Care Bill [Lords]

Public Bill Committee, 23 January 2014.

Clause 56 - Assessment of financial sustainability of care provider

Liz Kendall (Labour, Leicester West)

I beg to move amendment 130, in clause 56, page 48, line 39, leave out ‘may’ and insert ‘must’.

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss the following:

Amendment 132, in clause 56, page 48, line 44, at end add

‘including the charges levied on the provider by other services regulated by the Commission and their impact on the financial sustainability of the provider’s business.’.

Amendment 129, in clause 56, page 49, line 4, at end insert—

‘(8) Where this section applies to a registered care provider, the provider must disclose in full any relevant information that the Care Quality Commission considers it necessary to have in order to make an assessment under subsection (1), including information relating to any holding companies or other associated corporate entities.’.

Liz Kendall (Labour, Leicester West)

At the end of the previous sitting, we were talking about the Care Quality Commission’s role in trying to prevent or deal with the consequences of provider failure, and I was saying that one thing that we had learned from the Southern Cross case was that there are often very complicated financial structures behind not just the care providers, but their owners or parent companies. There is increasing involvement of private equity and venture capital companies and others.

Amendments 129 and 130 would ensure that the CQC could gain access to all the financial data that it needed, including from parent or holding companies, to make a proper assessment of the financial sustainability of a care provider. The CQC may have been able to get hold of information from Southern Cross, for example, but what if it had wanted information from Blackstone, the private equity company behind it?

I point the Committee towards the comments that David Prior, chair of the CQC, made to the Select Committee on Health. Yesterday, that Committee published a very useful report on the CQC, including its new roles, and the Clerk helpfully forwarded it to us. In his evidence to the Committee, David Prior said that there were very complicated financial structures behind some care providers.

Amendment 129 states that a registered care provider

“must disclose in full any…information that the Care Quality Commission considers…necessary…in order to make an assessment”

of whether the provider is in financial difficulty. That includes information from

“any holding companies or other associated corporate entities.”

Amendment 130 is designed to toughen the Bill’s language, so that rather than saying that regulations “may” enable the CQC to obtain information that it considers relevant, it says that the regulations “must” do that.

I have tried to understand what powers the CQC currently has to require care providers to co-operate with it, and my understanding is that under the Health and Social Care Act 2008, the previous Government gave the CQC two powers to get care providers to co-operate—not specifically on finances, but generally. One is the power to issue a fine of up to £2,500, and the other is the power to suspend or cancel the licence. Let us be brutally honest. A fine of £2,500 will not put off any company the size of Southern Cross, let alone a private equity company such as Blackstone. The CQC needs to have the power to threaten to suspend or cancel a licence, but in this case, if it is worried that a provider might end up failing, cancelling or suspending its licence might precipitate its going into that situation. Therefore, I do not think that the CQC’s powers to get people to co-operate are sufficient, particularly on financial information. I have no doubt that many companies will not want to give over all their financial data; they will say that the information is commercially confidential.

Our amendments are clear. We are not saying that all the information should be published in the public realm. This is about giving the CQC all the information that it thinks is relevant in order for it to make its assessment of whether the care provider is financially sustainable. That is why we tabled those amendments.

I want to come back to a couple of points that I raised on Tuesday, if the Chair will allow me, on the CQC’s wider role. That is because we now have the Health Committee’s report on accountability and the CQC. That report came out only yesterday and it is relevant for the Committee to consider its recommendations before we leave this part of the Bill.

David Behan, the chief executive of the CQC, told the Health Committee—this was the point I was making on Tuesday—that for the CQC to fulfil its obligations under this part of the Bill, it will need to

“buy in skills from organisations that do insolvency work”.

Rather interestingly, David Prior, the chair of the CQC, said that it was highly unlikely that the commission would want to have the financial skills permanently in-house. In other words, he was saying, “We don’t want to bring in permanent staff to do this; we just want to keep buying it in.” My question for the Minister is this: how much will it cost for the CQC to buy in the skills? Is he convinced that it is value for taxpayers’ money to continue doing it on a consultancy basis, rather than taking on teams permanently? Why would the chair of the CQC not want those skills permanently in-house if this is to be a long-standing function? I do not understand that and I do not understand how that provides best value for money for the taxpayer.

More importantly, on page 24 of the Health Committee’s report, paragraph 57 states that

“the Government should reconsider its decision to allocate this responsibility to CQC and that it should ask Monitor to undertake this role.”

The report states that because Monitor already has several in-depth skills in the financial oversight of foundation trusts. The Health Committee questions why that role should go to the CQC. If the CQC is just going to keep buying consultants in, how is that value for taxpayers’ money? I hope that the Chair and the Minister will forgive me for returning to those points, but having seen the Health Committee’s report, it is only right that the Minister responds to them as we scrutinise this part of the Bill.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I will speak about amendment 132, which does not deal with any of the issues that the shadow Minister raised. It is intended as an opportunity to probe the Government on a separate issue that came to my attention in the past couple of weeks. It relates to an important interaction between different regulated services and how the actions of one regulated set of services—in this case, primary care and GP practices—can have an impact on some of the costs of another regulated set of services, which in this case is care homes. I do not necessarily expect the Minister to be able to give me a full response today, but I ask him to reflect on what I say.

The amendment is based on a recommendation, again from the Health Committee, that dates back a long way, to an inquiry that it did in 2003-04 into a range of issues around elder abuse. One of the things it found when it took evidence was that a number of care home providers expressed a concern about the variability of supply and access to primary care services. An argument was made about the inappropriate use of retainer fees to retain the services of general practitioners, and the Health Committee made a clear recommendation that that practice should be abolished.

The Government of the day simply responded by saying that there were circumstances in which additional or enhanced services might be provided outside what a general practitioner would have a contractual obligation to provide to the public at large, and that there was therefore a reason for retaining such fees. However, the English Community Care Association undertook a survey in 2008 on the use of retainers. It found that the cost of retainers over the course of a year could amount to as much as £24,000 and that in a number of cases there was nothing to suggest that the retainer was being paid for more than the services that the GP had already been contracted to provide.

More recently, Care England, as it has become following the merger with the care home association, has surveyed a number of its members. One survey received 34 responses —not a big sample—of which 30 said they paid retainers and the other four did not. The survey showed that the amounts being paid ranged from £1,000 to £2,400 a month and several of the organisations responding said that if they did not pay the retainer, the in-house GP service would be withdrawn and all residents other than totally immobile residents or those in emergency situations would need to go to the surgery.

That cannot be right. It is unacceptable that GPs should use their relationship with care homes as an additional source of income to provide the service they are contracted to provide. That is why I am raising this issue now and why I raised it as a member of the Health Committee in 2004. I made the same recommendation then and I still feel strongly about it.

Liz Kendall (Labour, Leicester West)

I support that point. My mum, when she lived near Watford, used to help in a care home. The home had a real struggle trying to get GPs to come in and do some preventive, up-front tests, to make sure that everybody was okay. There were a couple of examples of where something had gone wrong and they had to ring 999, when they thought it would be much better if the incident had been prevented in the first place. GPs refused; they said they would do it only if the home was charged. My mum rang me and I said, “They are surely on the patient register, they should not be doing that.” The home went to the clinical commissioning group, which said there was nothing it could do about it; it was up to the GPs. This happens, and it is not right. I absolutely support what the right hon. Member for Sutton and Cheam has said.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I agree with the hon. Lady. Obviously, the Government are concerned about this because they said that they were in the White Paper on care and support. They said that the evidence also showed that there is currently considerable variation between primary care trusts, as they were then, in the primary care services provided for care home residents. Of course, NHS England has a primary responsibility here, but the amendment seeks to suggest that, when one looks at viability, another regulated organisation levying additional charges that increase a home’s costs is not an irrelevant consideration. That is the basis on which I have tabled this amendment.

Will the Minister raise this matter with the chief inspectors of adult social care and general practice and ask them how they might satisfy themselves that, in health and care economies around the country, this practice is not being used as a way of topping up the incomes of general practices?

Sarah Wollaston (Conservative, Totnes)

Perhaps I should state for the record that I never received any such fees in my time as a GP. There is a serious issue, but it is only fair to raise the problem of the real work force shortages in general practice. If GPs are to do the very valuable work that my right hon. Friend the Member for Sutton and Cheam mentions on prevention, we can use other vehicles—perhaps through the better care fund—to make sure that that happens, and that GPs have the time to prioritise it.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is a good point which I hope the Minister will pick up. There are clearly issues around the work force that it is entirely right to raise.

I ask the Minister to raise the issue with the two chief inspectors so that they can act in concert and satisfy themselves and the public that the use of retainer fees is appropriate, that there is clarity about when they can be used and that there is greater consistency about the level at which they are set, if they are to continue to be set in the first place.

That was the purpose of the amendment. I hope that the Minister, either in his response or correspondence, can offer some reassurance. I know that Care England and a number of its members are concerned about this issue, and the public would be concerned, too.

Norman Lamb (Liberal Democrat, North Norfolk)

In tabling amendments 129, 130 and 132, my right hon. Friend the Member for Sutton and Cheam and Opposition Members bring to the Committee’s attention the important issue of ensuring that the CQC can access appropriate financial information to oversee effectively the finances of registered care providers.

First, I will deal with the shadow Minister’s concern about the approach that the CQC will take and the comments of its chairman, David Prior. By way of giving some background, I will point out that he was the Member of Parliament whom I defeated to end up in this place. I feel that I was releasing him to do this very important job and he is an extremely good chair of the CQC.

Liz Kendall (Labour, Leicester West)

That is not what the Minister said in “Focus” at the time.

Norman Lamb (Liberal Democrat, North Norfolk)

I have a high regard for David Prior and I am delighted he is doing that job. None the less, we were head to head for six years, trying to win the North Norfolk seat.

David Prior has made some comments, I think to the Health Committee. The first point to make is that if one makes a body independent of Government, one has to respect that independence in the way that it goes about its business. However, I will meet him soon and independence does not mean that we cannot talk to each other. I will certainly raise this issue with him on behalf of the shadow Minister. It is a legitimate issue for discussion, and I am happy to raise it with him.

The shadow Minister also raised the issue of CQC versus Monitor. I think that I am right in remembering—forgive me if I am wrong—that the shadow Minister indicated at the last sitting that she thought that the judgment was probably right. Obviously, the Health Committee has since given its view, but that alignment of financial stability and quality of care is incredibly important. This is one of those issues where there is no right or wrong answer; a judgment call is needed. However, in having to reach a conclusion, I felt that having the organisation that is responsible for the quality of care looking at the sustainability of organisations is hugely important. It is important for us to recognise that a financially unstable organisation undermines the quality of care, and that people who play fast and loose with structures to make a fast buck undermine the quality of care. Having one organisation looking at those issues is the right way forward.

I make an observation that I hope is incontrovertible: it is unacceptable for care users to be left without the services they need, in particular where the interruption of those services, or the worry that they might be interrupted, could badly affect care users’ well-being, and place unacceptable stress on them, their families and their carers. The financial performance of a provider, whether exceptionally good or exceptionally poor, can be a leading indicator of serious quality failings.

During the past 20 years, the care market has obviously evolved massively. Today there are several medium and large providers of care operating across large parts of the UK, on a significant scale. The impact of such a provider failing would affect many parts of the country and it is not reasonable to expect individual local authorities to manage such a situation without central co-ordination. In the previous sitting, my right hon. Friend the Member for Sutton and Cheam made the point that, when the horror of Southern Cross happened, there were no tools available to manage the process, or even to have warned us prior to the crisis happening that it was imminent.

We are therefore placing a duty on the CQC to assess the financial sustainability of the providers that would be most difficult to replace. It will support local authorities in ensuring continuity of care when providers fail, by informing them when it considers that such a failure is likely and providing information that they need, such as details of individuals receiving services from the provider in their area.

In amendments 129 and 130, the Opposition raised the important issue of ensuring that the CQC, in assessing the financial stability of registered providers, can obtain appropriate information from organisations in a registered care provider’s group. Some providers have ownership structures that complicate the assessment of their financial sustainability. For that reason—this is the critical point in answering the shadow Minister—clause 56(5) provides for regulations to require the CQC to require information from other organisations that would assist it in assessing a provider’s financial stability.

As the CQC develops its framework for implementing its regime and its approach to assessing financial stability, we will work with it and stakeholders to consider how the regulations should work in practice.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

What is the estimated cost of outsourcing to financial experts to advise the CQC?

Norman Lamb (Liberal Democrat, North Norfolk)

I do not have an estimate; it must be for the independent CQC to manage that process. The duty that the Bill places on the CQC is clear, and it must comply with it in such a way as to allow the arrangements to work effectively. I do not know whether we can find out about the likely cost; if I can provide that to hon. Members, I shall be happy to, but the matter is ultimately for the CQC.

Draft regulations will be developed through collaboration between the Department of Health, the CQC and stakeholders. The objective of the market oversight regime is to provide early warning to local authorities, to support them in ensuring that no one will suffer because the failure of a provider leaves a gap in the service on which they depend. That cannot be achieved if the CQC cannot make a fully informed assessment of a provider’s financial situation, so I reassure the Opposition that we fully intend to make the regulations. The shadow Minister wanted the word “must”, not “may”, in the provision, but we will make the regulations: we are absolutely committed to that. I hope that reassures her.

Liz Kendall (Labour, Leicester West)

I would not want to tell the Minister what to do. Nevertheless I should not underestimate the difficulty of getting some of the detail about financial arrangements from companies based overseas. They are often offshore. HMRC cannot get information about what tax they pay, let alone the CQC.

I am serious; I have spoken to the CQC about the issue. I do not think that the provision is tough. The Minister is saying that a bod in the CQC will be able to say to a private equity or offshore overseas company, based who knows where, “Give us the details we need about your background deal for the care provider.” I cannot consult a crystal ball, but I think that the company would not do it. This will not be easy. The issue is serious. If HMRC cannot get information, how will the CQC?

Norman Lamb (Liberal Democrat, North Norfolk)

I understand and share the hon. Lady’s concern. It is incredibly important to get the information; that is why regulations will absolutely require it—not just from the specific company, but from other organisations.

In the aftermath of Southern Cross, while we have not had the legislation it has been for the Department to maintain an informal monitoring process. There has been quite good collaboration with the larger industry players where a collapse might have a significant impact in a particular area of the country. My clear understanding from officials is that that collaboration has worked well. Such collaboration is in the interests of both sides, because whatever people’s motivation in terms of making money, nobody actively wants the organisation to go bust.

The Care Quality Commission is responsible for registering those companies and must be satisfied on registration that a company meets the fundamental standards of care and can sustainably provide good quality care. There is an alignment of interest in getting financial information and continuing to monitor stability to facilitate the work of the CQC.

Grahame Morris (Labour, Easington)

I agree with the Minister’s analysis. Will he support my ten-minute rule Bill to extend FOIs to private health care companies? Does he agree that that would make life much easier for the CQC and others trying to achieve the same ends?

Norman Lamb (Liberal Democrat, North Norfolk)

I offer the hon. Gentleman a discussion on the matter. If he sends me his ten-minute rule Bill, I will be happy to have a chat with him about it one afternoon in the Tea Room. I would really enjoy that. We will have to find somewhere mutually agreeable to sit together in the Tea Room, given the demarcation in that place.

Jim Shannon (DUP, Strangford)

Will the Minister sit at our table?

Norman Lamb (Liberal Democrat, North Norfolk)

I greatly appreciate the hon. Gentleman’s offer. He is clearly a peacemaker. We ought to get back on track. I apologise for the ill-discipline, Mr Bayley—not only mine, but that of others.

Hugh Bayley (Labour, York Central)

Order. That is perfectly orderly. As always, the Minister has been generous to other members of the Committee—something I thoroughly approve of.

Norman Lamb (Liberal Democrat, North Norfolk)

I am relieved to hear it.

In amendment 132, my right hon. Friend the Member for Sutton and Cheam rightly emphasises the importance of ensuring the effectiveness of the new system of financial oversight of care providers that will be run by the CQC. Before I give the formal response in my speaking note, I want to address directly the concern that he has raised. He is right to pursue the matter, and the Government are right to have expressed concern about the practice. The steps that the Government are taking will help break through the unacceptable practices that sometimes occur.

Nowhere will there be a greater concentration of people who may need hospital treatment than in a care home, and those people often have multiple morbidities and require proactive care. In the Secretary of State’s work, and in the work I am doing within my portfolio, the whole emphasis is on shifting towards proactive care and having an accountable clinician. We are reforming the GP contract, which was—this is just a tiny political point—deeply flawed in its make-up. [Interruption.] Mr Bayley, that is outrageous.

Hugh Bayley (Labour, York Central)

I did not hear anything, and neither did Hansard.

Norman Lamb (Liberal Democrat, North Norfolk)

The reform of the GP contract frees up time from this box-ticking exercise to allow GPs to concentrate on proactive care. Alongside that, the emerging vulnerable older people’s plan will focus on maintaining the well-being of those individuals, preventing crisis admissions to hospital, which are so often completely disruptive to their well-being and care and enormously expensive to the system. Care homes and the role of the GP are critical to that. Those patients in that care home will have to be part of the vulnerable older people’s plan. There will have to be an accountable clinician who will be responsible for their care. This is a significant advance.

Jim Shannon (DUP, Strangford)

The Minister referred to appropriate care. One example that comes to my mind is people with brain injuries. Sometimes they are pushed to a care home which, let us be honest, is an inappropriate place for them. It does not give them the correct chance for rehabilitation, which is so important. There are specific ailments, injuries and diseases where people need to be in the appropriate place. Can the Minister confirm that after these proposed legislative changes, decisions will be taken to ensure that those with brain injuries are sent to the right place and not somewhere inappropriate for a short stay?

Norman Lamb (Liberal Democrat, North Norfolk)

This all comes down to good care and addressing the issue of accountability. As for being sent off to an inappropriate care home, in future under the vulnerable older people’s plan, there has to be a named clinician—a GP—who is responsible for the care of that individual. That does not half focus the mind. So often at the moment, people fall through the gaps in a horribly fragmented system. The whole emphasis of the Government is to move towards a joined-up, integrated system that ensures good, proactive care to prevent those people from facing crises that are horribly disruptive to their lives.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

An important step has been taken around much better co-ordination of care, particularly for those with complex multi-morbidities. It is key to getting the best results for them. Will the Minister consider sharing this little debate about retainer fees with the chief inspectors for social care and for general practice so that they are aware of the concern and can take appropriate steps to address it in their work inspecting those two different parts of the system? They interact and they have an impact on the bottom line of care homes. There is a question whether those fees are always appropriate.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to my right hon. Friend for raising the issue. It is important. On his specific point, I am happy to write to Steve Field, the chief inspector of primary care, and to copy in the chief inspector of social care, to raise the issue. There must not be barriers in the way of proactive care of people in care homes. My hon. Friend the Member for Totnes, with all her experience, raised exactly this concern and the importance of that very good proactive care.

Jim Shannon (DUP, Strangford)

The point I was trying to make and did not mention in my earlier comments was that if someone is in the right centre for rehabilitation—the right residential home, the right care home—there is a massive financial saving. Whether we like it or not, we have to focus on the financial savings, too. There are good savings to be made by putting the right person in the right home at the right time.

