Care Quality Commission (Healthwatch England Committee) Regulations 2012

Lord Harris of Haringey Excerpts

Wednesday 21st November 2012 Lords Chamber

[Baroness Jolly]

My Lords, I will not speak at length this evening and will speak mainly of the issue of the independence of Healthwatch England. I was at the launch of Healthwatch England and met some of the members of the committee. As the noble Lord said, many come from wide and relevant backgrounds, and they were really enthusiastic about the task in hand. They represent all regions of the UK, disabilities and gender. I understand that the full committee is now appointed.

There is an undoubted need for a patient watchdog, as we have heard. Many hours were spent in debate in this Chamber, in Committee and on Report, on the Health and Social Care Bill to try to mould it as best as possible to achieve that. During that debate, some of us carried out a campaign with Ministers outside the Chamber as well as inside, but there was no acknowledgement that the siting of Healthwatch England as a committee within the Care Quality Commission would cause concern. Indeed, it was said that the connection would be beneficial to the process and result in improved channels of communication.

Those arguments are now past, and Healthwatch England is now constituted, but the secondary legislation we are discussing today is silent on the issue of independence. We are left to wonder whether that is a missed opportunity or a deliberate omission. I always look on the bright side, so let us assume that it is a missed opportunity.

We know that the chief executive officer of the CQC holds the budget for Healthwatch England. What safeguards are in place to ensure that the money is not used to support core Care Quality Commission business or, indeed, to prevent the board of the Care Quality Commission, of which the chair of Healthwatch England herself is a member, saying that the way that the Healthwatch England committee wanted to spend the allocation was not as it thought fit?

If so, where does that put both the Care Quality Commission and Healthwatch England—and, indeed, the confidence of the public in their watchdog—if a future chair of Healthwatch England goes native or a chair of the Care Quality Commission becomes overbearing? That is a reflection not on personalities or individuals but on roles and responsibilities. Both current incumbents of those positions have assured me that that could never happen, but we all know of instances where what seemed perfectly good appointments change the way that they work over time. Working arrangements honoured under one regime may not carry over to a successor.

I commend the work that Anna Bradley has done thus far in setting up the organisation and her commitment and understanding of the role. She has said:

“We will be accountable to Parliament not the CQC ... We will work with the CQC as strategic partners. Guarding that independence will be a very important aspect of my job and the committee’s job”.

As I said, Anna Bradley sits on the Care Quality Commission board as part of her role and is appointed directly by the Health Secretary. She is adamant that the patients’ champion will be fully independent from the regulator.

A set of arrangements has been developed to safeguard the independence of Healthwatch England, whose budget—£3 million in 2012-13—is determined by the Department of Health. Healthwatch England will have full editorial independence over its publications; its committee will set its own priorities; and the chair will appoint the committee, ensuring that a majority are not Care Quality Commission commissioners, and oversee the work of Healthwatch England’s director, its senior officer. Any disputes between the Care Quality Commission and Healthwatch should be resolved through “open and frank discussion”, with the Department of Health responsible for resolving any intractable issues.

The Government’s intention was clear about the independence of Healthwatch England when the Bill was being debated, and it is to be regretted that that did not find its way into legislation or this secondary regulation. This organisation will be closely watched. Its relationships with partners are clearly defined in legislation. Its first chair has been absolutely explicit about its independence very early in her appointment, with the clear support of both the CEO and the chair of the hosting organisation, the Care Quality Commission.

I want Healthwatch England and local Healthwatch to succeed. We owe that to all patients across the country. With all the changes working their way through the NHS and the care system—it is essential that, despite its name, we should not forget that Healthwatch watches after health and care—it is imperative that it is working as efficiently as possible to its agenda, not that of the many stakeholders. For the sake of the public, those in receipt of care, it must succeed.

I would welcome reassurance from my noble friend that the lack of regulation or independence will not impede Healthwatch England’s independent operation and an indication of how that can be guaranteed.

[Lord Harris of Haringey]

My Lords, I am pleased to have the opportunity to follow the noble Baroness, Lady Jolly, on this Prayer. She has highlighted the weakness in the Government’s position. I am confident that the people who have set up Healthwatch England are of good will and that they intend and wish it to work; that Anna Bradley will be an excellent person as chair of Healthwatch England; that the outgoing chair of the Care Quality Commission is committed to making it work; and that the chief executive of the Care Quality Commission is committed to making it work. I even believe that Ministers in the Department of Health are committed to making it work.

