Health and Social Care Bill

Public Bill Committee, 15 January 2008.

Further written evidence to be reported to the House

Derek Conway (Conservative, Old Bexley and Sidcup)

Good morning. Before we start, I would like to inform the Committee about arrangements for this afternoon. Members will have noticed that there is a debate on the Floor of the House on a Ways and Means resolution relating to the Bill, which will start at the beginning of public business. Mr. Hood and I propose that the Committee resume its consideration 10 minutes after the conclusion of the debate and any Division. If the Committee is content with that, it seems a sensible way forward.

Stephen O'Brien (Conservative, Eddisbury)

On a point of order, Mr. Conway. When we resume 10 minutes after the debate—at whatever time that is, depending on whether there is a statement—will we have the same amount of time that we would have had: in other words, will the time be effectively sheared, not truncated?

Derek Conway (Conservative, Old Bexley and Sidcup)

We do not know when the Ways and Means resolution will be taken this afternoon. The ten-minute Bill may be divided on or there may be Government statements—it is beyond the control of the Committee. On when the Committee adjourns this evening, as there is no knife set for today it will be for the Government Whip to move the Adjournment, and I am sure that that will be discussed in the usual way. If the Committee sits very late, it remains within the power of the Chairman to suspend for a break, but the Committee itself will decide when to adjourn.

Clause 2

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 3, in clause 2, page 2, line 21, at beginning insert

“without prejudice to the activity and independence of the Commission”.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this we may discuss the following amendments: No. 4, in clause 2, page 2, line 22, leave out “direct” and insert “advise”.

No. 5, in clause 2, page 2, line 22, at end insert

“4(A) The Commission shall not be bound by advice given under subsection (4).”.

Stephen O'Brien (Conservative, Eddisbury)

It is a pleasure to resume our proceedings under your chairmanship, Mr. Conway. Amendments Nos. 3, 4 and 5 to clause 2 make up a crucial area of consideration. Members across the Committee will recognise that the clause establishes the vital principle as to whether the Care Quality Commission will be, in mind and spirit as well as the letter of the law, truly independent as a Government body, or whether it will effectively be a creature of Government and feel that it owes its fealty to the Government and Ministers.

For the convenience of the Committee, I will address all three amendments collectively as they apply to the same point, and I ask members of the Committee to look at the way that they work. The focus should be on amendment No. 4, which seeks to leave out the word “direct”, and insert “advise”. It means that clause 2(4) would read:

“In performing its functions the Commission must also have regard to such aspects of government policy as the Secretary of State may advise”,

rather than “direct”.

I am sure that everybody recognises that there is a massive difference, in terms of independence, between being directed to do something and being advised about the Government’s view and what they would like to see done. The latter leaves genuine discretion for an autonomous body to arrive at its own view independently, and to be accountable for the decisions that it makes. I hope that in taking the amendments together, they will be seen somewhat holistically, although the emphasis is on amendment No. 4 for this purpose.

The debate on independence relates not just to the CQC; it is threaded throughout the Bill, and the background shows that the Government have power over appointments, reviews, direction, funding and the secondary legislation concerning this so-called independent regulator. The Government’s unwillingness in this regard is obvious, and we need to tease out from the Minister why they are unwilling for the Bill to set out a general function for the regulator—or, indeed, to consider the patient voice—yet they have set out their own power of control over the regulator. We clearly have as best a clue as we can get as to the mind of the Government. They intend to ensure that prescribing their power over the regulator is set out in the Bill, but not the general functions for the regulator. Nor is consideration given to the patient voice—an issue that has been of vital interest throughout the House for many years, and which has been the subject of amendments tabled by Conservative, as well as Liberal Democrat, Members. I hope that the Government will listen carefully to my arguments and not take it amiss when I say that they seem unsure of themselves. It is baffling how they have come to be in such a position in respect of independence for the NHS and its associated bodies.

In his widely reported personal new year message to the NHS, the Prime Minister said:

“We will also examine how all these changes can be enshrined in a new constitution of the NHS setting out for the first time the rights and responsibilities associated with an entitlement to NHS care.”

I am sure that Members will recall that that was said on 1 January this year. However, in the society section of The Guardian on 7 January, the Secretary of State for Health, the Minister’s immediate boss, submitted that the constitution will not enshrine the rights of patients. The newspaper reported:

“Johnson discloses that he does not want the constitution to be enshrined in legislation. That could give patients rights they might seek to uphold in court. ‘I don’t want the constitution to give lots of work to the lawyers so that the NHS spends more time in court and less on treating people’, he says.”

It would be difficult for any of us to disagree with that, but it flies in the face of precisely what the Prime Minister said on 1 January.

The relevance of this issue goes to the heart of what is truly intended to be the definition of independence, as structured by way of statute, that we are contemplating while discussing the amendment. We want to make sure that we understand how the Government can get away from feeling that they must have the power to intervene and meddle, without giving corresponding protection to the independence and autonomy of the body that they want to create under the Bill.

In her evidence, Dame Denise Platt said:

“We think that the independence should be clear. The body should have the opportunity to think, initiate and comment and to be accountable to Parliament for what it does...I am not sure that the Bill presents that sort of independence. There are a lot of references to ‘with the agreement of the Secretary of State’.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 14.]

That comment came out of a situation that is the reverse of what is happening now, which is that the Care Quality Commission should not have to seek the agreement of the Secretary of State before undertaking special reviews. We shall come to that later in the Bill.

To make sure that I am making myself absolutely clear, I shall highlight the best example of special reviews, which has been already cited in Committee. The old community health councils, which were independent and had authoritative power, respect and trust, used to amalgamate collectively evidence from all their various inspections in order to publish their bedwatch report. It meant that people knew whether we had the capacity and whether the beds were available. The report was trusted because it was independent, and it is clearly the sort of thing that we have in mind to ensure independence from the Government.

Let us consider what would happen if, under the power to “direct” rather than “advise”, a Government did not like the fact that some valid, truthful, evidence-based revelations or comments came out about certain aspects of the health or social care settings at an inconvenient moment, perhaps in the run-up to local elections. It surely would not be in the best interests of the patients if the Government could use clause 2(4) to direct that the CQC was not in a position to publish what it might wish to publish, or to initiate what it might wish to initiate. That goes to the heart of whether we are dealing with an intention to establish an independent body, or whether this is just a cloak for trying to manage bad news, from a Government who do not want to be criticised.

I hope that the Committee will take its role seriously, and that it looks at its proper scrutiny function as a Committee in challenging the Government. I hope that I can appeal beyond the normal partisanship and ask Government members of the Committee to give serious consideration to what is truly meant by independence, given that that is what is proclaimed and given the experiences that we have all had, as Members. Trust and confidence in these areas is dependent on whether the body being created is independent of the direction of the Secretary of State and his Ministers.

Having quoted Dame Denise Platt’s forceful comment in the evidence sessions, at which we were all present, I find it interesting to note that while she said that the CQC should not have to seek the agreement of the Secretary of State before undertaking special reviews, the converse is also true. The Secretary of State should not be able to direct the limited resources of the CQC to a particular issue—let us call it issue X—that may be in the political interests of the Secretary of State. I doubt whether any Labour member of the Committee would particularly welcome that if there were a change of Government and, therefore, a Secretary of State in the cause of a Conservative Government. I imagine that in those circumstances, they would make equal criticism of the concept of that possibility.

Equally, the converse is true when the commission believes that it should look at issue Y, and that it is more in the interests of patients, service users and health and social care practitioners than the Government perhaps want the CQC to emphasise. The regulator should be driven by the needs of health and social care services staff, patients and users, not by the exigencies of political life. Despite the fact that we are all political animals and partisan in many ways, surely each and every member of the Committee recognises that that would be a wholly irresponsible way to proceed in order to promote the exigencies of party political life. With such power in the hands of the Secretary of State through the Bill, the temptation to misdirect or meddle with the work of the regulator for a particular political gain is high. We are in danger of passing a law that could give a licence to that political gain judgment, which, I am sure, taking our duties responsibly, is inevitably something that we would all wish to avoid.

In its submission, the Healthcare Commission—it was speaking to clause 41, but the point is wholly relevant here—stated that

“there is a risk of conflict with the independence that the Bill envisages for the regulator.”

In addition, it does not think that

“the Government should determine operational priorities for an independent regulator.”

Clause 2(4) effectively gives the Secretary of State that ongoing power. Perhaps the Minister will stand up shortly and say that the word “direct” is intended only to indicate the broad thrust of what the Government want to see done. That is not what the Bill states. Anybody thinking correctly would be minded to think that “direct” means to direct right down to the level of operations.

We have all had various examples, going back 20 or 30 years in all of our political memories, as to whether “direct by a Secretary of State or a Minister” would include, for instance, the recommendation or direction that somebody at the top of an organisation that is intended to be an independent, arm’s length or a non-governmental departmental body should be sacked. Should we continue with the wording in the Bill, there is nothing to stop the Secretary of State from directing that the CQC should sack somebody.

Does any member of the Committee think that that is the right way to proceed? Does anybody think that the operational meddling that that would entail, let alone the political backlash that would no doubt follow from it, would be at all appropriate? Should members of the Committee allow that measure to pass through?

I appeal particularly to those on the Government Benches to give the issue the serious consideration required. We are dealing with the essential element of trust. It is not just that we are talking about trust in general, which would be appropriate for a Second Reading debate. Clause 2(4) uses the precise words “may direct”. I am not persuaded by the use of “may”—and the argument that, in other words, the Secretary of State may not—because the truth is the clause gives the Government the power and that is what they want. We need to ensure that the Government’s powers are properly checked. That is our duty and the amendment gives us the opportunity to ensure that the clause refers to advice rather than direction.

Let me be blunt: people remain suspicious, and it is not just me—perhaps it is inevitable that as representatives of political parties we have a political view on the matter—but many people in the health and social care field. When preparing for the Committee, those people have said that they fear, and feel, that Ministers have perhaps concluded that they will find it more convenient if criticism of anything to do with the NHS and the social care field is effectively shot down. They have also said that the Government used to feel they had a monopoly or some kind of political purchase on those matters and that is now shifting. Whether or not that is true, it is wrong for us to enable people to feel that they should distrust Government to that degree. The wording of the clause would clearly perpetuate that belief. Therefore, I hope that the Minister will seriously consider the amendment.

I also note that the covering letter of the Healthcare Commission’s submission states that the

“regulator should play a central role as an independent provider of reliable information allowing for local and national comparisons to support decision-making by patients, commissioners, providers and Government”.

I think that everyone would say, “Hear, hear” to that. However, we would be concerned if authoritative, independent and trustworthy information were provided on the bedwatch scheme, for example, and the Secretary of State suddenly directed the CQC to have regard to the aspects of Government policy that he or she—it may be a she in future—wishes it to. It may be that the Secretary of State does not want certain types of evidence to be put into the public domain at a particular time and that he or she can issue a direction to shut the CQC up. In terms of democratic accountability that is inappropriate.

If the Secretary of State said, “Look, I advise that it would be very unhelpful to put such information into the public domain and you ought to reflect whether this is an appropriate moment to do so”, I am sure that the fact that the Secretary of State picked up the phone to say that to the head of the CQC would have a powerful effect. Whoever is the head of the CQC is bound to listen carefully to the Secretary of State, but it should at least be the chairman of the CQC’s decision whether or not the Secretary of State is making a valid point that is appropriate. It should also be their decision whether it is in the public interest to withhold information rather than being simply commanded to do so from on high because it is politically expedient.

I seriously hope that the Committee does not think that we are having yet another rather indulgent debate along party lines. This issue goes to the very heart of our duties as Members of Parliament, and many people from outside—I recognise that Committee proceedings are not heavily reported in the outside world—think that the issues of trust and independence do have traction. I hope that each and every Member will think seriously about the amendment and come to a favourable decision.

During the oral evidence session that was held earlier in the Committee’s proceedings, the Minister left hanging the question. He said:

“there may be an inconsistency between their desire”—

the witnesses—

“for more prescriptiveness on the face of the Bill and their desire for the new commission to be flexible and independent”.

I think that we understand that and are sympathetic to it. Anna Walker from the Healthcare Commission immediately responded to that point, saying:

“In certain instances, we do not believe that framework is right yet.”——[Official Report, Health and Social Care Public Bill Committee, 8 Jan 2008; c. 12-13.]

A stronger statement of purpose supported by the main stakeholders and Parliament would not constrain the new commission, but it would constrain the invasive power of the Secretary of State. The amendment would avoid the Secretary of State being over-prescriptive, which is the very sentiment that the Minister tried to assert in his oral evidence, but from the point of view of the creature created by the Bill—the CQC—having that set of prescriptions placed upon it.

Let us avoid throwing stones in glasshouses and ensure that the Minister is aware that it is incumbent on Government to live up to the evidence and phraseology that he used in his own oral evidence during the Committee’s first sessions. The Minister is confusing independence, which is necessarily defined in relation to other bodies, with freedom. While the commission should be given the necessary freedoms to determine the scope and nature of its regulation, it is our job, as parliamentarians to prescribe the limit within that scope—a point that the Minister has hinted that he will make when we come to the discussion on cosmetic treatment. I know that Liberal Democrat Members are also concerned about that. I dare say that he might already have thought about the amendments on cosmetic treatment and surgery, and might have already decided to reflect them in separate changes. We will wait and see.

Dame Denise Platt, from the Commission for Social Care Inspection, also noted in her oral evidence that, while leaving everything to regulation is the ultimate flexibility, it is also the ultimate straitjacket, because it depends on how the Secretary of State frames the legislation. That is the nub of the issue. There is no way that we can be assured that the Secretary of State will not be the ultimate prescriber, while he retains the power to direct. We are looking here at the vital and fundamental question of whether the Bill is a genuine one that is going to deliver on what it proposes, or whether it is effectively a prescription by Government, laid upon the bodies that it creates as ostensibly independent, which will come under the potentially great clunking fist of this Government.

The Minister was very occupied with ensuring

“democratic—that is, public—accountability the more distant an independent body is from any governmental oversight or control.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 49, Q96.]

That point was made with reference to the Office of the Health Professions Adjudicator in part 2, but the principle and sentiment are relevant to the Care Quality Commission in part 1. Given the weakness in the clause of any direct appeal to groups within the demos, it would be a difficult point for the Minister to contend. Is he unhappy with democratic accountability stemming from Parliament? Democratic accountability, in some terms, is the measure at the ballot box of the independent bodies that the Government have set in motion. We can draw on the example of the independence of the Bank of England, which the Government have always been proud of. Let us use the very independence that they have sensibly proclaimed as their best model here as well. Why not?

The Minister may want to show his good intentions this morning—I very much hope that he does—and the recognition of the value of true independence by withdrawing the subsection. We have made it clear that this is an important debate, and I hope that all members of the Committee will now feel that they can spend the rest of the morning debating the issue, as it is vital to the Bill. I am perfectly happy to work hard and to stay as late as necessary. The important point is to flush out whether everyone is truly in agreement with this, or realises that some fundamental issues are at stake for us all. The Minister has, therefore, a number of questions, which I shall briefly set out, and that will be the way to get the debate genuinely in front of him.

Why is the Minister unwilling to grant full independence to so many of the bodies in the Bill, not least the CQC? Does he agree with the Prime Minister that independence should be achieved by enshrining a new constitution for the NHS, or does he agree with the Secretary of State for Health, who does not want such a constitution enshrined in legislation? What assessment has the Minister made of the concerns of the Healthcare Commission and the Commission for Social Care Inspection that the Bill does not provide the necessary independence? What impact on public faith in the regulator does the unfettered residual power of the Secretary of State over the commission have? It is unfettered under the clause. Does the Minister agree that a closer bind on both the extent and the content of the Secretary of State’s secondary legislative powers actually constitutes greater, not less, independence for the commission? Can democratic accountability come only when a body is not independent of Government, and consequently, party politics? What guarantees can he give that clause 2(4), as currently drafted, will not lead his Secretary of State, and future Secretaries of State of any party, to direct the commission according to political expediency?

With these amendments, particularly amendment No. 4, we have a real opportunity to improve the Bill, to improve and make clear the Government’s intent, and above all, to give truth and earnestness to what the Prime Minister proclaimed on 1 January.

Greg Mulholland (Liberal Democrat, Leeds North West)

There is concern about the clause, as I am sure that the Minster will accept, and about the fact that it appears to some, including Opposition Members in the Committee, to diminish the independence of the Care Quality Commission, when compared to the current situation with the three regulators. That is the key point, and the Minister needs to justify why we are moving away from the current situation, which is generally regarded as working well and where the three current regulators are clearly recognised as independent of the Secretary of State and the Department of Health.

The Minister will also recognise that to have the genuine confidence of Members in the House, the medical profession and, most importantly, patients and the general public, the new Care Quality Commission must be seen as a truly independent regulator. That is what we want to hear in this debate because, as he is aware, people feel that we are moving towards a system of having more of an arm’s length regulator.

There is a lot of concern about the word “direct”, and that is the substance of the debate on amendment No. 4. “Direct” is a prescriptive word and, certainly among Members on the Opposition Benches in the Committee, causes some concern. What does “direct” mean? What powers does it give the Secretary of State? Will there be a situation in which the work of the Care Quality Commission can be affected, directly or indirectly, by Ministers or Department officials? It seems sensible for clause 2 to lay out the clear functions, powers and role of the new Care Quality Commission, and to enshrine the clear independence of the new body that is essential to its working. The Minister must do a convincing job. Opposition Members are minded to support the amendment, and we look forward to hearing what the Minister has to say.

Kelvin Hopkins (Labour, Luton North)

My concern about the amendment is that it puts a distance not only between the Government and the sector but between Parliament and the sector. I am concerned about the democratic input. For example, if the commission were seen to be more sympathetic to the private care sector than I thought appropriate, I would want Parliament and MPs to have much more say in what happens. If it is entirely independent, the Government can wash their hands; if it is not independent, the Government are still accountable to Parliament. Accountability to Parliament has not been as strong as it should have been in recent years, and I am looking forward to a much stronger input from the legislature rather than the Executive.

An analogy has been made with the independence of the Bank of England—I am one of those people who were deeply sceptical about the idea in the first place, and I apologise to my hon. Friends who might take a different view. However, I am sceptical, and I believe that if, for example, the Monetary Policy Committee started to diverge strongly from what the Government wish on interest rates, the Government would quickly make it less independent, and could effectively take back control at short notice.

Stephen O'Brien (Conservative, Eddisbury)

I understand the hon. Gentleman’s point, but does he feel—using the example of the Bank of England, which is a sensible and useful analogy—that it is appropriate and right for the Government to seek to take back the powers because of the exigencies of a particular set of circumstances or declared behaviour? Alternatively, as most would agree, should they look more carefully and rigorously at the remit, and at what is within their powers and what is not, particularly when trying to meet a range of inflation goals?

Kelvin Hopkins (Labour, Luton North)

I thank the hon. Gentleman for his intervention, but I believe that the Government should be accountable to elected Members. The more distant these important bodies become from Parliament, not just Government, the less democratic input there will be. On the Monetary Policy Committee the Government, even now, have the right of appointment and they are careful about whether they appoint hawks or doves to the committee to ensure that they get the right kind of answers. This much vaunted independence is not anything like as independent as we would like to think. I am expressing doubts, I am not necessarily condemning the amendment outright, but I want to ensure that parliamentary accountability is retained and that ultimately, we can have a say, as Members on behalf of the people who elected us.

Ben Bradshaw (Labour, Exeter)

The Government stand accused of confusion on this issue, but I suggest that it is the hon. Member for Eddisbury who is confusing two things: his party’s express desire to set up a new, big, bureaucratic, unelected and unaccountable national quango to run the NHS—although if one believes recent press reports, his leader is about to flip-flop on that policy as well—and the desire that we all share for a robust, strong and independent regulator of health and social care. I also remind him that there was no independent regulation of the NHS before this Government introduced a system in 1999. The Government are committed, through the Bill, to making that system not only more robust, but even more independent.

I will quote from the existing legislation. The wording that we use in the clause is exactly the same as the existing wording in the legislation. I do not think that any hon. Member has so far suggested that either the Healthcare Commission or the CSCI is not independent enough. Section 130(1) of the Health and Social Care (Community Health and Standards) Act 2003 states:

“In exercising any of its functions the CHAI must have regard to such aspects of government policy as the Secretary of State may direct.”

Section 131(1) states:

“In exercising any of its functions the CSCI must have regard to such aspects of government policy as the Secretary of State may direct.”

That is exactly the same wording that we are using in the Bill. I also note that at an evidence taking session, Anna Walker talked about the freedoms to conduct general reviews. She said:

“The Bill, in a very welcome way, has a power to carry out investigations, and we have carried out a number of significant investigations”.——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 17, Q25.]

The point that she went on to make was not about any restrictions to the CQC’s freedoms to conduct reviews or investigations but was about her concern that those reviews and investigations should be able to cover commissioning as well as provision. That is a view with which I have considerable sympathy and I think that the Bill addresses it, but we will no doubt debate that in another place. Her concern was not about freedom to act independently, but the remit and the scope of that freedom to cover commissioning as well as provision.

Stephen O'Brien (Conservative, Eddisbury)

Does the Minister therefore recognise that the Secretary of State would have the power, under the clause, to prevent the commission from publishing anything that it had initiated?

Ben Bradshaw (Labour, Exeter)

Absolutely not. I do not accept that whatsoever. The power written into the Bill is exactly the same in the current legislation, which is “must have regard to” and “may”. That does not mean to say that the independent commission has to obey diktats from the centre; on the contrary, that would be against everything that the Government have stood for since we introduced independent regulation in the first place. As I said, the power as drafted does not mean that a Secretary of State is either obliged to direct the commission to take account of Government policy, or that the commission would have to obey diktats. However, it would allow the Secretary of State, as the existing legislation does, to ensure that the independent commission operates within the context of Government policy.

I will take the example of the NHS, a health system with massive policy input—unlike the Opposition, we do not believe that it should be run by an unaccountable, unelected independent quango. In carrying out its work, it would be inappropriate for the commission not to have regard to the nature of the NHS and the demands placed on the public, both directly and through the political process. Clause 2(4) provides the opportunity for the Secretary of State to require the commission to take into account key policy areas when undertaking its functions. It is important that the various demands of a system that is spending more than £100 million of taxpayers’ money a year are accountable in that way. It is a sensible precaution to ensure that the public have faith in the accountability of both the system and the inspection system, and that it is not undermined by confusion.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Given that subsection (3) sets out a list of other matters to which the commission must also have regard, including

“views expressed by members of the public”

and the level of satisfaction of members of the public, does the Minister really need subsection (4) to reinforce that point? Furthermore, does he think that it is right for the commission to have equal regard, according to the Bill, to those matters set out in subsection (3) and the Government’s policy under subsection (4)?

Ben Bradshaw (Labour, Exeter)

The hon. Gentleman makes the point that I was about to make in response to the hon. Member for Eddisbury. Although not strictly related to the amendments, the hon. Member for Eddisbury made reference to involving the public and their views. The hon. Member for Rugby and Kenilworth has now helpfully drawn the Committee’s attention to the fact that those issues are included in the functions, as is the importance of the new commission having regard to aspects of the Government’s policy. That is nothing new and is nothing that will compromise the independent action of the Healthcare Commission. As the hon. Member for Eddisbury took some time in speaking to the amendments, it might be helpful if I remind the Committee exactly in which ways the commission will be independent and is at the moment.

The new commission must determine the criteria that provide access for compliance with all registration requirements; it must decide whether services meet those requirements and it must determine what action is necessary. It will also have to establish its organisational structures to determine what committees it requires and to develop the performance assessment criteria, and a whole range of responsibilities that the existing Healthcare Commission carries out excellently and completely independently of the Government.

Angela Browning (Conservative, Tiverton and Honiton)

I wish to give the Minister an example of when the two issues come into conflict. Subsection (3)(a) refers to

“views expressed by members of the public about activities to which the functions relate”.

I endorse the current view of the public from personal casework concerning very elderly people who are transferred from a general hospital to a small community hospital. They are clearly at the end of their life and, in some cases, relatives have been told that the patients will die within a week or two. However, relatives are still asked to move the patients out of the community hospital and to find a nursing home for them. I share the strong public view that is held about that.

If the commission thinks that that approach is inappropriate having listened to the views of the public, but, as seems to be the case, the Secretary of State deems under subsection (4) that people must be moved on quickly, we immediately have a conflict of interests in an area where the commission is perhaps best placed to know what is the appropriate process to follow.

Ben Bradshaw (Labour, Exeter)

The commission will be entirely free to launch an investigation into anything that it considers is jeopardising public safety or quality of care and, if necessary, to launch a broader investigation into such matters. I must say to the hon. Lady that it would be surprising if the Government were deliberately pursuing a policy that put people’s safety and lives at risk. If the Healthcare Commission thought that that was the case from evidence based on the ground, it is absolutely clear from the Bill that it would be entirely free to investigate matters. The two priorities that we are giving the Care Quality Commission are the protection of patients’ safety and the quality of care.