Norman Lamb (Liberal Democrat, North Norfolk)

I agree. That is the whole purpose behind our integrated care pioneers. The hon. Gentleman should visit some of these brilliant parts of the country—Islington, Greenwich, Barnsley, Torbay or Cornwall. Those fantastic leaders are demonstrating a much more effective way to manage people’s care: shifting the emphasis to preventing ill health; preventing a deterioration of health; and critically, using the money more effectively.

Beyond the pioneers, we now have the incredibly important better care fund that has the potential to deliver that proactive preventive care across the country. I encourage the hon. Gentleman to visit some of those great places because there is a lot we can learn.

The Care Quality Commission will oversee the financial stability of these providers, assist them in mitigating any financial challenges to continuity of care and provide assistance to local authorities in managing continuity of care if a provider does fail. Where there is a significant risk to the financial stability of the provider, the CQC can arrange an independent business review.

It will be important that the way that the CQC assesses the financial viability of providers in the regime takes account of the wide range of different provider types and different business models. The information required to assess the viability of a corporate plc may be completely different from that required to assess a charitable trust.

Nick Smith (Labour, Blaenau Gwent)

I want to return to the CQC’s ability to monitor care providers. I accept the Minister’s good intentions to ensure that that happens, and I hope the regulations will be strong enough. However, I am still not persuaded that the CQC has the financial capacity, in particular the financial penalties, to hold these companies to account. Will the Minister look again at the financial penalties available to the CQC? Could they not be higher in future, to ensure that there is transparency from the companies about their financial management? That would be a good way to improve confidence that we are going to get the right outcome.

Norman Lamb (Liberal Democrat, North Norfolk)

That was a legitimate intervention. I will write to hon. Members about all matters relating to the CQC. I hope that encourages the hon. Gentleman.

In carrying out such assessments of financial sustainability, we would expect the CQC to take into consideration a range of factors, including not only any risks to the business, but the reasons behind those risks. Those might include, as the amendment suggests, debts or charges owed to other individuals or organisations. I can see the point that my right hon. Friend the Member for Sutton and Cheam is making through the amendment, although I do not think it necessary to specify such a requirement in the Bill. I suspect that his amendment is a probing one.

Paul Burstow indicated assent.

Norman Lamb (Liberal Democrat, North Norfolk)

My right hon. Friend’s nodding reassures me.

I assure my right hon. Friend that the CQC intends to develop its methods through consultation to take account of the wide diversity of providers, and I hope I have given enough reassurance for him not to press his amendment. I hope, in a similar spirit, that the shadow Minister will not press her amendment.

Liz Kendall (Labour, Leicester West)

I remain concerned about this matter. I understand that regulations are to come forward. I will not press the amendments at this stage; we have put our concerns on the record. However, I think the issue needs to be looked into in far more detail. If the Minister will write to hon. Members about the issue, we can keep it under scrutiny, which is our job. I beg to ask leave to withdraw the amendment.

Clause 59 - Assessment of a child’s needs for care and support

Liz Kendall (Labour, Leicester West)

I want to make a small point about the clause on the important issue of transition from childhood to adult life. We could have a big debate about how difficult the issue is and how many families feel let down. I know that the Bill seeks to improve that transition so that people get continuity of support. Also, there have been changes in the Children and Families Bill, which also looks at the issue.

I want to raise just one issue. Under the Care Bill, a child’s care needs will be assessed up to the age of 18. Under the Children and Families Bill, I understand that there will be new education, health and care plans, which will be carried out for people up to the age of 25. I am worried about that disparity in the age, because someone might end up getting two separate assessments. I know the Care Bill says that the assessments could be joined up, but I am not clear, if one is up to 18 and the other is up to 25, how that will work.

We want families to get just one assessment. They do not want to go through the process twice. I am concerned about that disparity, and I would like to know what the Government are going to do about it.

Norman Lamb (Liberal Democrat, North Norfolk)

It is probably best if I deal just with that specific issue rather than detain the Committee long.

I am completely with the shadow Minister; it would be crazy if different assessments overlapped with each other. There needs to be one joined-up process. The two Departments have tried as much as possible, and I think largely successfully, to collaborate closely with each other to ensure that the measures in the Children and Families Bill match those in the Care Bill. I will look at the hon. Lady’s specific point and write to her about it, and copy in other hon. Members.

I think we are completely agreed on what we are seeking to achieve. I am happy to write to the hon. Lady to confirm the position.

Clause 60 - Child’s needs assessment: requirements etc.

Clause 61 - Assessment of a child’s carer’s needs for support

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment 43, in clause 61, page 51, line 39, after ‘child’, insert ‘has or’.

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss the following:

Amendment 44, in clause 61, page 51, line 40, leave out ‘after the child becomes 18’.

Amendment 45, in clause 61, page 51, line 41, leave out ‘significant’.

Amendment 46, in clause 61, page 51, line 44, at beginning insert ‘where the child is 16 or over’.

Amendment 47, in clause 62, page 53, line 10, leave out subsections (5) and (6).

New clause 5—Child’s carer’s eligibility criteria—

‘(1) Where a local authority is satisfied on the basis of a child’s carer’s assessment that a carer of a child has needs for care and support, it must determine whether any of the needs meet the eligibility criteria (see subsection (6)).

(2) Having made a determination under subsection (1), the local authority must give the carer concerned a written record of the determination and the reasons for it.

(3) Where at least some of a child’s carer’s needs for care and support meet the eligibility criteria, the local authority must—

(a) consider what could be done to meet those needs that are eligible;

(b) ascertain whether the carer wants to have those needs met by the local authority in accordance with this Part; and

(4) Where none of the needs of the carer concerned meet the eligibility criteria, the local authority must give him or her written advice and information about—

(a) what can be done to meet or reduce the needs; and

(b) what can be done to prevent or delay the development of needs for care and support, or the development of needs for support, in the future.

(5) Regulations may make provision about the making of the determination under subsection (1).

(6) Needs meet the eligibility criteria if—

(a) they are of a description specified in regulations; or

(b) they form part of a combination of needs of a description so specified.

(7) The regulations may, in particular, describe needs by reference to—

(a) the effect that the needs have on the carer concerned; or

(b) the carer’s circumstances.’.

New clause 6—Duty and power to meet a child’s carer’s needs for support—

‘(1) A local authority, having made a determination under section 62( ), must meet a carer’s needs for support which meet the eligibility criteria if—

(a) the child needing care is ordinarily resident in the local authority’s area; and

(b) the local authority is satisfied that support would be better provided to the carer under this section than to the carer and/or the child under section 17 of the Children Act 1989.

(2) A local authority may meet a carer’s needs for support if it satisfied that it is not required to meet the carer’s needs under this section.

(3) Where a local authority has carried out an assessment under section 61(1)(b) it must give the carer—

(a) an indication as to whether any of the needs for support which it thinks the carer is likely to have after the child becomes 18 are likely to meet the eligibility criteria (and, if so, which ones are likely to do so), and

(b) advice and information about—

(i) what can be done to meet or reduce the needs which it thinks the carer is likely to have after the child becomes 18; and

(ii) what can be done to prevent or delay the development by the carer of needs for support in the future.’.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The amendments are changes that would need to be made to the Bill to pave the way for new clauses 5 and 6. The new clauses are on how we continue to improve the rights of carers and ensure that there is an alignment of responsibility on local authorities in how they deal with carers, regardless of their age or of the circumstance that leads them to be a carer. That is what the group of amendments seeks to do.

The Government have deservedly been commended by organisations such as Carers UK, the Carers Trust and others for breaking new ground for carers. They introduced new rights for adult carers and lowered the threshold for determining the recognition of carers and their entitlement to assessments. We should celebrate those things because they are new. When we deal with legislation of this kind, it is easy to forget about the new things, bank that and move on to the next thing. Having said that, I want to move on to the next thing because there are some important issues outstanding. [Interruption.] Well, we are always asking questions. I did not hear what the Minister said, so I will move swiftly on.

We are discussing the needs of adults, because only adults will be addressed by the Bill. The draft Bill left other carers’ rights to be governed by the carers legislation that has been passed as private Members’ Bills over the years. It is interesting that carers legislation in this country has been prosecuted through Back-Bench initiatives, with Government support. I am proud to have been associated with some of those Bills—my name was attached to at least one.

I put my hands up; I regret that when we looked at these issues in the adult statute I did not look at them as thoroughly as I should have done—this is a confession—but sometimes one gets a second chance in life. I am grateful to the Government for giving me a second chance and asking me to chair the Joint Committee, which allowed me to consider and reflect on the representations we received. The Government have been open to those concerns ever since.

The Joint Committee spotted two issues: first, the issue of young carers, which was addressed by the Children and Families Bill and is currently before the other House, and secondly, the issue of parent carers. That is what this set of amendments is about. The Government have been listening. The Children and Families Bill was amended to give young carers stronger rights to assessment and support. That is a good thing.

That brings me to the issue of parent carers, which I raised on the Floor of the House. We have had exchanges with Ministers in the Department for Education, and I have met the Minister with representatives of Carers UK to talk about this issue. I welcome that engagement with the Minister. It was important that we had it, because when this issue was first discussed in the House of Lords through amendments some unfortunate things were said and links were made between the rights of parent carers and concerns about child protection. That misadvised conflation was caused by a misunderstanding of the situation, and it caused deep offence to parent carers and the organisations that represent them. I have put that in gentle terms, but others could put it more stridently.

The Government are in discussions. They have had round tables with parent carers and their organisations, and they are clearly listening to their concerns. However, it is important that we discuss these matters in this Committee to determine whether they should be dealt with in this Bill or the other Bill. If they are dealt with in the Children and Families Bill there needs to be something in this Bill to link across, not least because of the issue of transitions, which we have just been discussing. We are talking about a category of carer who, along with the person they care for, go through a transition, which, if the issue is addressed in the Children and Families Bill, will move them from one statute to another. This Bill is about making the system as simple to understand as possible for lay people and professionals, so it behoves us to make it simple to understand where those rights sit. Once all of those changes are made, adult carers and young carers will be covered, but parents will be left in the rump legislation of private Members’ Bills. The Law Commission was clear about the need to reform and consolidate comprehensively and the Joint Committee made that recommendation as well. To get those rights would simplify this area of law and benefit everyone concerned.

If we do not make that change, however, the law would become much more complicated for people to navigate, with the need to refer to the Children and Families Bill for young carers, the rump legislation for parent carers and what will become the Care Act to find the obligations for adult carers. Young carers of a disabled sibling will have greater rights than their parents as a consequence of the changes made so far. I am sure that that is not an intention that the Government signed up to, but an unintended consequence of where we are in the passage of these two pieces of legislation. That can be fixed, however, because neither has completed all of its stages. Similarly, not until a transition, or someone becoming 18, will a parent be deemed to be an adult for the purposes of the Bill we are discussing.

For all of those reasons, I hope that the Minister will give us some words of comfort and indicate the route by which those matters will be resolved so that we can have as clear cut a set of arrangements for parent carers as we now have for adults who care for adults and for children who care for other people. I look forward to the debate.

Norman Lamb (Liberal Democrat, North Norfolk)

Clauses 61 and 62 intend to provide for timely assessment of those caring for young disabled people approaching adulthood to support the shift from children’s services to adult care. I reflect on the danger that my right hon. Friend pointed out that when one pursues the next thing down the track, one can forget to celebrate the considerable advances we have achieved with this legislation and the Children and Families Bill. He was right to say that the measures already taken have been widely welcomed. He is also right never to be satisfied, because we should always keep on pursuing improvements to the system. When one meets with parent carers and other groups of carers and hears their testimonies, one realises that we have a continuing burden of responsibility to try to improve their lives.

Amendments 43, 44, 46 and 47 would extend the period for assessment of those caring for children to cover children of all ages and skew the focus of the clauses away from planning for adulthood. The Bill is ultimately about the care of adults. While we should try to align the two pieces of legislation, it is important to avoid confusion and to be clear about the responsibilities of each Bill.

New clauses 5 and 6 would extend the Bill’s provisions and introduce a totally new concept of eligibility into children’s services. In the Government’s view, that would be inappropriate. Policy on assessing and supporting children and their families, which includes support for families where that is in the child’s best interests, lies with the Department for Education. To include provision for those caring for children in a Bill that focuses on provision relating to adults would seem to be a recipe for confusion. We must be wary of simply replicating arrangements for adults caring for adults without understanding the interrelationship with other legislation for children and families—in particular, the provisions under the Children’s Act 1989—as that could lead to those famous unintended consequences.

In the light of debates on the Care Bill and on the Children and Families Bill in the other place, the Government have agreed to work closely with carers’ organisations, parent carers and other stakeholders to review existing legislation, guidance and practice for assessing the support needs of those caring for children. A very constructive round-table discussion took place on Friday 10 January—I have mentioned that previously in Committee—and last night I attended a meeting with the Schools Minister, Lord Nash; Baroness Pitkeathley, who has been widely praised for her work in this area by members of the Committee; Baroness Tyler; representatives from parent carer networks; Carers UK; and parent carers themselves, who spoke directly of their aspirations and the challenges that they face. It was a helpful meeting and we explored legislative and non-legislative options to improve support for parent carers of disabled children.

The Government’s review is the right place to explore the issues. I can assure the Committee that rapid progress is now being made. I am sure that my right hon. Friend will understand that I cannot go into more detail because I have to respect proper process, but I was encouraged by the discussion last night and I repeat that I think we have a responsibility to do what we can to improve the lives of people caring for children.

Liz Kendall (Labour, Leicester West)

Will we get the results of the review—and action—before the Bill is concluded?

Norman Lamb (Liberal Democrat, North Norfolk)

A very simple answer: yes. I hope that reassures the shadow Minister.

The intervention was just in time, because I was coming to the end of my speech. I hope that I have reassured my right hon. Friend about the direction that the Government are taking and I hope he will agree to withdraw his amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister for being open to consideration of the issue. He expressed concern when he was before the Joint Committee and he has been pursuing the matter with Ministers in the Department for Education. I am pleased about the meeting he had yesterday and that the review will be rapid. I am also pleased he was able to confirm that rapid means before the legislation is concluded.

Will he at least undertake today to write at the earliest opportunity to members of the Committee once any write-round process and any other decisions that need to be made within Government have been concluded, so that the Committee might benefit from the news and then be able to act accordingly? It would be useful if the Minister could give us some reassurance that he could do that for us and write round to the Committee once he knows.

I saw the Minister sort of nod, but I do not know whether that was a nod.

Norman Lamb (Liberal Democrat, North Norfolk)

I am being very generous in agreeing to write on all sorts of things. Hundreds of letters are at this very moment being written by the Department to my right hon. Friend and other members of the Committee, but I will be happy to write on this subject as soon as we have an answer to the question that he poses.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister is being very generous, and generous with the time of others. Having sat in his place and steered a Bill through Committee, I know that that can sometimes be an easy thing to do and that it does create work. I do appreciate the work that the Bill team do and I know how important they are to the effective discharge of our work in this place. None the less, I look forward to the letter and I am grateful to the Minister for conceding it. It helps us to do our job.

I understand the concerns expressed by the Minister. We took a conscious decision to establish an adult statute when we framed the draft Bill, so there was a clear decision. The question is about how we make sure there is symmetry in the arrangements, which is where the Children and Families Bill comes in, or other methods. I await the rapid review and its conclusions. With that, I beg to ask leave to withdraw the amendment. I will review the situation when we get the letter.

Clause 62 - Child’s carer’s assessment: requirements etc.

Norman Lamb (Liberal Democrat, North Norfolk)

I beg to move amendment 4, in clause 62, page 53, line 19, at end insert—

‘(5A) Where, in the case of a carer to whom a child’s carer’s assessment relates, the child becomes 18, the local authority must decide whether to treat the assessment as a carer’s assessment; and if the authority decides to do so, this Part applies to the child’s carer’s assessment as if it were a carer’s assessment that had been carried out after the child had become 18.

(5B) In considering what to decide under subsection (5A), a local authority must have regard to—

(a) when the child’s carer’s assessment was carried out, and

(b) whether it appears to the authority that the circumstances of the carer to whom the child’s carer’s assessment relates have changed in a way that might affect the assessment.’.

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss Government amendments 10 and 12.

Norman Lamb (Liberal Democrat, North Norfolk)

I promise not to detain the Committee for long on this group of minor and technical amendments, which reflect a policy intention about which we have always been clear—that a transition assessment can be treated as a full assessment under the Bill where that is appropriate and proportionate. That power already existed for children and young carers, but due to an oversight was not replicated for children’s carers. The amendments correct that oversight and I hope they will receive the approval of the Committee without the need to detain ourselves any longer.

Clause 63 - Power to meet child’s carer’s needs for support

Clause 64 - Assessment of a young carer’s needs for support

Clause 65 - Young carer’s assessment: requirements etc.

Clause 67 - Continuity of services under other legislation

Norman Lamb (Liberal Democrat, North Norfolk)

I beg to move amendment 8, in clause 67, page 56, leave out lines 43 to 46 and insert—

“(1) Subsections (2) to (4) apply where a local authority in England providing services for a child in need in the exercise of functions conferred by section 17—

(a) are required by section 59(1) or 64(1) of the Care Act 2014 to carry out a child’s needs assessment or young carer’s assessment in relation to the child, or

(b) are required by section 61(1) of that Act to carry out a child’s carer’s assessment in relation to a carer of the child.’.

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss Government amendments 9, 11, 13, 14 and 16 to 20.

Norman Lamb (Liberal Democrat, North Norfolk)

I come now to another group of minor and technical amendments. In the other place the Government tabled amendments to remove the requirement that transition assessments must be requested and to change the power to carry out a transition assessment in certain circumstances into a duty to do so. Following those changes, officials realised that some references to “the requested assessment” still remained in the Bill, along with similar oversights. The amendments correct that issue. It is all in the pursuit of perfection.

The amendments do not change the substance of the Bill. We were always clear about our policy intentions when we tabled the amendments in the other place. They simply embody technical changes to ensure that the Bill fully reflects the intentions already agreed. I hope again that they are approved by hon. Members without the need to detain the Committee any longer.

Norman Lamb (Liberal Democrat, North Norfolk)

I beg to move amendment 21, in clause 67, page 59, line 6, leave out subsection (4).

This is another minor and technical amendment, which I hope that we can deal with quickly. The amendment will make a small change on a point of legal technicality in the way that the Bill refers to children’s legislation. We are simply updating the Care Bill to reflect amendments made to the Children and Families Bill. I am sure that hon. Members will join me in welcoming the changes to the Children and Families Bill, which we have already discussed: making it easier for young carers to get an assessment; in support of whole family approaches, in line with the provisions in the Care Bill; and to protect young people from inappropriate or excessive caring roles. Amendment 21, however, is simply a technical update to reflect the legal apparatus behind those changes. I therefore hope that it will receive the approval of the Committee.

Clause 72 - Five-yearly review by Secretary of State

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss the following:

New clause 13—Funding for new costs arising from Part 1

‘(1) The Secretary of State must provide local authorities with sufficient funding to enable them to meet new costs arising directly or indirectly to them by virtue of this Part.

(2) The costs mentioned in subsection (1) include (but are not limited to)—

(a) costs of introducing the new measures set out in this Part;

(b) on-going costs of implementing those measures (to be allocated through the annual spending review);

New clause 14—Social care free at the point of use

‘The Secretary of State must prepare a report on the costs and benefits of requiring, and providing funding for, local authorities to offer all social care free at the point of use. This report must be laid before each House of Parliament within 12 months of section 3 coming into force.’.

