Clause 81 - Warning notice

Care Bill [Lords] – in a Public Bill Committee am 8:55 am ar 28 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam 8:55, 28 Ionawr 2014

I beg to move amendment 48, in clause 81, page 72, line 34, at end insert—

‘(1A) Regulations must make provision for—

(a) the definition of “significant improvement”, and

(b) the assessment of progress towards the improvements so specified.’.

Photo of Andrew Rosindell Andrew Rosindell Ceidwadwyr, Romford

With this it will be convenient to discuss the following:

Amendment 140, in clause 81, page 73, line 4, at end insert—

‘( ) The Commission must publish the criteria that the trust must satisfy in order to be judged as making a significant improvement.’.

Amendment 141, in clause 81, page 73, line 7, at end insert—

‘( ) Where a warning notice under this section imposes more than one requirement to improve the quality of health care under subsection (2)(e), the Commission must publish the criteria to be satisfied for each requirement.’.

Amendment 157, in clause 89, page 81, line 44, at end add—

‘(10) If a review undertaken by the Commission results in a warning notice being applied under the provisions of section 81, the Commission must publish the criteria the service provider must satisfy in order to be considered as making a significant improvement.’.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

Good morning, Mr Rosindell. I look forward to another couple of sittings today considering the Bill. Clause 81 is all about warning notices that can be issued by the Care Quality Commission, which trigger a process that ultimately could lead to enforcement action being taken by another body. It is that issue of the division of the CQC’s current role as both an inspectorate and an enforcement that I want to explore through the amendments. I want to get some further clarity and an explanation of the rationale for this.

At first glance one might think that the intention behind this change is to enable the CQC to mimic the role of Ofsted. If that is the case it is a misunderstanding of the role of the CQC. Unlike Ofsted, the CQC is a regulator. If one looked at the panoply of powers that are granted to regulators, it would be hard to find many examples where a regulator does not have the necessary competence and powers to enforce as well. In this case, the splitting off of the enforcement responsibilities only applies to health services that are provided directly by the NHS—in other words, foundation trusts and NHS trusts. It does not apply to social care services. It does  not apply to those services that are provided by private health care providers even if they are providing those services to the NHS.

I tabled amendment 48 to find out more about the circumstances in which the CQC may impose a warning notice on a provider. That is particularly important given that this is the start of this journey that will now be triggered towards trust special administration. That is the other aspect of this. The 2009 legislation established the idea of trust special administrators and gave them pretty sweeping powers to deal with issues of financial failure. Up until now that has been the locus of that set of provisions in legislation. It has not been to give trust special administrators the additional duty of enforcing issues of quality and safety. It seems a rather odd conflation of two rather different sets of roles within the trust special administration role.

The Bill splits these roles of inspector and enforcer and, as I understand it, that was not one of the recommendations in the Francis report. It is important that the Government take the opportunity to spell out why they have taken this different approach. There is a risk that the split could lead to some confusion. Under clause 81 the Care Quality Commission will be able to place a warning notice on a provider, although the reasons for it are not defined. The explanatory notes state that the warning notice will have to set out the reasons for it but that is not stated in the Bill. The Bill certainly does not set out, as my amendments seek to do, the criteria that will be used to judge whether the CQC’s concerns about safety are being addressed to meet the threshold of “significant improvement”.

My amendments attempt to provide a mechanism for the Government to give clarity for the CQC and also give clarity when it comes to triggering the trust special administration regime. If improvements are not made, the CQC can go to Monitor for foundation trusts under clause 82, or the Trust Development Authority under clause 83, for trusts that are to be placed in special administration. This process is only for NHS organisations. It does not cover GPs, the private health sector or social care. In those cases the CQC retains its role as an inspectorate and an enforcement body.