Angela Browning (Conservative, Tiverton and Honiton)

The example that I have just cited is not about putting patients’ lives at risk, but taking a humanitarian approach to people in their final weeks at the end of their lives. Criteria in respect of putting people’s lives in jeopardy would not apply, but what does kick in under my example is money.

Ben Bradshaw (Labour, Exeter)

I beg the hon. Lady’s pardon, but what she suggested seemed to lead to what I said.

Angela Browning (Conservative, Tiverton and Honiton)

No.

Ben Bradshaw (Labour, Exeter)

Well, the issue to which the hon. Lady referred would still come under the auspices of the quality of care, if not the safety of care. It would also come under the function outlined in subsection (3)(d) on vulnerable adults. If the people to whom she referred are elderly and sick, they are by definition vulnerable.

The clause is important to ensure that the commission does not place competing unfair or contradictory expectations on providers of health and social care services. While there is no obligation on the Secretary of State to make use of the clause, having it available under existing legislation will ensure that the commission considers the policy context when carrying out its functions. I therefore ask the hon. Gentleman to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

Along with other members of the Committee, I have listened carefully to the Minister. He seems to agree with his Secretary of State, rather than the Prime Minister, about what should be enshrined as the rights and responsibilities of the NHS and has thus not dealt with the issue raised by my hon. Friend the Member for Rugby and Kenilworth who, having gone through the various provisions under subsection (3), did not receive an answer about why the Government still needed subsection (4). Having sought to pray in aid subsection 3(d) as a defence to why he would not commit his Secretary of State to using the powers granted under subsection (4) in response to my hon. Friend the Member for Tiverton and Honiton, he said without much of an argument in support that subsection (4) would not be used to send out a diktat to the CQC.

The Minister might say that now, but the rest of the world will not have been listening to our proceedings and will not necessarily know what has been said. What they will do is to read the words set out in the Bill. However much he prays in aid that such words were used in the precursors, our job is to look at the words as published in the Bill. The hon. Gentleman’s answer was wholly unsatisfactory. It leaves the Secretary of State with the power to issue those diktats in the particular circumstances outlined by my hon. Friend the Member for Tiverton and Honiton. I want to press the amendment to a Division.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 6, in clause 2, page 2, line 28, leave out paragraph (c).

We move amendment No. 6, given that amendment No. 5 depended upon amendment No. 4 being carried, and I do not want to press that further. In clause 2(5), amendment No. 6 seeks to divest the CQC of its function of economic regulation. It may help the Committee if I draw attention to the fact that the amendments to clause 50 would relocate that role to Monitor, an existing body that already has the necessary expertise and practice. Those who remember the programming sub-committee will recall that we had hoped that Monitor would be able to give evidence during the oral evidence sessions. The Government chose not to take up that suggestion, but here is where it would have been relevant for our considerations.

Economic regulation covers all aspects of the operation of the social market. An economic regulator needs to possess substantial powers to intervene in order to determine service reconfiguration and the management of NHS trusts and to decide how service requirements must be met. A quality inspector needs to report openly and frankly on the quality of services provided. There is a tension between the two: the need to drive efficiency from an economic point of view may conflict with the need to warn about the potential of declining standards of care from a quality perspective. Oddly enough, the example that my hon. Friend the Member for Tiverton and Honiton gave in the last group would be a good example to bear in mind as we look at that tension.

For example, the economic regulator may sanction the rationalisation of a trust’s estate from two sites to one. That is something we can all imagine, as we often face testing decisions in our constituencies. However, that may be detrimental from a quality perspective. If the two regulatory functions are combined, there is a risk that one side of the argument will be lost, and such conflicts of interest will make a regulatory regime, in which economic regulation and quality inspection are combined, unsustainable. The amendment gives rise to the opportunity for those two functions to remain separate, as indeed they are, with Monitor, highly qualified and well experienced, taking the role of economic regulation, and the CQC functioning as a quality and value for money inspectorate.

Ben Bradshaw (Labour, Exeter)

As the hon. Gentleman acknowledges, the amendment originates in his party’s desire massively to extend the powers of Monitor beyond its current role as champion and partial regulator of foundation trusts to being the economic regulator for the whole health and social care system. It is rather like his idea of an independent quango to run the NHS and we think that there are fundamental flaws in that idea because of the potential massive conflict of interest.

The amendment suggests that the new commission has or should have no interest in trying to ensure that care services are delivered efficiently and effectively, which is a surprising position for the Conservatives to take. We believe that quality of provision is maximised when services are provided efficiently and effectively. The annual health check of hospital performance published by the Healthcare Commission shows a strong correlation between high performance on the quality of care and high performance on financial management. We think that it is important for the new independent commission to carry over the responsibilities that the Healthcare Commission and CSCI currently have to ensure effective and efficient delivery of services.

Kelvin Hopkins (Labour, Luton North)

I want to make the simple point that if resources are used more efficiently, that will provide resources for putting on a better service rather than simply saving public money.

Ben Bradshaw (Labour, Exeter)

My hon. Friend is absolutely right. There is a strong correlation between hospitals that are well managed financially and a high quality of service. Clearly, if a hospital is badly managed financially and lurching from one financial crisis to another with a boom-and-bust approach, patients suffer. That is why it is important that the new independent CQC retains responsibility and why we are not in favour of the massive expansion of the empire of Monitor.

Derek Conway (Conservative, Old Bexley and Sidcup)

Angela Rumbold.

Angela Browning (Conservative, Tiverton and Honiton)

Browning.

Derek Conway (Conservative, Old Bexley and Sidcup)

I apologise.

Angela Browning (Conservative, Tiverton and Honiton)

It is a pleasure to serve under your chairmanship, Mr. Conway. We have something in common—the occasional senior moment.

The Minister’s remarks focused on the NHS, but social and, particularly, residential care are within the scope of the Bill. I am concerned about that focus, because a big problem in residential care is that it is common practice for many people who require residential care to be placed by social services in homes that are really suitable only for residential, as opposed to nursing, care. Nursing patients are often placed in residential care homes purely on the ground of cost. Many private residential care homes have reluctantly taken such patients because their arms have been twisted by social services departments, which then pay a residential rate for what is ostensibly nursing care. One difficulty, which is being reversed by the closure of many private homes, has been that residential homes have reluctantly taken such people purely to fill their beds. The economics are somewhat questionable for them, and it is surely not acceptable for the resident. That is a different matter from the Minister’s points about the NHS.

Sandra Gidley (Liberal Democrat, Romsey)

I am listening to the hon. Lady with interest, because I was fairly persuaded by the Minister’s points about health. Will she extend her argument to include the treatment of the elderly mentally infirm, for whom local authorities struggle to find places in appropriate settings? They are often put in a home that, although it may be a nursing home, does not have the expertise and may be cheaper.

Angela Browning (Conservative, Tiverton and Honiton)

The hon. Lady has touched on a subject dear to my heart. She mentions the elderly infirm with added mental health disorders in residential care. With old age comes dementia on a much wider scale and when somebody’s mental health deteriorates, particularly in that way, relatives or social services are often asked to move them to more appropriate settings, of which there are a shortage. Even worse, it is common practice to medicate those people in such a way that they become controllable in a different environment, which is outrageous. The over-prescription of drugs in such situations needs seriously to be examined.

Jeremy Wright (Conservative, Rugby and Kenilworth)

My hon. Friend will know that the all-party group on dementia, which I chair, is investigating precisely that subject. Does she accept that, because of the shortage of places for elderly people with mental infirmity, some people are in places that are not technically defined as suitable for the elderly mentally infirm, but they and their families are happy for them to be there? Their condition might deteriorate if they were moved into an unfamiliar environment.

Angela Browning (Conservative, Tiverton and Honiton)

Exactly so, and my hon. Friend’s work with the all-party group has helped to highlight issues that are hidden below the surface but extremely important. In responding to the submission on the clause by my hon. Friend the Member for Eddisbury, I am making the point to the Minister that the Bill applies to social care as well as health. I hope he will reflect on that because there are different issues that come into play and the clause tabled by my hon. Friend seeks to address the whole Bill, not just part of it.

Stephen O'Brien (Conservative, Eddisbury)

I am tempted to find a way of helping the Minister intervene so he can confirm the point just made and say whether he also agrees that the Bill extends fully to social care settings and health care settings.

Ben Bradshaw (Labour, Exeter)

I am happy to answer that. I thought that I had made it clear in my remarks that the existing legislative framework will do exactly the same. There is a duty on the CSCI, as there is on the Healthcare Commission, to be concerned with economy and efficiency. That is exactly what we are taking forward in the legislation.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the Minister for confirming that. At the heart of the matter is the importance of recognising that although the Healthcare Commission covers both aspects of regulation, Monitor covers only economic aspects. When moving forward, it will be absolutely vital that we have an understanding of the different pressures and potential conflicts of interests that may arise. We have introduced a proposal that we think will work, but given that we will revert to this matter when we get to clause 50, it would be disproportionate to press the amendment to a vote at this time. It has been a useful exploration of the issue and I hope that when we get to clause 50 sometime soon, we will be able to see whether the Minister has had a chance to reflect on the matter. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 77, in clause 2, page 2, line 29, at end add—

‘(6) Where, in the course of performing its functions, the Commission becomes aware of substantial risks to the dignity, rights or welfare of any individual affected by the failure of a service to comply with regulations, the Commission shall ensure that any necessary action is taken to safeguard that individual, and to support them in taking action to safeguard their own dignity, rights and welfare.’.

The amendment seeks to strengthen what a number of organisations have called a rights-based approach to the CQC and its responsiveness to warning signals. To some degree, the amendment is a more generic way of looking at a rights-based approach than some of the more specific amendments that originated in the private Member’s Bill on the human rights application in certain social care settings. The amendment is core to that debate. I know that the hon. Member for Luton, North has dedicated himself to understanding the issues surrounding the rights-based approach. I hope that the amendment commends itself to him because it effectively maintains the current powers of CSCI within the new CQC. That is vital, because on the basis of how the Bill is currently drafted, there is concern that the powers enjoyed by CSCI will be diminished on the arrival of the CQC.

It is likely that in the course of investigations about non-compliance with regulations, the regulator will encounter situations in which there are risks to the rights and welfare of specific individuals. The Bill should clarify the duties of the regulator to take action to safeguard and promote the rights and welfare of children and vulnerable adults under the circumstances that patently fall within the ambit of clause 2(3)(d). Age Concern sets a good example by supporting the amendment and proposes the addition of a duty to investigate when the commission suspects an individual is at risk. As I have said, Age Concern supports the amendment and I pay tribute to its assistance in drafting it. The recent cases of deaths at Parkfields residential home in Butleigh, Somerset, is an example of CSCI using the power to investigate. The couple in that case were accused of murdering five residents and CSCI used that power, although a bit late. One resident died and CSCI saw what it thought was a substantial risk and did a snap inspection, following which it applied for an order and closed the home. The other people who died did so before that action was taken.

Ideally, such a function in the commission would be supported by an effective complaints procedure and body, which would flag up potential problems through that process. We will find that there are other opportunities throughout the Bill to debate that in more depth. Does the Minister agree that this has been a useful power for CSCI, given what is a pretty powerful example? Does he expect that power to carry over into the CQC? We cannot find that in the Bill. I hope that agrees that subsection (6), by virtue of the amendment, is a helpful and constructive approach to a problem that he said that the Bill aims to address.

Greg Mulholland (Liberal Democrat, Leeds North West)

There appears to be a need to clarify the duty of intervention that the new CQC will have when it suspects that an individual or individuals are at risk, and the amendment is useful for that. As we know, and as we have heard in the particularly extreme recent example at Parkfields, the new commission will inevitably encounter situations where the welfare or rights of the individuals are at risk of being infringed by failures in the system. Therefore, it makes sense for the commission to have a clear duty to intervene. The point of the amendment is to have that firmly on the face of the Bill. The Minister’s answer will say whether that is the appropriate way to do this.

I am sure that the Minister will accept not only that we believe that the amendment is useful and sensible, but that this kind of thing is needed to give a sense of confidence, in this case, that the new Care Quality Commission is there to protect vulnerable individuals and to safeguard people, whether in the health or the social care setting. That is the purpose of the Bill. My particular concern, and the concern of organisations such as Age Concern and the CSCI, is that that duty is most needed in the care sector, particularly when dealing with the most elderly and most vulnerable people. It is interesting that the words “dignity, rights and welfare” have been used. Clearly, this is not just about basic rights and the duty to intervene for specific health care and safety-associated risks; there are also risks to people’s dignity, which it is essential to include in the Bill. The question is whether the Minister can convince us on whether that should be on the face of the Bill, or whether it is already there in essence. It is certainly something that must be specified and I look forward to hearing what the Minister has to say.

Kelvin Hopkins (Labour, Luton North)

The hon. Member for Eddisbury was kind enough to mention my interest in the Human Rights Act, which relates to amendments that I shall move later. It strikes me that the amendment is a softer version of my amendment and does not make specific reference to the Human Rights Act in its application to private care homes. If, for example, it said “Human Rights Act” in place of “regulations”, it would be the amendment that one would like to see. At some point during the progress of the Bill, one would hope for some guarantee that the rights of people in care will be protected in that way and that the Government are committed to them. I will be working hard, from my position, to try to secure that end. I wonder whether the amendment is a weaker version of my later amendment or a necessary addition to it. I would be interested to hear the response of the hon. Member for Eddisbury.

Ben Bradshaw (Labour, Exeter)

Clause 2 already makes it clear that the new commission must, in everything that it does, pay particular heed to the need to safeguard the rights and welfare of vulnerable people. Those priorities will be at the heart of the new organisation in deciding when and where it needs to act to help to assure the safety and quality of health and adult social care services. The Bill enables the commission to take action in response to breaches of any registration requirements, or breaches of requirements under any other legislation, including human rights legislation, that it thinks is relevant. However, we would argue that it should not be the role of the new commission to provide advocacy in individual cases, as is suggested by the amendment. We believe that it should be the responsibility of the commission to ensure that registered providers fulfil their responsibilities. Advocacy and safeguarding should primarily be the responsibility of other organisations. It should be the providers’ responsibility to deliver safe, quality care and the commission will take action, and if necessary close services, if they do not.

As we have discussed before, we have recently consulted on handling complaints and we proposed that commissioners—both PCTs and local authorities—should have a more vital role in ensuring that the processes work effectively. Where those responsibilities are not being met, the Bill gives the commission tough enforcement powers to follow up breaches of requirements and, when doing so, to inform other relevant appropriate organisations that have responsibility in these areas: for example, commissioners and in extreme circumstances the police. For example, where the commission identifies unacceptable treatment of a service user’s dignity by a provider, it may take action against the provider and may also inform the local authority, under clause 35, so that it can follow up issues accordingly.

Boards and/or senior managers of provider and commissioning organisations must themselves be held responsible for ensuring that the care they provide is safe. Registration requirements, which we will be consulting on during the passage of the Bill, will require those providing care to demonstrate that they secure the dignity, rights and welfare of those who use their services. Although I understand the reasons behind the amendment, we have already given the commission the powers it needs to tackle such breaches. The practical effect of the amendment would be to shift the onus of responsibility from providers and commissioners to the new commission and risks absolving them and overburdening the new commission. Therefore we cannot accept the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I am rather interested in the angle that the Minister has taken, because although he has decided that he does not want to accept the amendment, which I think he detects has a bit of broad support, he declared himself not wholly unsympathetic to the sentiment behind it, although he may think that it does not need the advocacy aspect.

Where is the underpinning of advocacy? We have touched on that in our discussion about independence. All Committee members remember that well in respect of the community health councils. I am sorry to pray that example in aid, but those bodies seem to provide a sensible parallel. There is an absence; the Bill simply relies on the voluntary sector to be advocates. I ask the Minister to reflect on that.

A coroner, for example, while obviously dealing with different circumstances, is looking into the cause of death in a lot of individual cases, but if he or she comes across aspects of the particular that need to be made available in the public arena for general understanding, not only does he or she have an absolute duty and right to do so, but that is strongly welcomed. The advocacy that is obtained by that process is a task that that independent body has been charged to undertake. Sometimes, it can make uncomfortable reading for all of us when the mirror is held up to us as a legislature and an Administration.

The hon. Member for Luton, North deftly described the amendment as possibly a softened version of something that was coming later. He was right to observe that it is a complementary and therefore necessary part of those two things, but I have no doubt that we will have opportunities to raise issues about the incorporation of a rights-based approach or even, to use his argument, the terms of the Human Rights Act 1998, later in our considerations. I did not draft the amendment in relation to the 1998 Act particularly because doing so would have caused certain consequential drafting issues, with which I am sure he is familiar. The amendment is a more effective way of trying to achieve some of the main, underlying principles that he is also trying to secure, with every sympathy. This matter has also exercised those representing the Liberal Democrats.

We will be able to return to the issue again. I am more hopeful than I might have been—I hope it is not hope over expectation—that the Minister will take time to reflect on this set of arguments. It would, of course, be quite wonderful if he intervened, or if he were to indicate that he will think about it and possibly bring back on Report something that would reflect what is becoming a bit more of a cross-party approach.

Sandra Gidley (Liberal Democrat, Romsey)

Does the hon. Gentleman agree that in some ways, the amendment is about raising the bar? I was slightly alarmed when the Minister said that in serious breaches, the police will be called in. When it comes to the concept of dignity, there are many examples that are not criminal, would not seem serious enough to warrant that sort of involvement and may be deemed less important. His amendment is useful because, if it is accepted, the Bill will stress that that is something that the commission should have regard to. I do not think that the current wording is as strong as the wording that the hon. Gentleman has suggested.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the hon. Lady for that approach. Perhaps it will help to reinforce the point that she has helpfully made if I tell her about what I had in mind when I was looking at the amendment. It goes back decades now, but I was terribly struck by it, and have carried it around in my head—to be personal for a second, if the Committee will indulge me.

My mother was a nurse for many years, and I recall her saying about the issue of dignity, before it became a more commonly used, fashionable word, that the absolute quality of care was tested when, if a patient going to or coming back from theatre, is anaesthetised—this applied to both sexes, but she said it in relation to women in particular—the bed clothes on the trolley were not properly arranged and the patient was not properly covered. Even when they had no control over that, and may never have known that their personal dignity had been assaulted, it was the absolute test of professional care that a nurse would immediately go and arrange those blankets so that the personal dignity of that individual was maintained.

That is highly relevant to what I am trying to suggest here as a rights-based approach. The right to dignity is absolutely in the mind, even if it is not of the criminal variety, which would be of a different order of magnitude. I hope that that type of example underpins the genuine sense of professionalism and deep care that is recognised by all members of the Committee, and which we want to imbue as the standard against which everybody will be judged in all health and social care settings.

Kelvin Hopkins (Labour, Luton North)

I appreciate entirely that the natural human response is to accord other people dignity, and one would hope that that would always be the case. However, a culture is frequently established by law. Throughout history, particularly the last couple of hundred years, we have had to change the law time and again to ensure that people are treated properly. I have no doubt that the hon. Gentleman’s mother, and many others in my family who have worked in care circumstances, would behave well, but there are some who will not. To ensure that that culture exists and is universal, I think that the force of law is necessary.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the hon. Gentleman. Many other amendments reflect and bear upon people’s rights, I think that this area is patently absent from the Bill. It is within our capacity as a Committee to sort it out and correct it. I very much hope that this amendment, or one brought back in a different form by the Minister, having reflected on the discussion, on Report, will deal with the issue. That will be an ideal opportunity to do so. Failing that, I dare say that it will be picked up in another place in a more determined manner. I would encourage those in another place to do so, not least after reading what I have just said. I hope that we can readdress that matter.

We are not seeking to cast aspersions, or to assume that people, particularly those dedicated to care services, are not naturally focused on the dignity and the rights of the individual. However, as the hon. Member for Luton, North rightly said, so often, it is the statutory expectation, underpinned by the law, that means thankfully that the law has rarely to be used. It is setting a benchmark of behaviour and expectation that gives people the knowledge that they are doing the right thing. Having reflected on what the Minister has said and, with a glimmer of hope that he will think about the matter on Report, I beg to ask leave to withdraw the amendment.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss new clause 1—The Commission’s duties —

‘(1) Notwithstanding the provisions of section 2(4), the principal duty of the Commission in carrying out its functions shall be to protect and further the interests of patients, service users and the public in relation to the quality and safety of care services.

(2) In carrying out its duty under subsection (1) the Commission shall encourage:

(a) the continual improvement of the quality of the activities to which its functions relate,

(b) the carrying out of such activities in a way that focuses on the needs and experience of those for whose benefit the activities are carried on,

(c) the involvement of patients and service users in the work of the Commission wherever the Commission considers this appropriate including, in particular, in the processes of review and inspection, and

(d) the efficient use of resources in the carrying out of the activities to which its functions relate.’.

Stephen O'Brien (Conservative, Eddisbury)

New clause 1 sets out the duties of the Care Quality Commission to encourage continual quality improvement, service user and patient-focused care, the involvement of patients and service users in the CQC’s work and the efficient use of resources. I am sure that other members of the Committee will have been approached by the Picker Institute, which has sought the new clause, and we were happy to table it to ensure that the issues are properly considered and addressed. It improves and adds to the current description of the commission’s functions—part of an earlier debate—and the things to which it must have regard. It replaces clause 2(5) and goes beyond the emphasis in clause 2(3)(a) and (b) on the views and satisfaction of the public, by adding a focus on the experience and engagement of patients and service users. New clause 1(2)(a) and (d) raise the existing wording in clause 2(5) to the level of general duties.

New clause 1(2)(a) and (b) give the commission a strengthened mandate to promote continual quality improvement—something I thought we would all agree with entirely and want to see supported. The provisions will help to ensure that the regulator’s efforts and resources are not overwhelmingly focused on risk-based detection and the elimination of the poorest performing service providers, but also make a due contribution to the general improvement of services over time.

New clause 1(2)(b) additionally requires the commission to encourage service providers to focus not only on meeting the needs of service users, but also on their experience of using the services. Evidence shows that raising the quality of the service user’s experience contributes to increasing the effectiveness and improving the outcomes of care as well as user or patient satisfaction. That was based upon patient-focused interventions and a review of evidence by A. Coulter and J. Ellins of the Picker Institute for the Health Foundation in 2006.

New clause 1(2)(c) likewise reflects evidence that the involvement of patients increases the effectiveness of care and improves its outcomes. It reflects best practice in the regulation of health and social care services and the production of patient and user centred care. It will act as a general mandate to pursue that goal through various aspects of the work of the regulator, including developing guidance on complying with registration requirements, developing methodologies of performance measurement and review and improving the effectiveness of review and inspection activities. Without such a duty the models of user involvement developed by existing regulators may be lost in the transition, especially because budgets will be lower and if the board of the new commission is not drawn from among the existing regulators.

The Government have stated:

“The Care Quality Commission’s...priority will be to safeguard service users and help improve their experience of health and adult social care services - recognising that it can only do this effectively by involving them. It will be able to build on good work done by the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission, which all emphasise the importance of involving service users, and their carers, in their work”.

I hope that the Minister will be willing to amend clause 2 accordingly, which will be useful, I presume, in establishing the rights and duties that we are debating. There are a number of issues that we could read in from other debates on other clauses, but it is clear that, without wanting to take up the Committee’s time unduly, it is sensible to recognise that the proposal sits well with, and is consistent with, a raft of the amendments that we have already considered. I am sure that that consistency will be welcomed.

Greg Mulholland (Liberal Democrat, Leeds North West)

Our debate on clause 2 has been useful, and although the Minister has not accepted any of the amendments, he will accept that there are concerns about the fact that the CQC’s duties are not laid out as fully as certain organisations would like.

Much of new clause 1 would help to clarify the point that the new commission should put the needs of patients and service users first, but the crucial provision, which we support, is subsection (2)(c). Currently, the commission will only “have regard to” the views of members of the public, but that phrase is almost meaningless. From my own rows with NHS trusts, I know that it is exactly the kind of phrase they can hide behind, claiming that they have “had regard” to all sorts of views expressed by the public. All too often, that becomes an excuse for not informing the public, never mind holding meaningful consultation with patient groups—there is not too much of that in the NHS nowadays.

It is therefore useful and important—indeed, fundamental—to the whole essence of the new CQC that we use the phrase

“involvement of patients and service users”,

rather than referring just to the general public. Empowering the patient is something the NHS does not do enough, and we have an opportunity to address that today. The Commission for Social Care Inspection has called patients and service users “experts by experience”, but we do not seem interested in hearing the views of those experts.