New clause 15—Joint Care and Support Reform Programme Board: assessment of funding

‘(1) Before any provision of Part 1 is brought into force, the Joint Care and Support Reform Programme Board must have informed the Secretary of State whether sufficient funding is in place or will be put in place to ensure that the provision in question can be implemented satisfactorily.

(2) In subsection (1), the “Joint Care and Support Reform Programme Board” means the board of that name consisting of representatives including the Local Government Association, the Association of Directors of Adult Social Services and the Department of Health.’.

New clause 16—Ministerial advisory committee

‘An independent ministerial advisory committee shall be set up to keep under review the workings of the set level as set out in section 15, and the means-testing arrangements set out in section 17.’.

New clause 17—Initial funding assessment

‘The Secretary of State must ask the Office for Budget Responsibility to complete by the end of 2014 a review of the funding of adult social care that assesses—

(a) the adequacy of current public funding of these services;

(b) the proposals for funding the provisions in this Act;

(d) in particular the short and long term costs of setting the eligibility criteria at the level set out in regulations.’.

New clause 18—Impact assessments of regulations

‘(1) Before bringing into force sections 13, 17 and 35, the Secretary of State must lay before Parliament an impact assessment of the regulations set out in those sections.

(2) In relation to the regulations set out in subsection 13(6), the assessment must show how the provisions will affect the likely impact of the set level above which an adult starts receiving financial assistance with the costs of their care.’.

Meg Munn (Labour, Sheffield, Heeley)

I apologise for not being present for the start of the Committee. I had a meeting with a Transport Minister on a constituency matter which was arranged before I was put on this Bill Committee.

I am pleased to speak to new clause 13, which is in essence probing and important to the cost of implementation. I have identified—for the Ministers, who are paying great attention to what I am saying—that the new clause relates to the new costs identified in the Bill. I will give one or two examples of where such new costs occur for local authorities in measures under part 1.

For example, for clause 9, “Assessment of an adult’s needs for care and support”, it is estimated that the changes will require councils to carry out 500,000 additional assessments of people with eligible needs in 2016-17. My own local authority anticipates a significant increase in demand for assessments, with implications for costs and work force capacity. It fears that a two-tier system of assessment may be required to deal with high-end, complex cases and simpler cases, in which the assessment is conducted simply to start the care account running.

My hon. Friend the Member for Leicester West has already talked about the cap on care costs and I will not refer to that again. I want to spend a moment on clause 34, which covers the universal deferred payment scheme, because it is likely to lead to increased debt and costs.

An LGA analysis of the ongoing costs of deferred payment shows that the total value of loans would increase from £122 million in 2015-16 to £1.1 billion by 2024-25—I am worried that I might need care by that time, but hopefully not—which compares with £139 million to £230 million in the Government’s impact assessment. There is a huge difference between what the LGA, which represents many councils of all political colours, says and what the Government’s impact assessment says. The main factors affecting the cost to councils will be demographic pressures, inflation and the cost of borrowing. Clause 34 also constitutes a significant financial and reputational risk for councils, threatening the long- term sustainability of local government funding. The Government have not to date provided reassurance that additional funding for local authorities to meet the cost of the universal deferred payment scheme will address those risks.

I want to talk a little about funding adult care and rising demand. As we have heard many times in the Committee, adult social care budgets are under pressure. They have been reduced by £2.68 billion over the past three years—20% of the budget. That is compounded by the cost of demography—more people are getting older, with more needs—which is approximately 3%. Just meeting ongoing demographic pressures costs £400 million a year—that is just to stand still. The overall context in which we are considering the Bill—the need to identify further savings across the public sector, even for the needs we are meeting now—does not fit well with the aspirations of the Bill, which we have said many times we are all behind.

LGA estimates are that spending on care will pass 45% of council budgets by 2019-20, which is a huge amount. Part of that is of course due to the savage cuts this dreadful Government have made to local government. [Interruption.]It is not a laughing matter, Minister. The leader of my local authority says that the cuts are more savage than any of those experienced during the dreadful years of Margaret Thatcher, and that view is backed by my right hon. Friend the Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) and my hon. Friend the Member for Sheffield South East (Mr Betts), who have led local government in the past.

We must ensure adequate funding for the reforms. [Interruption.] This is not a laughing matter. It is crucial to ensure that we meet the aims and objectives of the Bill, which we are all behind. We must strive for individual well-being. A survey of County Councils Network members, many of which are Conservative-controlled councils, showed that 70% are in favour of the reforms in the Bill, but due to financial concerns, only 30% are confident of delivery. The network says:

“Unfunded reforms, including universal deferred payments,”

as I identified,

“will add further unsustainable strain to adult social care services, threatening the success of the reforms and quality of existing services.”

It is not only local government saying that. The Chartered Society of Physiotherapy says:

“Integration needs to be properly funded and is not fully achievable by moving existing NHS financial resources to social care, or visa versa. Access to integrated care services needs to be based on NHS principles—funded through taxation and free at the point of delivery, based on need and not the ability to pay.”

Andrew Griffiths (Conservative, Burton)

I share the concerns the hon. Lady raises, but she made a point about council cuts. Does she not think that her council would be better off using the £160 million it has in its reserves to fund such services?

Meg Munn (Labour, Sheffield, Heeley)

The hon. Gentleman displays his ignorance. Councils do not sit on reserves that they can use to fund services willy-nilly; they have commitments that they have to meet. When I was a councillor many years ago, I recall my city treasurer saying that reserves can be used only once. It is not sensible to use reserves for revenue. They are needed for a wide range of issues.

Several hon. Members rose—

Meg Munn (Labour, Sheffield, Heeley)

I will not give way, because I want to stay with this issue. There is no way that the Government, by saying such things, can hide from the real impact that their cuts are having on local government.

Let us get back to the funding for new things in the Bill, some of which the Opposition support and some of which I support. What funding has the Secretary of State already outlined? The 2013 Budget set out reforms that would mean additional spending of £1 billion in 2016-17 and 2017-18, but there was no detail of how the care cap would impact on costs beyond 2017-18. We know of £335 million for implementation in 2015-16, which breaks down as follows: £145 million for early assessments and reviews; £110 million for deferred payment, including the cost of administering the loans and the loans themselves; £20 million for capacity building, including recruitment and training of staff, which we all know is vitally important for cultural change; £10 million for an information campaign; and £50 million for capital investment, including IT systems, that sits within the better care fund. For the better care fund, there will be a £3.8 billion pooled budget between health and social care. It is, however, not new money, but rather a pooling of existing resources. Allocations to clinical commissioning groups will provide £1.9 billion, and the rest will be made up from a variety of existing funding schemes—[Interruption.] The Minister is gesticulating to say that he has not hidden that fact. He has not, but the impact is that things that are being done now will have to stop. While it may be possible to stop some such things, I do not accept that there will be no impact on services—[Interruption.] I am going to keep going, Mr Bayley, because the nature of the Minister’s role means that he gets to reply at the end, so it makes sense if I keep going.

When speaking to the Health Committee, Sir Bruce Keogh, NHS England’s medical director, said that there was “great scepticism” that the £3.8 billion better care fund would achieve one of its stated aims of reducing demand on A and E services. Pooled funding carries inherent risks by withdrawing significant funds from the NHS front line at a time of unprecedented pressure on the service. The NHS Confederation has said that it wants to see care moving into the community and that local health services need a period of time, during which current services continue to be funded in parallel with investment in new models of care. That was precisely how changes were made when the National Health Service and Community Care Act 1990 was implemented in the early 1990s, which led to greater success.

There are questions about the level of additional funding required beyond the first two years, because most people are unlikely to have reached the cap by the time that local authorities will have to fund the cost. There is no account for the socio-economic differences between local authorities. There may also be a case for a consistent national approach to the whole area of systems development, including data sharing between local authorities and within the NHS, rather than having 150 locally developed systems.

The amendment is probing. Significant costs are involved for new services, and new money is required up front to help local authorities and the NHS to put in place the services and systems to enable them to stop doing some of the other things and to reduce those emergency cases of people ending up in hospital when they do not need to be there. That is what is required, and I look forward to hearing the Minister’s response.

Hugh Bayley (Labour, York Central)

It will probably be helpful if I remind the Committee that, formally, this is a debate on whether clause 72 stand part of the Bill, but grouped with that question is this batch of new clauses on funding for care and related issues. The debate may range over any of the matters in the various new clauses, but not points about the performance of an individual council or such matters.

Liz Kendall (Labour, Leicester West)

New clause 15 states that before any of part 1 of the Bill comes into force, the Department of Health’s joint care and support reform programme board must inform the Secretary of State whether there is sufficient funding to implement the Bill satisfactorily. New clause 16 would establish an independent committee to advise Ministers on the workings of the so-called cap on care costs, the level at which it is set and the working of the means test. New clause 17 would require the Secretary of State to ask the Office for Budget Responsibility to conduct an assessment of social care funding, including the adequacy of current public funding, the proposals for funding the provisions in the Bill, the implications of the Bill and funding for the NHS over the next five years, which is crucial, and eligibility criteria. New clause 18 would ensure that before the Bill’s provisions on eligibility criteria, the means test and deferred payments come into force, the Secretary of State must publish an impact assessment of them.

New clause 15 takes forward the points that my hon. Friend the Member for Sheffield, Heeley made very powerfully. The Government have given repeated assurances that they have provided enough resources to implement the Bill. Many councils thought that those resources would be additional, but we have discovered that they are not. As my hon. Friend has just said, in the June 2013 spending review, the Chancellor announced £335 million in 2015-16 so that

“councils can prepare for reforms to the system of social care funding.”

That covers early assessment, the cost of setting up deferred payments, training, and a whole load of IT systems that will have to be set up to develop people’s care accounts so that they can see how much they are clocking up towards the cap.

When the Government spelled out further details of the local government funding settlement in July 2013, we and the LGA discovered that that money was not new, but was top-sliced from existing council budgets. Following that, the Department of Health announced that it had figured out that it needed another £130 million to pay for implementing the adult safeguarding boards, putting carers on a par with users in terms of assessment, and for setting the national eligibility criteria. Again, that money is not new. It has been taken from the better care fund. The £3.8 billion integrated budget for the NHS and social care, as we have heard, is not new money, but a pooled budget. They are taking money out of that to set up care accounts, assessment and other things. Almost £500,000 of implementation costs will come from existing budgets. That will mean taking money away from existing services and existing users to pay for setting up care accounts, adult safeguarding boards and so on.

With the best interpretation, that is not what the Government claimed when they made their announcement. They said that there would be additional funding, fully resourced. There is a concern that setting up a care account and doing all the necessary assessments under the Bill will take money from existing users who are already struggling desperately to get the care they need. They are getting 15-minute home visits, we have staff on zero-hours contracts and people are not getting their home adaptations. That is the reality of this Bill: £500 million from existing users to pay for setting up the new system.

Our new clause says that we have to be clear where the money is coming from, whether it is enough to implement what is going on in the Bill and what the consequences are. ADASS and the LGA rightly say that the joint care and support reform programme board within the Department of Health must make a thorough assessment of that. If we are being asked to vote on a Bill, we need to know where the money is coming from and who it is coming from.

New clause 16 proposes setting up an independent committee to keep under review the workings of the cap and the means test and to advise Ministers. We have said throughout the passage of this Bill that we are really concerned about who the cap, means test and eligibility criteria will benefit: which people, in which parts of the country and which levels of income? We want a fair and just system that helps those on low and middle incomes, the people who have worked hard and saved all their lives, not just those at the top. However, we cannot see how this will work.

We want some independent advisers on this, drawn from academia, councils, the voluntary sector and others, so that we get a proper assessment of who this benefits, because we still do not know the answer to that question. New clause 17 is a fundamental requirement and is part of what I would argue is a long-term piece of public policy reform. It asks the Office of Budget Responsibility to report by the end of this year on its assessment of the funding of adult social care. I remind members of the Committee that Andrew Dilnot said that we need enough money in the current system in the baseline as well as reforms for the future. There have been huge rows, essentially, about this. The Government say: “We have put enough money into local councils,” ignoring many of their own party’s council leaders who say the precise opposite.

ADASS and the LGA say that £2.7 billion has been cut from adult social care so far in this Parliament. The Government say no—it is all efficiencies. I have no doubt that some are efficiencies. Our councils are working really hard to do that, but it is simply not credible to claim, when local councils’ budgets have been cut by a staggering third, that it is not having an impact on front-line services. We want the OBR to look at and assess the current level of funding in social care and, critically, to look at the impact on the NHS of what is happening to the local council care budget.

We have to stop looking at these two budgets separately. They are intimately linked. We have called for one budget across both the NHS and social care, so that we can really plan for the future. The OBR can look at this for an independent assessment and say what it thinks, a bit like Derek Wanless did when he reviewed funding for the NHS under the last Labour Government. We need a long-term look at this, to decide what is adequate to meet the needs of our ageing population.

In the other place, Earl Howe said that the Government did not want a proposal like this, because the OBR was independent and should have nothing to do with politicians. However, it is precisely its independence that would give people using care, politicians and those working in care a proper sense of whether we are providing a sufficiently funded service. On new clause 18, as we have said many times before, we need to have an assessment of all these regulations on the means test, the cap and the deferred payments scheme if we are to properly judge the Bill.

As we are coming up to time, I want to ask a couple of final questions to the Minister about clause 72, on a stand part basis. This is about the Secretary of State needing to review the provisions in this Bill every five years: the means test, the cap, eligibility criteria and how it is working. I am surprised that the five-yearly review does not also look at one of the fundamental claims that the Government have made regarding the Bill, which is that it will create a market in long-term care insurance products.

Last year, the Prime Minister said in the House:

“By creating a cap on what people will be charged, we can create an insurance market so that everyone can try to protect themselves against the long-term costs of social care.”—[Official Report, 13 February 2013; Vol. 558, c. 856.]

In fact, during debates in Committee, the Minister himself has said that he is confident that products will emerge.

However, yesterday, there was a story in the Financial Times entitled, “Long-term care policy suffers setback”. There is a pretty glum picture of the Minister; I do not know whether that relates to long-term care or to what else is happening in the Liberal Democrat party at the moment. The article states:

“Insurers have dashed government hopes of early products covering the cost of long-term care for the elderly, undermining one of the coalition government’s most trumpeted policy successes…Creating a framework within which people can insure themselves against care costs is seen in government as a key part of demonstrating that the Dilnot reforms will not simply help the better off…but will also enhance security for the less well-off. However, since the Dilnot recommendations were accepted, it has emerged that in many cases people will have to spend far more than £72,000 before attracting government help”;

funnily enough, I think we were arguing that ourselves.

The article continued to state:

“An industry insider said this had undermined the certainty about prospective liabilities on which insurers had initially counted.”

So why will the five-yearly review of the Government’s policies not look at whether they will create an insurance system? The Association of British Insurers was clear in its report, saying:

“We do not believe that stand-alone products bought early in life are likely to be in demand”.

Finally, I am not clear whether the five-yearly review will look at the deferred payments scheme. All the reforms are intimately linked, and if there is to be a review, they need to be looked at together.

There are big questions with the clause about the long term. We want the clause to be a long-term and sustainable solution for the funding of social care. We are not fully convinced of that at the moment.

Hugh Bayley (Labour, York Central)

I remind the Committee that with this we are also discussing the following:

New clause 13—Funding for new costs arising from Part 1—

‘(1) The Secretary of State must provide local authorities with sufficient funding to enable them to meet new costs arising directly or indirectly to them by virtue of this Part.

(2) The costs mentioned in subsection (1) include (but are not limited to)—

(a) costs of introducing the new measures set out in this Part;

(b) on-going costs of implementing those measures (to be allocated through the annual spending review);

New clause 14—Social care free at the point of use—

New clause 15—Joint Care and Support Reform Programme Board: assessment of funding—

New clause 16—Ministerial advisory committee—

New clause 17—Initial funding assessment—

‘The Secretary of State must ask the Office for Budget Responsibility to complete by the end of 2014 a review of the funding of adult social care that assesses—

(a) the adequacy of current public funding of these services;

(b) the proposals for funding the provisions in this Act;

(d) in particular the short and long term costs of setting the eligibility criteria at the level set out in regulations.’.

New clause 18—Impact assessments of regulations—

‘(1) Before bringing into force sections 13, 17 and 35, the Secretary of State must lay before Parliament an impact assessment of the regulations set out in those sections.

Bill Esterson (Labour, Sefton Central)

I tabled new clause 14 after Second Reading when I spoke about social care that was free at the point of use. It seemed logical, if we have an NHS that is free at the point of use and we are trying to integrate health and social care, that at some point in the not too distant future we must consider the concept of social care that is free at the point of use. Our discussions in Committee and before about the difficulties with the cap highlight just why this is an important discussion.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I agree entirely with the hon. Gentleman that it is an important discussion. But when he explains why the new clause is merited, can he address himself to the question why on earth, for 13 years when there was resource, the previous Labour Government chose not to do anything about this?

Meg Munn (Labour, Sheffield, Heeley)

Because my hon. Friend was not a Member then.

Bill Esterson (Labour, Sefton Central)

My hon. Friend helpfully points out that I was not here. Perhaps if I had been we might have resolved it. As ever with these things, it is about where we are now and how we go forward. The growing demands of social care and the needs of an ageing population and the pressures on services increasingly bring this forward. It is unfortunate that the right hon. Gentleman asked the question in the way he did. An enormous amount of progress was made by the previous Government to address the issues and the challenges around social care.

Liz Kendall (Labour, Leicester West)

Like my hon. Friend, I was not a Member under the previous Government but I seem to remember that in 1997 people were waiting 18 months for hospital operations and dying on the hospital waiting list. At the time we thought that was an absolutely key priority for a Government caring about reforming the care system.

Bill Esterson (Labour, Sefton Central)

My hon. Friend might have added that by the time we left office we had the best NHS in the world according to international comparisons. The Labour Government’s record on the NHS bears great scrutiny and we are extremely proud of it.

The new clause tries to look at the long-term implications of funding. We have debated the cap and, as we said, it is a cap that may not really be a cap. People are worried about losing their homes. The Under-Secretary claimed that they do not really lose their homes because they are dead before the homes are sold; they do not have to sell their houses. That was the point he was making. Whether people sell their houses before they die or they are sold after they die to pay for their care, they and their families still bear the cost. It is still the individual who bears the cost, either directly or indirectly, of their care.

Norman Lamb (Liberal Democrat, North Norfolk)

Is the hon. Gentleman aware that of all the different options, entirely free social care is the most regressive of all? It gives bucketloads of money to rich people. Is that what the hon. Gentleman is arguing for?

Bill Esterson (Labour, Sefton Central)

We could say that about the NHS. We could say that about any service.

We have an increasing demand. We have an increasing ageing population. The way that we pay for an integrated health and social care system is proving to be extremely problematic, as we have debated on a number of occasions. My amendment is a probing amendment asking for the issue to be studied properly. I am not aware of an in-depth study on how free social care might be achieved. That is what my amendment is asking for.

Is there a way of raising funding without the individual’s having to take responsibility at the time? I am assuming a moderate eligibility threshold. I am waiting for an intervention.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

My hon. Friend the Member for Truro and Falmouth and I were questioning what the hon. Gentleman was saying about there being no attempt to scrutinise and study these issues over the past 13 years. There was a royal commission; there was Derek Wanless doing work. Tonnes of files of paperwork have been generated. Shelves have been gathering dust with the reports that have been written on this subject. The difference between the Labour side of the Committee and this side is that this side has actually done something about it—published a White Paper, and now we are debating a Bill that will become an Act to make the changes. That was never delivered under the last Government.