I have three points to make about this approach. First, the nature of the quality deficiency and the scale of improvement required are not defined on the face of the Bill. It would be interesting to know whether there is an expectation that regulations would do this. It is not clear that there is a regulation-making power to enable that to happen. This could lead to Monitor or the TDA questioning or even resisting a request and at the very least there being a hiatus or uncertainty whether to act, because they are not necessarily convinced about the quality challenge being sufficiently grave. It could give rise to confusion among NHS organisations, because the rules-based registration requirements in the 2008 Act, which spelled out what is required in safety terms, are being replaced by what is effectively a discretionary system. I can understand why having an element of discretion, especially in matters where there is a need for urgent action, is absolutely necessary. But again, that gives pause for thought whether the TSA route is the way to get urgent action given the necessary time periods that are built into that process.

Secondly, trust special administration was not designed to address quality failures. There is no evidence to justify the view that it would be an effective tool in this  case. The TSA process, although relatively quick in addressing financial failure—for which I think it is appropriate and we will come back to that later— is likely to be too slow to respond to an urgent safety issue. It is also quite disruptive, which in the case of a safety concern should be avoided in such an organisation.

Thirdly, it is not clear why the NHS requires a different safety regime to other regulated services. Will the Minister spell out why there is a difference?

Will the Minister explain why it is necessary to split the roles of inspection and enforcement, but only for the NHS direct provision; set out what steps he is taking to add definition to the warning notice regime, beyond what it says in the explanatory notes; and give serious thought to my amendment? I am sure that there will be technical deficiencies in its drafting, which will make it impossible to be accepted on its own, but I hope that Ministers will give some serious thought to whether leaving open the question of significant improvement—and what standards and criteria should be used to judge that—leaves the whole system open to doubt and confusion. This is an area where we should not be introducing doubt and confusion. I hope the Minister will clarify these matters.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

We are nearly there. On the way in this morning, I saw someone with one of those signs proclaiming, “The end is nigh”. I knew exactly how he felt.

First, may I express a few civilities? May I say how pleased I am to see the hon. Member for Totnes here with her clear injury? I hope she gets well soon. On my six-hour journey yesterday, I was genuinely saddened to learn of the decision of my hon. Friend the Member for Sheffield, Heeley to leave the House at the next election. She has been a tremendous servant of this place and of her constituents and I will always be grateful to her for the guidance, support and help she has given me since I was elected in 2005. How much effect that has had will be a matter for others to judge, but I am genuinely grateful to her and she will be sadly missed.

Clause 81 seeks to make amendments to the powers of the Care Quality Commission in issuing warning notices to NHS trusts and foundation trusts. I thank the right hon. Member for Sutton and Cheam for his remarks and I shall touch on much of what he said in my contribution. I genuinely sympathise with the issues that the right hon. Member for Sutton and Cheam raises in amendment 48. He is, of course, right about Ofsted. We have used the comparison too frequently with regard to Ofsted and the CQC. It has never been accurate or an effective comparison in my view and I wish that, collectively, we could stop using it, not least because my wife is a teacher and currently going through the Ofsted process. While the fundamental principle behind clause 81 will not draw any criticism from the Opposition, as drafted it would significantly benefit from including more detail.

I want to make three main points about the amendments. First, I want to address this idea of “significant improvement”. I worry that this phrase is, by itself, potentially intellectually empty. I hope that the Minister will expand on what the Government mean by it and how it will apply in practice. Do the Government intend to produce guidance on this issue, or is it a judgment to  be made by the Care Quality Commission on a case by case basis? Surely the point of the Committee process and of this Bill is for us to seek to remove ambiguity from the regime.

Secondly, I will look at the proposed duty on the CQC to monitor progress made towards the improvements necessary, which is contained in amendment 48. Thirdly, I want to discuss the practical relationship between the Care Quality Commission and individual trusts, in particular the information the CQC provides to them. I urge all hon. Members to note again the emphasis placed on clear communication by Professors Keogh and Berwick, Robert Francis and Professor Hart.