Patients and service users absolutely should have a defined and genuine role in the new system of inspection and regulation, and it is entirely sensible to make that clear in the Bill. Subsection (2)(c) of the new clause gives us the opportunity to do that, and including it in the Bill would send the clear message that we want patients and service users to be involved and that we see them as stakeholders in the health service and the care sector. They are not sufficiently involved at present, but the unamended Bill does not address that, so it represents a huge missed opportunity.

I look forward to hearing what the Minister has to say. We strongly support subsection (2)(c). We support new clause 1 in essence, but subsection (2)(c) is crucial if we are to achieve the kind of regulatory system that patients and service users deserve.

Angela Browning (Conservative, Tiverton and Honiton)

I would like to speak to new clause 1 because it is important that the Bill sets out the commission’s duties in the same format as the new clause. The interpretation of the commission’s duties should not be left to guidelines or secondary legislation. It is important that the changes with which I think the Minister is presenting us are set out in the Bill, because they will vastly strengthen and improve outcomes for patients and service users.

I support the idea that, as I understand it, the Bill is not just about having an inspectorate that is like a police force, which goes around checking when things are wrong and filling in check-lists—in other words, giving an historical account of what has happened. Of course, if we are to protect patients and service users, it is important that inspections are carried out regularly and have teeth when they find that things are wrong. In tandem with that, however, it is important that we drive up standards, which must be for the benefit of service users. Service users and patients should feel confident not only that there is a combined inspectorate, but that standards and quality are improving as a result of its activities. It is important that that is made clear in the Bill.

There is a second aspect to new clause 1 that has not yet been mentioned. Many of us have dealt with members of staff working in both health and social care who themselves have almost become victims of the failure to drive up standards. Professional staff will appreciate the fact that the Bill defines the real focus of the commission, because that benefits not just patients and service users but those involved in social care and the NHS. That is very important. In an inspectorate, there is always a danger that people will think in silos; in other words, what is required of them is sometimes seen as divorced from some of the issues that we have mentioned in Committee, such as quality of life and protection for patients and service users. Clearly defining the duties of the commission will enhance what the Minister seeks to do in bringing together the inspectorates, so that the CQC is not just a police force but drives up the quality of care for service users.

Ben Bradshaw (Labour, Exeter)

Eagle-eyed members of the Committee will recognise the new clause as a bundling together of several of the amendments that we discussed at some length on Tuesday. I will not repeat everything that I said then except to say in summary that we believe that the essence and desires behind the new clause are already in the Bill, in particular the issue that has just been raised. I entirely agree with the hon. Member for Tiverton and Honiton about the need for one of the functions of the new commission to be continual improvement, which is clearly stated in subsection (5)(a). We debated that point at some length on Tuesday. Paragraph (d) of the new clause proposed by the hon. Member for Eddisbury would reintroduce the efficient use of resources, which his amendment sought to delete. I do not quite understand that. Perhaps it is just an innocent mistake. I think that the new clause is flawed and unnecessary.

Stephen O'Brien (Conservative, Eddisbury)

In suggesting that we are re-debating something that we have already debated, the Minister does not quite understand the full import of what has been drafted. In the context of the somewhat unsatisfactory response from the Minister and the fact that this is a clause stand part debate, it is important to flag up the fact that as far as clause 2 is concerned, we have received no guarantees that the good work of the former regulators will be carried over in its entirety. We have had no guarantees of a general function for the commission. In the oral evidence, it was recorded that although leaving everything to regulation is the ultimate flexibility it is also the ultimate straitjacket because it depends on how the Secretary of State frames the legislation. We have had no guarantees of proper service user involvement and a national patient voice through Local Involvement Networks.

We continue to have concerns about the Care Quality Commission’s lack of focus on all, rather than just vulnerable adults, particularly carers—a point that was strongly reinforced by my hon. Friend the Member for Tiverton and Honiton. We have no guarantees of proper independence in clause 2(4) and we have had no separation of economic regulation from quality and value-for-money regulation. If we cannot have that, we cannot have new clause 1 either.

It is deeply disappointing that we have not managed to persuade the Minister. I had some hopes that we might. While it would not be appropriate to seek to divide the Committee on clause stand part, I want to register our intention to divide the Committee once we reach the appropriate moment on new clause 1.

Schedule 2

Stephen O'Brien (Conservative, Eddisbury)

Clause 3 introduces schedule 2. It is the enabling clause for the schedule, which transfers property, rights and liabilities. The Minister told us on Thursday that although establishing the CQC will cost £7 million, as outlined in the regulatory impact assessment, the transition costs will be £140 million. He said:

“The £140 million includes the cost of redundancies, estates rationalisation and planned reduction of the operating costs.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 120.]

I hope the Minister will take the opportunity, as we examine the schedule, to detail what that £7 million covers, the current estates and the length and value of their leases. He will want to take note of information provided to me that, in relation to the Healthcare Commission, Finsbury tower is on a long lease taken out by its predecessor organisation, the Commission for Health Improvement, running until 2020, with a lease-break clause in 2015. That goes straight to the heart of the point.

Will the downsizing be anything beyond that already planned by the various regulators? I hope it is clear that by the end of March, the CSCI will have closed two thirds of its inherited estate of 84 offices: 56 closed, 28 remaining. As I understand it, that is the position, but I have not had the chance to confirm it with the CSCI. Where will the CQC be based? Given the Prime Minister’s 2004 commitment to relocate 20,000 civil service jobs outside London following the Lyons review, how many jobs will be moved out of London? As an MP representing a north-west constituency, I can tell the Minister that that is of very significant interest to my area, and I dare say that other Members have a not dissimilar interest, although we from the north-west will compete for those relocated jobs.

Will the Minister outline the liabilities of the three regulators? That will be vital before they are disbanded and transferred. How many staff are employed by each regulator in England, with an inside/outside London split, if possible, in Wales and in Northern Ireland? That is the context and background, and it is absolutely vital that we understand the operative part of clause 3, which brings into force schedule 2.

Schedule 2 deals with transfers of property, staff and the rest, so how much of the property, rights and liabilities will revert to the Crown? What is the expectation of paragraph 1(4), which says:

“A scheme under this paragraph may contain provision for the payment of compensation by the Secretary of State to any person or body (other than one mentioned in sub-paragraph (1)) whose interests are adversely affected by the scheme.”?

The Minister will note that the paragraph is italicised, which means that it involves taxpayers’ money, so it is incumbent on all of us to find out what is intended. Does he have an estimate of the possible compensation? It is taxpayers’ money, so not only should he know, but we have a right to know, and so do the public. Has the amount been crystallised, or is it open to increase?

What is the process for obtaining the consent of Welsh Ministers under paragraph 1(6)? There is a very important point to be made at this juncture. There has been a puerile and crass attempt by the Labour party of Wales to try to undermine some of the amendments to the Bill, which quite rightly seek to put pressure on the Minister to decide whether he or Welsh Ministers will have responsibility for the legislation in Wales. Instead, the Government have kept the options open and not made a decision, and the legislation is all over the shop. They have got their little cronies in Wales to concoct a press release to try to undermine the amendments. Look at the evidence: only the Opposition have a Welsh MP on the Committee. The Labour Government do not, so they do not have somebody in the Committee who understands how the devolved powers work and can stand up for the interests of patients in Wales, be they in the health service or social care.

It was not only puerile but absolutely misplaced and deeply misjudged for the Labour party of Wales to start a nasty political spat when, in fact, only the Conservative party has managed to put on the Committee somebody who can stand up for the interests of Welsh people. I hope that my hon. Friend the Member for Preseli Pembrokeshire will have an extremely enjoyable time ensuring that he stands up for the people of Wales and his constituents where the Government have failed, given that they had the option to select somebody representing a Welsh constituency. We did so, and we are glad to have had that opportunity.

On paragraph 2, it will be important to ensure that the day that the Secretary of State is likely to appoint for the transfers to take place is named. Failing that, many things will be difficult to determine. I hope that the Minister will take the opportunity to spell out why paragraph 3 is drafted as it is with regard to transfers under the Transfer of Undertakings (Protection of Employment) Regulations 1981, which I would have thought would be of grave interest to all members of the Committee. We have a duty to understand the rights that attend upon transfers of responsibilities and employment expectations, which are beyond the power of those involved in legislating in this place.

Finally, how many posts has each regulator already cut since the inception of the Gershon review? How many staff have the regulators lost through wastage due to the anticipated merger of their responsibilities? Without those numbers, we can make no sense of the claims made by the Minister and his colleagues.

Stephen Crabb (Conservative, Preseli Pembrokeshire)

It is a convention—and also heartfelt from me—to say what a pleasure it is to serve under your chairmanship, Mr. Conway.

As my hon. Friend said, the schedule provides for the transfer of the property, rights and liabilities of the various bodies affected by the Bill—in the case of Wales, the Mental Health Act Commission. I should like to ask the Minister a few brief questions about how the Bill applies to Wales, with a view to helping the scrutiny process. Those who follow closely the proceedings of the Select Committee on Welsh Affairs, as I am sure many do, will know that the quality of scrutiny given to legislation made here that affects Wales, particularly framework legislation and the new legislative competence orders, is a live question.

Although Members from all parties might feel comfortable devolving further functions and powers to Welsh Ministers as part of the ongoing devolution process, it is surely incumbent on us to ensure that there is the best possible scrutiny at an early stage. To that end, will the Minister update the Committee on the discussions that he and his officials have had with Welsh Assembly Ministers about how the Bill will apply to Wales? Specifically, what does he understand the property, rights and liabilities of MHAC in Wales to be? Did Welsh Ministers, during his discussions with them, identify any additional resources that they would need to be able properly to fulfil their new functions and powers under the Bill?

Given the benefit that the Minister anticipates the creation of the new independent and integrated Care Quality Commission will achieve in England, my main question and concern about the application of the Bill to Wales is how comfortable he is about investing Welsh Ministers with many of the relevant functions, and the extent to which he thinks that the spirit of independence that has been discussed in relation to the CQC in England will be observed in Wales. Perhaps he will update us on what Welsh Ministers have said and on how they intend to use the powers to ensure that people in the Principality benefit to the same extent as those in England from the new provisions in the Bill.

Ben Bradshaw (Labour, Exeter)

I regret that I do not have to hand the exact figures on liabilities and the length of the leases of various buildings, but I have written to Committee members following last Thursday’s sitting when evidence was taken about costs. If the Committee so desires, I can hold on to that letter a little longer and add some of the detail that has been requested, or send the first letter and include in a further letter some of the issues of liability in as much detail as we can gather in the time. Does the hon. Member for Eddisbury have a preference on that?

Stephen O'Brien (Conservative, Eddisbury)

I am most grateful for the Minister’s offer, and indeed for allowing us to express a preference. It would be very helpful to us, in getting a handle on the issue, if he would send the letter that he has taken the trouble to put together as soon as possible, and send a further letter when the other details are to hand, so that we can give the matter proper consideration.

Ben Bradshaw (Labour, Exeter)

On the questions about Wales, hon. Members will know that the Care Quality Commission covers England only, but the MHAC is, I am advised, covered in clause 48(3). Again, I shall perhaps add a few lines on Welsh issues for members of the Committee, although we have liaised closely with Ministers and colleagues in the Welsh Assembly Government throughout the development of policy on the Bill. They are happy with the provisions, and so are we.

Anne Milton (Conservative, Guildford)

Will the Minister give us—he did not mention this—the figures on the loss of staff? That came up during evidence sittings. It is a crucial matter in the transition period and it is extremely important for the Committee to hear how many staff have already been lost.

Ben Bradshaw (Labour, Exeter)

Yes. I am happy to do that.

Clause 4

Stephen O'Brien (Conservative, Eddisbury)

This is one of about five affirmative resolution clauses in the Bill, and it concerns the regulated activity with which we must now be concerned as we move on to consideration of chapter 2. The Committee must effectively have another meta-debate on this clause, if I can put it that way, given that the real meat will be in the regulations. Clause 90 tells us that

“‘prescribed’ means prescribed by regulations”

made by the Secretary of State. The clause also defines the geographical scope of regulations—England, mainly.

While both the Commission for Social Care Inspection and the Healthcare Commission cover England alone, as the Minister has just mentioned, the Mental Health Act Commission currently oversees the operation of the Mental Health Act 1983 in England and Wales. It was appropriate for us to raise the point about Wales in the previous debate, because it was covered by schedule 2, but I noted—and it is relevant to the present matter too—that the Minister has undertaken to return to some of the points that were raised, both in writing, which is very helpful, and when we come to debate further clauses and amendments.

The Bill gives the functions of the MHAC pertaining to England to the CQC and those pertaining to Wales to Welsh Ministers. Subsection (2)(a) limits the scope of the CQC to England alone. The Minister has just made a commitment that he will seek to help the Committee as much as he can. What assessment has he made of the division of staff and intellectual property arising from that split? I hope that, as he and his officials are noting the process of these inquiries, the intellectual property rights will also be given proper consideration. They are an asset that is often overlooked but absolutely vital. Coming from a commercial background, I can say that intellectual property rights are often used most of the time in any transfer negotiation by way of friendly or hostile purchase.

Subject to the following provisions of clause 157, the Bill extends to both England and Wales. I hope that the Minister will have checked by the time we reach that clause that there is no conflict in the drafting. I put it no higher than that, but it is certainly worth checking.

Clause 4(2)(a) limits prescribed activities to those connected to health or social care—the definition of which we will debate under clause 5—

“in, or in relation to, England”.

Can the Minister tell the Committee the force of the phrase “in relation to”? As an MP whose constituency has a Welsh border and much of what is rather interestingly called “health tourism” across that border, I am interested in what protection the clause gives to my constituents who are treated and cared for in Wales—often very well, I have to say. Obviously, for many of my constituents, being treated in Wrexham Maelor hospital involves travelling a much shorter distance than would be involved in travelling even to the Countess of Chester hospital in the city of Chester.

What right of appeal, on behalf of my English constituents, does the clause give me, as their representative in the House? I have frequently attempted to ask the Secretary of State for Wales what happens if things go wrong for my constituents in a health or social care setting in Wales. He has immediately referred me to the First Minister of Wales, who has told me that I have no standing with him and he has absolutely no obligation to respond to me, and does not. Therefore, I have no way of representing my constituents through the devolved powers, which in effect create a form of devolved apartheid when it comes to accountability.

What impact will this provision have on NHS patients seeking health care abroad—I am not now talking just about going across borders within the United Kingdom—under the EU’s attempt to open up the health care market? The Minister and all his colleagues will be very conscious of the recent debate that has been had, mainly in the press, because the EU was supposed to publish draft legislation on 20 December just gone, but has delayed it until early 2008, so we are in live time. That is in the light of anger from, among others, our very own British Ministers. We await that publication with bated breath. It will be absolutely germane to this part of the Bill and the way in which the Bill can operate.

The clause also, rightly, prevents the CQC from encroaching on the role of Ofsted in the inspection of children’s services. Ofsted inspects, among others things, children’s homes and residential special schools. Can the Minister confirm that this provision will not impact on the commission’s ability to report on children and young people being treated on adult mental health wards? As he is well aware, that is a scandal that continues to persist under this Government. Given in particular the recent report on learning difficulties services published by the Healthcare Commission, what will he do to encourage close working between the two bodies in terms of service users, providers and individual staff in the sector?

I note the Minister’s genuinely helpful alert to the Committee last Thursday about joint working. He brought our attention to clause 64 and schedule 4. However, my understanding of clause 64 is that it requires the commission to promote co-ordination of reviews and assessments, not of day-to-day processes. Schedule 4 comes closer to supporting joint working in processes, although it does not require it in the same terms as clause 64. Again, I hope that that provides genuine food for thought for the Minister and his officials, because I suspect that there will be time to think about it before we get there.

In relation to clause 4(3), I hope that the Minister will give us an answer as to why he has decided to enshrine these three aspects explicitly in the Bill. It is not an exclusive definition of “connected with”, but it seems to particularise when the rest is left to more generic definition. What assessment has he made of the division of staff and intellectual property arising from the division of the MHAC? Given that the clause applies to England and Wales, should subsection (2)(a) reflect that? What does “in relation to” mean? Will Ofsted and the CQC work together? Why has he sought to define, although not exclusively, “connected with” in the terms outlined? Those are the questions that I hope he will seek to address as we consider the clause.

Ben Bradshaw (Labour, Exeter)

This may not be my job, but I slightly flinched at the hon. Gentleman’s use of the term apartheid to describe some of the complexities that have arisen from the democratic decisions taken in this country to grant devolution to Wales, but I will leave that issue with him. Apartheid, in my view, was a despicable, racist-based policy, deliberately implemented by the nationalist Government in South Africa. It is not an appropriate term to refer to these complexities.

Stephen O'Brien (Conservative, Eddisbury)

I was born in east Africa, and therefore had to live through and survive and challenge the whole of the apartheid approach, but the Minister will be aware that the derivation of the word has nothing to do with racism. It is to do with there being two different sides of a similar issue and it was then hijacked to have a meaning in political terms, which is what he might have described. He is no better advocate than I am for being anti-apartheid in the sense that the term was used in South Africa, but I was using the term here in its genuine rather than ascribed form.

Ben Bradshaw (Labour, Exeter)

I take the hon. Gentleman’s point, but I have noticed that a number of Conservative Members use the term apartheid to describe the cross-border complexities caused by devolution. I ask him to bear in mind how the use of that term would come across to most South Africans.

The clause allows regulations to be made to define the activities that need to be registered with the Care Quality Commission. That will be carried out through regulations, so the list of regulated activities can be revised as new models of service provision evolve. This is particularly important, so I intend to spend a little time outlining it.

We want to encourage flexible and innovative ways of delivering services to be developed. I do not want the registration system to be a barrier to that. Ofsted is responsible for regulating children’s social care. To avoid the possibility of services currently registered with Ofsted having to register twice, the clause specifically excludes any services that are registered with Ofsted from the definition of “regulated activity”, but of course they will have to work closely together.

We will be consulting very soon on the activities that are to be regulated by the Care Quality Commission. We expect that most service providers currently regulated by the Healthcare Commission or the Commission for Social Care Inspection will be required to register. These would include independent sector health care providers and providers of adult social care that are currently required to register. For the first time, NHS trusts—including ambulance trusts—NHS foundation trusts, and primary care community services will also need to register. Under the current arrangements, because NHS care is regulated and inspected differently from other services, it is not always easy for patients to compare NHS services with those of other providers. It also creates a barrier to joint working and means that private providers providing some statutory services have to comply with two regimes. Creating a unified system of regulation across health and adult social care providers from all sectors will create a fairer playing field. It will also assure the general public that whichever provider they use, all services will be required to meet the same national safety and quality requirements, and will be subject to the same enforcement regime if they fail to do so.

In respect of the hon. Gentleman’s question on assets, as I said in my answer to a previous question, I will include whatever information we can give the Committee on assets in writing.

On his question about cross-border issues and the term “in relation to”, I suspect—I will confirm this in writing—that this may include examples in which the service is provided in Wales, although it is commissioned in England. That may be an example where we would have to use the phrase “in relation to English”, but I will happily confirm that in writing.

Clause 5

Kelvin Hopkins (Labour, Luton North)

I beg to move amendment No. 81, in clause 5, page 3, line 12, at end insert

‘and section [Application of Human Rights Act 1998]’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following: Amendment No. 82, in clause 157, page 103, line 29, at end insert—

‘( ) Section [Application of Human Rights Act 1998]’.

New clause 3—Application of Human Rights Act 1998

‘Any person providing health and social care within the meaning of section 5(2) and section 5(3) is deemed to be a public authority in relation to the performance of those functions for the purpose of section 6(3)(b) of the Human Rights Act 1998 (c. 42) (acts of public authorities).’.

Kelvin Hopkins (Labour, Luton North)

I am pleased to have the opportunity and, indeed, the responsibility, of speaking to this important group of amendments and the new clause. They would bring private and voluntary sector health and social care providers within the scope of the Human Rights Act 1998.

Thousands of older and disabled people do not have access to the protection that they were promised under that Act after a legal loophole was created by a series of judicial rulings. The amendments would rectify that error, and ensure that bodies that provide health and social care as defined in the Bill would be required to act compatibly with the rights and freedoms contained in the Human Rights Act when performing their functions. The measures would close the current loopholes in the 1998 Act that mean that it does not cover people who receive care in a private or charity care home. Although that would change the status of private and charity sector providers of health and social care in relation to the 1998 Act, all state services, including NHS treatment and publicly run residential care homes, are within the scope of the Act. The amendment would ensure that people who receive contracted services are guaranteed the same levels of protection and rights to redress as people who receive services from the state.

Improving the quality of health and social care must be a high priority for the Government, particularly because I support them. It is essential that all health and social care services provide good quality care that respects the rights and dignity of all older and disabled people. The Human Rights Act applies to all public authorities and other bodies when they are performing

“functions of a public nature”.

However, in 2002, a court ruled in the Leonard Cheshire case that private voluntary sector care providers, including those caring for locally funded clients, should not be considered as performing public functions. In a recent test case in the House of Lords, YL v. Birmingham city council, their lordships confirmed by a majority of three to two that narrow interpretation of the Human Rights Act. The Government intervened in the YL case and made clear their desire to see private and voluntary sector care providers fall within the scope of the Act.

On Second Reading, the Government said that they would address the lack of human rights protection for older and disabled people in care homes by regulation. My hon. Friend the Minister said:

“We hope to be in a position to tackle that in the forthcoming Green Paper on the British Bill of Rights and duties, which would allow us to deal with the matter in the wider context of the public authority definition. Including that definition in the Bill causes a problem because it is so vast. However, we will strengthen the regulatory powers in the measure to ensure that the care quality commission can enforce the requirements in line with the relevant provisions of the Human Rights Act.”—[Official Report, 26 November 2007; Vol. 468, c. 105.]

That expresses the hope of including something in a Green Paper, not a commitment to including the provision in the Bill.

Although the Government’s clear commitment to solving what is a pressing social problem is welcome, the proposed solution is inadequate. It is clearly important to promote the centrality of human rights to the new regulatory framework. However, regulations under the Bill cannot be used to close the loophole in the Human Rights Act, because regulations—secondary legislation—cannot be used to change the meaning of primary legislation. Even if the regulatory route envisaged by the Government provided the Care Quality Commission with greater powers than those already conferred on public authorities by the Human Rights Act, it would provide no direct remedies against care providers for victims of human rights violations. The existence of legal remedies drives broader cultural change, as I said, so giving people the confidence to assert their rights would provide service providers with an extra incentive to protect and fulfil them.

The provisions in the Bill will allow care home residents or their representatives to complain to the care home but, in many cases, they will not be able to take their complaint further. The new commission will not have the power to investigate complaints from individual residents. The only other possible residual route is to make a complaint to the local authority or to use the NHS complaints procedure, depending on the body funding the placement. However, the scope of those parallel complaints procedures is limited to their statutory functions and does not extend to care standards. For example, a complaint that related to an arbitrary eviction engaging the right to respect the home life could not be investigated under the statutory complaints procedures. Access to the health service or local government ombudsman would then be precluded for the same reasons.

If the law is not amended, there will continue to be the prospect of significant human rights violations for which the victim has no effective remedy under domestic law. It is vital that all disabled and older people be given proper access to a legal remedy for all human rights abuses. Following the YL judgment, it is clear that only primary legislation can secure full access to justice for older and disabled people under the Human Rights Act. Previously, the Government’s view was that the creation of the loophole was unintended and that all care home residents should have a legal remedy against care providers under the Human Rights Act.

When introducing the Human Rights Act, the then Home Secretary, my right hon. Friend the Member for Blackburn (Mr. Straw), said that “public authorities” should extend to private providers fulfilling public functions. He used the following words:

“The Government have a direct responsibility for core bodies, such as central Government and the police, but they also have a responsibility for other public authorities, in so far as the actions of such authorities impinge on private individuals.”

He went on to say that the Human Rights Act

“had to have a definition of a public authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities.” —[Official Report, 16 February 1998; Vol. 306, c. 773.]

Following the YL judgment, the then Parliamentary Under-Secretary of State with responsibility for human rights in the Ministry of Justice, the Baroness Ashton of Upholland said:

“I am particularly interested in investigating how to use a human rights framework to ensure that all older people in care are looked after properly...The noble Lord will be aware that one of the issues considered in the judgment was whether the Human Rights Act applied only to those citizens in care homes that were publicly funded. My ambition is to cover all elderly people in care, and I intend to do so.”—[Official Report, House of Lords, 27 June 2007; Vol. 693, c. 597.]