Bill Esterson (Labour, Sefton Central)

We have established already in this short debate the proud record of the last Government in addressing issues of health and social care.

Norman Lamb (Liberal Democrat, North Norfolk)

Thirteen years of inaction.

Bill Esterson (Labour, Sefton Central)

There was plenty of action on social care. The point is that we need Government to carry out that analysis and I do not think that has been achieved so far. I am not going to revisit the entire debate on the cap and where it is set and the concerns about costs that do not count towards the cap and the impact of the cap on different parts of the country. Those concerns are on the record and have been expressed many times.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Gentleman expresses concern about the contributions that people may or may not have to pay towards their care. Generally speaking, that would be people who are better off. Would he accept—I think this point was made in the Dilnot report—that if the previous Government had done something about the cost of social care and providing better social care, these costs might be considerably less than they are now?

Bill Esterson (Labour, Sefton Central)

This is becoming a politicised debate, by choice of Members on the Government side of the Committee. It was not for want of trying on the part of the last Labour Government that we failed to achieve a consensus across all parties. It was not the Labour party that had difficulty with the concept of all-party talks and trying to achieve agreement. Agreement across the parties is essential on this, because the issue is not just for one Parliament or one Government or one party. We were trying to achieve cross-party agreement and it is unfortunate that it did not happen.

Hugh Bayley (Labour, York Central)

Order. May I interrupt the hon. Member’s speech for a moment? I have been very tolerant. Members on the Government side have put on record their strongly held view that the previous Government did not do what they wish they had done, but we are here to debate a proposal from the current Government for new legislation and it is the new legislation, and not history, that we ought to be debating in this Committee.

Bill Esterson (Labour, Sefton Central)

I appreciate your comments. The Minister in his earlier remarks made the point, which I accept, that one of his aims is to avoid an individual’s facing excessive costs. That is one of the things that the cap achieves at any level. It is debatable how high those costs might be in some parts of the country. Nevertheless, I accept the principle of what he says. I think we all accept the Dilnot principle on that. But they are still expensive costs. I am trying to remove the requirement to pay up front—for individuals themselves to pay for social care.

The issue of funding is identified in this group. My hon. Friend the Member for Sheffield, Heeley, in proposed new clause 13, addresses the need for adequate funding for local government. We need to grapple with how social care is funded in whatever system, both under the current arrangements ensuring local government has enough money, and longer term as pressures continue to grow. That is what my probing proposed new clause seeks.

We discussed free social care at the end of life and talked about the need to define end of life. If we agree that social care should be free at the end of life, at what point do we bring that forward? I made that point on Second Reading. The London School of Economics estimates £2.8 billion to set the threshold at moderate. If we accept a figure of £2.8 billion or thereabouts, the question is how to fund it. I am asking whether there are other ways of doing it through general taxation, presumably, rather than an individual’s making a contribution for their own care.

Given the many difficulties we have discussed, the nature of the debate, and the long-term challenges that have yet to be resolved, whether social care should be free at the point of use in order to fit in with the NHS merits further discussion. I think the Government should analyse that proposition. I hope they will address the point made in my proposed new clause and look at the costs and benefits, to see whether it is the answer to the challenges we have debated in Committee.

Norman Lamb (Liberal Democrat, North Norfolk)

It is really good to be back, Mr Bayley. I will start by saying how disappointed I was by the tone of the hon. Member for Sheffield, Heeley. I felt we were having a constructive debate. In previous sittings she had made some powerful points about the need to do things differently, to facilitate families, provide support for loved ones and recognise the need to maintain sustainability in the system. Then we had an outpouring of the sort of political rhetoric that we have not had up until now in this Committee. I find that sort of sanctimony hard to take. When I asked to intervene to challenge what she was saying she refused, on the basis that, “We all want to go to lunch.” That is the new concept of strictly limited moral outrage.

Meg Munn (Labour, Sheffield, Heeley)

Will the Minister give way?

Norman Lamb (Liberal Democrat, North Norfolk)

No, I will not. Let me make the point. She talked about “this dreadful Government”. The dreadful Government are now overseeing the fastest growth in the western world.

Liz Kendall (Labour, Leicester West)

That is, back to where we were in 2010.

Norman Lamb (Liberal Democrat, North Norfolk)

If the shadow Minister would listen, I suspect she probably agrees with me. This Government are now overseeing the biggest cut in unemployment for very many years, something we are all incredibly proud of on the Government Benches. There seems to be a sense of complete denial in the Opposition about the need to get public finances back under control. When we took office the Government were spending every year £160 billion more than they were bringing in in taxes.

Liz Kendall (Labour, Leicester West)

How much more are they borrowing?

Norman Lamb (Liberal Democrat, North Norfolk)

Every single cut that we have tried to introduce has been opposed by the Opposition.

Andrew Griffiths (Conservative, Burton)

Does the Minister also agree with me that it is this terrible Government who have brought forward this legislation that will help the people who desperately need support when they get ill in old age? Despite 13 years of a Labour Government, they never brought forward this Bill to help these vulnerable people in the way that this Government have.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to my hon. Friend for making that point. This Committee has heard a lot from the other side about how much they welcome what is in the Bill. Then they try to send out a message to their supporters in the country that it is a dreadful Government. Well, it is a dreadful Government—

Meg Munn (Labour, Sheffield, Heeley)

Will the Minister give way?

Norman Lamb (Liberal Democrat, North Norfolk)

No, I will not. I am making a point. It is a dreadful Government who are introducing really important reforming legislation which will make a massive difference to people’s lives. What frustrates me above all is the fact that this is empty rhetoric, because when we challenged Opposition Members about what they would do about it, the answer from the shadow Minister was: “No, we are not talking about new money; we are talking about using the money that is available in a better way”. That is exactly what this Government seek to do by integrating care in a more effective way.

Meg Munn (Labour, Sheffield, Heeley)

I am grateful to the Minister for giving way. I do not apologise for anything I said, but I want to put straight the point he made. I did not say that we all wanted to go to lunch. I said that lunchtime was coming up. As the Minister well knows, he gets to respond to every point in the debate, as he is doing now. That is the point I was making. That is why I wanted to finish what I had to say. I am perfectly happy to debate the issues with the Minister—that is what we are here for—but would he have the courtesy not to portray what I said in an incorrect way?

Norman Lamb (Liberal Democrat, North Norfolk)

I do not want to detain the Committee on this. I wrote down the hon. Lady’s precise words. That is all I am saying. The point of substance is, if you make a complaint about how tight public finances are, which we all accept on this side, and if you claim that it is all a disaster, then you have to come up with an alternative. We have heard no alternative from the other side. All we had was a Government leaving office in 2010, spending £160 billion more a year than it was raising in taxes—a completely unsustainable position. We all know, incidentally, that if you do not get public finances under control, it is always the most vulnerable in society who get hit the most. We should always remember that.

So let us get back to a more rational debate, discussing some incredibly important reforms, and discuss them in a way that we have previously done with the hon. Lady, looking at some really difficult challenges for society and how we try to make lives better for people. Let us not indulge in empty political rhetoric.

New clause 13 seeks to ensure that local authorities have the resources to implement the Care Bill and deliver lasting change for the millions of people in this country who give and receive care and support. I completely agree with this aim, but there are already sufficient safeguards in place and this new clause would duplicate those provisions. The new burdens doctrine states that the net additional cost of all new burdens placed on local authorities by central Government,

“must be properly assessed and fully funded”.

All Government Departments must honour this commitment and the Care Bill is no different. The Department of Health has fully assessed the cost of implementing the Bill and published a suite of impact assessments. In last year’s spending round we ensured that the costs will be met in full in 2015-16.

Liz Kendall (Labour, Leicester West)

Will the Minister now confirm on the record that all the costs for implementing this Bill that we listed come from existing budgets?

Norman Lamb (Liberal Democrat, North Norfolk)

I come back to another point.

Liz Kendall (Labour, Leicester West)

I am just asking the Minister to confirm it.

Norman Lamb (Liberal Democrat, North Norfolk)

I will absolutely confirm it. The Labour party seems to believe that there is some new money somewhere, as if money grew on trees. Where is this new money coming from? If the Labour party has a proposal to bring in new taxes to pay for something additional, will hon. Members please tell us? Yes, of course this is money, as we have made clear throughout, that comes from the way in which the Government have already spent money. We want to spend it more effectively. The shadow Minister made an absolutely fair point in an earlier debate in this Committee that it is all about how we can spend the money more effectively by integrating the health and care system. That is precisely what the better care fund seeks to achieve.

Liz Kendall (Labour, Leicester West)

I will tell the Minister where the money could have come from: not wasting £3 billion on a top-down reorganisation that nobody wanted and nobody voted for, and not spending £225 million on delayed discharges from hospital. Instead of having one budget, where they could have put the money in the right place—

Andrew Griffiths (Conservative, Burton)

Put it in the manifesto.

Liz Kendall (Labour, Leicester West)

We are full of suggestions. I am simply asking the Minister to confirm on the record, so that councils will know, that the cost of setting up the new care accounts and the means test will be coming from existing budgets. Yes or no?

Norman Lamb (Liberal Democrat, North Norfolk)

I simply make the point that the reforms that the shadow Minister criticises are achieving substantial administrative savings every year. My hon. Friend the Member for Central Suffolk and North Ipswich tells me that it is £1.5 billion per year, and the number of managers and administrators employed by the NHS is significantly down and the number of clinicians significantly up. That is the right direction. In addition, we are working closely with the sector through the care and support reform programme board to keep costs under review. New clause 14 would require the Government to publish a report on the costs and benefits of providing social care free at the point of use.

The amendment is years too late. I apologise to the hon. Member for Sefton Central for that, but the issue has been debated for 15 or 20 years. When this Government came to power, we moved quickly to set up an independent commission led by Andrew Dilnot to explore the options for how people pay for their social care. The Dilnot commission looked at the costs and benefits of different approaches, including providing free social care funded from taxation, which was the hon. Gentleman’s suggestion. The commission recommended that the best way to provide a fair and sustainable system was to put a cap on care costs.

My point was that—counter-intuitively—introducing a new spending commitment for free social care is regressive in its impact, as the people who benefit most are the wealthiest. If Opposition Members want to do that with public money, fine, but they need to be clear on that. Dilnot stated:

“Experience in other countries, such as Germany and Japan, which have recently reformed their social care funding models, demonstrates the vulnerability of a free care system to a changing economic and political environment. In both of these countries, social care costs rose more quickly than had been predicted or governments were willing to sustain, and both governments adjusted their systems—by making them less generous—to control these costs. This then went some way to undermining the promise of free care as people were still exposed to significant costs.”

The conclusion was:

“Free care is not in our judgement a resilient proposal.”

I supported the extra investment in the health service undertaken by the previous Government, but in a period of 13 years the Labour Government did nothing to reform a broken system of social care. There was a royal commission in 1999, but nothing happened to implement its conclusions, or any alternative conclusions. We had manifesto commitments and wonderful statements from the former Prime Minister—who has so much support from Opposition Members—Tony Blair. He said he did not want to live in a country where people have to sell their home to pay for care. And yet 13 years later, tens of thousands of people had sold their homes during their lifetime to pay for care, and the Labour party did nothing.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

It is worse than that. Not only did it do nothing—

Hugh Bayley (Labour, York Central)

Order. This is not a partisan debate. We are here to debate the proposals in the Bill. The new clauses currently under debate relate to the financing of care. We can debate the financing of care, but we will not have party political speeches about somebody who was Prime Minister three terms ago.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I will take that guidance. May I simply draw the Minister’s attention to the work done by Derek Wanless? He looked at how we had financed the health care system and recommended that the then Government conduct a similar review of social care, but no such review was undertaken. What conclusions does the Minister draw from that?

Norman Lamb (Liberal Democrat, North Norfolk)

I draw the conclusion that the reform is long overdue and that it is brilliant. I am so proud of the fact that the Government are reforming a broken system. On the cost of what the hon. Member for Sefton Central proposes, the Dilnot commission estimated that at £4.75 billion in 2016-17, with that escalating over time owing to demographic change. If that is his proposal, that is fine, as that is a legitimate alternative, but he needs to say where the money will come from and I have not heard that so far.

Bill Esterson (Labour, Sefton Central)

The point of the new clause is to ask the Government to come up with a study to look at the costs and benefits. For precisely that reason, it is a probing new clause.

Norman Lamb (Liberal Democrat, North Norfolk)

That is precisely what we did with Dilnot. We asked Andrew Dilnot and his commission, which included Lord Warner who is a Labour party member, to look at exactly these issues and the options available. I have read to the hon. Gentleman the conclusions that the commission reached on that proposal and we are acting on its recommended proposition to implement a cap from April 2016. That is a significant step forward that will end decades of uncertainty by providing a clear system that shares the cost fairly between the individual and the state. Now is not the time for another report to go over old ground; now is the time for action, and that is what the Government are producing.

New clause 15 would require the care and support reform programme board to inform the Secretary of State that sufficient funding is available before the Bill can be implemented. The establishment of the board is a vital step in the process and reflects our continued commitment to collaboration.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

Will the Minister say how that can be married with the cuts that my hon. Friend the Member for Sheffield, Heeley mentioned this morning of 45% by 2016-17? Oldham council has had cuts of more than £10 million from social care in the last three years, which is 15% of its budget, and that will only get worse.

Norman Lamb (Liberal Democrat, North Norfolk)

The hon. Lady expresses a legitimate concern. I have never sought to deny that councils are under financial pressure—I completely understand that. We sought, because of the settlement that local government experienced to try to get public finances back under control, to compensate local authorities by way of—I think—£7.2 billion in the Government’s first spending plan and, indeed, that has since been enhanced. It is also true that some local authorities have not committed all of those resources to social care, but used them to prop up other services.

Councils of all political persuasions are under an enormous burden of responsibility to re-engineer how they work, but there is great scope for that, such as cutting bureaucracy out of the system. The tri-borough experiment in London, where three councils merged their bureaucracies into one, released funds to be spent on the front line. That seems to be exactly the way in which councils ought to be behaving.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I agree with the Minister’s balanced approach in acknowledging that local authorities have pressures on them and that different authorities are making different hard choices about how to balance their books. Would he be interested to know that a report just yesterday from Community Care that looked at a King’s Fund survey found that 64% of the local authorities who responded expected either to underspend or break even on their social care budgets this year? Of course, that leaves a third that reported difficulties, but the picture that has been presented in the debate suggests that it is far worse. The report suggests something different.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to my right hon. Friend for that intervention. One of the think-tanks—I believe it was Civitas—did the analysis. When one analyses the impact of spending on services, one finds that there is not a close correlation between the money spent and the quality of the service provision. The councils that provide great services are often those that radically change the way they do things by introducing personal budgets and direct payments, empowering communities to do things differently and giving voluntary organisations a greater role in the provision of local services. Those are the sorts of changes that need to be made.

If the Labour party returns to power at any stage, it will be confronted by exactly the same challenges and will have to think about how to do things differently. What worries me is that I do not see Labour Members thinking about how that can be done and how public services can be improved in a time of austerity.

Meg Munn (Labour, Sheffield, Heeley)

That is not correct. Even without austerity and the cuts, we would be looking at how better to meet people’s needs. The services that I have talked about in previous sittings, which are relatively cheap and easy to deliver, can deal with the greater need. My point was that the Bill would be more likely to be successful if we had up-front funding to put those services in place before the cuts. I speak with the experience of having done precisely that 20 years ago. It is not correct to say that we do not have ideas. That is what I am asking for.

Norman Lamb (Liberal Democrat, North Norfolk)

That is a very reasonable proposition, but we have provided for that. We have gone through a rigorous process to identify the cost of implementing the Bill. We have worked closely with representatives from local government. There may have been disagreements, but it has been a highly collaborative process, and we will keep it under review. Local authorities must, of course, be able to maintain the reforms we are talking about. That is why we are saying that it should be reviewed periodically when it is in place.

The hon. Lady’s earlier contributions were thoughtful and fully cognisant of the challenges we all face, but I was disappointed that she became aggressively party political. We will simply not take sanctimony when we are having to make incredibly difficult decisions to clear up the mess that the Labour party left.

Liz Kendall (Labour, Leicester West)

The mess was created by the worldwide crash.

Norman Lamb (Liberal Democrat, North Norfolk)

We had the largest deficit in the G20.

I assure Opposition Members that, given our approach, it would not be possible to get to the point of implementation without being informed of the opinion of our partners on all aspects of the reforms. It is neither necessary nor appropriate to elevate a particular board to legal status simply to give prominence to a view that we could not possibly ignore even if we wanted to. I therefore hope that, on reflection, Opposition Members do not press their new clauses to a Division.

New clause 16 would establish an independent ministerial advisory committee to keep the level of the cap under review. There needs to be ministerial oversight of the implementation of that critical set of reforms to ensure that they deliver both protection against catastrophic costs and peace of mind, with the most help going to those with the greatest need. The new clause would place ministerial oversight, an activity that is in the normal course of Government business, on the face of the Bill. One of the key drivers of the reforms is the need for greater certainty and clarity on the potential long-term costs of care. Creating an additional ministerial oversight committee would introduce uncertainty and give the impression that the system was subject to change at any moment. It would undermine the certainty and peace of mind that the cap will deliver, and make it more difficult for the financial services industry to develop products.

Again, I make this offer to the shadow Minister: it would be far better if we could agree that the framework of the funding reforms makes sense, and that the reforms provide greater certainty and protection against catastrophic loss. There can be a debate in the years ahead about the level of the cap, but let us, as a group of politicians coming together, support the case for the reforms and then go out and raise awareness, and ensure that we give them the best chance of succeeding. The issue would be important for a Labour Government, too. Crucially, it is important for the people who rely on the social care system.

Sarah Newton (Conservative, Truro and Falmouth)

The Minister is making an essential point, as we are so close to the general election. Dilnot and all the thousands of people who have been involved in the debate over many years have said that, unless there is cross-party support, the reforms will not stand a chance of working. The financial products and all the other things that need to come into place simply will not do so. It is therefore essential that we hear an answer from the Opposition this close to an election. Otherwise, people who need the reforms simply will not benefit from them.

Norman Lamb (Liberal Democrat, North Norfolk)

I agree. That was a helpful intervention. I just do not know where the Opposition stand—that is the problem—and I do not know when we will find out.

New clause 17 would require the Office for Budget Responsibility to complete by the end of 2014 a review of the funding of social care, and the cost and impact of the reforms. The Government have robust processes in place to ensure that policies are costed accurately. We have published full impact assessments for all the reforms and have worked closely with the sector and leading experts to ensure that the reforms are based on the best possible evidence.

In addition, when allocating funding for specific policies, the Government need to take a broad overview of activity across all public services and not look at individual policies in isolation, so they can make the best possible decisions. That is the purpose of the spending review, and why a spending review is the best place to take funding decisions.

It would not be productive to ask the OBR to repeat the analysis in 2014, as that would duplicate what has already been done, and it will have no further evidence on which to base its work. Nor would that be an appropriate role for the OBR, which is independent and has complete discretion to determine the content of its publications and its programme of research and analysis. Instead, we will conduct post-legislative scrutiny, which the Government have committed to do across the board for all new Acts.

