Clause 83 - Trust Special Administration: appointment of administrator

Care Bill [Lords] – in a Public Bill Committee am 9:45 am ar 28 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Jamie Reed Jamie Reed Shadow Minister (Health) 9:45, 28 Ionawr 2014

I beg to move amendment 146, in clause 83, page 74, line 32, at end insert—

‘( ) Relevant Local Authorities.’.

My comments will not focus on the merits or otherwise of clause 118, which was introduced during the Bill’s passage through the other place. I am sure that many Members have been vexed by that clause, and I am certain that it will require wider scrutiny on Report. I will make that point again when we get to that clause.

Amendment 146 would rectify what I can only assume was an oversight by the Government. It seems that the legislative intention does not match the aspiration contained in the language in the Bill.

I shall briefly explain what the amendment would achieve before explaining why it is essential that it is incorporated in the Bill. It would amend clause 83(4), which lists with whom the CQC must consult before the appointment of a trust special administrator.

Members will have noticed that explanatory notes on this measure state:

“Before requiring Monitor to make an order for the appointment of the administrator, the CQC will need to consult first the Secretary of State and Monitor, and then the foundation trust, the NHS Commissioning Board and any other person, for example a clinical commissioning group, to which the foundation trust provides services”.

We tabled the amendment so that the Care Quality Commission would be required to consult local authorities when appointing a trust special administrator. Such an approach is essential to promote a collegiate attitude towards the provision of services in any specified local health economy, as well as to aid the integration of services in commissioning and to smooth the progress.

The trust special administration process, as it currently stands—before the Bill significantly expands the role—is concerned with the provision and quality of health care services at an individual trust. Building on that, the Government have been eager to adopt the language used by my right hon. Friend the shadow Secretary of State for Health in his call for more integration between health service providers, commissioners and local authorities. It is clear from our previous debates that there is general agreement that better integration is a key cornerstone in improving health outcomes for patients.

With that in mind, it is crucial that local authorities are involved at all levels of commissioning and when reconfigurations are necessary. No one on this side of the Committee will deny that difficult decisions have to be taken about services, but we will always insist that  they are taken with the interests of the patients at their core. Surely that is the aim of every single hon. Member. Fundamentally, decisions must always be clinically driven.

To provide effective commissioning, local authorities must be involved, and they must also be involved in the process of appointing a trust special administrator. As the health and well-being of individual patients is the driving principle underpinning health service provision, effective consultation must sit at the heart of the process, which involves consulting all relevant partners. That is clearly a must with regard to ensuring the improvement of care.

The amendment was drafted with all that in mind. The wording was chosen to ensure that, in two-tier systems, both councils would be involved. Our amendment would put a statutory duty on the Care Quality Commission to consult local authorities when it seeks to instruct Monitor to appoint a trust special administrator within the locality of that authority. The Government may well contend that nothing in clause 83 would preclude consultation with local authorities and that subsection (4) allows that, given that it states that the commission must consult

“any other person to which the trust provides services under this Act and which the Commission considers it appropriate to consult.”

That is all well and good, but it does not go far enough to ensure that integrated practices are pursued, maintained and enforced.

I will be extremely grateful if the Minister sets out in some detail the safeguards that will be in place to ensure that those who should be consulted are consulted, even if the Care Quality Commission deems it unnecessary to do. I also ask him to go into detail about why local authorities have not been included on the list of statutory consultees. It seems a glaring omission, especially in light of the Lewisham judgment.

I do not accept that the Government have already covered this point by giving discretion to the Care Quality Commission because of the lack of clarity implicit in the clause. Even the explanatory notes make it plain that local authorities are not included. The example cited to demonstrate the CQC’s flexibility is inclusion for the clinical commissioning group, which is obviously critical, but I am worried by the lack of reference to councils, which reflects an emerging theme of our discussions to date. The Government’s approach to aspects of the Bill shows the real tensions between the principles of localism and power at the centre.

There is nothing destructive or complicated about including local authorities within the clause. The amendment would simply extend the statutory duty to consult to them, rather than leaving consultation to the judgment of the Care Quality Commission. I urge the Government to learn the lessons of the Lewisham judgment. I am sure the Minister will agree that it is imperative that local decision makers are involved at all stages of the appointment of a TSA. We want further clarification from the Government about how the CQC should judge who is a relevant consultee, and we want to know how the Government drew the line at the list of consultees in the Bill, from which local authorities have been excluded.

Although I would be absolutely delighted if the Government were to accept the reasoning behind the amendment and to support it, what is really essential is that they undertake to produce guidance on who should  be consulted when the CQC considers instructing Monitor on the appointment of a trust special administrator. They should also ensure that it is clear in the guidance that the Care Quality Commission must fully consult relevant local authorities. If the Minister can satisfy that request, I will gladly consider withdrawing the amendment.

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

Members may find it helpful if I briefly outline the stages of the single failure regime and the consultation processes that may ultimately culminate in applying the trust special administration regime. We briefly discussed that when we were dealing with clause 82.

The failure regime will give regulators clearer roles when tackling failure. The CQC will focus on exposing problems and requiring action, while Monitor and the NHS Trust Development Authority will focus on intervening, if a poor-performing provider is unable to resolve the situation, working with local commissioners. The CQC will be able to highlight problems and require improvement at NHS trusts and foundation trusts through a new warning notice that will require the trust to improve within a specified time.