The notion of “significant improvement” appears in the clause a number of times as the marker of what is expected of the trust in question in relation to the warning notice, and as the standard by which the Care Quality Commission must make a judgment on whether the warning notice has been satisfied. Under subsection (4)(a) and (4)(b), the Care Quality Commission must make a judgment about whether the requirement to which the notice relates has been satisfied—in simple terms, has the trust made significant improvement?

Statistically, this idea is meaningless. As an example, say an imaginary indicator moves from a score of 2% to 3%. That is an improvement of 50% on the original performance, which in anyone’s eyes is significant, but in reality is no real improvement at all—certainly not in the qualitative sense. Amendment 48 would go some way to addressing this, by ensuring that there is a statutory basis for the definition of “significant improvement” in regard to this clause. This is absolutely necessary, in my view, to give the CQC clarity in its work, and to ensure that the trusts in question have the information that they need to make the improvements which are required of them.

After all, everything in this part of the Bill should be geared to allow, encourage and facilitate improvements in care, which would clearly be welcomed by hon. Members on both sides. However the clause at present simply does not extend to allowing this to take place with sufficient clarity. The legal definition of “significant improvement” is badly needed for three reasons. First, it would give the Care Quality Commission a framework on which to build its judgments about what needs to be improved in a particular trust. Secondly, it would defend the Care Quality Commission and the trust involved against differing interpretations of what constitutes significant improvement. It would give clarity to the procedure from the beginning, rather than fostering division created by discrepancies in the judgments of the constituent parties involved in any improvement process.

Thirdly, a clearer definition would give the trust a clearer aspiration to reach, which makes it more realistic to attain. It would cultivate a more constructive dialogue between the service regulator and the service provider and this, in its own way, would save resources as well as expediting the process of making improvements. Crucially, this would be better for patients, by removing ambiguity and ensuring a faster rate of improvement in the quality of their care.

The key to making warning notices as effective as possible is to ensure that the trust is focused on improving the standards of care under their provision. The antithesis of this would be in legislating for a too-loose framework,  which consumes the resources of the CQC and trusts in arguments about semantics and definitions. This would build avoidable ambiguity and unnecessary delay into the failure regime.

The Minister will have the chance to respond to these points shortly. Without wishing to prejudge his remarks, he may suggest that the current clause would build a framework flexible enough for the CQC to mould to make it appropriate for the case in front of it. However, there is nothing in the right hon. Gentleman’s amendment, or those I tabled, that would preclude flexibility.

Secondly, new section 29A(4)(b) is an extremely useful addition to the Bill. Where significant care failings occur, it is right that after imposing requirements on the trust the regulator should be required to monitor the trust’s progress in fulfilling those requirements. It is absolutely essential that the regulator keeps a close eye on the trust to ensure that improvements are being made and, more importantly, maintained. Monitoring will also ensure that the trust has support mechanisms in place to best facilitate speedy improvements. Through this a close relationship will be cultivated, which can be invaluable in these circumstances. It allows better communication and encourages a more candid approach, in turn giving the trust far greater ownership in judging its own performance and meeting the targets it has been set.

I have spoken in some detail so far about the reasoning behind a statutory definition of significant improvement in respect of this clause. In doing so, I have spoken in detail about amendment 48. Members of this Committee will no doubt have noticed that the amendment is drawn from the same ideas and principles as those behind amendment 48. Our amendment differs from the one tabled by the right hon. Member for Sutton and Cheam in that it would place additional duties on the Care Quality Commission to provide clarity. Whereas amendment 48 gives a definition on a national level, our amendment seeks to provide clarity on an individual, case-by-case basis. This prescription is based on both experience and also—I must be honest—the weight of my postbag of late.

In July last year, Professor Sir Bruce Keogh published his report into hospital mortality rates. Although I have mentioned this in previous sessions, I want to take this opportunity to thank Professor Keogh for his work and for the genuinely superb report he published. It has informed many of the amendments we have tabled throughout this section and the next section of the Bill. My local trust was among those investigated by Sir Bruce, and my experience of local conditions—and, indeed, what my local community has gone through since the report was published—is manifest in the form of amendments 140 and 141.