New clause 18 would require the Government to lay before Parliament impact assessments for regulations on eligibility criteria, financial assessment and deferred payment agreements. They are three elements of the reformed care and support system, so I recognise the desire to ensure that proper consideration is given to their impact and that that is published. I hope I can reassure the Committee that it has always been and remains our intention to publish impact assessments for those regulations, and for all regulations associated with part 1.

We have already heard support in the Committee for the open and collaborative approach that has been taken to developing part 1. I have not been the only one to demonstrate support—other hon. Members have done so. That collaborative approach does not end here. It will continue through the publication of draft regulations for part 1.

We will definitely publish impact assessments for regulations made under part 1, but it is unnecessary to place such a provision in the Bill. I trust that that provides sufficient reassurance for hon. Members not to press the new clauses to a Division.

Liz Kendall (Labour, Leicester West)

First, there was a worldwide financial crash affecting all western industrialised countries. Our former Prime Minister helped to pull the country back from a depression—[ Interruption. ] I am answering the points raised by the Minister, and it is only fair. We did not bring that up—he did—and I am going to respond. Unemployment was coming down. We were borrowing less than we had expected post the crash in 2010. For the record, it has taken this Government three years to get back to where we were before.

Secondly, I am proud of what we did on social care. We started the whole process of introducing rights for carers. We put in investment, carers’ breaks and training for carers. I have seen all of it. Before the general election, we had a big and bold proposal on funding social care—the Minister would have signed up to it if it would not have turned into a dreadful row with his Conservative partners. We have made positive proposals to improve the Bill and try to work together where can. Outside the Committee, we proposed big, bold plans for a fully joined-up health and social care system, which would have made better use of taxpayers’ money, but our job in Committee is to scrutinise the Bill. That is what we are doing and it is right that we are doing it. I hear what the Minister says about our new clauses. I am happy not to press them to a Division, but I am proud that we put the issues on the record.

Meg Munn (Labour, Sheffield, Heeley)

I am disappointed that the Minister was disappointed. I am also disappointed that he described the political rhetoric as “empty”. It might have been rhetoric, but it certainly was not empty. I will not talk about the coalition’s fantasy of how the economic crisis came about and Government Members’ failure to mention how well the Labour Government were doing, or the fact that the economy was growing and the coalition Government choked it off. I will not mention those things because they are not the subject of the debate. I entirely accept that the debate is complex and difficult, so coming to a position is not easy. We can say, “Your Government didn’t do this and your Government didn’t do that,” but it is a complex and difficult subject, so it would have been preferable to have proper agreement on everything.

The Opposition support the overall approach to well-being. I have already been critical of a number of aspects of it, but I see where I made my mistake: I was critical in an aggressive way. The Minister said I was aggressive, but I would have said I was assertive—women are used to being called aggressive when they are being assertive.

I genuinely feel angry. I spent a lot of my career in social work and as a local councillor having to make cuts, and it is tough—extraordinarily tough. When I raise the issue of funding, as I do with my new clause, I do it with genuine concern. It is heartbreaking to sit with people in the NHS and the local authority who say, “We don’t know where we’re going to find the money.” I get angry because we all know and understand the differences of deprivation, and the greater reliance on the public sector, in certain parts of the country.

The Government’s choice to give a greater proportion—it is not a fair share, as the Minister has claimed—of the cuts to local government and services has devastated some of our councils. The choices councils have to make are on whether they close every library, sports centre and everything they do not absolutely have to provide so that they can provide care services and completely protect their child protection services. That is what my local authority has done. It had a 5% cut to its adult services, but has defended its child protection services.

It is easy for us. When I sit with councillors, I feel dreadfully sorry for them, because they have the weight of tremendously difficult decisions on them. The Minister and his hon. Friends are asking an awful lot if they think that we will sit here and not at times get angry and raise our voices. We are elected and sent here by our constituents. We have to do right by them. I do not think I would be doing right by them if I did not raise these issues, even if he does not like the way I raise them.

Norman Lamb (Liberal Democrat, North Norfolk)

I made the point at the start that most of the hon. Lady’s contributions in Committee have been brilliant. They have been constructive and thoughtful and she obviously speaks with a lot of experience. I agree that things are tough. There are really difficult challenges out there and they will probably get worse because of the demographic change that we face. But does she not agree that it is incumbent on all of us, at whatever level of government we are, to find ways to make the money go further, to stretch that public resource to ensure that we safeguard and secure the services that are really important for some very vulnerable people? It requires innovation and change and a willingness to do things differently. Does she agree?

Meg Munn (Labour, Sheffield, Heeley)

I do agree with that but top-slicing budgets that are already under pressure to produce the new innovative ways of providing the care will make it extraordinarily difficult. I worry. I went to see my director of adult services only a few weeks ago and I spoke to her in great depth. We agreed that some of the cuts they have had to make that withdraw services from people who are deemed not to be at a high level of need are likely to be the wrong thing in the long term. There are some innovative approaches going on. There is a great new scheme happening in the Lowedges, Batemoor and Jordanthorpe part of my constituency where funding is being found from some budgets to employ community support officers.

Norman Lamb (Liberal Democrat, North Norfolk)

Barnsley as well.

Meg Munn (Labour, Sheffield, Heeley)

Great place. They are coming up with innovative solutions to problems that elderly people and lonely people face. They are not just bringing in the public sector but the baker and the Co-op—a great thing too—to help support people. They are using local services and local businesses to do that. That work is ongoing, but inevitably, all public sector organisations, whether it is the NHS, GPs or social workers, have things they absolutely have to do. If the money for the things they absolutely have to do keeps getting cut, finding that money to go into the services that will save money becomes nigh on impossible. They get so exhausted because they continue to give of their time and energy to undertake these tasks and they find there is no energy to provide these new innovative solutions.

Jamie Reed (Labour, Copeland)

Is my hon. Friend concerned that there might be a particularly disproportionate regional aspect to this? I am not talking just about the north of England but about peripheral economies, areas of market failure whether they are Conservative, Liberal Democrat or Labour areas, where precisely the kind of situation she describes will be most keenly felt.

Meg Munn (Labour, Sheffield, Heeley)

I am. One thing I wanted to mention in responding to the Minister is that the figures I quoted were from the County Councils Network, which is not massively Labour, and the Local Government Association, which is cross party. It was not party political rhetoric as such. It came from those people who will have to implement the measures. I know the Minister was disturbed that I would not take his intervention. I was genuinely concerned about the time and wanted to move that forward. He has been in the House longer than me but it has been my experience in Committee, and certainly when I was a Minister, that generally speaking, Ministers respond at the end rather than by intervening in colleagues’ speeches. That was why I did not take his intervention rather than being hungry or something. I hope that has reassured him on that matter.

The Minister rightly referred to the new burdens doctrine. That was the basis on which I tabled my proposed new clause. His officials have undertaken an impact study and come up with certain figures. I am afraid those are disputed by me, based on figures prepared by the Local Government Association’s County Council Network. There is a fear that this measure will not achieve what we want, due to a lack of proper funding.

I explained that this was a probing new clause and that I did not intend to press it to a vote. The Minister might be pleased to know—though I am not sure about my Front-Bench colleagues—that I do not support free care for everybody. I think there are a lot of pitfalls. I set out my position earlier: a system that levers in as much community, family and other carer’s support as possible by meeting whatever they need so that they can continue to perform the wide range of tasks that they do.

Norman Lamb (Liberal Democrat, North Norfolk)

May I express my delight that the hon. Lady is back on track and speaking sensibly again? That is so welcome.

Meg Munn (Labour, Sheffield, Heeley)

I am not sure what they call that, Mr Bayley. However, as far as I was concerned, I was never off track. Some day the Minister may come to understand that the Member of Parliament who gets up and has a go because they are angry and concerned about their constituents is precisely the same person who has lots of experience of this area, has some good ideas about how it should go forward as well as legitimate concerns about how the legislation is drafted and how it will be implemented. I hope he will come to see that in his calmer moments.

Bill Esterson (Labour, Sefton Central)

The continual accusations about partisan politicking coming from Government Members are interesting given the way that they intervene. I will not repeat the responses to the partisan comments from Government Members. I am far more likely to listen to the advice of my hon. Friend Member for Leicester West than the Minister’s on my new clause on free social care. I am grateful to the Minister for going through the detail of the analysis of the Dilnot commission and the international comparisons, and I take the point. However, I do not think this issue is going to go away. I do not think it has been resolved by the process of the cap, which is the point I made earlier. I predict we will return again and again to how we pay for social care and whether it should be free at the point of use.

Norman Lamb (Liberal Democrat, North Norfolk)

I have received information, Mr Bayley, that the hon. Gentleman has tweeted that I have said that local authorities will have to pay for new responsibilities from existing budgets. That is simply not the case and I wanted to put the record straight.

Bill Esterson (Labour, Sefton Central)

The Minister has not denied the point put to him by the shadow Minister. The logic of that point is that that is exactly what will happen. That is exactly what he said. I will give him the chance now to say on the record that new money will be provided to local authorities to pay for the new requirements under this legislation.

Norman Lamb (Liberal Democrat, North Norfolk)

The better care fund sensibly encompasses all the different elements of sums both for the implementation of the Bill and adaptations to people’s homes and money coming from the NHS. Of course, the whole point is that it is grouped together into one fund, because all this is related. However, these are clearly identified resources that will be used to implement this Bill and are additional to what councils would otherwise have had.

Bill Esterson (Labour, Sefton Central)

There is a lot of double counting going on. I shall take interventions shortly from my own Front Bench, but I will just tell the Minister what my local authority said on this issue. It is very clear that it is not new money and that it is insufficient to cover the known additional demands—and that is before the Bill comes in. It also says that the money is to be found from hospitals, which will create pressures of its own and is a point that we made earlier in the discussion.

Liz Kendall (Labour, Leicester West)

Perhaps my hon. Friend would agree with me. I do not know why the Minister will not say that £335 million for setting up the early assessments, deferred payments and information campaign comes from council budgets, and that £130 million directly for adult safeguarding boards and assessments for carers comes from the better care fund. That is what councils say. In the spirit of honesty, for which the Lib Dems are well known, I would have thought the Minister would confirm that point.

Bill Esterson (Labour, Sefton Central)

Once again: what I put on the tweet is very clear. I will give the Minister the opportunity now to say on the record that every penny of the new duties and responsibilities being given to local authorities as a result of this legislation will be provided.

Norman Lamb (Liberal Democrat, North Norfolk)

The reason that I objected is that it is untrue. Councils would not have had this resource had we not been introducing these reforms. There is a clearly identified sum of money, which has gone through a rigorous and robust process, being allocated to local government as part of the better care fund, which they would not have had but for these reforms. I would be most grateful if the hon. Member could withdraw what he has said in his tweet, because it is not true.

Bill Esterson (Labour, Sefton Central)

I am listening very carefully. I have given the Minister a number of opportunities to put on the record that local authorities will be given the funds to pay every penny of the new responsibilities and duties. He has just not said that, so I stand by what I have said. The expectations among service users and carers is another point made to me by my local authority. It says that central Government should provide funding for the initial peak in work that passing the Bill would generate. It makes the same point as the LGA: there is real concern that local authorities will have neither the money nor the facilities—by which they mean software and staff—to get up and running immediately when the Bill is passed. They request that the Government provide both funding and access to relevant data to each local authority to support the transition. That is the view of local authorities. I have heard nothing from the Minister to indicate that what the local authorities say is not true, so I stand by my comment.

As for my amendment, this issue will not go away. Mine is a probing amendment. I understand the analysis, but we have not anywhere near resolved this issue for the long term with the proposal the Government are bringing forward. Although I will not press the new clause, I fear that we will come back to this in the very near future.

Hugh Bayley (Labour, York Central)

We have had a good debate on the new clauses that were grouped with a stand part debate on clause 72, which we have hardly mentioned. We have been told that each of the new clauses will not be pressed to a vote, but we have to dispose of the question that clause 72 stand part of the Bill.

Clause 74 - After-care under the Mental Health Act 1983

Grahame Morris (Labour, Easington)

I beg to move amendment 131, in clause 74, page 65, leave out lines 35 and 36.

I will be extremely disciplined and focused on the subject of the clause. I refer the Committee to a declaration that I made previously and the specific issues that I wish to raise have been suggested to me by the charity Mind. Clause 74 seeks to amend section 117 of the Mental Health Act 1983, clarifying anomalies in determining the responsibilities of local authorities in relation to the provision of aftercare treatment of mental disorders and the provision of care and support services to which the Bill applies.

Clause 74(5) seeks to introduce a definition for aftercare services. It is a concern of mine, as well as the consensus among a number of charities such as Mind, the Mental Health Lawyers Association, the Law Society, the Care and Support Alliance and some eminent lawyers, that the proposed definition is problematic and ought to be amended. There is a danger that the existing definition in clause 74 will not protect those suffering from mental disorders, probably the most vulnerable group in the mental health system.

Hugh Bayley (Labour, York Central)

Order.

Grahame Morris (Labour, Easington)

Before that important vote, we were discussing clause 74 and the concerns expressed about the Bill containing a new, restrictive definition of aftercare. I remind the Committee that those to whom the clause will apply will have been sectioned under the Mental Health Act 1983 and detained in hospital against their will because they are so unwell. The clause is important because those are some of society’s most vulnerable people. They are in need of great consideration when deciding on their eligibility for care. My amendment proposes to remove proposed new subsection (6)(a) of the Act altogether.

I was initially minded to press the amendment to a vote, but I hope that the Minister will think carefully about the issues I am raising. I think that they address a point he has raised several times about the law of unintended consequences. The amendment would remove a provision from the Bill, for reasons that I hope will become apparent.

Jim Shannon (DUP, Strangford)

The hon. Gentleman has outlined a clear course of action that he feels is appropriate. Is he aware that both the Law Commission and the Law Society have indicated that there is a need to change the law to ensure that people with mental difficulties, at the times when those are most difficult for them, are looked after correctly?

Grahame Morris (Labour, Easington)

With due respect, I do not think that I have made the case yet, but I hope to do so. The hon. Gentleman is right. They are among a number of organisations who made that point forcefully and I will refer to those. Unless we address that, the risk is that these vulnerable people will receive only the bare minimum of medical and social services in the future.

Section 117 of the Mental Health Act ensures that people who have been detained in hospital receive aftercare after having been discharged. That mix of health and social care is designed to help people cope once they have left hospital. Because these people are so vulnerable, their lives tend to be chaotic and, because being sectioned is such a traumatic experience, it is vital that clinical commissioning groups and local authorities work together so that they can rebuild their lives, look after themselves and avoid being sectioned again.

The code of practice, which provides guidance on how the Mental Health Act should be applied, states that, when creating an aftercare package, professionals must consider not only the patient’s psychological and mental health needs, but whether they need physical health care, daytime activities, appropriate accommodation, assistance with welfare rights and managing finances, social and cultural assistance and specific assistance arising from drug and alcohol problems.

At the moment, when a patient is discharged from hospital, the aftercare package is provided free of charge. The services do not last for ever: people who require them have a review at some point to see if they still need them. Section 117 of the Mental Health Act is unique in that it requires health authorities to work together with local authorities to provide care; one cannot make a decision without reference to the other. In other words, health cannot make a decision without reference to a local authority.

Secondly, the package has to be free of charge. This is in recognition of the fact that the state—this may come back to the Minister’s stout defence of the Human Rights Act and the need to protect the individual from the overbearing state—has detained an individual against their will, for their own protection, and has a duty of care to do everything possible to give them back their freedom and support them outside hospital. It is important that people with such serious problems get all the care they need and do not risk falling through the gaps and ending up back in hospital.

Lines 35 and 36 are problematic because of the narrow criteria of meeting a need arising from or relating to a person’s mental disorder. They may well result in complicated disputes about whether a service meets a need arising from a person’s mental disorder or not and therefore whether it should be provided.

The whole package of care keeps a person well and out of hospital. Removing or trying to remove elements of the package because it does not serve a need arising from or relating to a mental disorder will put a person’s health at risk. It will also mean patients will spend unnecessary amounts of time in hospital beds—an issue that we are all concerned about—which may not be the best place for them. This will be at considerable public expense and the patients will be unable to regain their freedom in society

Where there are disputes about what services should or should not be provided, people will find that they cannot be discharged from hospital when they should be, exacerbating the shortage of in-patient psychiatric beds. Members of the Health Committee are well aware of this issue.

The nature of mental health disorders also means that if people are asked to pay, there is a high risk of non-compliance. The existing limiting wording employed in lines 35 and 36 will prevent some of the most vulnerable people in our society receiving the care that they need. Parliament will have failed its responsibility to give freedom back to those who have suffered from the most severe mental disorders. Until now, there has been no statutory definition of aftercare, just a lot of guidance in the Mental Health Act 1983 code of practice. The reason for this is not by chance.

This side of the House has often argued for things to be included on the face of the Bill, rather than in guidance, but there is a particular reason for this in relation to patients who have been sectioned. The reason is that law-makers, when they were writing the Mental Health Act, realised that exactly what people need in an aftercare package varies because mental health conditions and the way they affect people are varied. The drafters of the Act wanted professionals to be free to put together the most appropriate care package and not to be restricted by legislation. I think this concept is well understood.

It might be useful to illustrate this point. For example, it might be argued that a person who has been sectioned because they are suffering from schizophrenia will require some talking therapies to address their depression, although they were not originally sectioned for depression. It might be argued that benefits or employment advice services are generic services that everybody needs, not services to meet a need arising from a mental health disorder or that a mental disorder is for the NHS to deal with, not the local authority.

Without the amendment, perverse incentives will be encouraged and those with mental health disorders will be damaged. I do not want to detain the Committee much longer, but I want to say that, rather than creating inequality, this amendment will preserve the status quo where professionals have the flexibility to design an aftercare package that is suitable for individual needs and looks at the whole person. That is a strong argument, and as my hon. Friend the Member for Strangford pointed out, it is supported by a whole series of informed opinions from charities and others. I hope the Minister will look carefully at those issues to ensure that we are not failing in our responsibility to care for the most vulnerable people in society.

Sarah Wollaston (Conservative, Totnes)

I rise to support the amendment in the name of the hon. Member for Easington, a fellow member of the Health Committee. The Minister will know that the greatest health inequalities in our society relate to people with severe mental illness. Men with severe mental illness are likely to die 20 years earlier, and for women the figure is 15 years. That is almost entirely due to physical health problems, not mental health problems. The hon. Gentleman eloquently outlined a series of issues relating to people who have been detained against their will under the Mental Health Act 1983. We need to prevent readmissions under the 1983 Act, but there are other issues that we must consider. People’s circumstances are critical, and we need to ensure that they do not drift into becoming rough sleepers.

The issue of interpretation is not irrelevant, as we saw in the case of R (Mwanza) v. Greenwich. We should remove the line in the Bill to which the hon. Gentleman’s amendment refers, and the word “both” in the line above it is also problematic, because it would mean that both those circumstances would have to be present. Somebody who assesses an individual with mental health problems may see them when they are relatively well. However, mental health conditions can be variable, and just because somebody at the point of assessment is not acutely unwell and their condition is controlled, that does not mean they are not acutely at risk.

I ask the Minister to look again at the clause because there are already issues of interpretation. If we are to achieve what we want from section 117 of the 1983 Act, I urge the Minister to look at it again, because it is already causing problems and we have the opportunity to use the Bill to clarify it. I hope the Minister will address those matters in his response.