Angela Browning (Conservative, Tiverton and Honiton)

I am listening with a lot of sympathy to what the hon. Gentleman is saying, but will he clarify something? In recent years, direct payments have been introduced and used by people who would certainly qualify under clause 5(3) as individuals needing personal care and other practices. In the case of direct payments, although the funding comes through the local authority, it is at the discretion of the local authority—and, often, just by mutual agreement with the local authority—that the person who needs the care becomes the employer, particularly those with learning disabilities and such conditions. Therefore, they legally contractually employ the person who carries out the service or the care for them, although the core funding comes via social services. In drafting the amendment, does the hon. Gentleman think that the people providing care through a direct payments grant to those needing care would also come within the scope of the clause, or does he think that because they are legally the employer, employment law and other legislation would kick in instead?

Kelvin Hopkins (Labour, Luton North)

The hon. Lady makes an important distinction but provided that the effect is to ensure that everyone in any type of care, however it is contracted, is protected under the Human Rights Act, I am happy. The amendment may need further amendment at a later stage during the progress of the Bill, but my intention is to ensure that everyone is covered effectively by the Human Rights Act.

Nine out of 10 care homes are within the private or charitable sector following a range of privatisations over many years. However, under the law as it stands, the scope of the Human Rights Act does not directly extend to those care homes, which means that residents of independently run care homes who experience human rights abuses cannot use the Act to challenge the care home provider. There is widespread and serious concern from, among others, the British Institute of Human Rights that such a situation exists. The institute has convened a group of more than 15 disability and human rights organisations—some of which have provided separate briefings to the Committee— including residential care providers, as well as statutory bodies that share a concern about the protection gap. I ask the Minister to support the amendment in order to close the loophole in the law and to ensure that the Human Rights Act protects older and disabled people receiving health and social care services, regardless of the provider. It is unacceptable that because of changes—perhaps moving from a public home to a private provider—the provisions of the Human Rights Act should be removed from someone in care.

The evidence shows that closing the loophole is necessary and urgent. A number of cases show a stark cruelty and lack of care. We have concerns about malnutrition and dehydration, including meals being taken away before the patient can eat them, or insufficient help with eating and drinking. There is also a lack of privacy, dignity and confidentiality. The hon. Member for Eddisbury spoke of people who had just undergone operations and who were still unconscious not being treated with dignity. Indeed, some individuals are being left in their own urine or excrement. Neglect and carelessness is another problem; I include poor hygiene and the rough handling of patients, with bullying, patronising and infantilising attitudes being taken toward older people.

I have a list of real examples but I shall not read them out in full. People are being neglected, and becoming bedridden and developing pressure sores. As we heard earlier, people are being over-medicated to keep them docile. Chronic understaffing is another problem; indeed, in one home a single male carer was left on his own to look after 30 older women. That is not acceptable, and I hope that other members of the Committee would agree.

Sandra Gidley (Liberal Democrat, Romsey)

I am sympathetic to the argument that the hon. Gentleman is developing, but would not the single carer in charge of those 30 people be picked up under the Care Standards Act 2000?

Kelvin Hopkins (Labour, Luton North)

I am sure that they would—one hopes that they would—but as I said earlier, the Human Rights Act is important, in that it sets a framework of law to underpin people’s rights and to ensure that the culture changes. When such things happen—inspectors cannot be there all the time—people should know that the regulations are backed by the force of law.

As I said, I could mention many other cases, and there are other issues concerning self-funding care home residents. The amendments would also cover care home residents who funded their own social care. We believe that it is vital to protect all older and disabled people, regardless of who pays for their care.

There is a danger in drawing artificial distinctions between publicly and privately funded residents, as Lord Mance noted in his ruling in the YL case. He implored care homes to

“view and treat all such residents with equality”.

He concluded his judgment by sending this message to Parliament:

“if additional protection is to be achieved by statutory means, it is no matter for regret that this should be done without distinguishing between residents in one and the same care home who on the one hand arrange and fund their own care and accommodation and others who on the other hand benefit from local authority assistance to arrange and fund such care and accommodation.”

Other issues will need to be debated later, but I believe that this question is of fundamental importance. I hope that the Government will accept the amendment. Simply expressing a hope that we can bring in regulations or legislation at a later stage is not sufficiently strong. I hope that my hon. Friend the Minister will undertake today to guarantee that the Bill will include a guarantee that the Human Rights Act 1998 will apply to all residents of care homes, whether in the private or the public sector. I rest my case. I hope that others will support me.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the hon. Member for Luton, North for tabling the amendments and the new clause. We heard a genuine exposition of the reasons why the force of the point carries such impact with so many Members across the House. I pay tribute to him for being a consistent and sincere advocate of the centrality of human rights, which are core values of what we think and what we pass as law.

The hon. Gentleman will be aware that some of what his amendment would achieve was the aim of a private Member’s Bill brought in during the previous session by one of his hon. Friends. However, the Solicitor-General, the hon. and learned Member for Redcar (Vera Baird), who was then the Minister with responsibility for such matters, chose to talk it out—[Interruption.] The Government Whip continues to chunter from a sedentary position in a partisan fashion. We said at the time that we have always wanted the extraordinarily complex issues raised by the amendment to be considered in detail in Committee. I have a lot of sympathy with the hon. Member for Luton, North when he said that the Government’s response, which was effectively to park the matter until a Green Paper on rights can be produced, is insufficient.

Kelvin Hopkins (Labour, Luton North)

It seems clear that the Ministry of Justice is committed strongly to that matter, as, too, I hope, is my hon. Friend the Minister.

Stephen O'Brien (Conservative, Eddisbury)

Indeed. Joined-up government is always a hope, and I, too, noticed what the Ministry of Justice said.

The matter must be considered in detail because, as the hon. Gentleman made clear, a lot of very important legal, conceptual and detailed drafting needs to be done when incorporating the Human Rights Act into legislation. The consequentials and complexities are extremely challenging, which is why we have said that the matter needs to be considered in Committee, for which this Bill seems to offer an ideal opportunity. That would forestall the inevitable delay before the Ministry of Justice produces a Green Paper and Bill to provide for the proposal before us. We hope, therefore, that the Government will consider the matter very carefully and provide some details for us to discuss.

Having said that, the hon. Gentleman will appreciate that—this is consistent with what we said during consideration of the private Member’s Bill that I just mentioned—although we are interested in, and sympathetic to, many of the concepts in his proposal, in the absence of detailed Committee consideration, it would be inappropriate to support his amendment to incorporate en bloc the Human Rights Act. That would have huge ramifications and present many complexities and challenges. However, I hope that he is successful in persuading the Minister to use this Bill as a great forerunner to the detailed debate required to deliver on his wholly laudable objectives.

At a personal level, I should add that it was the wonderful United Nations charter enshrining human rights that first led me to recognise that I had any political bones in my body, because it gave rise to, and was the provenance for, the wonderful organisation that is Amnesty International, to which I gave many years of dedicated work.

Sandra Gidley (Liberal Democrat, Romsey)

We on the Liberal Democrat Benches support the amendment; in fact, we feel so strongly about it that we added our names to it. I hope that the hon. Member for Luton, North does not do the usual thing, beloved of some of his colleagues, and withdraw the amendment, because it would be useful to put it to a vote. I hope that this will not be yet another missed opportunity. Similar amendments were tabled during the passing of the Equality Act 2006, at which time the subject was kicked into the long grass of forthcoming reviews, which have now taken place.

As has been highlighted, another opportunity was missed during the consideration of the private Member’s Bill that the hon. Member for Eddisbury mentioned. That Bill was not enthusiastically or even lukewarmly taken up by the Government. I am disappointed that, although we have an opportunity to do something positive, yet again the subject of human rights—this time of people in care homes—is being kicked into the long grass with the mention of a forthcoming Green Paper.

All the time that we wait, there is a lack of clarity around the issue, despite the well-meaning attempts to incorporate the theme of human rights in some parts of the Bill. The consequence is that, in the meantime, it will be very difficult to tackle some of the problems that have already been highlighted by the hon. Member for Luton, North, who made a number of important points, which I will not waste the Committee’s time by repeating.

The recent report of the Joint Committee on Human Rights highlighted that residents in care homes were among the people most vulnerable to human rights abuses. That report outlined many of the concerns raised by the hon. Gentleman earlier. Although I took issue with one of the examples that he mentioned, it seems to me that every day there are examples of practices that are regarded as routine, such as the over-medication that was mentioned earlier, or making continent patients sit around wearing incontinence pads because staff cannot be bothered to take them to the toilet at the appropriate time. Tackling that type of practice will not be a priority when the new commission is being set up and it really beholden on us to try to tackle it.

Anne Milton (Conservative, Guildford)

I wonder whether the hon. Lady would agree that it is a shame that tackling that type of practice would not be a priority. She talked about raising the bar earlier, but if one raises the bar on the apparently small things the overall culture of the organisation improves and standards would go up too.

Sandra Gidley (Liberal Democrat, Romsey)

I agree entirely. I must also say at this point that there are a lot of places that deal with that kind of problem well. We all go into care homes as part of our jobs and we get a feel for who is doing things well. However, there is not any real way that we can tackle some of these problems.

It is about raising the bar and I agree with the hon. Lady that it would be a shame if tackling that type of practice were not a priority. However, the new commission has a huge amount of work on its hands and there is a lot for it to get its teeth into. It will concentrate on the must-dos. If tackling that kind of practice does not appear in the Bill as a must-do, in the early days at least, it will not attract the attention that it deserves.

Brian Jenkins (Labour, Tamworth)

I support my hon. Friend the Member for Luton, North, because I find it quite difficult, coming from a party of equality, to understand how we cannot have equality in the whole country when it comes to the right of appeal. I find it very difficult to understand how a person can be placed in an old folk’s home run by a local authority and be covered by the Human Rights Act, but, through no fault of their own, if they are placed in a privately run home, because the local authority fails to provide that home, they are not covered by the Human Rights Act. I find it even more amazing that, if someone is unfortunately not covered and funded by a local authority but has to make their own provision, they are placed at an even greater disadvantage and have even fewer safeguards.

Although I recognise that the hon. Member for Eddisbury said that it is a legal nightmare when we start to walk down this path, I do not think that the difficulty should dissuade us from doing so. I hope that my hon. Friend the Minister will find the right words at the present time to give an assurance to the members of the Committee that we will not walk away from the problem and that we will start to make an advance in dealing with it and to put a framework in place attached to the Bill, or else provide a very early opportunity for the House to vote on the issue, so that we can cover those vulnerable people and thereby close what I feel is a disgraceful episode: the level of inequality afforded to citizens in our country.

Ben Bradshaw (Labour, Exeter)

I would like to say at the outset that I have a great deal of sympathy with my hon. Friend the Member for Luton, North and the motivations behind the amendment that he has tabled. However, I hope to persuade him, for a number of reasons, that this is not the most satisfactorily or most legally watertight way of addressing the issue now.

I reassure my hon. Friend the Member for Tamworth and the hon. Member for Romsey, who spoke on behalf of the Liberal Democrats, about the safeguards that the Bill will put in place in respect of care homes—particularly private care homes. I am happy to repeat the assurance that the Government have made it clear that they are committed to amending the Human Rights Act to ensure that all independent providers of publicly funded care homes are covered by it. We have agreed with the Ministry of Justice—we are at one on this—that we will use the Bill to strengthen the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements in line with the relevant provisions of the European convention on human rights. That will apply to all care providers under the Bill.

In the information that I have sent to Committee members, I have already outlined some examples relating to registration. If my hon. Friend the Member for Luton, North and other Committee members read that, they will see that we indeed fulfil the commitment in honouring the provisions not just of this Bill, but in wider legislation, including human rights legislation.

We are also underlining the fact that the purpose of regulation is to establish essential minimum requirements that protect people’s dignity and human rights. I have said that before and I will continue to do so. We will be consulting on the nature of the regulations during the passage of the Bill. I invite hon. Members to come back to the regulation requirements when those are discussed. Regardless of the scope of the remedies provided under the Human Rights Act, we expect all providers of regulated health and social care to respect the human rights of all service users.

As I am sure my hon. Friend will be aware because he has followed this matter closely, there is a problem with the extension of the Human Rights Act to contractual arrangements made by individuals that are strictly private, because it also contains a right to privacy. A far more sensible debate is going on, which we need to have in full, about whether the Human Rights Act is, legally, the best framework for regulating entirely private contracts. The hon. Member for Eddisbury acknowledged the need to have a full and proper debate on that matter. That is one reason why my hon. Friend’s amendment would not be the best or the most legally watertight way of proceeding.

Angela Browning (Conservative, Tiverton and Honiton)

If the Minister does not accept the amendment under the terms already published in the Bill, particularly clause 5(3), perhaps I could raise with him the point that I have already made to the hon. Member for Luton, North. Subsection (3) defines what “social care” includes. What is the Minister’s understanding in respect of those people who contract privately with others, who receive direct payments to provide a package of care or a service where the contract in employment terms is directly with the beneficiary of that service and the individual they contract with? Employment law then comes into it, because there is a proper contract of employment, albeit the funding is public funding coming through social services. What are his thoughts on that matter, if he will not accept the amendment?

Ben Bradshaw (Labour, Exeter)

We will debate clause 5 later. I will happily address that question then, if I may, because my understanding is that because a direct payment would involve a state role—that is, state funding—it would fall under the auspices of the Human Rights Act. I will happily clarify that for the hon. Member for Tiverton and Honiton when we debate clause 5.

Stephen O'Brien (Conservative, Eddisbury)

I am sure that this is relevant to whatever point that the Minister is addressing. Would he try to provide the clarity that we all need to understand why the Government have tabled Government amendment No. 123 and Government new clause 7 pertaining to clause 157? I understand that those Government amendments would extend the closing of the loophole on the application of the Human Rights Act to private care homes for the purposes of Wales, Scotland and Northern Ireland but not for England. There seems to be a patent inconsistency, and I hope that the Minister will address his comments to that point, which has been a source of our concern.

Ben Bradshaw (Labour, Exeter)

Again, I shall happily and categorically clarify that later, but I imagine that amendments address the need for consistency throughout the United Kingdom, not the substance to which the hon. Gentleman referred.

The Government’s other fundamental problem with the approach of my hon. Friend the Member for Luton, North to the amendment is, as he acknowledged, that public authority goes much wider than just care homes. We are working closely with the Ministry of Justice to find a more comprehensive and sustainable solution to the problem. As my hon. Friend acknowledged, the Ministry is committed to addressing the issue and is bringing forward consultation on the Bill of rights and responsibilities. It will draw on the wide range of expertise in that process in a genuine spirit of consultation. I am sure that both he and other Committee members will want to take an active part in that consultation.

I have some difficulty with the Conservative party’s approach. I thought that its commitment to the Human Rights Act was at best lukewarm, and there was a suggestion some time ago that it would get rid of the Act, but again that may have changed.

In response to my hon. Friend, I hope that he will understand that while I have great sympathy with the motivation behind his amendments, we do not believe that in this context they are the right way of achieving the aim that we all share: protection of people, particularly vulnerable people, in all care homes, including private care homes. In that spirit, I ask him to reflect, and to withdraw his amendment.

Kelvin Hopkins (Labour, Luton North)

May I say at the outset that I remain convinced that we should have a commitment in the Bill to the application of the Human Rights Act to residents in private care homes. It is clear from what the main Opposition party said that there is not sufficient support in the Committee to guarantee success for my amendment at this stage, but I hope that at later stages of the Bill the Government or others will table an improved amendment that the Government will accept.

Stephen O'Brien (Conservative, Eddisbury)

I hope that the hon. Gentleman took note of my comment about the Government’s amendments to clause 157. It may take us a little while to get there, so the Government will have an opportunity to discuss with him whether, for consistency, England might be included. The Minister’s response to the intervention seemed to be that it would bring consistency to Wales, Scotland and Northern Ireland. My point was that the Government seem to have favoured Wales, Scotland and Northern Ireland in the incorporation of rights, but to have excluded England. That seems extraordinary, and there may be an opportunity for the hon. Gentleman to pursue his ideas.

Kelvin Hopkins (Labour, Luton North)

I thank the hon. Gentleman for making that important point. My concern is not to reduce pressure on the Government to introduce legislation soon to give effect to the objective of my amendment, so that care home residents in my constituency and elsewhere are protected and have the same rights as those in public care homes.

People have come to my surgery with problems in private care homes that have had to be addressed, and one was closed not so long ago. Such issues will not go away until private care homes are covered by the Human Rights Acts. The industry may not be keen on that, because it suggests that there will be greater pressure to perform well, and to behave decently to all their residents. Some care homes do a good job, and I am not disparaging those that do so, but clearly some do not. We need the force of law to ensure that the human rights of private care home residents are guaranteed to the same level as those in public care homes.

I shall reluctantly withdraw my amendment, but I hope that improved amendments will be tabled during the Bill’s progress in both Houses, and I hope to speak on them and to pursue the matter. It would not be helpful for my amendment to be defeated, but I hope that the Government will not just talk about future, more general legislation, but include in the Bill the rights of those in private care homes. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 198, in clause 5, page 3, line 14, after ‘includes’, insert

‘the promotion and protection of public health, and’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 203, in clause 90, page 45, line 14, leave out ‘Except in Chapter 2’.

Stephen O'Brien (Conservative, Eddisbury)

I hope that the Minister will be joining us. If the Opposition can manage to be in two places at once, we would expect the same of the Minister, not least as it is because of his Government’s cack-handed management of the timetable that we have ended up having to start the Committee late. So, it is a somewhat unusual set of circumstances. [ Interruption. ] There is the typical chuntering from the Government Whip that he does not like debate on the Floor of the House, but it is the Government’s own rather lazy timetabling that has ended up forcing us to expose their inadequacies. If he does not like long speeches, he should get the business right in the first place.

Amendment No. 198 amends clause 5, in which health care has an encompassing definition. Amendment No. 203 amends clause 90. Obviously, for convenience, they have been grouped together for our debate in the general interpretation of part 1. Amendment No. 198 seeks to give the Care Quality Commission the power to inspect health, not just health care issues. It seeks to ensure that the protection and promotion of health, as well as the technical standards of health care, are covered in the registration regime. It is important that we should make an assessment of whether we want the leeway to divide those two, or whether we want to look at matters in a general way.

The amendment arises from Anna Walker’s oral evidence last Tuesday, in which she replied to my question by saying that

“we are very perturbed that at the moment the administration requirements explicitly exclude catching work on health, as opposed to health care...we believe...that people’s health needs to be looked after as well as their health care”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 12, Q12.]

She continued:

“The registration requirements explicitly say that they cannot bite on public health issues, only on health care issues.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 12, Q13.]

Anna Walker also raised the matter as far back as September, so it is not a new point for the Minister. She told the Health Service Journal, which I am sure is avidly read in the Department—as it is, of course, by Her Majesty’s official Opposition shadow health team—that

“There has been some concern about whether this has been thought about sufficiently clearly and rationally. We want people to concentrate on health and health care and we want health care organisations to do it because primary care trusts and hospitals can do a huge amount in terms of the advice they give to people at critical stages. People who look after health care are really important in looking after health. Although regulation is not the only player in this it is a very useful lever to improve public health.”

There are three distinct issues there. First, the health of the individual; secondly, the health care provided to that individual; thirdly, the wider public health policy within which health care operates and the individual’s health is or is not safeguarded. My assumption concerning the impact of clause 90, where public health is still relevant to chapter 1 and chapters 3 to 6, is that in its reviews the CQC can bite on public health issues, but in its regulatory capacity it cannot. I would be grateful if the Minister confirmed that.

The drafting of clause 5 shows a lapse, I believe, in the judgment that has been applied to the drafting of the Bill. If the Minister is truly moving NHS policy toward patient-centred care, the key metrics are the health outcomes for the individual. That is why we are committed to scrapping top-down targets that are made when monitoring outcomes. We already know from the absence of patient and service-user involvement, that there is a vacuum at what is, in many ways the centre of the regulatory body. Although we have had the Minister’s commitment that he is considering the issue carefully, and his undertaking to return to the Committee at a later stage with clearer thinking on it, we are very concerned that the vacuum is so stark in this area. In clause 5, the Minister seems to be preventing the CQC from taking health outcomes into account; rather, the new body will monitor the processes. Surely the processes will end up meaning nothing without the outcomes alongside them.

As far as public health issues are concerned, as the Committee will be aware, the number of public health staff, excluding consultants, working in the NHS has been more than halved in the 10 years since Labour came into office. In 1997 there were 3,167 key non-consultant public health staff, which includes nurses, nursing assistants and other key public health support workers; but by 2006 that had fallen to 1,362—a misrepresented cut of 1,805, or 57 per cent.

In 2002, Derek Wanless served warning on the Prime Minister that a failure to tackle public health challenges would contribute to an extra cost of up to £30 billion a year by 2022. The Prime Minister’s failure to do that forced the Government’s chief medical officer, Sir Liam Donaldson, to raise the alert last July that the country was following Wanless’s worst case scenario. He also noted that there is strong anecdotal information from within the NHS that tells a consistent story for public health of poor morale, declining numbers and inadequate recruitment, and budgets being raided to solve financial deficits in the acute sector.

The amendments are important to ensure that, as we take the legislation forward, the inevitably narrower focus of health care and, therefore, settings, rather than health as a more outcome-focused issue, will be vital. I simply seek to chime with the rhetoric and sentiment that the Government have proclaimed and advocate themselves.

One only has to look, for the purposes of the Bill and of the amendments that enable matters apparently so close to the Government’s heart, at obesity rates, sexually transmitted infections and levels of substance misuse, all of which are rising. Since 1997, the proportion of two to 15-year-old boys who are either overweight or obese has increased by one third, and the corresponding proportion of two to 15-year-old girls has increased by 27 per cent. Those figures are from the Department of Health. The situation has been exacerbated by the Government’s abandonment in 1999 of the last Government’s targets to reduce rates of obesity in the general population to 6 per cent. among men and 8 per cent. among women.

For instance, the definitional changes would relate to sexually transmitted infections. Since 1997, in the 10 years since Labour came to office, cases of syphilis have increased by 1,654 per cent., gonorrhoea by 44 per cent., chlamydia by 148 per cent., herpes by 17 per cent., genital warts by 17 per cent. and HIV by 111 per cent.

The other aspect that the amendments cover is substance misuse, which would otherwise be excluded. Since 1997—the year for which I happen to have the numbers, of course—the number of alcohol-related deaths has increased by 40 per cent., and the number of young people receiving treatment in hospital as a result of alcohol misuse has risen by 33 per cent. Interestingly, smoking rates have fallen far more slowly since 1997 than they did in earlier years. In 2005, 24 per cent. of the adult population smoked, compared with 27 per cent. in 1998, but between 1978 and 1996 there was a sharp drop from 40 per cent. to 28 per cent.

Health inequalities is a subject close to all our hearts. We should aim to give greatest effect to addressing them through the Bill, and the amendments would give us that opportunity. Although the inequality gap in circulatory disease mortality has declined and is on track to meet the target, the inequality gap in the infant mortality rate has not reduced sufficiently to meet that target. The inequality gaps in male and female life expectancy at birth have increased since the baseline was established, and if current trends continue, the target will not be met. The inequality in cancer mortality has declined since the baseline, despite a slight increase in the latest period, and the minimum requirement for the 2010 target has, indeed, already been met. However, that is unfortunately irrelevant due to the meaningful outcome measure of five-year survival rates—much argued over on the Floor of the House.

We have proposed the amendments and measures to protect public health budgets, which go hand in hand, in order to create a new structure for public health, allowing local public health directors to determine how funding for services will be spent. Independent public health budgets would be ring-fenced to ensure that they were spent on prevention without being raided to support hospitals in deficit, and the chief medical officer’s department would be strengthened to make it more independent of Ministers—another theme of the Bill—and the Department advising the renamed Secretary of State for Public Health.

Given the Minister’s repeated call for the Committee to allow the CQC to establish its own regulatory best practice, I should have thought that he would want to give it the power to bite on whichever issues it felt were relevant to registration. Why does the Bill exclude public health from chapter 2? Is it because of the Government’s dismal record on public health and health inequalities, or is it simply an oversight? I hope that it is the latter, because we could correct it by accepting the amendments. If it is the former, I fear that the Minister will use “reject” or any other word he can think of not to accept the amendments. In that case, the Government stand accused of woeful shortcomings on public health. Health outcomes depend on the public health measures under discussion falling within the ambit and expectations of the Bill.

Ben Bradshaw (Labour, Exeter)

I do apologise for arriving after this afternoon’s proceedings were under way. I was told 10 minutes, and the clock stood at nine as I came into the room, so if that was my mistake, I apologise.

The amendments stem from a basic misunderstanding of the distinction between the new regulator’s public health remit concerning activities that are not registered, and activities that are registered under the chapter. For the purposes of chapter 2, clause 5 effectively sets the outer boundary for the type of activities that could be included as regulated activities in regulations under clause 4. They have been framed deliberately widely to allow scope for new models of provision to be added to the list of activities.

On public health, the examples that the hon. Gentleman gave, such as substance abuse, smoking cessation, alcohol abuse and so forth are all public health activities that we envisage might be registered or considered for review. However, the general publicity campaigns that health trusts and Governments undertake would not be appropriate for inclusion in that area of the Bill, but they are covered in other areas of it.