It is not news to anyone on this Committee that, after the publication of the report, 11 of the 14 trusts investigated by Sir Bruce were put into special measures. One of them was my local trust, the North Cumbria University Hospitals NHS Trust. Despite numerous letters and parliamentary questions, I am none the wiser as to what the term “special measures” means in relation to the specific findings set out in Sir Bruce’s report on. It appears to be as ambiguous a term as the current definition of “significant improvement”.

Due to widespread fear that an ongoing trust acquisition process—more on which later, no doubt—and the Keogh review would result in major services being stripped out of the local health economy, I hosted a health summit with local clinicians and others on 30 September last year. The defining message from this summit was that there had been no clear communication between the North Cumbria trust and the Department of Health to determine how the term special measures applied to the trust. Even more damagingly, given the connotations of a trust being placed in special measures and the impact of this on the public’s confidence in local health services, the trust had not yet received any information on how it could leave special measures. The effect of this was to leave clinicians, commissioners, managers and patients in limbo. None of us would want our car to be MOT-ed on such conditions. This is the basis of our amendment. In order for this trust and others like it to effectively tackle the problems they face, they need to know what they must achieve to be judged as providing good quality care.

Clause 81(3) amends the Health and Social Care Act 2008. Under new section 29A(2), the CQC will be required to do four things. First, the CQC must state that it has come to the opinion that the quality of healthcare provided by the trust must improve. Secondly, the CQC must identify the service requiring the improvement. Thirdly, it must justify its reasoning, before finally placing a requirement on the trust to make a significant improvement. Our amendment would add a fifth duty on the CQC, requiring it to set out the criteria or the level to which the trust must perform in order to satisfy the requirement to make a significant improvement.

In areas of prolonged, systemic difficulty—we can all point to those trusts on a map—where care is potentially based on locum cover, in many instances such a move is essential. This proposal would not only constitute a logical extension of what is already required of the commission, but would also provide stability to the trust in question by giving it clear direction and well defined parameters within which to focus its work.

The amendment would not tie the Care Quality Commission to particular criteria, as there is nothing in it that would prejudice the CQC’s applying further warning notices. Having received a response from the Minister to a parliamentary question on the definition of special measures, I understand that there is a broad national definition. That national application of language is welcome and clearly has a place in the context of the clause, which is why the right hon. Member for Sutton and Cheam can count on our support for his amendment, but that national definition means little in a local setting, which is where any improvements will be made and maintained. The extent to which a service must be improved needs to be enumerated clearly, so that the trust can plan and attribute adequate and sufficient resources to ensure that poor services are improved swiftly.

Photo of Andrew Griffiths Andrew Griffiths Ceidwadwyr, Burton 9:15, 28 Ionawr 2014

I understand the hon. Gentleman’s point about the need for clarity, but my local hospital, Queen’s hospital, is also a Keogh hospital—it is in special measures. It is clear reading the report what Sir Bruce wants my hospital to do to meet the standards required. Why does the hon. Gentleman think that is not clear enough?

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I simply turn the question around: is there anything in that report that places a statutory duty on the CQC or the trust to achieve the ambitions set out in Sir Bruce’s recommendations? The answer is that it does not. I believe I seek the same end as the hon. Gentleman: clearer, faster, better ways for our hospitals, for which we both campaign, to get out of special measures. The point of that is to improve patient care more rapidly as well.

I was pointing out that the right hon. Member for Sutton and Cheam can count on our support for his amendment. The CQC needs to give greater clarity to trusts under its inspection regime. The clause puts a duty on the CQC to give notice to the trust that it must improve, and we welcome that, but the current wording puts no requirement on the regulator to explain what level of service the trust must reach in order for the warning notice criteria to be satisfied. To do so would surely make the task of improving patient care swifter. In short, we seek a quantitative assurance in regard to warning notices.

