot lead rather than always follow the professionals when it comes to power. With that in mind, they set up the Centre for Patient Leadership to give service users the skills and confidence to lead change and not just be the beneficiaries of it. We all know how disempowering it can be to be the only patient representative on a committee—we might say the token representative. Not only is there no one to support that representative, but they do not know how the committee will work. They would not have had any input to the agenda or any idea of what is expected of them, and so on. They would know that they are there to represent the patients’ interests but would not be sure whether to represent their own interests, those of groups of patients or those of patients with particular disabilities and so on. That is a very disempowering role in which we frequently put patients and their representatives.

However, patient leaders have developed the skills and confidence to lead change. They take control of changes and improvements in healthcare, and shape and help drive that change. They become real partners in care because they share power with professionals. I commend that approach because it helps both patients and professionals to see the benefits that can be gained in terms of patient care.

Power must go with responsibility. Patients must understand that they must keep their appointment times, must let someone know if they cannot attend and must take medication in the prescribed and agreed way. Giving patients power means professionals have to give some away. That is how the power balance works. We know that many are still reluctant to do that but there can be no let-up in our efforts to make progress in this area because of the benefits which can be gained, as the noble Lord, Lord Crisp, reminded us.

Finally, the noble Lord, Lord Crisp, tempted me to talk about carers. If you engage with carers and empower them, unbelievably, you get cost savings. All the research shows that they habitually ask for less support than the professional thinks is necessary. Progress towards that kind of empowerment makes very sound economic, as well as moral, good judgment.

Health: Transition to Adult Health Services

Baroness Pitkeathley Excerpts

Wednesday 11th June 2014 Lords Chamber

[Earl Howe]

The noble and learned Baroness is quite right, and as she well knows, this has been a long-standing issue. Our document, Closing the Gap: Priorities for Essential Change in Mental Health, which we published recently, identifies the transition from child and adolescent mental health services into adult services as a priority for action. We are supporting the work of NHS England to develop the service specification which I have just referred to. CCGs and local authorities will be able to use that specification to build excellent person-centred services that take into account the developmental needs of the young person, as well as the need for age-appropriate services.

[Baroness Pitkeathley (Lab)]

My Lords, problems arising at the transition stage are often reported by the parents of these young people because they are their carers. Does the Minister agree that standards of care must include support for those much-needed parent carers?

[Earl Howe]

I fully agree. I think that much of this will succeed only if services work together around the needs of young people as well as their families and carers, and if the families and the young people themselves feel involved in the way in which their care is being organised and planned.

Healthcare Professions: Regulation

Baroness Pitkeathley Excerpts

Tuesday 10th June 2014 Lords Chamber

[Earl Howe]

Yes, my Lords, we are working with the GMC to develop secondary legislation that will strengthen and protect the separation of the GMC’s investigation and adjudication functions by establishing the Medical Practitioners Tribunal Service in statute, as well as modernising the adjudication procedures, and to address a number of lacunas in the legislative framework. We are seeking to have the Section 60 order on the GMC’s fitness-to-practise processes in place before the general election.

[Baroness Pitkeathley (Lab)]

My Lords, I declare an interest—

[Lord Walton of Detchant (CB)]

My Lords, I declare an interest—

[Baroness Anelay of St Johns (Con)]

My Lords, there are many with an interest but it is the turn of the Opposition.

[Baroness Pitkeathley]

I declare an interest as chair of the Professional Standards Authority. The authority has already done preparatory work for the Department of Health on which changes to Section 60 orders would be in the interests of public protection and cost-effectiveness. Can the Minister say that the Government will take account of this work and the views of the regulators as they consider their next steps?

[Earl Howe]

My Lords, yes, I can give that assurance. In fact, there is a range of Section 60 orders that are at various stages of development, which we hope to introduce over the coming months.