The definition of health care in clause 5 explicitly includes

“all forms of health care provided for individuals,”.

Therefore, any public health services that provide health care to individuals would fall with the scope of registration. Chapter 2 lists the sorts of services that both I and the hon. Gentleman have mentioned. However, the campaigns that I refer to, which do not involve the provision of care to individuals, would not fall under that definition. We do not think that they present the tangible risk that we are dealing with in the registration provisions of the Bill, in the same way as provisions or services to individuals do. We accept, however, that a far greater emphasis should be put on public health, and it is important for the commission to look at those latter activities in respect of its other functions. For example, if a primary care trust runs a public health campaign, the commission should be able to consider that in its assessment of how well that trust meets the needs of its local population.

Clause 90 clarifies that such activities do not fall within the definition of health care only for the purposes of chapter 2. They will fall within that definition for the purposes of reviews, special reviews, investigations and so on. Given those assurances, I hope that the hon. Gentleman will withdraw his amendment.

Stephen O'Brien (Conservative, Eddisbury)

I have made my position clear and I am sure that we will find ourselves returning to the matter on a number of other occasions, not least when we consider clause 90. I hope that, together with the Minister, we have identified an area that needs to be reinforced, and that there may be other ways to achieve the same goal. Rather than labour the point, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 7, in clause 5, page 3, line 16, at end insert ‘including all forms of cosmetic surgery’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments: (a), in Line 1, at end insert ‘and treatments’.

No. 129, in clause 45, page 22, line 27, at end insert ‘including cosmetic surgery and treatments.’.

Stephen O'Brien (Conservative, Eddisbury)

I will speak to amendment No. 7, although I will also touch on amendment (a) and No. 129, tabled by the Liberal Democrats, who will doubtless want to address them in more detail. At this point we must understand clearly that health care includes all forms of cosmetic surgery and treatment. Amendment No. 7 would insert

“including all forms of cosmetic surgery”,

and amendment (a) would add the phrase “and treatments”. Amendment No. 129 amends clause 45, to which we shall return later, although here my point is that regulations and regulated activities will include cosmetic surgery and treatments. The amendments seek to bring cosmetic surgery and treatments within the ambit of the CQC. Outside the NHS, new services are emerging in the rapidly growing cosmetic treatments market, and are subject to little or no regulation. That includes cosmetic fillers, for example—something I am certainly not in any need of. That leaves consumers at risk and can have harmful consequences.

Without taking up too much of the Committee’s time, I will recall the item highlighted by Which? magazine in August last year: isolagen. If members of the Committee are interested, they should type the word into Google and they will find a useful example of what we are talking about. In its oral evidence, Which? stated:

“The administration of dermal fillers, including some that are semi-permanent and permanent, of Botox injections and of such things as chemical peels do not come under the Healthcare Commission’s remit.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q173.]

I am perhaps minded to see some reasonableness in the Minister’s contention about the question of the justification of expecting the taxpayer to pay for the policing of procedures. Like other members of the Committee, no doubt, I am also sometimes sceptical about the thoroughness with which Which? brings forward policy proposals on the back of research. It is our job to be sceptical about such things. Having said that, it is important that we proceed on the basis of evidence. Which? contended:

“It is a rapidly growing market and likely to grow more rapidly”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q173.]

and that

“one in five of the British adult population considers some form of cosmetic treatment.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q175.]

That somewhat takes my breath away, but it is apparently the case. I am keeping my eyes down, because it would be somewhat invidious to look around at every fourth or fifth person in the room and to try to guess who has been subjected to such treatment.

Which? also called the industry “cavalier” and noted that

“people who undertake such procedures”—

I think that it means “undergo”—

“think that they are regulated, and are quite unaware that they are not protected in any sense.”—[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q175.]

Most persuasively, it contended that

“the consequences of getting it wrong can be significant, including long term permanent harm”,

and that

“the taxpayer often ends up paying if it goes wrong, because the NHS picks up the pieces.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q173.]

I suspect that members of the Committee recognise and acknowledge the need to contend with such a knotty issue. If the market is growing in both demand and breadth of supply, is there not a case for at least some self-regulation? The Financial Services Authority, for example, is a publicly sponsored body funded by its own industry. The Committee will be interested in the Minister’s assessment of consumers’ perception of which matters in the industry are regulated.

Stephen Crabb (Conservative, Preseli Pembrokeshire)

My hon. Friend makes the important point that the growth of the market means that regulation must at least be considered. Does he agree that, unlike most other forms of surgery, for which there is a continuous demand, the cosmetic industry has actively to create demand? It is therefore peculiarly well placed to take advantage of vulnerable people.

Stephen O'Brien (Conservative, Eddisbury)

My hon. Friend makes an important point. When anything is effectively market-led, people are keen to expand the market. That said, even before the well known cosmetic surgery and treatment market became well established in this country and others, those of us practising law occasionally had to deal with extraordinarily difficult personal injury cases. If someone on an oil rig had a great chain smash them round the face, there were the most fantastic cosmetic surgeons who could put them right, at least to the degree that was possible. The skills existed, and the market has tended to grow on the back of them. We need to be careful not to say that but for a private market, such surgery would not have existed—it did exist and the skills were there. The question is about using that capacity outside the NHS in elective, discretionary surgery. We should not underestimate the skills and NHS training of many who have come to be among the world’s leading cosmetic surgeons with the greatest understanding of techniques and treatments for cosmetic improvement.

All markets need good information, even if it is not perfect. The cost-benefit analysis that is based on the final cost to the taxpayer will be most interesting because it will tell us whether Which? is right in its contention that the NHS picks up the pieces. I suspect that we all have a fair feeling of what the answer will be, but it is vital to have the evidence.

As the Minister contemplates the matter, perhaps it will be instructive to examine what BUPA has said. At the very least, it

“would like to see all invasive procedures including cosmetic procedures such as Botox regarded as ‘regulated activities’ under the Health and Social Care Bill, to ensure that the new Care Quality Commission regulates these services and so protects patient safety.”

Cosmetic treatments also include non-invasive procedures, so there is a difference in what BUPA says.

I also wish to ask the Minister for clarification. Page 25 of the explanatory notes states:

“The provision of some cosmetic procedures is included in the definition of health care.”

So far the Minister has not seen fit to alert hon. Members to the distinction between cosmetic surgery and cosmetic treatment, which was identified in oral evidence. Given that we have this reference in the explanatory notes, the matter has patently been given close and careful consideration by the Minister and his team. We can therefore now look carefully at our amendment, reinforced, I hope, by the Liberal Democrat spokesperson who seeks to amend it.

The only explanation for cosmetic procedures appearing in the explanatory notes is in the Queen’s Speech briefing, which highlighted the issue. The reference seems to be a carry-over from that time, but it has not found its way into the Bill. The Minister will understand that I have tried to trace the genesis of the way in which these phrases are used. Clearly they will have consequences, and we see that from what Which? and BUPA say. These genuine and serious issues have to be addressed.

There has been no mention of the argument that the Minister advanced during oral evidence. Of course, there was his comment that the taxpayer should not pay for the regulation of these private procedures. He said:

“I would like to explore, although we probably shall not do so in the course of the Bill,”—

more is the pity; I hope that there has been a little bit of reflection on that—

“the justification for expecting the taxpayer to pay for the policing of procedures that are purely cosmetic and not available on the national health service.”——[Official Report, Health and Social Care Public Bill Committee, 9 January 2008; c. 75, Q175.]

There again he used the word “procedures” rather than “surgery” or “treatment”. I should like to give the Minister the benefit of the doubt and hope that he was not seeking to conceal from members of the Committee and third party organisations what was in his mind when he drafted these notes.

What assessment has the Minister made of this market and its future growth? Would he agree with Which? that it is a cavalier industry? What assessment has he made of the perception of consumers in the industry about regulation? What assessment has he made of the costs to the NHS from picking up the pieces of these procedures? What action does he intend to take in spurring the industry into self-regulation? It would be very helpful to have an explanation from him of the explanatory notes and the terms used therein. Having spoken to my amendment, I am happy to register my broad support for the amendment to it tabled by the Liberal Democrat spokesperson.

Sandra Gidley (Liberal Democrat, Romsey)

Amendment (a) to amendment No. 7 builds on that amendment, which, as has already been explained, would include cosmetic surgery as part of health care. We welcome amendment No. 7, and the context has already been explained. An ever growing proportion of the population is considering cosmetic surgery. It is quite a drastic step to consider going under the knife. We must also bear in mind that anaesthetics are often involved, and there is a whole range of procedures in cosmetic surgery that are regarded as purely medical procedures.

If cosmetic surgery goes wrong, the health service picks up the bill. I think we all intuitively feel that this is a concern, but some clarity about the costs would be useful when coming to an overall decision. The Minister has raised concerns about the taxpayer footing the bill. However, much regulation is paid for by those who are regulated. A lot of the professional regulation is funded by medical professionals themselves. One might think that costs would be passed on to the consumer, but the proposal would reap an overall benefit.

Which? raised a number of major problems with the procedures, including the aggressive marketing that puts pressure on consumers. The most important problem, to my mind, is poor information, which means that people who are trying to decide whether to undergo surgery or where to go do not have an informed choice. There is often a lack of detail about risks or possible complications. Many guides to cosmetic surgery, although they are supposed to, do not include details of a clinic’s latest inspection report or details about the complaints procedure. If something goes wrong, the consumer or patient—whatever we want to call them—can struggle to know where to go. There is often a lack of clarity about the qualifications of the person actually performing the procedure.

All that is bad enough, even if we are talking about only cosmetic surgery, but amendment No. 7 does not cover procedures such as botox or fillers. This is a rapidly growing market and new technologies are entering the marketplace all the time. It is important to engage public confidence from a Government point of view. The industry seems to promote public confidence by presenting a quasi-medical image—the technicians all wear starched white uniforms so that everything all looks terribly clean and like there is nothing that would cause concern.

Let us consider botox as an example. It is a prescription-only medicine, but there are some doctors, who I would suggest are not a credit to their profession, who regularly write prescriptions to enable people with little or no qualifications to administer the procedure. That is wrong. It should not be left to self-regulation and more must be done to monitor it. I cannot understand why the Government would not want to protect the consumer in that area. Stronger chemicals are being used, botox parties are being held in venues such as hotel rooms, and invasive procedures such as Smartlipo are being undertaken in offices. I am not sure that those are the appropriate environments in which to carry out such procedures—[Interruption.]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. Hon. Members must not have conversations while an hon. Member is speaking.

Sandra Gidley (Liberal Democrat, Romsey)

I will return the compliment some time. The hon. Member for Eddisbury mentioned—[ Interruption. ] Well, I thought that it was called Isolagen, but I want to say that I am not an expert and that was just a guess. It is one of those words that are pronounced in as many different ways as they are spelt.

Today, in the Daily Mail, there was a report about women suing a clinic over a claim, and some of the comments made quite interesting reading. The report states:

“The women claim clinics, including several in Harley Street—

which everybody thinks of as being medical

—duped them into undergoing treatment which did nothing to reduce the impacts of ageing.”

More interestingly, Isolagen was withdrawn in America shortly before its launch in the UK following concerns from the Food and Drug Administration about the scientific trials. The procedure was overseen by the FDA in America, but because it was not regarded as medical in the UK, there was no such scrutiny, monitoring or licensing of the technology. The amendment has been tabled to avoid such instances in the future.

I hope that the Government are at least sympathetic to the arguments and are moving some way towards regulating this sector more strictly, even if they do not wish to adopt the amendment. I believe that there is supposed to be self-regulation in the cosmetics industry, but there is not.

Amendment No. 129 would amend clause 45(2)(a) to make it clear that establishments offering such procedures are subject to regular review. Again, the old arguments apply: clinics can change hands, and the public must have absolute confidence when undergoing such procedures.

Ben Bradshaw (Labour, Exeter)

As I said in our discussion during the evidence-taking sessions, I welcome this debate. I have given the matter some thought, and it is interesting because it is philosophical. At some stage, a boundary must be drawn between where taxpayer-funded regulation is justified and where it is not. One’s instinct when one hears about a terrible case is that the Government should do something, but the more I have thought about that, the more I have asked myself how far is it justified to expect the taxpayer to pay the enforcement costs of the regulation of activity that is cosmetic and not available on the NHS. In many cases, that would involve the regulation of vanity. We would all do well to ponder that question.

The amendments are based on a misunderstanding that the Bill explicitly excludes the sort of cosmetic procedures to which hon. Members referred. The Bill already covers such matters and clause 5(2) explicitly refers to

“procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition.”

We believe that that allows cosmetic procedures, whether surgical or other treatments, to be regulated by the new commission, should that be considered appropriate. As I said during the evidence-giving session, we will shortly consult on what specific activities will be regulated by the Care Quality Commission, and I want to encourage the debate to continue in that context.

Any cosmetic procedures that, following the consultation, are deemed necessary for registration with the new commission would also fall within the scope of clause 45 and could, therefore, be subject to periodic reviews by the commission as set out in that clause.

Anne Milton (Conservative, Guildford)

In what situation would the procedures not be considered appropriate for regulation?

Ben Bradshaw (Labour, Exeter)

I do not think that that is for me to say now. It is for us to have a debate. The hon. Lady may have a view of where the boundary should lie, and I may have a personal view, but that might change when I reflect more deeply on the issues, which we will do when we embark on the consultation on the regulation system. I am not prepared to give a judgment off the top of my head now. I indicated the direction in which my sympathies lie during the evidence-taking session, but I wanted to reassure the hon. Lady and those who support the amendment that the Bill does not exclude the sort of procedures that they seem to believe should be regulated.

Angela Browning (Conservative, Tiverton and Honiton)

If I have understood the Minister correctly, he will, following the consultation on which he is embarking—I welcome that—draw up a list of procedures or treatments that will be subject to regulation. How will that impact on private clinics? One serious problem has been leaking silicone breast implants. The health service often has to do the repair work when that happens because a women’s health can be seriously damaged if the implants go wrong. If a clinic is involved, will just the one procedure that it carries out be covered? If it is negligent in, or not very good at, one procedure, there is a question mark against all the other procedures carried out on its premises.

Ben Bradshaw (Labour, Exeter)

We are talking about the registration requirement and procedures carried out in a particular facility that comes under that requirement. If it were decided that a procedure should come under regulations, when the regulations are laid, any facility providing that procedure would qualify.

I am grateful for the hon. Lady’s intervention, because I was going to say, if the discussion broadened out into a general debate on the issue, that it is important—as the hon. Member for Eddisbury mentioned—that we do not automatically exclude the importance of self-regulation and do not lose sight of the fact of the sorts of instances that the hon. Member for Romsey referred to, involving doctors breaking the rules in terms of prescribing Botox. There are already rules in place, both for professional conduct and in the law, that offer safeguards in these areas.

There is a question that needs to be addressed by the Committee and in the wider debate. The estimates of the number of premises offering cosmetic procedures could, in theory, mean that the vast majority of the premises that the new Care Quality Commission is required to register and even inspect are those offering cosmetic procedures, so it would be doing that rather than focusing on the core responsibilities that we are trying to ensure that the new independent regulator has in respect of health and social care.

This has been a welcome opportunity to air some of these concerns and for hon. Members to think a little bit more deeply about this matter, because doing so will help inform the debate that we will need to have when we discuss the regulations.

Anne Milton (Conservative, Guildford)

I thank the Minister for giving the matter further consideration. It has become apparent that there needs to be some clarity. Many people who go into a clinic, for want of a better word, for a procedure perceive themselves to be in hospital, but in fact the clinic may be registered under nursing home regulations. At the moment, the private providers obviously want to slip under the lightest regulatory regime possible, although not necessarily because they are doing anything wrong. It is important that there is absolute clarity, not only for Committee members but for the public.

Ben Bradshaw (Labour, Exeter)

Yes. The hon. Lady is right to draw attention to the importance of good, accurate information and the importance of individuals, who are thinking of undergoing such treatments, making certain as far as they possibly can that the clinics that they are using are well regarded and adhere to the existing regulations.

Sandra Gidley (Liberal Democrat, Romsey)

I have listened with interest to the Minister. I am to some extent reassured by the fact that there will be a consultation. I have a slight reservation inasmuch as the Minister seems to be talking about a list of procedures that will be covered by that process that, presumably, would be covered under regulations. However, lists often have a habit of being set in time, so that when new procedures come on board they may not be covered by regulations that may have covered them had a technology been in existence when it was first developed. Will the Minister give some thought to a set of broad principles that can be applied in addition to a pure list of therapies? I do not think that a list of therapies will stand the test of time.

With that proviso, there is clearly no point in putting amendment (a) to a vote if amendment No. 7 does not succeed. It would be helpful to see how we get on with that and possibly revisit the matter later.

Stephen O'Brien (Conservative, Eddisbury)

I think that I need to indicate, on amendment No. 7, that whether we will want to press this matter further at this stage will depend on the Minister’s response.

As the Minister said, this has become an interesting debate. It has been helpful to have this exposition of these issues, because there is clearly a need to find a balance in the tension between what is appropriate to regulate and what it is inappropriate for us to seek to constrain from on high. I fear that the consultation that the Minister is launching will not necessarily report in sufficient time for us to be able to use its results for the benefit of drafting the legislation. I hope to withdraw amendment no. 7, and I hope that the Minister will take away from this that it may be useful for all, not least as part of the context in which the consultation is importantly carried out, to think—perhaps on Report—that there is something a tiny bit more explicit than currently stands within the compass of the definition in clause 5, which he prayed in aid, as covering. It might possibly benefit from a little more explicit detail that indicates the cosmetic, discretionary or non-essential—be it invasive or non-invasive—treatments, or in his preferred words, procedures. I note that we did not get an explanation of the explanatory note, and I simply leave that on the record. However, with the agreement of the Committee, I beg to ask leave to withdraw the amendment, and look forward to us returning to us with some definite determination and deliberation on Report.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 90, in clause 5, page 3, line 16, at end insert

‘ and needs assessments for care and health-related assessments of ability to work.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 91, in clause 5, page 3, line 20, at end insert

‘ and all needs assessments for such care.’.

Stephen O'Brien (Conservative, Eddisbury)

The purpose of these amendments is to ensure that organisations providing assessment of need for health or social care, and organisations providing assessments of people’s ability to work on the basis of health or disability, are included within the scope of the new Care Quality Commission. The personal capability assessment is a test used to assess long-term incapacity for work for social security benefits. The high rate of successful appeals—60 per cent. in 2005—was evidence that the PCA did not accurately capture people’s ability to work. This has, of course, been much in the news recently. On 17 November last year, the Secretary of State for Work and Pensions announced a replacement test, the work capability assessment, to be introduced in October this year. I would not be surprised if it happens to come into force at the time when many of the provisions of this Bill, once it is enacted, may find themselves being introduced.

I note that the Secretary of State’s press release said that the new test

“will assess what you can do, not what you can’t do.

There are currently 2.64 million working age people claiming incapacity benefits, which cost the country nearly twelve and a half billion pounds in 2006/7.

Fifty per cent of those who take the assessment will not pass it, meaning that 20,000 fewer people a year will enter ‘sickness’ benefits as a result, and will instead be given the support and skills they need to get a job.”

I move on fast, before contemplating whether the Secretary of State is contemplating any kind of concern about the security of his own position. I note that claimants undergoing the current PCA are assessed by ATOS Origin doctors, using current PCA descriptors and the ATOS-designed computer system, LiMA. The same doctors then make an estimate of the claimants’ scores under the new PCA descriptors, and I assume that a similar system will continue under the new test. I will leave aside the question of whether this test does the best by disabled people, or people with impairment, or whether it is another clumsy attempt by the Prime Minister to win over a target audience by using those terms.

Health assessments, similarly, occur in custody, both on arrival in custody, by offenders or those on remand. That assessment is often outsourced, and if the offender or the person on remand is admitted to jail, the health assessments are made at the point of reception screening. It is important to recognise that Rethink, the leading mental health membership charity, and others, are concerned at the inability of the CQC to assess, its accountability to assessors, and the unaccountable nature of the assessments. The force of the amendment therefore would bring that accountability into the system. I hope, therefore, that the Minister will find this to be a helpful way of ensuring that so many of the objectives that he has set out for the Bill will be delivered.

Angela Browning (Conservative, Tiverton and Honiton)

I support my hon. Friend on the amendment. In one of our evidence sessions, I touched on the question of doctors who put themselves forward as expert witnesses. There is some general concern about medical professionals who carry out assessments. Sometimes it is seen as a retirement job for people who have long left practising medicine on a day-by-day basis and who can be quite out of touch with assessing people with some of the more unusual or rare conditions. They are often particularly out of touch with the way in which we now regard people with learning disabilities, mental health problems and autistic spectrum disorders.

The amendment would ensure that anybody who wears a badge saying that they are an authority or an expert in the health and social care sector is subject to the rigours that will come from the inspectorate. As Members of Parliament we see far too many cases of people with sometimes quite complex disabilities who are able to work. Equally, on the other hand, we see people whose disabilities might be a little more invisible on the day and who do not get the expertise and the fair assessments from people who, one would hope, are experts in their fields.

Very often, the experts are on a panel or report to a panel of lay people. It can be expected that a lay person on a panel will accept the judgment and recommendations of a medical expert, whether or not the person’s ability to work has been undervalued. The vast majority of people with a disability want to work. They might not necessarily be able to do a full week’s work. However, there are many people who could work and who want to work. It is right that their assessment should be fair.

Under many of the Government schemes, there are tiers at which people who have been out of work or people in their 20s and 30s who have never been in paid employment can be helped into employment. Making a fair assessment of what needs to be an incremental introduction into the world of work depends very much on the expert judgment. It would be unfair in most of those cases to say, “Okay, 38 hours a week for you.” That judgment is taken by a panel, which is dependent on the advice and the assessment. There needs to be a much more subtle and flexible understanding of the world of work and the particular disability or incapacity that is being assessed. This issue is important because it is a very grey area.

In the same way as I was concerned about expert witness earlier in these proceedings, the judgment of the panel is looked at and is listened to. It can be quite influential in where the person goes in life. It can be as important as that. Bringing such people within the scope of this legislation, as outlined in the amendment, is very important.

Ben Bradshaw (Labour, Exeter)

I entirely agree with the hon. Lady. I recall the General Medical Council agreeing with the point that she made in the evidence session on the expert witnesses, that it was vital that the medical professional was qualified in the required speciality and not in something else.

I am grateful to the hon. Member for Eddisbury for explaining the amendments. This was the one small group of amendments that led us to scratch our heads and wonder what they were about. Now that he has explained them, I can reassure him because clause 4(2) states that an activity may be a regulated activity if it

“involves, or is connected with, the provision of health or social care”.

As needs assessments are part of the process of providing a service to patients or service users, we are confident—at least our lawyers are—that this would cover needs assessment as well, and that needs assessments may be described as regulated activities because they are connected with the provision of the said care. Through the registration requirements, which we will be consulting on, providers will need to demonstrate that they are providing a safe, quality service that meets the needs of patients or service users. If those activities are connected with the provision of health and social care, they will be within the scope and will therefore cover needs assessments.

Angela Browning (Conservative, Tiverton and Honiton)

Will the Minister look at the other side of the coin? I am thinking of social care. We heard in the evidence session, I think from Baroness Platt, that, with social services assessments, very often the eligibility threshold is raised quite considerably so that there is a group of people who do not quite make the threshold but who are none the less a cause for concern in terms of the service—or, often, the lack of service—that they receive. Is it within the scope of this Bill, through the new commission, to pick up people who are omitted from services when quite clearly they should be included at some level?

I raise this issue because, going back to mental health, learning disability and autistic spectrum disorders, it is not uncommon at all for those who do not quite meet the eligibility threshold and who sometimes receive absolutely nothing by way of support, to deteriorate very rapidly, becoming the next crisis for a social services review team because of the way they then present. I accept that this is very hard, but might the commission monitor where the social services assessments are made, and whether the assessors are being fair and meeting the criteria and the general thrust of this legislation to ensure that not only those who are assessed are properly regulated, but that nobody falls through the net as a result of the way they are assessed or the people assessing them?

Ben Bradshaw (Labour, Exeter)

I suspect the answer to the hon. Lady’s question will depend on the policy and the resources available as much as on the work that the new regulator will do to enforce those policies. However, I am sure that in the circumstances in which it is clear that social care providers are not following Government policy, or are setting the bar higher than the policy directed by the Secretary of State would suggest, there would be a case for the regulator to look into it. However, it is not the regulator’s job to set the policy or, indeed, the funding for a particular service. Its job is to ensure that the policy is implemented consistently and fairly, and that service users are getting a fair deal.