Our position does not contradict the essence of the clause or the Government’s intention and purpose. In fact, it would do the opposite, by strengthening the principles of warning notices and guiding the CQC to execute its duties in a more efficient manner that will ultimately benefit patients. It cannot be the role of the regulator simply to highlight a problem and then walk away; nor is it the role of the regulator to micro-manage the trust to make improvements. There is an equilibrium to be achieved, and we believe our amendment would go a long way to reach that by imposing a duty on the CQC that would deliver clearer communication between the regulator and the trust.

We all recognise that, whatever the reasons, there is a febrile environment around health policy at the moment. Trusts have to operate and clinicians work in that environment. We must guard against trusts believing that they are being set up to fail; that serves nobody’s interests.

My detailed knowledge of regulation and regulatory practice stems from my background in the nuclear industry, which is probably the most regulated industry in the world. Let us bear in mind the significant risks associated with regulatory failures there. The model of regulation used by the Government in that industry is entirely iterative: for obvious reasons, the regulator does not wait for a nuclear operator to fail. It has been through that experience and process and clearly found the shortcomings in such an approach, so it now works on the basis of no surprises. That is clearly an intelligent and effective way to work. It adopts an iterative process and works on a regular basis with the bodies it seeks to regulate.

The application of a warning notice can be effective only if it is executed on two fundamental points. First, as I have noted previously, it is essential that the warning notices are used and applied as a tool to improve care, not simply to place a trust in the stocks in the town square. Secondly, any warning notice should act as a de facto contract between the regulator and the regulated service provider, by which I mean that the imposition of a warning notice should create a partnership geared towards ensuring co-operation that will ultimately improve the outcome of the process for the benefit of patients, clinicians and the local community the trust serves. By  giving clarity of purpose to the body that is required to improve services, in whatever respect that may be, the trust will be well equipped to tackle problems efficiently. In its unamended form, the clause only gives the service provider an unclear view of what is needed. Amendments 140 and 141 would require the Care Quality Commission to empower the trust by giving more information, more direction and much greater clarity.

Given that the amendments are a step forward in removing ambiguity, I hope that the right hon. Member for Sutton and Cheam will test the will of the Committee on the lead amendment. If he does, he will do so in the knowledge that he has the support of Opposition Members. As I mentioned, I believe that our amendment goes further than the right hon. Gentleman’s, so when the time comes I might test the will of the Committee.

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

It is a pleasure to serve under your chairmanship, Mr Rosindell. I echo the comments of the hon. Member for Copeland about the hon. Member for Sheffield, Heeley, for whom I have a lot of time. She has been a diligent servant of her constituents and has contributed at a high level in this place. Her valuable contributions will be missed across the House, and I am sure we would all like to thank her for her service to the House, the country and her constituents.

Before speaking specifically to the amendments, I hope the Committee will find it helpful if I reflect briefly on the background to clauses 81 to 84. We are all painfully aware of the report into the failings at the Mid Staffordshire NHS Foundation Trust, in which Robert Francis set out how regulators, commissioners, professional bodies and the Department of Health all failed to act together in the interests of patients and high-quality, compassionate care. It was a humbling report, and last year was a humbling year for the NHS and all of us who work in the NHS and believe in our health service. That is why we need to act to make sure that, as best we can, we prevent the terrible failings that occurred at Mid Staffordshire from happening again. That is why in the Bill we are providing for a single failure regime, which will ensure as great an emphasis on quality of care as there is on prudent and sustainable financial management, and greater clarity of the roles of the regulators. The Care Quality Commission will focus on assessing and reporting on quality and quality of care, and Monitor and the NHS Trust Development Authority will be responsible for using their enforcement powers to ensure that improvement is made. That will provide a simple, flexible process for identifying and tackling failures of quality, governance and finance at NHS trusts and foundation trusts.