Norman Lamb (Liberal Democrat, North Norfolk)

I thank the hon. Member for Easington for raising this issue. As he rightly said, we are dealing with some of the most vulnerable people in our communities, so we must ensure that the clause is right. I welcome the chance to debate it.

My hon. Friend the Member for Totnes is absolutely right that people with severe and enduring mental health problems are among the most let down by society. As she rightly said, their physical health causes them to die many years earlier than others, which is a cause of massive concern and is completely unacceptable. My hon. Friend may have noticed that the Government launched a mental health action plan on Monday called “Closing the gap”, which seeks to address the lack of parity between the way that mental and physical illnesses are treated. We set out 25 priorities for essential change, and the report’s contents were widely welcomed. I thank the hon. Gentleman and my hon. Friend for their contributions.

The amendment would alter the Government’s definition of mental health aftercare services in the 1983 Act. The key point is whether it would give us a clearer, more useful definition than the one in the Bill. One advantage of introducing a clear definition will be that the scope of aftercare will no longer be entirely open to interpretation by the courts, whose views have varied and led to uncertainty over time. The hon. Member for Easington made the point about how legislation can sometimes provide clarity, as long as the words used are clear. Because our definition is more targeted, I feel it will be more helpful than the hon. Gentleman’s in assisting clinical commissioning groups, Welsh local health boards and both English and Welsh local authorities to commission aftercare services more promptly.

Importantly, our definition provides that section 117 services may “relate to” as well as “arise from” the person’s mental disorder. That is an important broadening of the definition so that a wide breadth of services is covered. They simply need to “relate to” and not only “arise from”. The current definition results from extensive consultation, which has led us to add a positive objective to reduce the risk of both deterioration in a person’s mental condition and readmission to hospital.

We have further changed the clause to replace a reference to “the disorder”—I suspect the hon. Member for Easington will be aware of this from the debate in the House of Lords—with “mental disorder”, which is something that the Mental Health Alliance had been lobbying for, and for which Lord Patel of Bradford made the case in another place. This change was to remove any doubt that aftercare may relate to more than one form of mental disorder, and not necessarily the specific mental disorder for which the person was admitted to hospital.

We will also clarify the scope of the definition in the Bill’s revised explanatory notes. Lawyers from the Mental Health Alliance have told us that this would be of considerable value in resolving disputes at a local level. The definition will be further explained when we revise the code of practice on the Mental Health Act 1983 later this year. We have given a commitment to work with all interested stakeholders when revising the code of practice.

Finally, I can reassure the hon. Gentleman and my hon. Friend that our definition contains a carefully framed duty that reflects the Government’s policy on the appropriate scope of the duty to provide free aftercare services for a very small group of patients who have been detained for treatment under the Mental Health Act. It has carefully drawn limits, because the Government do not consider it would be appropriate for the Mental Health Act to impose a duty on the responsible bodies to provide or commission services that are based on needs that neither arise from nor are related to a mental disorder. That is what the purpose of the provision is all about.

In reaching their decision, the Government have taken a holistic approach to the provision of mental health services across the population and the funding implications of that. In the light of that, I hope the hon. Gentleman will feel able to withdraw his amendment.

Grahame Morris (Labour, Easington)

I am grateful for the Minister’s consideration, but I am not persuaded by what he says. A weight of evidence from experts and charities is at odds with the Government’s position. I recognise the maths of the voting system, so I am willing to withdraw the amendment, but I am not satisfied with the assurances I have received from the Minister. I beg to ask leave to withdraw the amendment.

Clause 76 - Registers of sight-impaired adults, disabled adults, etc.

Emma Lewell-Buck (Labour, South Shields)

I am grateful for the opportunity to debate the clause, as I believe it limits the requirement for local authorities to keep a register of sight-impaired or disabled children by referring to adults only. The Bill denies support to children and families and misses an opportunity to create a unified register that can support local authorities in managing service users’ transition into adulthood. Such issues are, of course, already recognised in legislation. The Children Act 1989 requires local authorities in England to maintain registers of disabled children, including blind and partially sighted children.

However, as the Minister may be aware, that is often ignored. The Royal National Institute of Blind People has found that 20% of local authorities have no register for disabled children. Even where registers exist, they are often poorly maintained. Six in 10 registers contain 10% or fewer of the disabled children known to the authority through other channels, such as special educational needs statements.

Clearly, the duty needs to be reinforced, and the Bill is an ideal opportunity to do so. The change will not create any new burdens on local authorities but would underline the importance of registers to support disabled individuals, including those who are blind or partially sighted.

The benefits are clear: registers would help children and their families by providing access to additional help and support from the council, including social services and the local education authority. A register can also act as a passport to help for families. Failing to maintain a register means that the passport function is completely lost to families that struggle to cope with the needs of a disabled child. The registers would also benefit local authorities, because they can be used to assess demand in an authority’s area for support and help it commission services now and in the future.

I acknowledge that the Bill already includes clauses covering the transition from child to adult social care, but the transition would be greatly aided by the existence of well-kept registers that are comparable across child and adult services. At the moment, a lack of information about young people entering the adult system leads to disruption for service users and confusion for councils. The clause represents an opportunity to redress that balance.

The Bill, rightly, acknowledges the important role that registers play to ensure that disabled people have access and are guided to appropriate support. However, I believe that there currently is a loophole that makes it more difficult for disabled children and their families to access support, which undermines the Bill’s efforts to join up child and adult social care in a better way. I hope that the Minister will consider my arguments and look to include a requirement for a disabled children’s register in the Bill.

Norman Lamb (Liberal Democrat, North Norfolk)

I fully support the hon. Lady’s intention of ensuring that registers are kept for children as well as adults. However, the Bill’s remit is for adult social care. Although it deals with children’s transition to adult care and support, it does not otherwise cover children’s health or social care.

I am happy to inform the hon. Lady that there is an existing statutory provision in the appropriate legislation that meets her objective. I understand her point that some local authorities may be in breach of that requirement, but such a requirement, which is what she seeks, already exists.

Under schedule 2 to the 1989 Act, every local authority in England is under a duty to maintain a register of disabled children in their area, which will include children who are blind or have a visual impairment. Any changes to this Bill are therefore unnecessary, as they would duplicate an existing statutory duty.

Heather Wheeler (Conservative, South Derbyshire)

It is interesting to hear that there is a statutory requirement on our councils to do that. To put the mind of the hon. Member for South Shields at rest, I wonder whether it would be beholden on us to ensure that all our councils—we could write to them as individual MPs—are doing that now.

Norman Lamb (Liberal Democrat, North Norfolk)

That is a good suggestion. We all have the potential in our roles to hold our local authorities to account. Perhaps the Local Government Association could help as well. The statutory duty exists, and we need to be getting the message out to local authorities that they need to comply with it.

During the passage of the Children and Families Bill through Parliament, the Government committed to reinforcing the duty—this is an important point too—through that Bill’s statutory code of practice for special educational needs. This will ensure that the local authorities are fully apprised of their duty to maintain this register and to have a clear picture of the numbers of disabled children in their area, including data on low incidence needs such as visual impairment or hearing impairment.

The Children and Families Bill will introduce an enhanced approach to meeting the needs of children and young people with special educational needs and disability. It will require clinical commissioning groups and local authorities to agree joint arrangements for working together for such children with a view to integrating education, health and care plans for children with special educational needs. Identifying these children and maintaining a register will be essential to ensure that the nature of local needs is understood.

I hope hon. Members will join me in welcoming these important steps to ensure that children with special educational needs will have the necessary holistic support to help them fulfil their potential. I hope that I have responded sufficiently to the hon. Lady who raises an important point. The duty is already there and further steps are being taken to reinforce that duty. We can all assist in that regard to apply pressure on local authorities to meet that duty.

Emma Lewell-Buck (Labour, South Shields)

I thank the Minister for his response. I am comforted by the changes that are being made through the Children and Families Bill, and I hope that those changes have an effect on the ground. We are talking about the forgotten 80% of children with special needs who go missing from the system when they become adults. I hope the Children and Families Bill achieves what it says it will in that regard, but I am a bit sceptical.

Clause 77 - Guidance, etc.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment 121, in clause 77, page 69, line 29, at end add—

‘(4) The Secretary of State must take reasonable steps to ensure that all guidance issued under regulations made under this Part is made easily available in a range of formats and kept up to date.’.

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss amendment 125, in clause 77, page 69, line 29, at end add—

‘(4) A local authority, and NHS bodies, must continue to act under general guidance previously issued by the Secretary of State until a declaration of intent has been made by the Secretary of State in relation to new general guidance.

(5) Any general guidance issued by the Secretary of State relating to the exercise of functions as defined in subsection (1) will, unless otherwise specified, use the definition of an NHS body set out in this Act.’.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

This is a small amendment that goes to an issue that was covered in the Law Commission’s report and was picked up in the Joint Scrutiny Committee’s report. It is simply how best to marshal or regiment guidance that is issued in a way that makes it easy for practitioners to understand, easily accessible for practitioners and also easy for us in this place to find and interpret when we come to cross-check how things are being implemented in practice. The explanatory notes state that the courts’ interpretation of the duty under the Local Authority Social Services Act 1970 is that local authorities must

“follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course”.

This is very important. This is one of the more important clauses, if not the most important clause. It sets up so much of what the rest of the Bill provides for, which is to issue guidance. Ministers make very clear promises and undertakings in this Committee, in the House and in the other place about something being put in guidance. That is why the clause matters. It will be something that binds and has to be followed. Whether through this amendment or by the Minister giving us some further clarity, the key point I want to make is that if we are not to go as far as a code we must be clear that we are producing a consolidated bank of guidance in a series of formats that are accessible so that we can use it well.

The other point I wanted to make was to thank the Government for listening and changing the legislation to reflect a recommendation made by the Joint Scrutiny Committee, albeit in the Lords on amendment. That was to make the Secretary of State subject to, or at least to have to have regard to, the general duty under clause 1—the well-being duty—when he or she is issuing guidance or regulations under this part of the Bill. It is very important that the whole system is unified through clause 1. That means that the Secretary of State when issuing guidance or regulations also has to take the duty in clause 1 into account. That is very welcome; it means we will have a coherent system that will deliver the well- being principle effectively. I am grateful to the Government for taking that on board, and I hope the Minister will be able to respond to my question about access to the guidance.

Grahame Morris (Labour, Easington)

I wanted to make a few points in support of the arguments advanced by the right hon. Member for Sutton and Cheam on an issue considered in the Joint Committee on the draft Bill. Without repeating those arguments, we come back to the question of whether regulation or guidance applies only to local authorities.

I refer to my earlier declaration of interest. I was asked to table amendment 125 by the National Autism Society. It wants to ensure that the statutory guidance arising from duties placed on NHS bodies by the Autism Act 2009 will continue to apply once the new suite of statutory guidance and regulations is issued. It is like my earlier amendment in respect of the Mental Health Act 2007. I appreciate that the guidance will be voluminous once the Care Bill is enacted.

The National Autistic Society is concerned that, as other guidance affected applies only to local authorities, there is a need to maintain those duties, and that that need may be overlooked. Let us reflect for a moment on the fact that the Autism Act is England’s only disability-specific legislation, in that it applies only to people with autism. There is no Diabetes Act or Parkinson’s Act. As the right hon. Gentleman pointed out, it began life as a private Member’s Bill. The Bill was passed into law with cross-party support, because it was recognised that there was a dearth of services for adults with autism. It led to the publication of the adult autism strategy and accompanying statutory guidance, which commits the Government, local authorities and NHS bodies and other stakeholders to take action to improve the lives of adults with autism across England. Indeed, the Department of Health is currently undertaking a statutory review of the strategy.

Last year, research by the National Autism Society showed that although the Act had succeeded in putting autism on the agenda, change had not been fast enough. Many local authorities and NHS bodies are yet to meet the number of outstanding commitments and it therefore remains important that those duties that apply to clinical commissioning groups and NHS foundation trusts are maintained and not deleted as a consequence of the passing of the Care Bill.

The amendment seeks to ensure that the statutory guidance resulting from the Autism Act is embedded in the new legislation in the Care Bill, and that nothing that currently gives protection to people with an autistic spectrum disorder slips through the net. The Autism Act statutory guidance commits NHS bodies and NHS foundation trusts to a number of particular responsibilities that are crucial to improving the lives of adults with autism, and ensuring that the adult autism strategy is successful.

I have some examples of clinical commissioning groups being responsible for developing a diagnostic and care pathway for adults with autism. Diagnosis is crucial. The Minister referred to the NAS research “Push for Action” campaign. As my hon. Friend the Member for South Shields mentioned in relation to registers of children, the research discovered that a diagnostic and care pathway is in place in only 63 of 152 local authorities. The statutory guidance states that NHS bodies and NHS foundation trusts should ensure that autism awareness training is available to all staff working in health care. I hope the Minister will reassure me on that point. Amendment 125 is a probing amendment, so I will not press it to a vote, but I want to raise some points with the Minister and seek assurances.

The NAS believes that autism awareness training should be included in general equality and diversity training programmes as a minimum. In a survey, general practitioners identified that they need more understanding and awareness of autism and where to refer people with autism for appropriate help and support. May I give an example of why that is important? It is not a trivial issue.

I am grateful to the NAS for providing me with an anonymised example. Chris, a 47-year-old man, was diagnosed with Asperger’s syndrome in 2007, but for more than 20 years before that he had been presenting to his GP and had been given medication for mental ill health and told to pull himself together. At the age of 15, he had been diagnosed with depression, obsessive compulsive disorder and mild Tourette’s syndrome, but getting a diagnosis of Asperger’s syndrome was extremely difficult because the understanding of autism at that time was poor. Chris had learned adaptive strategies to conceal his difficulties and appear “normal”. He finally got a diagnosis only after paying for a private service with someone who had the necessary skills and understanding. He told the NAS that if he had not been able to get that diagnosis, he probably would have taken his own life.

The issue is serious and the example I give brings home to us all how important it is to ensure that adults with autism, and children, get the right diagnosis. It clearly illustrates the importance of ensuring that the good work in the Autism Act 2009 and elsewhere continues. I hope the Minister can assure me, the Committee and people with autism and their carers that the statutory guidance published as a result of the 2009 Act applies to and puts duties on local authorities and the NHS, and that that situation will be maintained.

Norman Lamb (Liberal Democrat, North Norfolk)

I thank my right hon. Friend the Member for Sutton and Cheam and the hon. Member for Easington for their amendments. The purpose of the statutory guidance is to guide local authorities on how they should exercise their functions under the Bill. However, the guidance should also be useful and informative to others in the care and support sector, including people using care and support, their families and anyone else who needs it.

Amendment 121 requires the guidance to be made easily available in a range of formats. I can confirm that the Department will take steps to ensure that the guidance is accessible in formats that enable people to make use of it—I hope that gives some reassurance to my right hon. Friend. That will include continuing to engage closely with stakeholders about what we can do to ensure that guidance is accessible to not only local authorities, but the people using care and support services and their families. The amendment also seeks to ensure that the statutory guidance is kept up to date. As part of the ongoing implementation and delivery of the reforms, we are certainly committed to keeping the guidance under regular review, and it will be updated as necessary. The power in clause 77 gives us the flexibility to reissue and update the guidance.

I turn now to Amendment 125. The proliferation of guidance over many years has caused much confusion, and the lack of a clear understanding of the legal status of different documents has not helped. The Bill represents an opportunity to resolve that and create a new clarity and consistency in our approach to guidance. However, the transition to the new legal framework must also be managed carefully, to ensure that nothing is lost in the process. That is a concern of the hon. Member for Easington. We intend to develop a single, consolidated bank of guidance covering all functions within part 1 of the Bill, to support implementation of the new statute. As part of that, we will replace all existing guidance that covers that territory, to remove the potential for any misunderstanding. We are mindful of the need to ensure that there is no gap in provision during transition. I assure hon. Members that the existing guidance will remain in place until it is superseded by new guidance.

Unlike other statutory guidance related to care and support, the autism statutory guidance, about which there has been concern, is issued under a specific requirement in the Autism Act 2009. That guidance is addressed to local authorities and NHS bodies. The 2009 Act and the duty to issue guidance under it are not affected by clause 77 and remain in place.

The hon. Gentleman mentioned the National Autistic Society, and I pay tribute to its work. It has worked collaboratively with Government over the review of the autism strategy. As a quick reflection, it seems that we have made considerable headway on the legislation, the strategy and the guidance, but making change happen on the ground remains a massive challenge. That will be reflected in the review when it emerges, which is not that far away. It is incumbent on central and local government to work collaboratively to ensure that these good intentions are implemented to make a difference to people’s lives.

Grahame Morris (Labour, Easington)

Does the Minister acknowledge that we have the classic dilemma here of whether we address these issues through the Bill containing a statutory obligation or through guidance? If we have guidance that is unclear, meaning that the measure is not implemented on the ground, we are not doing our job properly in Committee.

Norman Lamb (Liberal Democrat, North Norfolk)

I take the point, but history is littered with Acts of Parliament, regulations and guidance that have not been implemented adequately. To give another example, the Mental Capacity Act 2005 is very good legislation, passed by the Opposition when they were in government, but it has not yet been fully implemented. There is nothing magic about an Act of Parliament that guarantees that its measures will be implemented from day one. Work has to be done on the ground to make the change happen. Our job in this place is to facilitate that change. The challenge is the implementation, and that is where we are at with autism. The guidance under the Autism Act 2009 will remain in force until new guidance supersedes it.

Amendment 125 would create a consistent application of the definition of an NHS body. We agree that definitions must be clear and consistent in the Bill, regulations and guidance and that there should not be differences between the Bill and other documents. We are keeping that issue in mind in drafting regulations and guidance to ensure that key terminology and definitions are consistent. I hope that what I have said persuades my right hon. Friend and the hon. Member for Easington that their amendments are not necessary.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister for his reassurance about the guidance being published in a consolidated form and appropriate formats. He rightly indicates that the Bill will trigger the production of a whole new set of guidance. At some point, presumably once the Bill has become an Act, it will be useful for the intended timetable for the production of that guidance to be placed in the Library so that hon. Members can see it, be aware of it and be informed.

Norman Lamb (Liberal Democrat, North Norfolk)

I can confirm that that can happen.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That will be helpful. The reassurance on the guidance under the Autism Act 2009, which I had responsibility for taking through, is helpful. I am sure that the hon. Member for Easington will be grateful for that. Unless he is hoping to speak as well, I beg to ask leave to withdraw the amendment.

Clause 79 - Part 1: interpretation

Clause 80 - Duty of candour

Jamie Reed (Labour, Copeland)

I beg to move amendment 139, in clause 80, page 72, line 20, at end insert—

‘( ) The duty of candour specified in regulations made under this section shall require—

(a) healthcare service providers who believe or suspect that treatment or care provided by their service has caused or contributed to death or serious injury to that patient to inform that patient, their representative or other authorised person as soon as is practicable of that fact and thereafter to provide such information and explanation as the patient or other person mentioned may reasonably request, and

(b) registered medical practitioners and registered nurses and other registered professionals who believe or suspect that treatment or care provided to a patient by or on behalf of any healthcare provider by which they are employed has caused death or serious injury to the patient to report their belief or suspicion to their employer as soon as is reasonably practicable.’.

Norman Lamb (Liberal Democrat, North Norfolk)

It has been so long.