Stephen O'Brien (Conservative, Eddisbury)

I am very grateful to my hon. Friend the Member for Tiverton and Honiton for her, necessarily rather extensive, intervention. It was particularly helpful to have before the Committee a series of examples of the way things work.

I hope the Minister accepts that we bring these amendments forward with the utmost sincerity. When looking at the drafting in such a generic way, part of the problem is making sure that we know what the Government are contemplating in encompassing these issues. The great benefit of debating all these points in Committee is not only that we bring expertise to the cause of examining the Bill, such as that demonstrated by my hon. Friend the Member for Tiverton and Honiton. It also enables us to put on record how important it is to ensure that people looking back on our deliberations can say, “Yes, that general set of words was absolutely intended to be included” in that there are those who may choose not to be caught within the ambit of regulation. After all, they are the people we need to be most concerned about and we need to be sure that they are covered in the Bill.

The Minister’s reassurances have been worth while and give us some reassurance. In particular, my hon. Friend’s example meant that we were able to flush out where the true danger lies, and that is the people who might fall between the gaps—in what is assessed and the assessors, but also the method of the assessment process—and those who may need support but are not meeting the various thresholds and are cut off from eligibility. This has been a most useful exploration of the issue and I hope that the Minister agrees. I beg to ask leave to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 150, in clause 5, page 3, line 16, at end insert

‘(2A) The Secretary of State shall have a duty to review annually the forms of health care to which Part I of this Act applies.’.

This is a very simple amendment, which in many ways is an attempt to future-proof the Bill or to clarify and tease out whether the current definition of health care is wide enough. The reality is that health care is changing all the time. It has been delivered in a variety of different ways and from a variety of different venues. The amendment is particularly relevant to cosmetic surgery, where new techniques and procedures are coming forward all the time. In some cases, the definition of health care can be a little fuzzy at the edges and let us then factor into the equation the delivery of services. In the future we are going to see polyclinics; no doubt they will be fully captured by this, as will the super-GPs’ surgeries. There are plans for such things as walk-in centres in supermarkets, so presumably part of the supermarket will be regulated.

Currently, GPs’ premises are often not covered. The extension of GPs’ roles to embrace more services, including minor surgery, also needs examining. More and more services are provided by other practitioners, such as pharmacists. Locally, I can think of one that slightly blurs the edges; podiatry in which services have been cut back extensively—no pun intended. The local Age Concern group has trained people to a minimum standard and services are being offered in places that would not normally be regarded as standard health care settings. The amendment clarifies that the forms of health care will be subject to regular review, so if something has fallen through the gaps and has been missed , it can be regulated as soon as possible.

Stephen O'Brien (Conservative, Eddisbury)

Looking at the amendment put forward by the hon. Lady and the Member for Leeds, North-West I can see that it is admirable in keeping the CQC at the cutting edge—pardon the pun—of regulation. Yet, it raises the question of whether there should be a right of appeal for the CQC to add to the definitions, the procedures and the practices that it comes across in its work. I wondered why the hon. Lady had decided to table an amendment referring only to health care and not also to social care, and she might wish to reflect upon that. Although I think that it could be a very good discipline indeed, I question whether in truth the Secretary of State is the best person to deal with it. I dare say that the hon. Lady might also want to reflect on that.

If the Minister is contemplating the amendment or looking at the reasons why he is not minded to accept it, I think it will be worth his noting whether clause 5 leaves the CQC with sufficient fleetness of foot in regulation. Developments happen so quickly in so many ways and there will be technologies that have a genuine impact, not just on health care but also on social care. I am thinking of things such as telecare, which is becoming a real way forward. There are some stupendously good examples in my constituency that give people new and greater opportunities to live independent lives with appropriate support. I hope the hon. Lady will realise that, with those comments, I am broadly supportive but would perhaps find it difficult to support her if she forces the amendment to a Division.

Ben Bradshaw (Labour, Exeter)

The arguments used by the hon. Member for Romsey are exactly why we have drafted the definition of health care so widely, because that will give us the flexibility that she wants to see in the regulations. The definition, as we discussed earlier in connection with cosmetic procedures, is drafted widely. Clause 42 also makes provision for the commission to undertake reviews.

In response to the point made by the hon. Member for Eddisbury, clause 49 enables the commission to advise the Secretary of State about any changes that it considers might be necessary to the regulations to determine regulated activities. I do not think, given that, it is terribly sensible to require an annual review of the definition of health care that appears in the Bill in an enabling way. I think that is unnecessary. In the light of that, I ask the hon. Member for Romsey to withdraw her amendment.

Sandra Gidley (Liberal Democrat, Romsey)

The amendment was really tabled for health care because health care is a fast-changing environment with many different providers. Social care is perhaps a more settled environment, although I do take points of the hon. Member for Eddisbury about telecare, which does change the dynamics. The amendment was tabled to probe the general principle and try to establish whether clause 5 had sufficient flexibility. I still think the issue of cosmetic surgery has to be resolved and kept up to date. It is something that will perhaps require regular review.

The CQC can make recommendations and I see no problem with responsibility belonging to the Secretary of State because they get the blame if anything goes wrong. However, I hope that any Secretary of State would take advice of the commission. In light of the fact that there seems to be sufficient provision already, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 8, in clause 5, page 3, line 17, after ‘of’, insert ‘formal’.

This, too, is a probing amendment, so let us be clear from the outset. It provides an opportunity to ask the Minister whether the clause gives rise to a need to regulate informal carers. The CQC should certainly support such carers, of course, in every way possible. Carers UK estimates that informal carers save the UK about £87 billion a year and, according to the organisation, over three in five people in the UK will become carers at some time in their lives. There are around 6 million carers in the UK, although that is inevitably a broad estimate. The 2001 census estimated that there were 175,000 children in Britain caring for a member of the family, although that figure is believed to be much higher by those who work in the field. I suspect all of us believe from our own constituency caseloads that the national number must be larger than that. One has enormous respect and admiration for children who selflessly dedicate themselves to their often ailing parent.

The definition of social care in these wide terms, given its application to the entirety of part 1, is welcome as regards reviews undertaken by the commission, but I am looking at the way—and this is a probing amendment—that the amendment might jeopardise that. We need to be very careful how we operate here and I am trying to establish whether we are dealing with all forms of care—formal and informal.

Sandra Gidley (Liberal Democrat, Romsey)

I fully sympathise with the thought behind these amendments, but would the hon. Gentleman, as a lawyer, clarify whether introducing the word “formal” would require a definition? Would there be a grey area between “formal” and “informal”? Could this be a lawyers’ charter in the long run?

Stephen O'Brien (Conservative, Eddisbury)

The hon. Lady is absolutely right to point out the difficulty of introducing a phrase that is not therefore carried through into the definitional area. To some degree, we are trying to define what we mean and I am more than open-minded on the definition. This is a probing amendment, but if we feel there is a valid point, we may want to revisit it on Report and the Minister, with his army of advisers, will be able to devise better definitions than I was able to come up with at 3 am in the House library. [ Interruption. ] It so happens that was the case on this occasion; it will not always be so.

It is important to test this issue because the Government’s intention as to whether just formal or both formal and informal carers should be regulated now becomes a moot point because of the most recent pronouncement by the Prime Minister, which was spun out. We all recall that as we were beginning our deliberations on 14 January, the Prime Minister suddenly announced, as reported in the Daily Mail, that the relatives of sick and elderly people would be paid a “salary” for looking after them under proposals revealed by the Government on 13 January. It was over the weekend that the Prime Minister said he would be seeking to provide a “salary” for carers. Looking at the proposals in detail, it is really important to establish what we mean by formal care. Is it what one is able to procure for oneself from a set of formal providers, or is it just the informal care that any one of us could, as a family member, be expected to provide?

I hope people are not going to be cynical or sceptical, but that they will take this point seriously. We now have a Prime Minister who has set a new bar for us, because he has talked about paying a salary for carers. This prompts the question as to whether they are now to be regarded as formal rather than the informal carers we have now come to recognise as absolutely vital to the future of the United Kingdom. With an estimated cost of £87 billion, there is very little we could do to replace them if they were not motivated and incentivised to do the right thing.

I have looked at the proposals of the Prime Minister in detail, and I hope that the Minister will put my mind at rest. However, at the moment, one is forced to conclude that the proposals are something of a sham, because the proposal is to allow those receiving state funding for care to employ family members to look after them. That is to say, to redirect part or whole of their individual budget to a family member. That does nothing, therefore, to reduce the £87 billion deficit, as family carers are currently topping up where the state is failing to provide care. Under the Prime Minister’s proposals, carers will work double the amount but get paid for half the time.

The proposals also do nothing to support those who care for people who are not eligible for state funding, and I think the Government’s tactics have to be questioned on that point. If state funding is going to be directed at informal carers—by payment of a salary or whatever—for somebody to look after a grandmother or a parent, I can see that down the line a Government who remain at heart centralising, which is the charge we would level at the Labour Government, could want some quality assurance about the care being purchased.

I hope that the Committee realises that it is not beyond the bounds of belief that the clause could be used to bring regulation into the realm of informal care—that is the best term that I could devise, but if any Committee member can come up with a better one, please help me. The same thing happened in education; look at how policy there has changed over the past 10 years. Very gifted early-years carers, who are often known as gifted amateurs, have been excluded by the Government, because of the need to regulate them and prevent blame from falling on other providers on health and safety grounds. That is very laudable, but it has removed a whole cadre of people involved in informal early-years care in a more educative environment.

I hope that the Minister will look at, listen to, and possibly confirm, my assessment of the funding of the system. We support the commission having the remit to include carers in its reviews, and I hope that he will confirm that it will. However, we are concerned that informal carers will have neither the time nor the resources to be formally regulated. Often they are balancing their caring responsibilities with jobs—be they full-time or part-time—or with educational and skills development opportunities if they are child carers. Nothing should be contemplated without consultation.

I hope that the Minister will confirm that although the legislation leaves the door open to that, neither he nor the Government have plans to require the registration of truly informal carers or of those receiving money under the carers allowance. The long-awaited Government proposal for a new deal for carers, which was announced a long time ago by one of his fellow Ministers, must be set against what the Prime Minister said recently, which leaves us with some confusion. As I said, this is a probing amendment—I say that with sincerity—but, given the concerns that remain, all of us will recognise the need for clarity.

Angela Browning (Conservative, Tiverton and Honiton)

I declare an interest, because I am the named carer on the care plan of a close relative and I also directly assist him in managing his direct payments. I endorse the clarification that my hon. Friend seeks. I am horrified to think that, if I do not register as a service provider—I have been providing that service for 36 years—I could be subject to a fine “not exceeding £50,000”. I hope that the Minister will assure me that that will not happen.

I shall move the debate on a little to reflect on what I said in Committee this morning about the relatively new arrangements for those with direct payments and the way in which, with the agreement of the social services department, people are directly employed. Before direct payments, all sorts of job titles were attached to those working with people with learning disabilities or autistic spectrum disorders, not because they needed a medically qualified person with them, but because they needed assistance and somebody to perform certain tasks and to carry out certain functions. Sometimes they might need somebody with them to travel on public transport. We are not looking at people whose qualifications make them registrable.

With direct payments, which I thoroughly support—they are extremely good—people are not necessarily employed through registered agencies. It is a very informal arrangement. Many people like to apply the term “personal assistant” to those accompanying them in order to enable them to do things that are part of their formal care package. Social services and the social worker must agree annually that that is the right use of the direct payments, and be satisfied with the individuals providing those services, some of whom are paid, so that they will fall within the “formal” classification. I know of someone who works six hours a week as a PA, which is their only paid employment, and who does not meet the national insurance threshold, but who none the less carries out a valuable function. I would be horrified if I thought that such people were likely to come within the formal definition of chapter 2, as it would make life incredibly bureaucratic. The cost of registering would result in them not doing the work. Sometimes, those people are called befrienders, and some of them are paid befrienders. It would be a great shame if regulations had a disproportionately heavy impact on that group. I am sure that that is not what the Minister intends, but we need to be certain that the drafting does not make it a catch-all provision that sweeps up many people currently doing good work in that area.

Ben Bradshaw (Labour, Exeter)

Once again, I entirely agree with the hon. Lady. I reassure her and the hon. Member for Eddisbury that is not our intention that the domestic or private arrangements that they outlined should fall under the requirement for regulation. However, I do not wish completely to pre-empt the outcome of the consultation. The Committee will recognise that domiciliary care provided by an agency will be covered, but the sort of private arrangements referred to will not. It is certainly not our intention to cover the thousands or millions—the army of people—currently in receipt of the carer’s allowance.

Stephen O'Brien (Conservative, Eddisbury)

I am obviously grateful for that assurance. We have had a useful and important discussion on the amendment, not least because it enlisted the expertise and experience of my hon. Friend the Member for Tiverton and Honiton. I pay tribute to her, as she often brings her experience to bear on these important subjects.

Many of us are conscious, when dealing with this part of the Bill, that we are potentially speaking on behalf of millions, who are looking for these provisions to be established in the right and appropriate manner. As I said, it is a probing amendment. When reflecting on our proceedings, whether on Report or in another place, I am sure that anything that can be done to give a greater assurance, rather than people having to rely on our exchanges in Committee, would be welcomed by all concerned. We do not want to disincentivise, militate against or do anything other than support and applaud those who give so selflessly—those who are known as the informal carers and who are often the most trusted in the family setting. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I want to speak briefly. I am sure that all members of the Committee are wondering whether we are ever going to reach the later clauses, and I appreciate that at times it must be quite exacting for Government Back Benchers. However, the principles enshrined in clause 5 form the nub of the Bill.

The Minister may be very conscious of the fact that he now has quite a burden on his shoulders. Perhaps on Report, he must ensure that the rights base—the Human Rights Act loophole identified and articulated by the hon. Member for Luton, North—is properly considered and addressed. In other parts of the Bill, we need to add health care, as identified by Anna Walker, when she gave oral evidence on public health and health regulation and on the Health Commission’s approach.

We had a big debate on cosmetic treatments and procedures, on invasive and non-invasive surgery, and on health-related assessments for work. There is also a need for forms on health care, perhaps on social care and, when it comes in, telecare, to be reviewed annually. We also had a great debate on formal and informal social care. On that basis, I hope that the Minister—

Stephen O'Brien (Conservative, Eddisbury)

I was concluding my remarks on clause stand part just as the Division bell rang and you adjourned the Committee, Mr. Hood.

Clause 6

Stephen O'Brien (Conservative, Eddisbury)

Will the Minister confirm whether CSCI and the Healthcare Commission have had to date the power set out in the clause? What examples can he give of where punishments of fines or imprisonment have been exacted under the equivalent powers for the two current regulators? On the basis of those actions, is this, in the words of Goldilocks, too much, too little, or just right? Does this make sense when applied to both health and social care, or would the courts sort that out? I hope that the Minister will take this opportunity to give a response to those questions.

Ben Bradshaw (Labour, Exeter)

The powers already exist. The levels of the fines have been increased, as the explanatory notes explain, from £5,000 to £50,000. I cannot give the hon. Gentleman chapter and verse on how many fines have been levied and how many people have been sent to prison. He can ask the existing regulators, or I can ask them on his behalf.

Clause 7

Stephen O'Brien (Conservative, Eddisbury)

Will the Minister confirm that he expects a uniform application form for health and social care providers? Does he expect that to differ from the current application form, both in content and volume? What time limits on response would he expect in these cases?

Ben Bradshaw (Labour, Exeter)

Yes, we envisage a uniform form. I cannot tell the hon. Gentleman whether it will be exactly the same as the current forms. On the time limit for responses, again, I shall have to get back to him.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful. We are trying to be as dispatchful as possible in getting through these clause stand part debates. To the extent that the Minister is agreeable, any answers to my questions that he can provide at a later stage in writing to help the Committee will be greatly appreciated.

Clause 8

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 9, in clause 8, page 4, line 27, at end insert—

‘(5A) In acting under subsection (5) the Commission shall be obliged to publish its reasons for any actions it takes.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 10, in clause 11, page 5, line 31, at end add—

‘(5A) in acting under subsection (5) the Commission shall be obliged to publish its reasons for any actions it takes.’.

Stephen O'Brien (Conservative, Eddisbury)

Under the clause relating to the grant or refusal of registration as a service provider, we are seeking to place some restriction on the actions that the commission may take “at any time”. Amendment No. 9 would add a new subsection (5A) providing that

“the Commission shall be obliged to publish its reasons for any actions it takes.”

Amendment No. 10 does the same for the processes in clause 11.

I am happy that the regulator needs to be fleet of foot—a phrase that I sought to impress on the Minister earlier—in its approach to regulation and that as it registers and reviews services, it might find that important additions are needed to the registration procedure. Our concern is somewhat simple, but twofold. The Bill gives the commission the licence to change the registration of providers at will, and with what regularity it chooses. What assurances can the Minister give that that will not happen to the point at which it could become unpredictable and, at worst, done on a whim, rather than at will?

More concerning, given the lack of independence from ministerial meddling that the CQC has regarding the arguments that we have managed to make, but the Minister has not accepted, are the potential changes in registration that are driven by political exigencies rather than regulatory need, without any reference to the House or consultation with stakeholders. Under what circumstances does the Minister see those powers being used? Does he have examples from the current regulators, and what checks and balances are in place so that they are not abused?

Ben Bradshaw (Labour, Exeter)

We agree that it is important that there should be a proper procedure for the Care Quality Commission to follow when it makes certain decisions about registering or deregistering a regulated activity or a manager, or about suspending registration or amending the conditions of registration. We have set out those procedures in clauses 22, 23 and 24.

Under clause 22, in particular, we require the commission to give its reasons for such a decision in a written notice to the relevant registered providers or managers. We also agree that the public will want to be reassured that the commission has taken appropriate action where providers fail to meet requirements. We want the commission to publish information in relation to enforcement, but not in relation to some of the rather everyday activities of managing the conditions that it places on the registration of providers or managers. For example, registration conditions could change simply because a provider wished to provide a new service, or to cease to provide an existing service. Conditions can also change as a result of changes in premises or a change in staff. We believe that it would be unreasonably bureaucratic to require the commission to publish its reasons for making those changes in all those areas.

That is why we have made clear in clause 83 that regulations may allow or require the commission to publish information about the enforcement action it has taken. That is so that we can differentiate between enforcement action and routine administrative processes. We believe that extending the requirements in the way proposed in the amendments would be excessively burdensome and bureaucratic.

Stephen O'Brien (Conservative, Eddisbury)

In the light of what the Minister has said, I think that the concerns that we outlined are understood. I hope that the exchange lying on the record will help those who will need to understand those matters. On that basis, I beg to ask leave to withdraw the amendment.

Clause 9

Stephen O'Brien (Conservative, Eddisbury)

Briefly, it is worth the Minister taking note that if he is looking for an example of a clause that is shot through with the word “prescribed”, this is the one. Above all, this is where those of us who are desperately trying to understand and scrutinise the Bill find that its drafting means that we need to have almost all the documents at our disposal to make sense of it. I hope that he will note that. If he can offer any greater clarification when we come back to consider these matters on Report, I am absolutely sure that that would be welcomed by members of the Committee.

Clause 13

Jimmy Hood (Labour, Lanark and Hamilton East)

Clause 13; unlucky for some.

Stephen O'Brien (Conservative, Eddisbury)

I fear that it is unlucky for you, Mr. Hood, because I have stopped you in your flow, but it just so happens that 13 has always been my lucky number, so I have to hope that this is the one for me.

I simply have a question for the Minister, which is lucky for everyone. What protection does clause 13 offer the taxpayer, or indeed council tax payers, with regard to contracts cancelled as a result of such action? We are looking at the cancellation of registration, so I hope that his briefing will give me the answer to that question because I am sure that that will be seriously contemplated by those trying to understand the import of the Bill.

Ben Bradshaw (Labour, Exeter)

Of course, such a sanction would be used only as a very last resort. It would be used, for example, if the regulator felt that the immediate closure of a hospital or care home would endanger people’s health or even their lives. Given that assurance, I hope that the hon. Gentleman accepts that situations in which life or the quality of care are seriously at risk will be the priority of a robust, independent regulator.

Clause 14

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 11, in clause 14, page 6, line 34, at end insert—

‘(c) documented reasonable grounds for taking action have been laid before the board of the Commission.’.

Our amendment proposes to tack new paragraph (c) on to subsection (2), which states:

“Except where the Commission gives notice under section 27, the power conferred by subsection (1) is exercisable only on”

the outlined grounds. The amendment would establish a clear audit trail that could be interrogated in the case of appeals. I am sure that the Minister will be the first to accept that that is an absolutely appropriate best practice, which is what we have all been trying to put in place for many years in the public and private sector and within the professions. Those in the professions are being considered here because they are providing a service on behalf of others. I cannot understate the importance of such an amendment.

Sandra Gidley (Liberal Democrat, Romsey)

It is not clear from the amendment whether the “documented reasonable grounds” would be publicly available in the first instance. I have a concern that if all is proved well, something will have been put in the public domain that could cast an adverse light on a body. There are vexatious complainants who have a habit of making complaints about various bodies. I wonder how we balance protecting the innocent on both sides of the equation when publishing information.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful for the intervention because the hon. Lady raises a very powerful and valid concern. We are often dealing with some pretty sensitive issues in relation to such matters. Clearly, the amendment states that the grounds have to be “documented”, which imposes an obligation to get things down in writing. That is often one of the first disciplines that is jettisoned by those who might have something to hide. The amendment also suggests that the grounds have to be “reasonable”—and that must be the right test for taking action—before they can be laid before the board of the commission. So, disclosure will be governed by where such requirements relate to board payments.

The point at which reasonable grounds are being considered will be an internal board matter. Patently, if a board makes decisions, all those matters are ultimately publicly discloseable—that is the very nature of what they are about. Therefore, given the sensitivity, I am sure that some protections are already in place. However, I need to be careful not to take the position of the Minister because this is his Bill and, ultimately, it has to be his drafting. The amendment makes clear that the process of getting the information documented, the test of reasonableness and the fact that it is presented to the board would mean that the controls that normally apply so that sensitivities within information can be contained before they are published would equally apply to the disclosure of board papers.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the hon. Gentleman for that explanation. My other concern is that such a suspension could be open-ended. Is he in favour of putting a time limit on the documentation being produced?

Stephen O'Brien (Conservative, Eddisbury)

That is an interesting point. With anything that involves a decision, the time limit of the documentation that we are calling for would have to ride with the timetable on decision making. There are obligations on the part of the commission operating through its board to make timely decisions, and there will be a process by which it is under some form of need to produce a determination on the particular expectation of outcome.

I am reluctant to impose a timetable that goes beyond the normal expectation of the board’s operation. However, I am grateful to be asked the question because it forces me to explain what we want to achieve. We want an audit trail. An audit inevitably comes after decision making. We want it documented and made available. It must demonstrate that a reasonableness test on reasonable grounds has been applied and considered by the board. That the test would have been timely and available to the board when it was deliberating important matters is what we want to achieve through an audit trail. After all, it would be a post-event matter rather than a pre-event matter or a contemporaneous event, so documentation is necessary to make sure that the board is behaving and advising itself properly.

I hope that the Minister will take the opportunity to satisfy the Committee that the Bill will generate an audit trail as matters stand or be willing to contemplate the intention behind the amendment. I expect him either to adopt it or to come back on Report with something that will govern expectations of the way in which the board and the commission will operate.

Ben Bradshaw (Labour, Exeter)

As I said, we agree that it is important that there should be a proper procedure for the Care Quality Commission to follow when it makes certain decisions about registering, deregistering, suspending registration or amending the conditions of registration. We have set out that procedure under clauses 22, 23 and 24. In clause 22, in particular, we require the commission to give its reasons for such a decision in a written notice to the relevant registered managers or providers.

It is inconceivable that the new commission’s board would not want to ensure that it was content that the commission’s actions, particularly when serious, are reasonable and defensible. It will need to be accountable for the commission’s decisions and for them to be made appropriately. We do not think that it is for us, but for the organisation itself, to establish the organisational and board level processes that it needs best to carry out its statutory functions in such a way. For that reason, I ask the hon. Gentleman to withdraw his amendment.

Stephen O'Brien (Conservative, Eddisbury)

I am somewhat reassured by what the Minister has said. It is not unreasonable. What will be placed on the record will be read by those who must undertake such duties and I hope, therefore, that they rise to the expectations that will be placed on them. I beg to ask leave to withdraw the amendment.

Clause 15

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 12, in clause 15, page 7, line 6, at end insert—

‘(1A) Except in case A or B, a person taking action under subsection (1) is entitled to financial compensation.

(1B) the Secretary of State shall by regulations establish the amount of compensation to be granted under subsection (1A).’.