Clause 81 provides a legislative basis for the CQC to identify problems and require improvement within a specified period. It enables the CQC to issue a new type of warning notice to NHS trusts and foundation trusts, if the quality of services they provide requires significant improvement. In future, the CQC will focus on performance assessments and compliance with the new fundamental standards being developed in the wake of the Francis inquiry. The draft fundamental standards and accompanying regulations were published for consultation last week, and in their final form will be set out in regulations and in CQC guidance. The Bill will ensure that the CQC has the flexibility it needs to require  necessary action in any circumstance, whether a breach of fundamental standards or any other undesirable practice identified by the new chief inspector of hospitals is detrimental to patient care.

Amendment 48, tabled by my right hon. Friend the Member for Sutton and Cheam, would require regulations to set out the detail of what “significant improvement” entails and how the CQC will assess progress in making that improvement. I hope to reassure him that we can avoid the doubt and confusion in the existing framework with the provisions of these clauses. I agree with him that that is important. That is why clause 81(5) will amend the Health and Social Care Act 2008 to require the CQC to publish guidance to detail their approach to issuing the new warning notices. The CQC’s existing guidance on warning notices will be revised in the light of the Bill to include the CQC’s interpretation of when significant improvement would be required. In addition, the CQC, Monitor and the NHS Trust Development Authority will publish further joint guidance on how they will work together to address risks to quality and bring together financial performance and quality in the same judgment, where appropriate. This will set out how the CQC will assess progress and work with Monitor and the TDA to ensure action is taken.

Defining the meaning of “significant improvement” in regulations, as amendment 48 would require, is, I hope my right hon. Friend will agree after I have further reassured him, a rigid and inflexible approach that could prevent the CQC from acting where it needs to do so in the interests of patients. It is important that the CQC’s judgments have credibility. That is why it should be for the chief inspector of hospitals, Professor Sir Mike Richards, who commands widespread respect in the health service and across this Committee, I am sure, to determine the most appropriate interpretation of significant improvement and to detail this in statutory guidance. We must remember the assessments are clinically led. It is not for Whitehall to tie the hands of clinicians in assessing the quality of care.

My right hon. Friend also asked about NHS bodies other than trusts and foundation trusts and about social care and the independent sector. He will be aware that all providers of regulated health and adult social care services must be registered with the CQC. The CQC already has a range of enforcement powers, including issuing warning notices, prosecuting breaches of standards, and suspending or removing registration of providers. Those powers work well in most of the sector, but they are less effective for large acute trusts, as the Francis inquiry identified, and that is why we need the changes. Importantly, issues of financial sustainability and quality of care are brought together by the clauses. It is no longer appropriate to see those in isolation.

Amendments 140, 141 and 157 deal with the information to be included in the new warning notice, including where a warning notice is issued following a performance assessment. The CQC would be required to publish criteria that an individual trust was required to satisfy in each case. The content of the new notice is set out in clause 81, which will require the CQC to specify that significant improvement is required, the services covered by the notice, the CQC’s reasons for requiring improvement, and the time in which the necessary improvements are  to be made. The problems facing individual trusts in the areas where they need to take action will therefore need to be made entirely clear by the CQC in an open and transparent way.

Photo of Debbie Abrahams Debbie Abrahams Llafur, Oldham East and Saddleworth

Could the Minister clarify the thinking on separating out the quality and financial aspects of any notices given?

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

The amendments would potentially make the job of the CQC, Monitor and the TDA more difficult. We want to bring approaches to quality of care and sustainability into a single failure regime. I think we would all agree, following the Francis report, that it is inappropriate to look at a trust purely through the prism of financial sustainability; as important, if not more, is that quality of care is the driver for rapid action. The clauses set out mechanisms by which the Care Quality Commission, if it has concerns about a breach of fundamental standards of care or other serious concerns about care failings at a trust, can act promptly and effectively. They also bring together the role of the TDA and Monitor as regulators to ensure that they work with trusts and foundation trusts and that trusts work with local commissioners to respond rapidly to the concerns raised by the CQC, and then further inspections can take place as appropriate. The aim is to bring together regulators that previously worked in a disparate manner, so that they have a greater focus on the quality of care, which I believe we all support.