Jamie Reed (Labour, Copeland)

It has been so long indeed. It was a rather high-octane session before the Division in the Chamber, so let me say from the outset, where there is discord, may I bring harmony. I was not in the Chamber for the maiden speech of my hon. Friend the Member for South Shields, but I think I was in this Committee for her maiden amendment to a Bill. I may have that wrong, but I noticed that the public gallery emptied as soon as she finished speaking, so it was sheer magnetism. It would be remiss not to congratulate my hon. Friend the Member for Easington, who I see is sporting a Sunderland football club tie, on its success in reaching Wembley.

Bill Esterson (Labour, Sefton Central)

I hope I am not out of order by associating myself with those remarks. Representing a Merseyside constituency, I could not resist.

Jamie Reed (Labour, Copeland)

I completely understand where my hon. Friend is coming from. I shall speak to amendment 139, in my name and that of my hon. Friend the Member for Leicester West. We are discussing what I suspect will be the last piece of health legislation from this Government in this Parliament—I may be mistaken, I cannot read the Government’s mind—and part 2 of this Bill is exceptionally important. Amendment 139 is an important amendment to an important clause, Mr Bayley, and with your permission I will seek to explore the reasoning for it in due depth.

It is important that we all understand the genesis for this part of the Bill, the important issues that it seeks to address and the likely effect of the remedies proposed by the Government in clause 80. Part 2 is simply entitled “Care Standards”, yet each of us knows that this simple definition does not accurately reflect the need for this part of the Bill or, in fact, its genesis. In the course of my contribution, I hope to identify common thinking, so this can lead to the development of common approaches and enduring solutions for the benefit of patients, medical professionals and the NHS as a whole.

Clause 80 seeks to place a duty of candour on providers of health care and adult social care services registered with the Care Quality Commission. The duty means that such providers would be required to ensure that patients and service users are told when something unexpected or unintended occurs in the course of their care or treatment, helping to ensure that honesty and transparency are the norm in every organisation overseen by the CQC. The details of the duty, including when it will apply and what information is to be given to patients or service users, is to be included in regulations.

Given the importance of this issue, I regret that this information is not included in the Bill, as we heard earlier. Such a move would have provided an opportunity for a full, frank and transparent debate between patient groups, care providers, the Department, trade unions, the royal colleges and others. It would undoubtedly have been a difficult debate, but it would in my view have reached a consensus during the passage of this Bill that would have been arrived at transparently. It is a missed opportunity and I hope that the Minister will explain why this has been done in this way. Such a debate on detail could have obviated the need to table this amendment and subsequent amendments. However, we are where we are and the amendment is before us.

The Opposition welcome clause 80, but we are concerned that it does not go far enough. The amendment, which squarely follows Francis recommendation 181, seeks to strengthen the Bill by ensuring that patients and medical professionals are better protected than the clause currently makes provision for. Most importantly, for reasons that I will explain, it would help to lead towards better standards of care.

Robert Francis made openness, transparency and candour one theme in his report and he made 11 recommendations on that: recommendations 173 to 184. Those holistic recommendations would be much more effective if taken together, rather than treated as a menu of options. Recommendation 181 of the report,

“Enforcement of the duty: Statutory duties of candour in relation to harm to patients”

stated:

“A statutory obligation should be imposed to observe a duty of candour”.

That recommendation was in two parts and sought to impose a statutory obligation to observe a duty of candour first:

“On healthcare providers who believe or suspect that treatment or care provided by it to a patient has caused death or serious injury to a patient to inform that patient or other duly authorised person as soon as is practicable of that fact and thereafter to provide such information and explanation as the patient reasonably may request”.

Secondly, it recommended:

“On registered medical practitioners and registered nurses and other registered professionals who believe or suspect that treatment or care provided to a patient by or on behalf of any healthcare provider by which they are employed has caused death or serious injury to the patient to report their belief or suspicion to their employer as soon as is reasonably practicable.”

Our amendment follows that recommendation to the letter. However, what it does not contain, but is directly relevant to the concerns expressed by medical professionals about the individual duty of candour, is that Francis made it clear that:

“The provision of information in compliance with this requirement should not of itself be evidence or an admission of any civil or criminal liability, but non-compliance with the statutory duty should entitle the patient to a remedy.”

I find that hard to resist.

Clearly, we are all passionate about the quality of our health care services and, in recent years, this House, much of the public and the commentariat have focused on that, the most immediate reason being the appalling revelations contained in not one but two reports that relate to separate independent inquiries undertaken by Robert Francis, QC, into the suffering experienced by many patients at the hands of the Mid Staffordshire NHS Foundation Trust. Those reports followed the investigation and subsequent report published by the Healthcare Commission in 2009 that also highlighted appalling failures at Stafford hospital.

This is the first time that the Committee has ventured into any real detail on those issues. Discussion of what took place is, therefore, not only inevitable, but necessary. I repeat the apology made by my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) who, when Secretary of State for Health 2009, apologised on the Floor of the House on behalf of the Government and the NHS for the pain and anguish caused to so many patients and their families. I also repeat the apology made by my right hon. Friend the Member for Leigh (Andy Burnham) when he announced the first Francis inquiry in February 2010. He was right to state that the quality of care provided at Stafford was

“totally unacceptable and a fundamental breach of the values of the NHS.”—[Official Report, 24 February 2010; Vol. 506, c. 309.]

It is right to pay tribute to all the campaigners who worked so hard to shine a light on the deficiencies they saw, and from which their loved ones suffered, at Mid Staffs. It is also right that we recognise the remarkable work done by Robert Francis and his team, which was laborious, forensic and, sadly, necessary. We owe it to those who have suffered, to every patient using the NHS and to every medical professional who works in it to consider carefully the Francis recommendations. The Labour party has accepted the recommendations entirely and believes that they should be implemented in full.

When considering our amendment, which relates in large part to people working in the NHS, it is important to be clear about what Robert Francis wrote with regard to the NHS and the 1.3 million people who work in it. He wrote:

“The NHS is a service of which the country can be justly proud, offering as it does universal access to free medical care, often of the highest order. It is a service staffed by thousands of dedicated and committed staff and managers who have been shocked by what they heard of the events surrounding the Trust. It is inconceivable to many of them that conditions of the type described by so many patients can have been allowed to exist let alone persist.”

Every member of the Committee will recognise that to be true. On a personal note, I again thank the medical professionals in my community and all those at West Cumberland hospital. I have far too much to thank them for over far too many years. Suffice it to say that they have saved my life twice in recent years, for which I am certain the entire Committee rejoices.

In his statement responding to the publication of the latest Francis report in February 2013, the Prime Minister announced further streams of work stemming from that report. Professor Don Berwick, my right hon. Friend the Member for Cynon Valley (Ann Clwyd) and Professor Tricia Hart were tasked with producing separate reports so that the Department and Parliament could better understand and assimilate the likely consequences of the Francis report for the health service in its entirety in order to determine appropriate policy responses through which to deliver the improvement that Francis recommended. In addition, Professor Sir Bruce Keogh was commissioned to look into 14 trusts across the country.

Those reports are directly relevant to amendment 139 on the principles of candour, accountability and the drive to improve patient care. Building on the work of the Francis report, Professor Don Berwick wrote in “A promise to learn—a commitment to act” that:

“In its core and concept, the NHS has been and remains a world-leading example of commitment to health and health care as a human right—the endeavour of a whole society to ensure that all people in their time of need are supported, cared for, and healed. The vast majority of those who serve in the NHS—clinicians, staff, managers, executives, and boards, contractors and partners—try every day to help to the very best of their abilities, and with deep and appropriate pride in their mission.”

I am sure we all echo those sentiments, to which the amendment is directly relevant.

We all want to stop the feckless demonisation of our medical professions. That is not, and must never be confused with, writing a blank cheque or turning the other cheek when inadequacies are identified, but we must recognise the damage that constant criticism, frequent hyperbole and frankly false and wilfully misleading media coverage of such issues can cause. The amendment is directly related to that emerging and, for some, seemingly addictive practice. Professor Berwick strongly makes the point in his recommendations:

“Society, in general, and leaders and opinion formers, in particular, (including national and local media, national and local politicians of all parties, and commentators) have a crucial role to play in shaping a positive culture that, building on these strengths, can realise the full potential of the NHS.”

It is essential that we recognise that fact and act accordingly. There is little point in commissioning eminent experts to assist us all in delivering improvements in the national health service if we then turn our back on their work. Professor Berwick makes clear the value to patients and medical professionals if we as politicians consent to work in that way:

“When people find themselves working in a culture that avoids a predisposition to blame, eschews naïve or mechanistic targets, and appreciates the pressures that can accumulate under resource constraints, they can avoid the fear, opacity, and denial that will almost inevitably lead to harm.”

That is entirely what the amendment would achieve: the full implementation of what Francis intended with his recommendations.

When we read the latest Francis report and the other reports that were based on it, there are obviously many similarities. Each report shares the same essential analysis and the same desired end point. Part of that shared analysis is on the differences between systemic failure in the national health service and individual failures. That point was scrutinised in depth by Francis and acknowledged by the Prime Minister in his response to the Francis report when he said:

“Too many doctors ‘kept their heads down’ instead of speaking out when things were wrong.”—

[Official Report, 6 February 2013; Vol. 558, c. 280.]

That was part of what Francis called

“an insidious negative culture involving a tolerance of poor standards”.

I firmly believe that an individual duty of candour would help to change and inform the behaviour of medical professionals in the event of a repeat of anything like the failures that we saw at Mid Staffs. In short, the amendment would prohibit medical professionals from keeping their heads down.

We are trying to improve standards of health care. Francis defines health care thus:

“Health care is not an activity short of systems intended to maintain and improve standards, regulate the conduct of staff, and report and scrutinise performance”.

But time and again, Francis reminds us of the dangers of relying upon systems in the flawed belief that systems are infallible or

“assumptions that monitoring performance management or intervention was the responsibility of someone else”.

He goes further in his letter to the Secretary of State for Health introducing his report, when he describes an individual duty of candour as “an essential aim” of his recommendations. Francis states that it is an essential aim to:

“Make all those who provide care for patients, individuals and organisations, properly accountable for what they do and to ensure that the public is protected from those not fit to provide such a service”.

In the same letter, he goes further by saying:

“it is not the system itself which will ensure that the patient is put first day in and day out. Any system should be capable of caring and delivering an acceptable level of care to each patient treated, but this report shows that this cannot be assumed to be happening”.

Repeated illustrations of care failings occurring since Francis published his report, sadly continue to make the case for an individual duty of candour. It is clear that, in order to improve a system, we have to change the cultures and practices within that system. Francis makes the point repeatedly and I am sure we all share this view. Amendment 139 seeks to achieve a culture change. We seek this culture change with a view to being able to improve the system in which the culture exists and as a means to safeguard against system failure.

Professor Berwick also makes this point extremely well with perhaps one of the most telling illustrations of the need for the individual duty of candour that I have found. I am well aware of what Professor Berwick says with regard to the specific Francis recommendation, but he makes the case here exceptionally well:

“In the end, culture will trump rules, standards and control strategies every single time and achieving a vastly safer NHS will depend far more on major culture change than on a new regulatory regime”.

In my view, the introduction of an individual duty of candour is the best way in which we can achieve that major culture change.

With regard to the events at Mid-Staffs, Professor Berwick stated:

“The only conceivably worthy honour due to those harmed is to make changes that will save other people and other places from similar harm”.

I see this major culture change as being facilitated in part by the introduction of an individual duty of candour.

An individual duty of candour would also assist in the development of better communication in a hospital environment—better communication between medical professionals and patients and better communication between medical professionals themselves. Time and again, the quality of communication is cited as a significant factor in determining medical outcomes and the quality of the patient’s experience. It is also the case—many hon. Members will know this—that the ability to effectively communicate is one of the core principles and values of medical professionalism, as described by the Royal College of Physicians. An individual duty of candour can surely only help in this regard.

I completely understand the anxiety that some medical professional groups have with regard to the introduction of an individual duty of candour. The point is repeatedly made that there is no need for such an individual duty, because existing professional guidelines, professional standards and more already ensure that this duty is observed.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to the shadow Minister for giving way. I note the second part of his amendment which seeks to introduce the individual duty. Is it his intention that breach of that duty would be a criminal offence on the individual clinician?

Jamie Reed (Labour, Copeland)

I will address that in the full course of the introduction of the amendment. It is an incredibly important point. If you look at Francis’s recommendations 182 and 183, they are clearly dependent upon each other, to a degree, at least in terms of their efficacy.

I was pointing out my understanding of the anxiety that some medical professional groups have shown with regard to the introduction of individual duty of candour. I get that entirely. The point is repeatedly made that there is no such need for an individual duty because existing professional guidelines, professional standards and more already ensure that this duty is observed. As I have indicated, I accept this argument to a degree. However, the logic of the case for the introduction of an individual duty is not changed by this. On the contrary, it is strengthened. If professional standards and guidelines already exist to ensure such candour, there should be no problem or objection to placing such obligations on a clear statutory footing. I would go further and say that such a move is more about the patient than the professional and that although medical professionals will always be aware of their duties and obligations, patients almost certainly will not be.

Sarah Wollaston (Conservative, Totnes)

There would be a difference in that clinicians would be criminalised. Any clinician will tell you that a clinical decision made in the heat of the moment may well have been right at the point at which it was made. We are asking clinicians to make difficult judgments and if we shifted to a far more defensive culture of practice, there is the danger of unintended consequences. Criminalising clinicians would be a serious step. While I completely agree with the need for culture change, it is better to set such things in regulations, simply because as the culture shifts we may shift other factors, such as moving towards asking doctors and other health professionals not to make disclosures under anonymity. Once we fully protect whistleblowers and the culture changes, there is a shift. The unintended consequences are therefore a strong argument for setting this in regulations and not actually criminalising clinicians.

Jamie Reed (Labour, Copeland)

I understand the hon. Lady’s point and respect her professional judgment, but Robert Francis addresses the point in the language used in recommendation 181. He makes it clear that such an individual duty of candour should not be considered to be an admission of liability or a criminal offence. My point about recommendations 181 and 182 being consistent with each other is that I believe it is the Government’s intention to introduce criminal offence charges with regard to the duty of candour. It is the Government’s prerogative to accept recommendation 182 without accepting recommendation 181, but the two actually strengthen each other if taken together.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to the shadow Minister for giving way. The Government are introducing a statutory duty of candour on providers, making it clear that a failure to comply with that duty is a criminal offence. We have stopped short of placing that duty on individuals for the reasons that my hon. Friend the Member for Totnes explained. I am not yet clear whether a breach of the individual duty of candour that the shadow Minister describes would amount to a criminal offence, so will he clarify that specific point?

Jamie Reed (Labour, Copeland)

It is not our intention that a breach of the individual duty of candour would amount to a criminal offence.

Norman Lamb (Liberal Democrat, North Norfolk)

That is very interesting, but if it does not amount to a criminal offence, what is the point? What does the wording actually achieve beyond a statement of good will and intent?

Jamie Reed (Labour, Copeland)

There is a real point to it, which I will come on to during the rest of my speech on the amendment.

Everyone in the Committee will be aware of the need to protect whistleblowers in public and private institutions, in particular one as important as the NHS. Placing an individual duty of candour on medical professionals strengthens both the whistleblowing principle and whistleblowing practice. Time and again, reports relating to episodes of inadequate care mention the culture of fear that prohibits medical professionals from speaking out for fear of the consequences. Amendment 139 seeks to address that. If the duty of candour is made an individual responsibility, the culture of fear is legislated against. It would not be easy or comfortable, but bearing in mind Robert Francis’s clear recommendation that the

“provision of information in compliance with this requirement should not of itself be evidence or an admission of any civil or criminal liability”,

the case for an individual duty and an explicit commitment to protection within the law make the case for an individual duty. With regard to the NHS complaints process, Professor Hart’s report urges a “freedom from fear”. Amendment 139 seeks to establish that freedom for not only patients, but medical professionals. The amendment is entirely consistent with Francis recommendation 183 about criminal liability, which is accepted by both Government and Opposition. Recommendation 183 states:

“It should be made a criminal offence for any registered medical practitioner, or nurse, or allied health professional or director of an authorised or registered healthcare organisation: knowingly to obstruct another in the performance of these statutory duties; to provide information to a patient or nearest relative intending to mislead them about such an incident; dishonestly to make an untruthful statement to a commissioner or regulator knowing or believing that they are likely to rely on the statement in the performance of their duties.”

Surely, an individual duty of candour would make the need for a prosecution in any of the likely situations suggested by Francis less likely. Not only that, but in the event of a prosecution being brought, whether or not it is successful, individual identities, actions and the consequences of those actions would be highlighted and placed in the public domain.

Clearly, to improve the effectiveness of recommendation 183, recommendation 182, as laid out in amendment 139, would be of significant benefit. The shadow Secretary of State of Health put it best when he said:

“It is only when an individual is both required to speak out, and protected in doing so, that this House can say it has done enough to safeguard patients.”—[Official Report, 19 November 2013; Vol. 570, c. 1099.]

That is the fundamental purpose of amendment 139.

I will turn to the support provided by the Patients Association regarding the introduction of an individual duty of candour on medical professionals. Irrespective of its support for our amendment, I thank it for the vital work that it has undertaken for decades now. Like us, the association is not convinced that the duty of candour as expressed by the Government will adequately address the issue of poor care in hospitals. It has said:

“Patients who have experienced poor care in hospital are generally not subject to the whim of an individual but have been let down by a team who have either failed to notice the actions of one of their colleagues or who have turned a blind eye to unacceptable practice. There are already professional guidelines in place that require individuals to come forward if they feel a patient is suffering harm or distress. However, we know from our Helpline”—

accessed by thousands of people each year, as I understand it—

“that there are too many cases where healthcare professionals are not raising the alarm regarding substandard patients care.”

The association poses a critical question, which I hope the Minister will answer.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

Just to tease that point out further, how would the hon. Gentleman judge whether a medical or health care professional has met the standards he has set and been candid when something goes wrong? How would he put a test in place to do that? All they would need to do is fulfil that.

Jamie Reed (Labour, Copeland)

As with the Government’s existing proposals, we would need to establish a clear threshold, either in statute or with reference to published guidelines. The threshold, which would have to be produced with the involvement and consent of medical professionals, would take time; it would not be simple.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

To give a real-life example, if a junior doctor raises a concern with their consultant orally, but then there is a disagreement about the facts, could the junior doctor be prosecuted because they had not raised the concern in writing? This is a difficult area, and it highlights the potential adverse consequences of an individual duty. The hon. Gentleman’s proposal could lead to innocent doctors who have tried to do the right thing, but not through the right process, finding themselves in difficulty or even being prosecuted.

Jamie Reed (Labour, Copeland)

I appreciate that real-life example, but if the hon. Gentleman looks carefully at both the detail of the Francis recommendations and the report published by Professor Berwick with regard to data capture and the duty placed on medical professionals to provide or produce real-time data of how they are looking after certain patients, and the information that they are providing that patient, he will see that that poses precisely the same issue that he said would arise with regard to what we are collectively seeking to do.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I think the point here is not about the judgment of whether a health care professional has met that duty, which the professional regulators should already be enforcing. Regulators can take action against a medical professional, and they should be doing so if that professional has not fulfilled their duty to act in patients’ best interest.

Jamie Reed (Labour, Copeland)

I have a great deal of sympathy with that point, but surely, the point of the latest Francis report, the Berwick recommendations, Professor Hart’s study and the Keogh review is that such systems fail. Individuals need to be more empowered and more accountable for the decisions they make on a case-by-case daily basis.