The problem is that we are provided with a framework of regulation which does not guarantee that in future. One or two appointments down the road, with a new leadership of the Care Quality Commission and, perhaps, with different Ministers at the Department of Health, how will those things be ensured, especially if budgets remain tight and Healthwatch England starts to be effective and makes criticisms which are difficult for Ministers—or, worse still, in this context, for the Care Quality Commission? That is when those problems may arise.

That is why, when the Bill was passing through this House, there was so much concern about the importance of independence for the Healthwatch structure. My concern is that, given that the legislation has passed, this is a wasted opportunity to make it stronger.

One of the lessons that is expected to come from the Mid-Staffs inquiry relates to independence. The report is expected to identify the systemic failure of organisations to focus primarily on the needs of the patients of that hospital. Because each was looking at its own area, nobody was taking the step back to say, “How does this work from the point of view of patients?”. That is where Healthwatch should come in and be influential: to cut through the complicated organisational structures which the Health and Social Care Act has bequeathed to the NHS. That is why the simple issue of how it preserves its independence is so vital.

When the Bill was going through Parliament, the noble Earl held a meeting to discuss how Healthwatch England should work. He made the point that there would be valuable synergies from Healthwatch England being located within the Care Quality Commission. He did not stress, but it was clearly part of the equation, that there would also be some useful cost savings associated with that. The cost savings could be achieved in a whole variety of ways. It would be possible to have an agency agreement whereby some of the back office functions were provided by the Care Quality Commission or any of the plethora of structures that the Health and Social Care Act has bequeathed to the NHS. Similarly, because the duty of co-operation exists, you would hope that those synergies could be activated without the need for the Healthwatch organisation to be subservient to the Care Quality Commission. It would have been possible in these regulations to create a structure which, while preserving the general framework of the Act, would ensure that there was independence.

If we look at the regulations that we have before us, we see a number of flaws. First and foremost, for example, is the size of the Healthwatch England committee. Potentially, this will be a committee of as few as six members. I appreciate that in the initial instance it is larger than that, because people of goodwill are trying to make this structure work. However, in three, four or five years’ time there may not quite be the same atmosphere or there may be a feeling that the wings of Healthwatch England need to be clipped back. In any event, with six to 12 members it is going to be extremely difficult to ensure that there really is the geographical diversity that is necessary; the coverage of all the many major areas of special need that exist as far as health and social care is concerned; and proper recognition of ethnicity and gender within that. Again, the initial membership has provided a reasonable attempt to achieve that diversity, but where is the guarantee of that in the future?

I know there is a feeling that small boards work well. The noble Baroness, Lady Cumberlege, who is not in her place on this occasion, has talked to us glowingly about the value of having small, dynamic boards to run organisations but this is a different sort of organisation. It is supposed to be one that represents the generality of the interests of patients across the whole country and which derives its authority from what is happening in local Healthwatch organisations around the country—the 150-odd local organisations that will exist. It is therefore not appropriate to have a small board in such a case, as it is not the same sort of structure.

Then we have the rather strange arrangements for the appointment process. In the first instance, the chair of Healthwatch England has to get the approval of the chair of the Care Quality Commission before appointments can be made. The future arrangements are that the chair will make the appointments directly but let us be clear: the chair of Healthwatch England is a Secretary of State appointment and has the potential to be the poodle of the Department of Health. I have been in the position of being in charge of the organisation representing patients and I remember successive Secretaries of State, from two parties, making attacks on the organisation because we were being effective and raising issues that were uncomfortable.

Under those circumstances, can we be satisfied with a future arrangement whereby the Secretary of State solely makes the appointment of that individual, who then appoints all the other members of the Healthwatch England committee? In the initial stage, you have a double lock where the chair of the Care Quality Commission gets involved but in future you will have someone who might be appointed as a poodle or to muzzle the watchdog nature of Healthwatch England appointing individuals who are, no doubt, like-minded. That is why the arrangements are strange.

We then have the provision for suspending members, which is set out here. Presumably, the suspension is different from disqualification but the Secretary of State may dispense with the chair of Healthwatch England for a variety of reasons, which includes,

“failing to carry out those duties”.

Who is going to determine what those duties should be? Essentially, we are being told that the Secretary of State will decide what he or she thinks is appropriate for Healthwatch England to be carrying out. Again, the chair then has similar powers in respect of individual members. I make a specific request of the Minister: that in his reply he spells out absolutely that it will not be appropriate for either the chair or the members of Healthwatch England to be suspended from their membership if they are pursuing their interpretation of what is in the interests of patients and their organisations, and the people that they represent.