Photo of Grahame Morris Grahame Morris Llafur, Easington

Can the Minister explain why he opposes the idea of making a statement to Parliament? He has indicated that an individual trust could be faced with a TSA on the grounds of financial pressures and clinical outcomes, but also the impact on neighbouring trusts. Why is he opposing the Opposition amendment to make a statement to Parliament, so that Members representing neighbouring trusts could scrutinise that decision?

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health 9:30, 28 Ionawr 2014

The hon. Gentleman may inadvertently be conflating clause 81 and clause 118, which deals with the process for trust special administration, which we will deal with later. It is important. I am sure we have all noticed that in the past the CQC has consistently raised concerns about quality of care at trusts, but it has sometimes taken many years for trusts to respond adequately to those concerns. This part of the Bill emphasises that quality of care, patient safety and preventing dangerous care and dangerous practice are so important that rapid action needs to be taken where appropriate. That is why we have a care quality regulator to take that action and ensure that where rapid action needs to be taken to protect patients, Monitor and the TDA comply with that approach.

We should also be clear that primary responsibility for addressing the problems facing an individual trust must remain with that trust. As I outlined in my response to the hon. Member for Oldham East and Saddleworth, it is not for the CQC simply to dictate solutions, but these amendments would require it to get dangerously close to that by requiring it to set prescriptive criteria  for the trust to meet. That may not be the intention behind the amendments, but they run the risk of centralising responsibility for quality and deterring trusts from finding the most appropriate solution for local circumstances. I hope hon. Members accept that the amendments potentially create a tick-box mentality—the very mentality we are trying to move away from in the wake of the Francis inquiry. We need a qualitative clinical judgment to be involved in the CQC assessment. It is not for Whitehall to dictate a one-size-fits-all approach to inspections.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I have sympathy with the aim and direction of the clause, but we are seeking the ability for local clinicians to work with CQC inspectors at the earliest possible opportunity to establish what kinds of qualitative and even quantitative improvements they need to make. It is not a tick-box mentality, which he rightly warns against, but a tailored prescription for achieving faster local levels of improvement.

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

I accept the spirit in which that intervention was made. It is very clear, though, that the requirements set out here are initially for the CQC. If it is concerned about a breach in fundamental standards and it recognises that significant improvement in the quality of care is required, or there are other concerns, perhaps beyond fundamental standards—perhaps in poor clinical governance of a trust—such that significant improvements need to made, then a trust or a foundation trust will be required under the warning notice to make significant improvements. These will be labelled against specific failings in the quality of care, which will be set out in that warning notice.

The CQC will then reinspect at the end of a period after that warning notice has been issued and significant improvements have been detailed. It will be for commissioners and the trust to work together with the regulator, be that the TDA or Monitor, to ensure that appropriate action is taken. The CQC will then reinspect against the area set out in the warning notice so that there will be clarity for the trust. This also allows, very importantly, for the discretion of the chief inspector of hospitals or his team to make sure that this does not become a tick-box exercise.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

The Minister has just referred to the chief inspector and the discretion he will have. The Bill does not remove from the Care Quality Commission its enforcement power in, for example, closing a ward. It does cast some doubt as to whether that route would generally still be available to a chief inspector should he think the matter warranted that level of early, urgent intervention. Will the Minister tell us, given that that power will remain in statute, whether it is still a power that a chief inspector can use, without reference to this route through to the trust special administration?

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

I can certainly reassure my hon. Friend that the powers of the CQC remain, in that the CQC has other powers to issue notices and raise concerns over the quality of care at a trust or a foundation trust. These measures will allow the identification of where significant improvements in the quality of care are needed due to breaches in the fundamental standards of care. If there are concerns that the quality of patient care is dangerously poor or that there are significant  failings in care, a warning notice will be issued, which will allow a more rapid approach to be taken. The CQC can then re-inspect to ensure that local commissioners work with the trust, the board, the TDA and Monitor, and put in place the right measures to address the failings. In my view, that is a proportionate and appropriate means of dealing with failings of care. Of course, the CQC has other mechanisms for dealing with other issues, which may be appropriate for other providers. If it would help my right hon. Friend, I am happy to write to him with the details of those mechanisms.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

I am grateful for that offer. It would be helpful to understand how the new regime that the Bill will put in place will fit with the old regime. In that letter, perhaps the Minister can give examples of circumstances in which the power to close a ward could be used without reference to the new arrangements in the Bill.