I will come to the key objective of the Patients Association in a second, but it posed a critical question that relates to the interventions just made. I hope the Minister will be able to answer this in due course. The Patients Association stated:

“We question that if individuals are not already motivated by their own professional code, how will a duty on their employer encourage them to come forward?”

That is a critical question that in many ways goes to the heart of the matter. The key objective for the Patients Association is to ensure that whistleblowers come forward without fear of retribution. If they feel that a patient is receiving substandard care, they ought to be encouraged and safeguarded in coming forward. The Patients Association claims:

“Without this fundamental change within the NHS, the Duty will just be providing lip service to the issue of patient safety and patients will struggle to see any real improvements.”

Taking such concerns in tandem with the observations of Robert Francis and Professor Berwick with regard to the limitations of systemic change in achieving the necessary culture change in the national health service, can the Minister convince the Patients Association why an individual duty of candour is not necessary? Systems are characterised by individual actions, and the introduction of individual enforceable duties is key to improving how a system works.

Amendment 139 also seeks to address the hierarchy culture that I am sure many Members will have experienced with regard to the NHS. I am not talking about a procedural hierarchy culture, but a cultural hierarchy. In some NHS institutions—in many workplaces, public and private—it can be suffocating, operating almost like a caste system. Such attitudes are probably embedded within the NHS, rather than caused or produced by the NHS, but it does little for holistic working practices.

In his superb report of 16 July last year, Professor Sir Bruce Keogh noted how the

“limited understanding of how important and how simple it can be to genuinely listen to the views of patients and staff and engage them in how to improve services”

was a common theme among the 14 trusts he investigated. He then made an incredibly important point directly relevant to the intentions of amendment 139:

“For example, we know from academic research that there is a strong correlation between the extent to which staff feel engaged and mortality rates.”

The new duties placed upon individuals in amendment 139 seek to better ensure such engagement.

On clause 80 as it stands—there is strong support for the intention behind the clause—amendment 139 would improve it and would better assist that culture change on the shop floor of the NHS that we all want to see. Clause 80 was introduced by the Government in the Lords only in the middle of October last year. The record shows that there was significant agreement among all parties with regard to the intention under the clause, but there was little analysis or debate.

Can the Minister tell us whether the regulations that will be published under this section will be subject to affirmative procedure? Secondly, will he publish the Government’s rationale for setting the threshold? Lord Hunt of Kings Heath raised the issue in the other place. He said:

“Clearly, there is a distinction between severe harm and seriousness, but most patients and their relatives, or anyone involved in anything that could be described as a serious case, would wish the organisation in the health service to be as open as possible about what had happened.”—[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 637.]

Such issues are important and it is essential, whether or not the Government accept our amendments, that any ambiguity is removed from the duties that clause 80 would introduce. We owe that to medical practitioners and patients, although I make the point again that amendment 139 is an attempt in part to help resolve the ambiguity.

The issues are difficult and complex. Will the Minister tell us what consultation with patient groups has been undertaken by the Government with regard to the clause as it stands? Does the Minister intend to change the NHS constitution after developing the duty of candour threshold, as it currently does not place any limit on the level of harm that would be disclosed? It is essential, as Professor Berwick pointed out, that advice and guidance for patients and medical practitioners points in the same direction. We can all accept that.

I am grateful for all the advice and guidance given by the Clerks. This is one of the few Committees I have been involved in, as a Front or Back Bencher, where we have had two Ministers, two Chairs and two Committee Clerks. We have remained on track and made good progress, discussing difficult issues in a genuinely constructive spirit. Anyone observing this Committee over recent weeks will have seen politicians from different parties coming together to address issues of profound national importance, usually pursuing the same aim and often agreeing upon certain principles. I pay tribute to my hon. Friend the shadow Minister for leading on these issues for the Opposition and to the Minister for his constructive engagement and skilful advocacy.

I pay tribute to Members from both sides for their conduct and approach, particularly the right hon. Member for Sutton and Cheam for the work he has undertaken on these issues over many years and again throughout this Committee. The Minister knows my views and those generally of the Opposition about the Bill. We see it as a modest Bill. We do not believe it contains the necessary ambition to truly meet the scale of the care challenge or some of the quality challenges facing our hospitals, but it contains improvements which build upon the work of the previous Labour Government. We welcome that.

Issues like those facing us, thankfully, have the ability to cut through the detritus of what is coming to pass for political debate and political campaigning in our country. If we consider the scale of the challenge facing our country as the care crisis unfolds—by no means a new crisis, which is a point that has been made repeatedly—we know that the solutions to these problems require a lasting political consensus. In an era of increasing disengagement and detachment from politics and the political process, this is more important than ever before.

In a febrile political environment with public attitudes towards political parties oscillating sometimes wildly, we owe it to the public and the people who rely upon our efforts to solve the problems that they face in their lives, to reach political consensus wherever we can, particularly with issues as important as this. In what can be a daunting, terrifying prospect for people accessing the care system, we owe it to those people and their families to provide stability and predictability, to provide as best we can some form of calm in what will be a time of personal anguish and chaos. This stability, this clarity, this predictability is essential in providing individuals with the knowledge they need to make informed decisions. That means retaining control of their lives, as well as achieving better care outcomes. The same principles should apply across part 2 of the Bill.

My hon. Friend the Member for Leicester West in the early stages of this Committee said that it was her view—mine, too, I should add—that the progressive purpose of securing power was to give it away to those people who do not have it. Empowerment is a critical issue and one which should run throughout all aspects of health policy. It is an issue that should concern us all at every stage with regard to every policy consideration. Whether with regard to improving care services, or in developing effective, workable proposals for other aspects of our health system, empowerment is essential, so we welcome in general terms the modest improvements that part 1 seeks to provide and I sincerely hope that we can conduct the debate on part 2 in a similar vein.

It is clear from the Francis report, which I am sure all members have read and if they have not they should, and the reports from Professor Sir Bruce Keogh, Professor Don Berwick and from Professor Hart and my right hon. Friend the Member for Cynon Valley, that an individual duty of candour would improve communication between clinicians and patients. It would help change the culture of the NHS; strengthen new and emerging regulatory systems designed to achieve change; significantly improve the way in which patients’ complaints were assessed and understood; and most importantly, make a genuine and lasting improvement to care standards and quality across our system of healthcare.

To repeat the considered view of Robert Francis, it is not the system itself which will ensure that the patient is put first, day in and day out. I agree with Professor Berwick that the NHS is unique in the world and can do what no other system can. It has the potential to be the safest health care system in the world. Francis recommendation 182, our amendment 139, is an important step towards making the NHS the safest system in the world and surely that is what we all desire.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I shall be brief. I rise to support the amendment. The duty of candour that we propose should be placed on individual health care workers is paramount. As my hon. Friend so eloquently explained, it was one of the key recommendations of the Francis report and we all know the horrors that lay behind that report. Across the House, we have all spoken passionately about ensuring that what happened at Mid Staffs never happens again. We believe very strongly that this is an important way of implementing the recommendations and reassuring patients and the public that this should not happen again.

I cannot remember which Minister mentioned that there were safeguards in other places that fulfil the same purpose, but the point about culture is vital. The amendment is not about criminalising doctors and nurses, but about reinforcing the culture. Legislation can do that, and we have talked before in Committee about this. It sets the tone and culture for organisations and the country as a whole as to what is important. The amendment would help to achieve that.

If Committee members have read the Keogh report, they may note that section 6.1 refers to trusts briefing staff on how they should report during inspections. This would provide concerned clinicians with the opportunity to challenge and say, “I have concerns and want to be able report that.” The amendment would reinforce the right of clinicians to do that.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Lady is right that the spirit of the debate has been consensual. We all aim to deliver a more open culture in the NHS, and that is welcome. Sometimes, however, something that seems to deliver a more open culture has perverse outcomes. That is the point that we are making. An individual duty or rigid definition of things in statute and guidance takes away from real life situations in health care. Something particular that happens one day might well need to be judged through a prism later. In real life situations, bad things happen, although sometimes people do the right thing. We would not want to see the unintended consequence of well meaning medical and health care professionals prosecuted and blamed for not following due process when they have done everything possible not only to deal with an incident, but to put things right later. That is a concern, which is why things are often left to the professional regulators to take a more informed view.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I recognise what the Minister is saying. Labour Members have no intention of doing that. What I am trying to put across—I hope that I am succeeding in some measure—is that setting the tone in the culture is important. We want safety assurance in the culture of an NHS organisation. The amendment is in no way intended to criminalise individuals. Furthermore, there are ways and means to avert the unintended consequences suggested by the Minister. I think it is important to include the amendment in the Bill, which is why the Opposition hope it is accepted.

Sarah Wollaston (Conservative, Totnes)

I want to return to the earlier point about unintended consequences and the extraordinary difficulties faced by clinicians. Of course, everyone in the room and beyond wants to see a culture change so that doctors feel that openness to a discussion of issues is a marker of success and good professional practice. Such problems, however, are deeply rooted in health care.

We only need to go back to the 1990s, for example, and look at the words of Professor Bolsin, the whistleblower in the Bristol heart scandal. He said that the real scandal in Bristol was not that no one knew, but that everyone knew and did nothing about it. The point is that Professor Bolsin raised the matter individually and repeatedly, but the system refused to listen. There was a systematic cover-up. That is why having the statutory duty of candour applying to organisations is where this issue has to lie. Culture comes from the top in such organisations.

The real difficulty with an individual statutory duty of candour is that we will be asking courts to make complex decisions on professional judgments made in the heat of the moment, and those are often better handled by the General Medical Council. The General Medical Council needs to improve its act. Be under no illusion, there is nothing that spooks doctors more than an envelope from the General Medical Council. It is a major sanction to face losing the ability to practise professionally.

We need the GMC to muscle up and be more aggressive in the action it takes against doctors. It needs not only to act against doctors who are behaving in an unprofessional manner, but to make it clear that doctors are behaving unprofessionally if they knowingly look away when a colleague is behaving unprofessionally.

Jamie Reed (Labour, Copeland)

The hon. Lady is making a genuinely telling point. However, did not Robert Francis go out of his way to point out in great detail that the system she describes did not spot the failures that happened at Mid Staffs and that, it could be argued, we still see?

Sarah Wollaston (Conservative, Totnes)

Indeed. We are all aiming for how to get where we want to be with the fewest unintended consequences. I understand that patients expect and deserve all doctors and health professionals to be open and honest with them. However, I honestly believe that we are going to get there with fewer unintended consequences through reform of the way in which the GMC handles it.

Doctors could retreat back into a defensive position if they know that, by raising professional concerns about a colleague, criminal sanctions could be involved if they have not been candid. The difficulty is where to draw the line. Clinical judgments are quite difficult. What genuinely felt like the right decision in the heat of the moment may turn out to be wrong in retrospect. At what point on that scale does the doctor discuss that with the patient? I would like to see all those issues discussed with patients, but at what point would someone be criminally liable for not doing that? Those are very difficult issues and I think they are best dealt with through the GMC and professional guidance rather than through the clunky tool of a statutory individual responsibility. Having worked in clinical practice, I think there would be unintended consequences.

Liz Kendall (Labour, Leicester West)

I am seriously listening to the hon. Lady’s points. Why does she think Francis recommended this measure?

Sarah Wollaston (Conservative, Totnes)

Of course, I have huge respect for the work of Robert Francis. I think we should take forward almost all his points; in fact, the Government are taking forward almost the entire report. Careful consideration was given to this point. The Government’s job is to listen to all the other stakeholders involved.

It may be that, if the culture change we are looking for does not take place through the Bill, we have to move towards that. I think a better route to go down in the first instance is letting the GMC make changes and looking at measures that would genuinely protect whistleblowers. I accept that that might not be strong enough and that we might need to move to a statutory individual duty in future. I just think that, in the short term, we would have unintended consequences and could risk going backwards.

Norman Lamb (Liberal Democrat, North Norfolk)

First, I highlight an injustice. While the shadow Minister, the hon. Member for Leicester West, has been relieved of her duties, I am struggling on.

Hugh Bayley (Labour, York Central)

To paraphrase Amy Winehouse, “Dr Poulter’s day will come.”

Norman Lamb (Liberal Democrat, North Norfolk)

To be honest, Mr Bayley, I am a bit knackered, if that is parliamentary language. I will carry on. I was reflecting on the fact that, bit by bit, aspects of the hon. Member for Copeland’s past life are seeping out and exciting us. We first discovered that he was a benevolent housing officer in a past life. We have now discovered that he twice nearly lost his life and clinicians saved him. I think I speak for everybody on the Government Benches when I say that we are delighted that he is with us, speaking so eloquently and saying some important things.

The Government made the clearest possible commitment to introduce a duty of candour in the Lords. As it stands, clause 80 will place an obligation on the Secretary of State to bring forward a duty of candour as a new requirement for registration with the Care Quality Commission. The amendment seeks to expand on that commitment in two ways: first, it would set a threshold in primary legislation for the duty of candour, requiring health care providers to inform patients if they believe that care has resulted in death or serious injury. Secondly, it would require health care professionals to inform their employers if they suspect that treatment or care had resulted in death or serious injury.

I am sure that all members of the Committee share a desire to have an effective statutory duty of candour. However, I would like to explain why it is not appropriate to place those requirements on the face of the Bill.

There is a broad consensus that increased openness is essential in identifying poor care. That applies equally to health care and social care. I seek clarification from the Opposition on one point. We have been clear that the duty of candour will apply across the whole of health and social care, but the Opposition’s amendment is limited to health care. Is the amendment flawed, or are Labour Members actually arguing that it should be limited to health care?

Liz Kendall (Labour, Leicester West)

The Minister knows that we previously tabled an amendment to place a duty of candour on councils. I am not sure whether that answers his question.

Norman Lamb (Liberal Democrat, North Norfolk)

It does in part, but the duty of candour on councils was not really a duty, because there are no criminal consequences for breaching it. That is what Robert Francis sought to achieve. When he talks about a statutory duty of candour, he talks about a failure to meet the duty, amounting to a criminal offence.

It is important that we take the time to get the details right. Putting the threshold for the duty in regulations, rather than primary legislation, enables us to do that, and it allows flexibility to be exercised in the future. As we announced in “Hard Truths”, we have set up a working group to consider where the threshold for the duty of candour should be set. That expert group is headed by Professor Norman Williams, president of the Royal College of Surgeons, and David Dalton, chief executive of Salford Royal hospital. One of the questions that the group will consider is whether the threshold for the duty of candour to apply should be death and serious injury, or death, serious injury and moderate harm. That important piece of work is under way.

The review is expected to report in March. It would be premature to second-guess the outcome, as the amendment seeks to do by specifying that providers must be candid only in cases of death or serious injury. That would remove the flexibility that regulations allow, which has enabled the current review. My Department will produce regulations that will put in place the duty of candour for consultation in the light of the review’s recommendations, so there will be full input into that. They will be subject to the affirmative resolution, and we aim for them to come into force in October. If a provider does not comply with the new duty of candour, the CQC will be able to take enforcement action against them, including bringing a prosecution. The really important point is that it will be able to prosecute directors who have connived or consented in the failure to meet the duty, subject to a successful prosecution of the provider.

The second effect of the amendment would go further than that and would place a requirement on staff to inform their employers if they suspect that care or treatment has resulted in death or serious injury. I am sure that the whole Committee agrees that openness in reporting is desirable, but that duty is not the right way to achieve it.

I want to make two points. My hon. Friend the Member for Totnes—she has disappeared; no doubt she is on the long journey back to Totnes—spoke eloquently about her experiences and the potential for unintended consequences. I suspect that, with this amendment, there is a danger either of unintended consequences or of no consequences at all. If an Act contains a statement setting out a duty, but no consequence results from breaching that duty—no criminal offence and no other sanction of any sort—that does not do much to change culture. It is more important to determine where the real statutory duty of candour, with a criminal sanction going with it, should apply, to get that right, and to get the threshold for it right. That is why we are undertaking this review with Professor Norman Williams and his colleague, Sir David Dalton—to get it right, and to be clear about who it applies to. Having statements of intent with no force behind them carries a real risk.

There is also a risk in stating that staff have responsibility for reporting to their employer a mistake that has led to death or serious injury, because there could be an unintended consequence. Perhaps that openness should also apply to any mistake that has led to injury. Why limit the responsibility of staff to report problems, mistakes and errors only where there is death or serious injury? The amendment is flawed in that respect, although I am with the shadow Minister in his intent.

The CQC does not have any regulatory role in respect of individual staff. That role is—correctly, in my view—for the professional regulator, as my hon. Friends the Minister and the Member for Totnes made clear. It is important to maintain that distinction.

Professional regulators are working to agree consistent approaches to the reporting of errors and to strengthen the references to candour in professional regulation, making clear a requirement to be open, whether the incident is serious or not. Health professionals will have to be candid with patients. Guidance will make it clear that obstructing colleagues in being candid will be a breach of their professional codes. The professional regulators will also review their guidance to panels, taking decisions on professional misconduct, to ensure that they take proper account of whether professionals have raised concerns properly.

The Government have a firm commitment to openness, in both health and adult social care. The new duty of candour is a key component that will underpin the culture change that we are seeking to put in place, alongside an enhanced professional duty of candour. I have set out the steps that we are taking to do this and sounded a cautionary note about the need to take time to reflect, to get the details of the duty of candour right and to preserve the flexibility to review the threshold in future, to ensure that unintended consequences can be dealt with. I hope that the shadow Minister is reassured and feels able to withdraw the amendment.

Jamie Reed (Labour, Copeland)

I accept that the Government are acting in good faith on this—there are no two ways about that—and I understand what they are trying to achieve. We are all trying to achieve the same end, as we have heard repeatedly.

Before I consider asking the Committee’s leave to withdraw the amendment, I should like to make two points. The Minister has indicated that the guidance will not be ready by Report, but if it is, will it be provided to the Committee, in order to help our further deliberations? If that is not possible, will it be possible for the Committee to receive from the Department, in writing, an update on what stage the guidance has reached, what methodology is being used and whose advice is being sought in its production?

Further, to build on a point made by the hon. Member for Totnes, which I would have made in any event, will the Minister consider a sunset clause for clause 80? We heard from the hon. Lady that it might be that an individual duty of candour is required in the future, if the clause does not achieve its intention—an intention that we all support. Might it be that we could revisit the matter by virtue of a sunset clause in 12 months, or another period that we determine? Whether or not the Government consent to the addition of a sunset clause, it might not be appropriate to do so at this sitting, and we are now out of time for tabling amendments for consideration during Tuesday’s sitting, so it may be that a manuscript amendment is brought forward on Tuesday.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to the hon. Gentleman for those remarks. I have the following points to make. First, my concern about a sunset clause is that it would mean the loss of the statutory duty that we are introducing—the duty would disappear but would not be replaced with anything. My view is that the best way forward is to get it right now. We should be deliberative, and we can use regulation. Regulations can be changed, which achieves the hon. Gentleman’s objective—his concern is that if the clause does not work and so change is necessary, that change can be made. By framing this matter through regulations, we are doing just that. I hope that reassures him.

We will provide an update on our progress with the professional guidance on Report. As I mentioned, the Dalton-Williams report will then be published in March. I hope that helps the hon. Gentleman.

Jamie Reed (Labour, Copeland)

I beg to ask leave to withdraw the amendment.