We are now dealing with applications by registered persons. The amendment would enable the registered person to claim back part of the registration fee if he or she were not remaining registered for the duration of the registration period. As drafted, the registered person forfeits any such money if he is advised to cancel his registration. If that is the aim of the Bill, it seems a little unfair. It could be, perhaps at the outside edge, a perverse incentive and if we, as legislators, are to make sure that we keep our eye always on the principle of fairness, it could be something of an asymmetric approach. I hope that the Minister will either give me a satisfactory reassurance or be willing to reconsider the possibility of being able to claim back at least part of the registration fee, when the registered person does not remain registered for the duration of the registered period.

Ben Bradshaw (Labour, Exeter)

I agree that it is important that providers are treated fairly in the process. My understanding of the effect of the proposal is that when the Care Quality Commission takes normal action, registered persons have the right to make representations to the commission and if they are not satisfied they have an independent right of appeal to a tribunal. In that case, the action would not take effect until after an appeal was heard, so there should be no material effect on the person or the provider, and therefore no need for compensation.

If the CQC takes urgent action, which we discussed earlier, the action would bite straight away to protect patients and service users. In those cases, if the commission had acted improperly there may be a case for compensation, as businesses could have been affected. However, the first priorities of the commission are its duties to patient and service safety and we expect it to carry out those responsibilities extremely carefully.

Stephen O'Brien (Conservative, Eddisbury)

That was relatively reassuring. We will study the issue of fairness as we progress through the Bill. On the basis that anything that will help to improve the sense of equilibrium and fairness is welcomed by hon. Members on both sides of the Committee, I beg to ask leave to withdraw the amendment.

Clause 16

Greg Mulholland (Liberal Democrat, Leeds North West)

I beg to move amendment No. 151, in clause 16, page 7, line 44, at end insert—

‘( ) Make provision in relation to nutritional standards in relation to regulated activities.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment

No. 165, in clause 16, page 8, line 31, at end insert—

‘( ) Regulations made under this section may make provision for the prevention and management of malnutrition and may include such provision as the Secretary of State considers appropriate for the purpose of safeguarding individuals (whether receiving health or social care or otherwise) from the risk, or any increased risk, of malnutrition.’.

Greg Mulholland (Liberal Democrat, Leeds North West)

We now come to the vital subject of nutrition, which remains a huge issue in hospitals and care homes. The latest figures from the annual survey of the British Association for Parenteral and Enteral Nutrition, conducted in September 2007, state that 28 per cent. of people in hospitals and care homes are at risk of malnutrition. That is more than one in four people, which we cannot accept, especially as the figures show big increases with age.

The focus in the last 18 months to two years has been on the need for better nutrition in schools. The Government have taken that point on board and are doing something to address it, but the same focus is needed on nutrition in care homes and hospitals.

My hon. Friend the Member for Sutton and Cheam (Mr. Burstow) introduced a very good ten-minute Bill on nutrition in care homes two years ago and put the case strongly, but since then, as the CSCI figures for 2006-07 show, 23 per cent. of people in care homes that provide nursing and 21 per cent. in other care homes were in places that failed to meet the minimum nutritional standards.

We are not talking about meeting an adequate level of nutrition; the minimum nutrition standard says little about what sort of nutrition people in care homes should have, which is why it is scarcely more than a piece of paper. More than one in five people in care homes today still do not receive the minimum nutrition that the Government laid down, which is a matter of great concern. In October, the Government published the nutrition action plan and although I shall be interested to hear further details about it, things do not appear to be getting much better.

People in hospitals are still at risk of malnutrition, which in Britain today is simply unacceptable. The Age Concern report, “Hungry to be Heard”, published in 2006, said that six in 10 older people in hospital are at risk of becoming malnourished, or of their condition becoming worse. As we know, age and the conditions associated with age are a huge problem, meaning that this group remains very significant, though there are of course other vulnerable people, including the mentally ill and vulnerable children.

There is a huge associated cost, as the Government are well aware. BAPEN estimated in 2005 that it costs the taxpayer £2.6 billion to deal with the malnutrition caused in care homes alone. Surely the Bill is an opportunity to address some of the issues in terms of frameworks, so it makes sense to have nutrition specifically mentioned in the measure, and in terms of amendment No. 165, it makes absolute sense. We have talked about making

“provision in relation to nutritional standards in relation to regulated activities”,

which is important. Amendment No. 165 goes on to talk about

“provision for the prevention and management of malnutrition”.

No doubt the hon. Member for Eddisbury will go into more detail about that. We would be minded to support that proposal, and I would like to know his thoughts on amendment No. 151. The Minister acknowledges that more needs to be done to address the issue of inadequate nutrition and the possibility of malnutrition both in care homes and in hospitals. If this is not the place to do something about it, what is, and when will it happen?

Stephen O'Brien (Conservative, Eddisbury)

I rise in support of the amendment that has just been moved. As the hon. Gentleman rightly said, amendment No. 165 moves beyond simply making provision; it also looks at nutritional standards and seeks to make

“provision for the prevention and management of malnutrition and may include such provision as the Secretary of State considers appropriate for the purpose of safeguarding individuals (whether receiving health or social care or otherwise) from the risk, or any increased risk, of malnutrition”.

In our combined amendments, we seek to impose action on malnutrition on the CQC. Our amendment is drafted in the same terms as subsection (5) on health care acquired infections. I hope the amendment will commend itself strongly to the Minister on that basis, as there is no greater flattery than to be copied, which is precisely what I have done.

In 2006-07, 139,127 patients were discharged from hospital in a state of malnourishment—an 84 per cent. increase from the 1997-98 total of just 75,431 patients. Those are Government figures. In 2006-07, 130,594 patients were admitted to hospital in a state of malnourishment, an 85 per cent. increase on the 1997-98 total of 70,658. The Government had previously admitted to slightly more than a mere 2,000 patients being discharged from hospital in a state of malnourishment. Last year, the nutritional state of at least 8,500 patients worsened while they were in hospital. In the Minister’s own trust, the Royal Devon and Exeter NHS Foundation Trust, 782 patients were admitted with malnutrition, nutritional anaemia or other nutritional deficiency, and 850 were discharged in such a state. That is where deep concern about malnutrition and nutritional standards arises, because some patients are going home or back to their care setting worse off than when they entered hospital, in terms of malnutrition or associated deficiencies.

It is estimated that MRSA affected about 6,000 people in 2006-07. C. difficile has affected about 56,000 people, according to the Government’s figures in “Clean, safe care: Reducing infections and saving lives”, which was published on 8 January this year. I have given figures on malnutrition in an effort to impress on the Government why the amendment is of the most vital concern. It cannot have escaped the Minister’s notice that the figures that I recently put into the public domain have struck a serious chord not only at a national level, but throughout all the regions and local areas. Many hon. Members have read the figures and taken up such issues with the chief executive of their hospital trust. That is the right action to have taken. We are faced with an absolute scandal.

A study undertaken by the National Patient Safety Agency in the summer of 2007 found that some of the greatest barriers to NHS staff undertaking nutritional screening were the lack of weighing scales—we shall return to that point—and the lack of time and training to allow nursing staff to support nutrition. The Healthcare Commission is meant to inspect whether nutritional needs are being met, but the 34 trusts discharging the highest number of malnourished patients actually met the Healthcare Commission’s quality requirements, so the existing system is clearly not working. I hope that the Minister agrees that a stronger legislative incentive is needed.

As we are dealing with the complementarity of the two amendments, I wish to flag up Age Concern’s “Hungry to be Heard” campaign. We are talking about not only malnutrition, but human rights. This is of the deepest concern to members of the Committee, as has been ably highlighted and articulated by the hon. Member for Luton, North. “The Human Rights of People in Healthcare”, the recent report by the Joint Committee on Human Rights, noted that malnutrition and dehydration in care settings breached articles 2, 3 and 8 of the European convention on human rights. It recommended

“that the forthcoming merged inspectorate for health, social care and mental health adopts a human rights framework”—

that is the precise issue that the hon. Member for Luton, North has sought to advance—

“with the intention that the framework informs all of the inspectorate’s work and so makes it more effective in fulfilling its statutory duties”.

Our amendment would make sure that the issue was tackled in care homes as well as by health care providers, given the wide remit of the CQC. I therefore very much hope that the Minister will recognise the power of my argument. He clearly intends the Bill to address health care-acquired infections, but why is he not equally prepared for the Bill to cover malnutrition? Given that the statistics are based entirely on the Government’s figures and show that they must be judged to be failing miserably, surely the amendment would be one of the best and most urgent ways of combating malnutrition by giving it legislative power and effect.

I hope that the Minister will recognise that we drafted the amendment in the spirit of improving the health and safety of patients. We made sure that it contained constructive proposals that would be worthy of his consideration and support.

Angela Browning (Conservative, Tiverton and Honiton)

I support my hon. Friend on one of the most important subject areas of the Bill. Amendment No. 165 and amendment No. 151, which was tabled by the Liberal Democrats, seek to address the problem. The Minister now has the opportunity to put into the Bill the words

“prevention and management of malnutrition”,

which are so important.

I previously raised the subject in the Committee that considered the Bill that became the Mental Capacity Act 2005. I received a full broadside from the Royal College of Nursing for mentioning it, and it sent me literature showing how individual hospitals were dealing with the problem. That is all very good, but we are talking about the situation at the heart of care. Addressing the problem of malnutrition should be mainstreamed throughout every hospital and care home. It is an indictment of our position today that we are even suggesting in 2008 that such a subject needs to be put into a Bill because there is still a problem after many years.

I will not go into the details of my experience, but I have reached an age at which I have had to care for several elderly relatives, including single people with no spouse, my mother, who died four years ago, and my step-father. My personal experience involving one family in hospitals around the home counties was that I felt that I had to organise teams of family members to go in.

Kelvin Hopkins (Labour, Luton North)

The hon. Lady is talking about someone in care who is visited by relatives and friends. There should be much more concern about those who have no one visiting—those who are isolated, and perhaps without mental capacity, who would need some kind of human rights basis to ensure that they were cared for properly.

Angela Browning (Conservative, Tiverton and Honiton)

The hon. Gentleman is absolutely right. When I was visiting my mother in hospital, the lady in the bed opposite was in just such a position. She had a niece who was able to come in once a week. Fortunately, she happened to come in one afternoon just as her aunt had slipped into a diabetic coma. It was really unbelievable that it needed a relative to come in by chance to reverse that.

I want to flag up why management is important. I mentioned in an earlier debate that people in the public sector sometimes start working in silos. That is no criticism of individuals. I worked in the health service—in a hospital—in the 1970s. However, there are real problems, especially on trauma wards to which elderly people are admitted. A lot of the focus is on getting people to theatre and caring for people post-operatively, but there are people on the ward with fractured hips and so on. We should consider the day-to-day management of those people as individuals, rather than just the operation that they have undergone. With elderly people, the question of malnutrition is often not just that they have not eaten sufficient food or sufficiently nutritionally balanced meals. As people get older, their bodies sometimes do not process certain elements as well as they did when they were younger. There are conditions associated with elderly people in hospital, such as certain behaviours and vitamin-specific deficiencies. It is not always the case that the patient has not eaten sufficient foods with a particular vitamin content. Sometimes the body is getting old and not processing that well enough, which is something that can be addressed.

When considering malnutrition, the need for management is important. When one goes on to a ward or into a nursing or residential home, one needs to know who is in charge. When I go on to a hospital ward to visit a relative, I want to know who is in charge because I want to know who is taking responsibility for the overall care of that relative.

Mr. O'Brien rose—

Angela Browning (Conservative, Tiverton and Honiton)

I will give way in a moment. I will not bore the Committee, because I have told the House enough times, but I remember when my step-father was in the last few weeks of his life and in hospital with cancer. He had macular degeneration and his eyesight was very poor. I once went in to see him when they brought the food round and he was having sandwiches. I said to him, “Why are you having sandwiches; what else was there?” Because his eyesight was poor and he knew that he could not cope with a knife and fork and a plate of hot food on his own, he had opted for sandwiches for three days because he felt that he could eat those tidily on his own, without any support. It was very sad. As hon. Members can imagine, I went to find the person who was in charge to have a little word about that.

Stephen O'Brien (Conservative, Eddisbury)

I thought I would intervene before we got to bit about who is in charge because I was beginning to quake. If this issue is not dealt with in the Bill, current good practice will be lost. Such practice includes serving food in hospitals on red trays to those who are vulnerable to bring the matter to nurses’ attention. Nurses often get it in the neck on this issue, but I do not think that it is at all their fault—often they are not given the chance. They have to deal with data inputting and all sorts of things that take them away from that hand-holding bedside care, which is after all what they want to do.

My intervention also gives me the opportunity to register with the Chair that if a Division is called on amendment No. 151, I wish to reserve the position to have amendment No. 165 taken separately.

Angela Browning (Conservative, Tiverton and Honiton)

I am grateful to my hon. Friend. He is quite right to flag up the fact that there is good practice. I must pay tribute to Wokingham hospital, which looked after my mother during the last few weeks of her life. The nutritional care there was a classic example of nursing practice at its very best. She was weighed regularly, and as she became unable to take solids, her diet was changed to mashed food and puree. Not only that, the nurses chatted to her and found out what she needed, and there was somebody in charge. That was very important.

I will conclude by saying to the Minister that yes, there is good practice, but—I return to my first remarks—the issue should not be whether someone is lucky enough to be in a hospital in which there is good practice. Good practice should be the norm everywhere.

I have one final point, in which I have an interest because I am now a pensioner. People are allowed to say, “I can’t believe that.” I notice no one did. This returns us to a point raised by the hon. Member for Luton, North, and Age Concern will bear this out. People are living longer and there are many women who still live longer than men. In the coming decade or 20 years, more and more ladies will be single or widowed with no immediate family to look after them in hospital. The problem is not unique to women, but the demographics show that that is often the situation.

Kelvin Hopkins (Labour, Luton North)

One other point is that as society moves on, people and families become more mobile and no longer live in tightly knit communities. It is sometimes more difficult for people to visit than it might have been in the past.

Angela Browning (Conservative, Tiverton and Honiton)

That is right, and sometimes people are in hospital or care for many years. Things can be difficult for families for all sorts of reasons. For example, they might live abroad. I think that we have talked about the subject in the House for long enough. Something must be done now, and the Bill offers a unique opportunity for us to get that really good practice everywhere. People will otherwise feel afraid—and I mean afraid—to go into hospital. If I were frail, as some of my relatives were, and there was no bossy niece or daughter to come and find out who was in charge, I would be afraid. That is an indictment on the country and the services that are provided. We can do something about that in the Bill.

Ben Bradshaw (Labour, Exeter)

I think that I made it clear during the evidence-giving session that I share the strong views of members of the Committee on the importance of good food and nutrition in hospitals. Given the amount of time that we have rightly dedicated to discussing the matter, it is fair to put on record what provision there is at the moment. There is often a degree of ignorance about this—not among hon. Members, but out there.

One of the core standards on which the Healthcare Commission monitors, lists and ranks hospitals is food. Core standard 15a states:

“Where food is provided, healthcare organisations have systems in place to ensure that patients are provided with a choice and that it is prepared safely and provides a balanced diet”,

while 15b says:

“Patients’ individual nutritional, personal and clinical dietary requirements are met, including any necessary help with feeding and access to food 24 hours a day.”

For assessment against core standard 15, the Healthcare Commission will use the following criteria, which were signed off by the Secretary of State in 2007-08. Patients should be offered

“a choice of food in line with the requirements of a balanced diet...reflecting the needs and preferences and rights, (including faith and cultural needs), of its server-user population.”

The preparation, distribution, handling and serving of food is carried out in accordance with food safety legislation and national guidance including the Food Safety Act 1990, the Food Safety (General Food Hygiene) Regulations 1995 and EC regulation 852/2004.

Core standard 15b requires patients to have

“access to food and drink 24 hours a day”.

The criterion for assessment is:

“The nutritional, personal and clinical dietary requirements of individual patients are assessed and met, including the right to have religious dietary requirements met”,

and that patients requiring assistance with eating and drinking are provided with appropriate support.

Those are the core standards, and I absolutely accept that, as the hon. Member for Tiverton and Honiton said, performance is not always up to those standards. If hon. Members care to be really nerdish, they can go and look at the Healthcare Commission’s annual health check of all the hospitals in the country, and examine the details. They could compare and list every hospital’s performance in its food provision, and whether it complies with those standards. What we must do, as the hon. Lady rightly said, is to bring everyone’s standards up to those of the best.

The hon. Member for Leeds, North-West, who spoke on behalf of the Liberal Democrats, highlighted the fact that in the autumn, the Under-Secretary of State for Health, my hon. Friend the Member for Bury, South (Mr. Lewis), who leads on social care, launched the national action plan to address the issue of older people and nutrition. That plan followed two nutrition summits in March and July last year, which were attended by leading charities, clinicians, nutrition experts and care home representatives. There was an acknowledgment that good food is important, and that standards have risen. Patient environment action team assessments showed an increase from only 17 per cent. of food being good in 2002 to more than 34 per cent. of food being excellent in 2005-6. The results for 2006-07 showed a continued increase to 44 per cent. being excellent.

The Healthcare Commission’s national in-patient survey shows that 53 per cent. of adults rated the food that they ate in hospital as good or very good. The better hospital food programme was launched in 2001 to introduce five key improvements: 24-hour service, NHS snack boxes, additional snacks twice a day, a hot meal in the evening, and menus including three dishes created by leading chefs. An awful lot is already happening on the ground with food and nutrition, but I accept the points made by hon. Members, and acknowledge that more can be done.

In December, we published our annual operating framework, which recognised for the first time the importance of including regard for the patient experience as one of the NHS’s five main priorities. If there is one thing that comes up time and again in consultation with the public on their experience as patients, apart from the question of how they are treated by staff and receptionists, it is the quality of food and the way in which it is delivered. I hope that by including that important issue in the five main priorities that the Government have given the health service, we will continue to see further improvements.

Anne Milton (Conservative, Guildford)

My hon. Friend the Member for Eddisbury referred to best practice, and the Minister’s focus is the nutritional value of the food that people are given to eat. The issue should not be about best practice; it should be about standard practice. We have talked about dignity and human rights, but the issue is about people who cannot get food to their mouths, and leave hospital malnourished. It is outstandingly awful and a poor reflection on management that more is not being done. Nurses cannot always be blamed, because it is question of the time available to them to meet patients’ needs.

Ben Bradshaw (Labour, Exeter)

That is exactly why it is important to draw the Committee’s attention—and I am sorry to have detained Committee members by speaking at such length—to those core standards. They are already in place and include any necessary help with feeding. The hon. Lady is absolutely right: the issue is not just about the quality of food, and whether it is organic or locally produced, although such improvements are a good thing. During a visit to west Cornwall, I witnessed a fantastic initiative to replace almost all food—up to 85 per cent.—of the food served in Cornish hospitals with local produce. That has increased the quality of meals and patient satisfaction and reduced costs, and the reduced number of food miles has reduced the impact on the environment. Good things are happening, but the hon. Lady is absolutely right that the issue is not just about food.

As the hon. Member for Tiverton and Honiton said, a patient could be receiving the diet they need, but a problem such a failure to process vitamins might need additional attention. That is exactly why we added the new requirements to the core standards. To return to the impact of the amendments, as I have said before, we are about to put the requirements subject to registration under the Bill out to consultation. I encourage hon. Members and outside bodies who have argued strongly that nutrition, food, and the way in which they are delivered, should be included in the core requirements, to continue to do so, as they will be pushing at an open door. However, we should be careful to strike a balance, as we do not want to tie the hands of a new independent regulator in advance of setting it up. However, its representatives attended the evidence session at which the subject was discussed at some length last week, and I hope that they will read the report of this Committee sitting and take note of the points that hon. Members’ have made.

From the conversations that I have had with Anna Walker, I know that she feels extremely strongly about the matter. I think that I am right in saying that the Healthcare Commission highlighted food as an important issue in its press release and commentary on last year’s annual health check. The issues have therefore been taken on board, and I hope that the new regulator will do so, too. I have provided the Committee with examples of the way in which key delegated powers will be used, not just because I feel strongly about the topic but because we discussed it at length in our evidence-taking sessions. They include a possible registration requirement in

“making sure people get the nourishment they need.”

The examples are not final versions, and it will be necessary to consult on them. They illustrate how registration would work in practice and demonstrate the importance that I personally attach to the issue of food. I think that the example helps to demonstrate that the Bill is sufficiently wide as it stands to allow regulations of the kind that have been requested to be made if required. On that basis, I ask the hon. Gentleman to withdraw the amendment.

Greg Mulholland (Liberal Democrat, Leeds North West)

That was a lengthy but useful and at times passionate discussion of an important issue. Some notable points were made, such as the hon. Member for Eddisbury’s observation that although the number of people affected by health care-acquired infections is an enormously important subject, that figure is far lower than the number of people affected by malnutrition. That shows how important the issue is. The hon. Member for Tiverton and Honiton’s account of her personal and professional experience—I am not implying anything about her age or stage of life, but merely referring to the experience that she shared with the Committee—added greatly to the debate. I am glad that the human rights side of the debate was brought out, as the issue is central to the human rights thread that I discussed on the first day of our clause-by-clause consideration of the Bill. Some of us believe that that thread should run more obviously through the Bill than it does.

I accept what the Minister said about the existing provisions and the Healthcare Commission’s core standard 15. I do not think that anyone is suggesting that the amendments would resolve the problem of insufficient nutritional standards and malnutrition in health care and care homes. However, I still believe that they are essential if we are to make such provision part of the new regulatory framework. I am slightly concerned about the fact that the Minister hoped that the regulatory framework would take the matter on board. It must do so, and the framework should be set out to ensure that it does so.

I acknowledge, too, the fact that the Minister has given us a little more information about the national action plan. The challenge for Government, which the Minister accepts, is to come up with a range of measures to address the situation. We see whether that is the right plan and whether it works. I do not believe that what the Minister said changes the need for good nutrition, as well as the need to avoid malnutrition, to be built into the new regulatory framework. That is important, because nutrition is fundamental to the effectiveness of health and social care. Poor nutrition undermines health, it costs the taxpayer an awful lot of money, and it has an effect on patients, service users and their families. I would have welcomed the Minister saying that he would consider and discuss the matter further.

Ben Bradshaw (Labour, Exeter)

The hon. Gentleman implies that I hoped that nutrition would be part of the regulatory framework. I expect that it will, but it is not for me to pre-empt a decision by the House. We will consult on the regulatory framework, and I doubt that we shall retreat from the importance that is laid on nutrition in the current framework. However, that is a decision for the House to make following the consultation—it is not one for me to make in Committee.

Greg Mulholland (Liberal Democrat, Leeds North West)

I entirely accept what the Minister says, but the Committee could make a decision today to cite nutrition and the avoidance of malnutrition in the Bill.

Stephen O'Brien (Conservative, Eddisbury)

I can see where the hon. Gentleman is going. He has the support of my party and myself, and I endorse what he is saying. I accept that the Minister is sincere and thorough in what he seeks to achieve, but I have already flagged up to the Chairman of the Committee my hope that the question on amendment No. 165, which I tabled with my hon. Friends, is put separately, and I hope that the Minister might suddenly decide to accept it.

Importantly, the Minister has not moved from his reliance on consultation. We must therefore ask which is the cart and which is the horse: we have an obligation to suggest that malnutrition is of the greatest importance, alongside the other factors mentioned in clause 16(3). We must remember that the Healthcare Commission states that 34 of the most malnourished trust areas meet the current care standards. The system is clearly not working, and new legislation is patently necessary.

Greg Mulholland (Liberal Democrat, Leeds North West)

I thank the hon. Gentleman for clarifying his position and making his case. I fully accept the Minister’s sincere commitment to dealing with the problem, but as he has not indicated that there will be further consideration of the question of whether nutrition should be mentioned in the Bill, alas, we are in a fundamental disagreement. We, along with the official Opposition, believe that the matter is too important, and too central to the essential purpose of the Bill, to accept what the Minister says.

Ben Bradshaw (Labour, Exeter)

The hon. Gentleman will accept that the safety and quality of care is mentioned in the Bill and that, in most cases, malnutrition jeopardises such care. It is important that I put that on the record before he presses the amendment to a Division—unnecessarily, in my view.

Greg Mulholland (Liberal Democrat, Leeds North West)

I hear what the Minister says, and I hope that no more notes are passed to him before I finish my brief contribution.

Stephen O'Brien (Conservative, Eddisbury)

Following what the Minister has just said, where is the consistency, given that hospital-acquired infections are included in the Bill? We seek parity, because the question of nutrition is of at least equal importance to that problem.

Greg Mulholland (Liberal Democrat, Leeds North West)

I think that the points have now been made, and we have a fundamental disagreement. I shall therefore press the amendment to Division.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 167, in clause 16, page 8, line 11, at end insert—

‘(l) impose requirements as to the need to reduce health inequalities and discrimination on the basis of disability (as defined in Part 1 of the Disability Discrimination Act 1995).’.