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

I am happy to write to my right hon. Friend to give him that assurance, and I hope he is broadly reassured by what I have said today. It is clear from our discussion that this is a complex area. We all want to ensure that high-quality care is delivered and that providers are held to account when there are failures in care. I am happy to write to my right hon. Friend to reassure him about the issues he raised about independent social care. I am pleased that he is broadly happy with what I have said today, and I hope that my further reassurance will be helpful.

These clauses are about ensuring that we can tackle quality failures in trusts. We have listened to the concerns raised in the Francis inquiry about serious failures in care in trusts and foundation trusts. We must ensure that we have a more rapid process for protecting patients against failures in care. We are taking a proportionate approach and ensuring that we have a framework that allows proportionate clinical judgment on the ground. We must have clinical leadership and inspections to ensure that trusts are held to account and that rapid action can be taken in the best interests of patients. For those reasons, I urge the Members to consider withdrawing their amendments.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

I am grateful to the Minister for his reply and for his offer of a clarificatory letter. I agree that our goal is to avoid terrible failures in safety and quality, but I still have doubts about whether the Bill will create a single failure regime. Monitor will have the role of determining whether there are financial failures, and the Care Quality Commission will still have the role of determining whether there are quality failures; it is merely that they will both use the same club to enforce their will. The issue is whether the club will be appropriate in all circumstances.

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

If my right hon. Friend examines the clauses in detail, he will see that although Monitor is a financial regulator of trusts, the Bill acknowledges the findings of the Francis report, which highlighted that regulation needs to be brought into a single failure regime. Monitor will no longer only have a role in financial regulation; the clauses will require it to ensure that quality failures are addressed.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

That is helpful. I can see an evolution taking place. We may not reach the end point of that evolution, but it is interesting. I am reassured about how clause 81(5) will allow the commission to issue guidance. That is useful. I am also reassured about the eminent gentleman who currently occupies the role of the chief inspector. The Minister is absolutely right that we can have considerable confidence about that. We are, however, designing a system that will remain when he is no longer the chief inspector; it is designed to be permanent and effective, whoever holds that role. I hold Sir Mike Richards in high regard, but he will not always be in that role and we need to keep that in mind when testing these arrangements.

My final point to the Minister is that we are making a number of very good changes to the Care Quality Commission’s role in this legislation, such as the new chief inspectors, the new inspection regime and the fundamental standards—all wise, necessary changes—and the CQC already has an enforcement power. That, however, poses the question why the opportunity has not been taken to allow the changes to bed down before adding anything else by way of enforcement.

I am encouraged by what the Minister said, particularly with regards to the correspondence: I look forward to seeing that letter. The amendment was designed to probe the Government’s intention, put some points to the Minister and listen to what he had to say. I do not intend to press the amendment but others may wish to press theirs.

On the procedure, Mr Rosindell, at an earlier sitting I withdrew my amendment and that seemed to cause some confusion as to whether other amendments could then be pressed. May I seek your guidance? Do I withdraw my amendment new, or should I keep it live? If I withdraw my amendment, can another be moved in its stead?

Photo of Andrew Rosindell Andrew Rosindell Ceidwadwyr, Romford

The advice is that you can withdraw yours now.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

Excellent. On that basis, I beg to ask leave to withdraw the amendment.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I look forward to receiving the letter that the Minister will provide to the right hon. Gentleman, as does the rest of the Committee.

Amendment, by leave, withdrawn.

Clause 81 ordered to stand part of the Bill.