The amendment can be dispatched pretty quickly. It would add a new paragraph to subsection (3), making the reduction of health inequalities part of the Care Quality Commission’s remit, and ensuring that the commission would have to give due regard to the Disability Discrimination Act 1995. I am relatively confident that our approach on both those issues will find favour with Members on both sides of the Committee.

Under a previous amendment, I put on the record the latest Government figures on health inequalities and discussed inequality gaps in circulatory disease mortality, infant mortality and life expectancy. Those figures were obtained from Government publications. Rather than take up the Committee’s time going through those figures again, I pray them in aid of this amendment.

I am sure that all members of the Committee will recall that Anna Walker of the Healthcare Commission commented during oral evidence that:

“The registration requirements explicitly say that they cannot bite on public health issues, only on health care issues.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 12, Q13.]

That is also relevant to clause 19.

I must make an additional point about the amendment. It seems sensible that the commission should have regard to the Disability Discrimination Act in relation to its inspection of health care premises and in any inspection it makes of health care assessments. That is also related to a previous point. I hope that the Minister will take those points on board.

Angela Browning (Conservative, Tiverton and Honiton)

Colleagues and Members on both sides of the House will have received a report from Mencap on this issue in recent months. The report is particularly relevant to people with learning disabilities who are admitted to hospital wards. Clearly, the 1995 Act is not being enforced in those circumstances. The inspection process needs to be strengthened.

Stephen O'Brien (Conservative, Eddisbury)

I shall maintain strict confidentiality, but I have a constituent in his 40s who is seriously affected by Asperger’s syndrome. Recently, he has repeatedly been admitted to the general ward in the local hospital, which has been something of a challenge for him, for the staff at the hospital and for his increasingly elderly parents. Having the rights and opportunities that would give him protection equal to that of others who might avail themselves of those services has proved extraordinarily challenging. My hon. Friend makes an absolutely valid and cogent point.

Perhaps with those two examples, the Minister will think that it is in the Government’s interests to ensure that there is no such difficulty. I hope that rather than rely on the more generic definitional and scope phraseology that is characteristic of the Bill, he will find it appropriate to consider health inequalities, which is clearly a difficult area, with a particular focus on the Disability Discrimination Act.

Greg Mulholland (Liberal Democrat, Leeds North West)

In the interests of brevity, I shall make only a few comments. I wish to put on record again the need for the Bill to address the hugely important issue of the health inequalities that result from disability, particularly certain forms of disability. People who have learning difficulties or mental health conditions are far more likely to contract a range of conditions, but such people are unlikely to receive health checks.

The Minister is aware of the issue and I know that he wants to tackle it. The amendment would be useful because regulatory arrangements should encompass the need to reduce health inequalities, as he would acknowledge. It is an important issue and it would be sensible to put the measure in the Bill. I look forward to what he has to say on whether the matter can be addressed in the Bill or in other ways.

Ben Bradshaw (Labour, Exeter)

It is pleasing to hear that reducing health inequalities and discrimination based on disability is a priority that is shared by all hon. Members on both side of the Committee. The Government were recently criticised for granting more time to the independent body that sets the allocation formula for primary care trusts because it wanted more time specifically to look at what more could be done to reduce health inequalities. That did not go down well in all quarters, but it illustrates that the Government’s overriding priority is the reduction of some of the glaring health inequalities.

The amendment would include specific references to those two issues within the scope of the registration requirements. As I have said repeatedly this afternoon, those requirements will soon be subject to public consultation. I encourage those who are interested in the matter to respond to the consultation. However, we do not believe that we need to specify those matters in the Bill. Let me give one example. It may not be within the power or ability of a specific provider, depending on the nature of the provider, to reduce health inequalities. However, if, following the consultation, registration requirements on health inequalities and the reduction of disability on the basis of discrimination were identified as practical and appropriate, the clause as drafted will enable us to cover that in regulations.

As I have already mentioned, the new Care Quality Commission may also take action when providers do not meet the requirements of any other legislation that it considers relevant. That is in the Bill. Hence, if there are elements or requirements under the Disability Discrimination Act 1995 that the commission thinks are relevant and are being breached, they can be included for registration purposes. The commission will have the power to act if providers do not meet the requirements.

I understand and sympathise with the motivations behind the amendment, but the Government consider it unnecessary, because the Bill will enable regulations to be made when appropriate, and for intervention to be made when the 1995 Act is breached. I therefore ask the hon. Member for Eddisbury to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

In the light of what the Minister said, it would be disproportionate to press the amendment to a Division. The matter might, however, be tabled for consideration on Report, and I dare say that it will be a key point in another place if the Minister chooses not to reflect our helpful discussion. I beg to ask leave to withdraw the amendment.

Kelvin Hopkins (Labour, Luton North)

I beg to move amendment No. 231, in clause 16, page 8, line 11, at end insert—

‘(l) impose requirements on registered social care service providers to comply with Codes of Practice issued by the General Social Care Council under section 62(1)(b) of the Care Standards Act 2000.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment

No. 232, in clause 16, page 8, line 11, at end insert—

‘(l) impose requirements as to the registration of the social care workforce.’.

Kelvin Hopkins (Labour, Luton North)

I shall be brief. I concede from the start that this is a probing amendment and I shall not press it to a Division. It is important, however, to give some kind of guidance to the new commission—the new regulator—and ideally the Bill would include the codes of practice established by the General Social Care Council.

The council was recently established by a measure enacted by the Labour Government, so it is not out of date. I hope that the measure would involve a simple carry-over and that my hon. Friend the Minister will ensure that it happens, whether by inclusion on the face of the Bill or as a code of practice issued by the Commission.

Stephen O'Brien (Conservative, Eddisbury)

I too shall be brief. I recognise that the amendment is probing. It is helpful to the Committee that the hon. Gentleman has sought to ensure that concerns encompassed by the amendments are put on the record. The experience from the registration of social workers and student social workers is that, without clear compulsion, registration will happen slowly and inconsistently throughout the sector. In the consultation on the arrangements for the registration of domiciliary care workers, there was general agreement that compulsion should be in place to ensure that registration takes place in a timely fashion and to ensure a level playing field in the delivery of social care services.

Having said that, there is a further debate to be had about the registration of the social care work force, most immediately about domiciliary care workers, but also, as I flagged in relation to clause 5, about any Government plans to regulate informal carers. That must be seen as a complementary issue, riding parallel to the one raised in the amendments. It is important that the matter is debated properly before an amendment such as No. 232 is included in the Bill. The hon. Gentleman is therefore right in his judgment that the amendments should be considered probing, but they reflect important considerations, which I hope the Minister will consider.

Greg Mulholland (Liberal Democrat, Leeds North West)

I rise to speak briefly to amendment No. 232, which I tabled. First, let me say that we fully support amendment No. 231, which was tabled by the hon. Member for Luton, North. To some extent, it is a tidying-up exercise and gives some of the clarity that the Bill lacks about the codes of practice for social care.

Amendment No. 232 is a probing amendment, but a beautifully simple one. It would impose specific requirements on the registration of the social care work force. The reason for tabling it is that this is an important issue. As the Minister will acknowledge, the GSCC makes it absolutely clear that it believes that social care providers registered with the new CQC should employ only workers who are registered with it. We agree with that and I would be interested to know the Minister’s views on it.

As the hon. Member for Eddisbury has said, without the necessary powers and the monitoring of employer compliance, that requirement is probably not worth the paper that it is written on. We must make this measure work to ensure that people have confidence that all social care workers, including students, who treat service users are properly registered. I am sure that the Minister will agree with that. Is this not, therefore, an opportunity to push towards that position?

Ben Bradshaw (Labour, Exeter)

Clause 16 is about allowing regulations to be made that set the requirements that providers and managers of regulated activities must comply with in order to provide or manage services. Those will include crucial requirements that are needed to ensure that services are of an appropriate quality and to secure the health, safety and welfare of patients and service users.

Amendment No 231 would make express provision for regulations to impose requirements on providers of regulated activities to comply with the GSCC codes of practice. The GSCC has issued these codes for social care workers and social care employers, as required under section 62 of the Care Standards Act 2000. They provide a clear guide for those who work in social care settings about the standards of conduct that workers and their employers should meet. The GSCC expects those registered with the CSCI to comply with the codes of practice.

The CSCI currently uses the codes of practice when inspecting care providers against the national minimum standards. I agree with my hon. Friend the Member for Luton, North that the system has worked well. In future, the commission itself will set the criteria by which compliance is assessed, and although we will be consulting on the registration requirements shortly, as I have repeatedly said, we would expect the new commission to continue to use the codes of practice in its assessment of compliance with requirements in future. I therefore see no reason for changing these arrangements when the new commission is established.

Amendment No. 232 would make express provision for regulation to make requirements as to the registration of the social care work force. The Care Quality Commission will not be responsible for the registration of social care workers; that role is carried out by the social care work force regulators, such as the General Social Care Council. Such a provision would duplicate legislation under section 55 of the Care Standards Act 2000, which gives regulatory powers to extend registration of the social care work force. It is illogical to have these powers resting with two bodies.

As we discussed earlier, the commission will register managers of certain services where they have significant amounts of autonomy and where there is little supervision. We would, of course, expect all providers to employ appropriate staff to deliver the activities that they are registered to provide. That is essential to ensure that the services are safe and of acceptable quality. Clause 16 already states that regulations may

“make provision as to the persons who are fit to carry on or manage a regulated activity”

and

“the manner in which a regulated activity is carried on”.

That will enable requirements to be made about the appropriateness of social care workers. The amendment is therefore unnecessary.

We will be consulting shortly and I urge those with an interest to participate in this consultation. In the light of that, I ask my hon. Friend the Member for Luton, North to withdraw his amendment.

Kelvin Hopkins (Labour, Luton North)

In the light of my hon. Friend’s assurances, I am happy not to press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 16, in clause 16, page 8, line 21, at end insert—

‘(5A) The Commission shall be required to report annually to Parliament on the action it has taken in respect of regulations made in accordance with subsection (5).’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments: No. 14, in clause 16, page 8, line 22, leave out from ‘means’ to end of line 31 and insert

‘such infections as the Secretary of State shall by regulation define’.

No. 15, in clause 16, page 8, line 39, at end add—

‘(10) In respect of such cases as the Commission has taken action on the prevention and control of health care associated infections, within the regulations established under subsection (5), the Secretary of State shall be required to make a written statement to Parliament,’.

No. 25, in clause 25, page 13, line 33, at end insert—

‘(5A) The Commission shall notify Parliament of any notices served due to breaches in regulations made under section 16(5).

Stephen O'Brien (Conservative, Eddisbury)

We arrive at the discussion on health care associated and health care acquired infections. Of course, amendment No. 25 would add new subsection (5A) to clause 25. The amendments are intended to do no more than finesse the Government’s approach to health care acquired infections and to make the Government more accountable to Parliament, through the CQC, for their performance.

There is a debate to be had about why the Government saw fit to include explicitly in the Bill health care acquired infections but not, for example, malnutrition, as we have said. MRSA affected about 6,000 people in the last financial year and, according to the Government’s own figures, clostridium difficile affected 56,000 people, as was cited in an earlier discussion. The Committee’s fear will be that the clause is less about benefiting patients and more about politics, both in general and specifically.

I would argue that the clause is about keeping the Prime Minister’s back as he blunders through health policy. For example, on Sunday 6 January, the Prime Minister promised, on “The Andrew Marr Show”:

“If you go to hospital you will get screened by next year for MRSA or C. difficile.”

That was later reported by the BBC under the headline,

“Brown pledges superbug screening: All patients entering NHS hospitals in England will be screened for MRSA and clostridium difficile.”

No one from the Government sought to correct that story. However, two days later, on 8 January, the Health Secretary’s infection control strategy, “Clean, safe care: Reducing infections and saving lives”, reported on clostridium difficile:

“Screening for colonised patients is inappropriate (most potential cases would not be identified, and it requires a stool sample), and colonisation without symptoms is not considered to increase risk of transmission.”

The Secretary of State for Health was admitting that the Prime Minister was, on that occasion, wrong.

The Government have failed for years to isolate infected patients, which the evidence says would work. Professor Pat Troop, chief executive of the Health Protection Agency, said in 2004:

“The most effective way of controlling the spread of both Staphylococcus aureus and MRSA in hospitals is through early detection and appropriate isolation and treatment.”

The Government’s own best practice guidance from the Department of Health states that the

“current scientific thinking recognises the evidence of many years’ experience that the isolation of patients with suspected or proven infection is effective in reducing transmission”

of hospital infections. The Department notes that

“Some countries have been particularly successful in controlling MRSA. Notable is the experience of the Netherlands. The Dutch strategy has been based on a policy of ‘search and destroy’. This involves screening patients for MRS A and isolating those found to be positive (colonised or infected)”.

It is vital that we recognise that series of reheated promises. With this group of amendments, the Committee has an opportunity to reinforce through legislation the message that the Government must get this right.

Anne Milton (Conservative, Guildford)

Does my hon. Friend agree that nurses are terribly constrained? Nurses tend to be on the front line and they get it in the neck when things go wrong, so unless we give them the resources they need to combat infection, such as the opportunity to isolate patients, we will not make real progress.

Stephen O'Brien (Conservative, Eddisbury)

I am very grateful to my hon. Friend. Her experience and practice in the profession gives her a particular authority. She reinforces a clarion call from nurses to be allowed to do what they know to be the right thing in order to give the best care and protection to patients.

There has been a series of reheated promises from 2003 to the present day, including promises on the appropriate provision of single rooms and isolation facilities for infected patients. The I gave all come from press releases from the Department itself over the past five years, yet there has been a significant failure to deliver. In the Bill, the Committee has an obligation not to duck the issue, not to try to pretend that it is not happening, not to be too sympathetic to the Government and not to fail to embarrass the Government. The Government happen to have been the people on watch during this failure, so they must take it in the neck, and it is right that we hold their feet to the fire. The amendments are an opportunity to do just that.

Back in 1998, during the Labour party’s first year in power, isolation rooms were turned into offices, and by 2003 there were very few trusts with proper isolation facilities. I shall not take up the Committee’s time by reeling off the statistics, but I would not put this argument to the Committee unless it was well supported. In 2005, there had been little progress on isolation facilities; in 2007, three quarters of trusts still lacked isolation facilities; and as we reach 2008, fewer than 50 hospitals have had a deep clean. On top of that, money has been taken from local NHS trusts to pay for it.

In the light of that failure, there is a strong argument for the CQC to report regularly to Parliament on the Government’s performance, as amendment No. 16 proposes. I hope that the Government do not lack the confidence to accept that proposal and that they will regard the amendment as a part of the frank accountability that is expected both by people whom they wish to see in receipt of great health care, and by all of us, so that we can be confident that the Government tackle the problem in the right way.

While debating this group of amendments, I should alert the Committee to the fact that there is no new money backing up the Government’s proposals. I am sure the Committee well knows the following arguments, but the Department of Health originally said that deep cleaning could cost as much as £50 million, and then admitted that the figure was only an indicative amount. The Department also admitted that strategic health authorities will be expected to manage the funding of the programme from within their own regional financial plans. Now, the Government have gone even further and confessed that the money will be found not even by SHAs; instead, local NHS trusts will foot the bill.

On the first deep clean at the Maidstone and Tunbridge Wells NHS trust, which is clearly of great topical import, the Department said:

“The funding for deep cleaning at Maidstone and Tunbridge Wells NHS Trust is coming from primary care trust lodgements held at the South East Coast SHA for strategic purposes.”—[Official Report, 5 December 2007; Vol. 468, c. 1316W.]

So we have that from the Government themselves. Amendment No. 16 seeks to ensure that there is genuine commitment to back up the Government’s rhetoric.

Amendment No. 14 is a probing amendment that arises from a concern about the Bill as drafted. Why has the Minister opted for the measure as drafted, rather than a statement of names, for example MRSA or C. diff? Is it sufficiently narrow to exclude non-health care associated infections, but sufficiently broad to capture health care associated infections? There is a further political concern, given the Secretary of State’s statutory influence over the commission, that as new “super-bugs” arrive—as sure as eggs are eggs, they will—the Secretary of State will try to prevent them from being treated as health care associated infections by the commission, in order to massage the Government figures. The Committee is surely under an obligation not to let the Government have licence to do that. The health and safety of patients is too important to allow that risk to leave this room. Obviously if the matter is left to regulations, the Secretary of State still has the power to do nothing about it—it is power that matters—but at least if amendment No. 14 is accepted, he loses any clandestine power he might have.

Amendment No. 15 arises out of the incidents at Maidstone and Tunbridge Wells. Although it would not protect against the delays that happened there, as there were delays in the publication of the Healthcare Commission report on compliance with the hygiene code, it would give right hon. and hon. Members an alert as to when action is taken by the commission, and as such would lead to freer and, hopefully, franker debate in Parliament. Amendment No. 25 seeks to generate a similar report as regards notices served on service providers.

The Minister needs to answer a number of questions in this area. He must also grab the opportunity provided by the amendments to accept our earnest intent to give effect, through those who are best qualified to help it happen, to efforts to tackle one of the most appalling concerns that people have about our health service. They fear that when going into a health care setting, they risk coming out either with a hospital acquired information or, worse still, not coming out at all because they will succumb to it.

We must find a way to support the Government in achieving our aims. We cannot wait for another Government. We have to get on with it. The amendments give us that opportunity. I genuinely hope that the Minister will not think that I am just taking an opportunity to have a good old bash at him and his team. Far from it. This problem is of such importance—we see this all across our constituencies. Like other hon. Members, I have a number of constituents who have either lost loved ones through hospital acquired infections or who continue to suffer from very serious conditions that they acquired when they should have been being treated. I hope that the Minister will take very seriously what we propose in the amendments, which are central to the integrity of the Bill. Unless the Minister can satisfy us on this, we will press them to a vote.

Greg Mulholland (Liberal Democrat, Leeds North West)

I apologise for taking up the Committee’s time, but I want to make some brief comments. As the Minister would probably accept, the Bill is being touted, not by the Government but elsewhere, as one that will first and foremost tackle health care acquired infections. That is one of the problems of having so many different and varied parts to a Bill, which is often inevitable. In many ways the public see this as the number one issue in the Bill.

To echo the hon. Member for Eddisbury, just before Christmas I called on a constituent who had various health care problems. She told me that she was not prepared to travel from Otley into Leeds for an operation because she did not want to catch MRSA. Of course, perception and reality are not always the same, but the perception and fear is an issue in itself, in addition to tackling the reality of health care acquired infections, which the Minister has made it clear he is very keen to do.

The Bill sets out to deal with health care acquired infections, and we are considering a framework for how we can do that together—I echo the comment that we have to work together and we will support the most appropriate measures. We are trying to put in place the strongest, the best and the most appropriate framework for enabling people to deal with such infections. I believe that the amendments are helpful. Surely it makes sense to have some statutory reporting procedure as part of the framework for dealing with health care acquired infections, and of course it makes sense to have parliamentary accountability as part of that.

Stephen O'Brien (Conservative, Eddisbury)

I am deeply grateful for the hon. Gentleman’s support. To make it absolutely clear, one would want to press amendments Nos. 16, 15 and 25. I made it clear that amendment No. 14 was a probing amendment. The hon. Gentleman is offering his support. I wanted to make it clear precisely what I hope we will have an opportunity to vote on.

Greg Mulholland (Liberal Democrat, Leeds North West)

I thank the hon. Gentleman for his clarification. I simply wish to ask the Minister a question. As part of the framework that we all want to see, are some of these suggestions—not amendment No. 14 but the other amendments—useful? If not, what will be there in their place? If they will not be in the Bill, how will they be brought in to ensure that we have the best and strongest framework possible for dealing with this very real problem that we all want to be dealt with as strongly as possible?

Ben Bradshaw (Labour, Exeter)

In spite of the invitation from the hon. Member for Eddisbury, I have to say that I suspect that the amendments are more about the Opposition’s desire to have a run-around on health care-associated infections, rather than to address the substance of the amendments and their impact on policy. The reason for that is perhaps that, as the hon. Gentleman is well aware, both MRSA and C. difficile rates are falling steadily, which is very welcome. I think that, as a consequence of that, the amendments have been grabbed out of thin air to give the Opposition an excuse to discuss the issue.

The amendments are flawed. Amendment No. 15 would require the commission to report to Parliament every time that it took any action related to any requirement in the regulations connected with the prevention and control of health care-associated infections. Amendment No. 25 would place a similar requirement on the commission, but is limited to the issuing of warning notices rather than any action. Amendment No. 16 would require the commission to make an annual report to Parliament specifically on the action that it had taken regarding regulations under clause 16 relating to health care-associated infections.

I understand and sympathise with the Opposition’s desire to ensure that Parliament is kept fully abreast of action that the commission is taking, but I question whether the proposed approach is proportionate. Of course it will be important that the public have a full picture of how the services in their area are performing. They do already, through a number of measures. I have already described the annual health check. When the CQC goes in on an issue of health care-associated infections, given the new enforcement powers that the Bill gives it—the ability to intervene earlier—it will be entirely free to publicise its activities at any time when it is taking action. However, it is up to the commission to make a judgment as to whether and how much it wants to publicise every single action that it takes in a particular area. That is why we have made provision in clause 83 for regulations to set out when the commission must publish details of the enforcement action that it has taken.

That flexibility is very important. It is up to the commission to decide on the most proportionate response. For example, we expect the commission to be on top of any breach of registration requirements and to respond appropriately. In the majority of cases, that will probably mean a low-level response to nip the problem in the bud—for example, by specifying the issue of concern and alerting the person to what needs to be done to prevent the matter from escalating. I do not imagine that Parliament would consider it a good use of its time for reports to be laid every time that the commission takes action of that type.

On amendment No. 25, warning notices are intended to be used for first-time or minor offences. The issuing of a notice should encourage a provider to change their behaviour to comply with the requirements. If the failure is remedied within the set timetable or has already been put right when the notice was issued, no further action may be deemed necessary in respect of the specific incident. If, however, such matters were referred to Parliament, the issuing of a warning notice would not represent a low-level intervention, in that the provider concerned would be named to Parliament. In those circumstances in which this requirement would apply, it would rather undermine the intended purpose of a warning notice. While I understand the Opposition’s concern about parliamentary accountability, I believe that the reporting requirements in the Bill are perfectly adequate and that the proposed amendments would place considerable and unacceptable extra burdens on parliamentary time.

Under clause 77, the commission is obliged to report annually to Parliament on a range of matters, including the provision of NHS care during the year. That is the same as the current position with regard to the Health Commission and CSCI. I know that Parliament finds such reports both informative and useful. If the Secretary of State decides that there are particular matters on which more detail is needed, subsection (5) of that clause allows them to specify other reports and information that the commission must provide. We would expect that annual report to cover health care-associated infections. We see no need to require the commission to submit this section of the report separately, as amendment No. 16 would require us to do.

Turning to amendment No. 14, the definition of health care-associated infections used in the Bill is the same as that used in the Health Act 2006, in which we legislated to establish the code of practice on infection control. It also included the same exemption that we have used here to exclude circumstances in which the individual is deliberately exposed to an infection as part of the provision of health care. Admittedly, that is not as common a practice as it once was, but there are still vaccines and inoculations that work on the principle of deliberate exposure. For example, I understand that patients were sometimes deliberately exposed to a virus to raise their temperature as part of their therapy. Amendment No. 14 requires us to set out the kinds of infections that should be exempt in regulations. I am opposed to that amendment because the current wording makes it clear that only those infections to which a person is exposed deliberately as part of their health care are exempt. The proposed amendment does not include such a safeguard. That means that potentially any kind of infection could be exempt. More importantly, listing particular exemptions and regulations would make this clause much more cumbersome in its operation.

We are aware of how viruses such as flu are constantly evolving and mutating. We have seen the potential threat from new viruses such as severe acute respiratory syndrome. In the event that a new health care treatment is developed that involves the deliberate exposure of patients to infection, this clause, as amended, would prevent us from using it until the revised regulations had been made. On that basis, I urge the hon. Gentleman to withdraw that and the other three amendments.

Stephen O'Brien (Conservative, Eddisbury)

I have listened carefully to the Minister, and he reasonably thinks that this is a desperately important area. I am grateful for the support from the hon. Member for Leeds, North-West. Given the way that the amendments are grouped, I want to flag up that although I am happy to withdraw amendment No. 14, which I declared at the outset was a probing amendment, I would wish to make any further consideration of amendments Nos. 15 and 25 dependent on the outcome of pressing amendment No. 16 to a vote.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment No. 13, in clause 16, page 8, line 38, leave out from first ‘section’ to ‘consultation’ and insert ‘must be taken into account in’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 22, in clause 18, page 9, line 45, leave out from first ‘section’ to ‘consultation’ and insert

‘must be taken into account in any’.

The rest of the debate is in Hansard.