Primary responsibility for ensuring that there is a comprehensive response to the notice will remain with the individual trust, working with its commissioners. However, if the trust is incapable of responding, Monitor or the TDA may use their intervention powers to secure the necessary improvements. The importance of regulators’ ability to take rapid and decisive action on quality failures was highlighted by the Francis report, so there is no requirement for consultation or a right of appeal in response to a CQC warning notice, or intervention by Monitor or the TDA.

At the end of the period specified in the notice, the CQC will be required to review whether the necessary improvement has been made. If that is not the case, the CQC must consider what further action is required, including trust special administration which, as hon. Members will be aware, was introduced by the previous Government through the Health Act 2009, which was subsequently amended by the Health and Social Care Act 2012.

Under clause 83, Monitor will be able to put a failed foundation trust into trust special administration if it becomes clinically unsustainable for reasons of patient safety, whereas it can currently do so only in the case of financial insolvency. NHS trusts can already be put into special administration in the interests of the health service, so the Bill brings foundation trusts into line with NHS trusts for the process of triggering special administration as a result of a failure in care quality. The clause also allows the CQC to direct Monitor to place a foundation trust into trust special administration on quality grounds if that is necessary.

Before placing a foundation trust into TSA, the CQC must consult the Secretary of State, Monitor, NHS England and those that commission services from the foundation trust that the CQC considers it appropriate to consult. Such bodies could include local authorities that commission health services from the foundation trust. This appropriateness test, rather than a mandatory requirement to consult, is proportionate and allows for  rapid action when required properly to address serious failures in the quality of health care and patient services. We have already committed in the other place to make equivalent provisions for NHS trusts by updating the directions to the TDA that came into force on 1 April 2013 when this clause of the Bill is commenced.

The decision to appoint a trust special administrator at a foundation trust is not a matter for public consultation. The CQC will be able to compel Monitor to initiate trust special administration only if a foundation trust has experienced a serious failure of quality, when it will be important to minimise the scope for delay. That is why the requirement to consult at that stage is confined to the Secretary of State and those regulators and commissioners that have both a significant stake in the foundation trust and a statutory role in the TSA process.

Amendment 146 would impose a blanket requirement for the CQC to consult “relevant local authorities” before it could compel Monitor to initiate TSA for a foundation trust, which could lead to unnecessary delays. I am sure that we are all concerned about protecting patients and safeguarding high-quality patient care, in recognition of the challenges and difficulties highlighted by the Francis report. That is why it is important that we minimise delay in the process.

I do, however, agree with the hon. Gentleman that local authorities have an interest in the future of their local hospital. Once appointed, the trust special administrator is under a legal duty to undertake a consultation on its draft recommendations about the future of the failing foundation trust and its services, which includes a duty to consult the public so that anyone with an interest may give their views. The Bill extends the time the administrator has to produce its report and consult locally, and we will come back to these matters when we debate clause 118.

Local authorities will therefore, at the appropriate point, have an opportunity to be involved in developing proposals for the future configuration of foundation trust services in their area. To return to the duties on the CQC to consult before requiring Monitor to appoint a TSA, the Bill already provides for the CQC to consult commissioners when appropriate, and those commissioners could include local authorities that commission health services from the local foundation trust. Taken with the requirements for the TSA to consult on its draft recommendations, that means that amendment 146 is unnecessary, as the views of the local authority will be sought at the appropriate point and taken into account by the TSA in either instance, should the trust special administration process be triggered. I hope the hon. Gentleman is sufficiently reassured that he will withdraw the amendment.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I have listened with interest to the Minister, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health) 10:00, 28 Ionawr 2014

I beg to move amendment 142, in clause 83, page 75, line 3, at end insert—

‘( ) Upon the appointment of the Trust Special Administrator in line with the provisions set out in this section, the Secretary of State must prepare and lay before each House of Parliament a report which sets out the requirement for the appointment, the  criteria for the role and the extent to which the appointment satisfies those criteria.’.

Thanks to a delightful quirk of the Committee system, I had to speak to amendment 146 for the best part of 10 minutes, and now rise to discuss amendment 142, which would add to clause 83.

The amendment would place a duty on the Secretary of State to make a statement to the House of Commons in the circumstances described. There are two main reasons behind it, concerning the responsibility of any Secretary of State regarding the provisions of the clause. First, it would make public the role of the Secretary of State in the consultation process—something I spoke about earlier. Secondly, it would give hon. Members the chance to scrutinise the appointment of the TSA and provide an arena and opportunity to address any genuine grievances and provide relevant reassurances. The earlier concerns are addressed, the quicker the process will be and the more robust the recommendations of the TSA.

We all have experience of how this place operates. None of us, if we are honest, likes being governed by written ministerial statement. Nobody looks good sneaking out a WMS on a one-line Whip on a day the House rises. That only invites urgent questions and hostility. Every Government, of every colour, are guilty of that practice.

With regard to the role of the Secretary of State in the consultation process, unlike local authorities, the Secretary of State is listed under subsection (4) as a statutory consultee. Indeed, the Care Quality Commission cannot seek to consult even with the trust in question before the Secretary of State has been involved. There is a clear implication that the Secretary of State has a key role. With the CQC legally obliged to approach the Secretary of State with its intention to instruct Monitor to appoint a TSA, it could be thought that the Secretary of State had a de facto veto on any appointment of a TSA.

It is the word “consult” that leads to that conclusion, as it suggests an exchange of views on the validity of the action being taken by the CQC. The clause could quite easily use the word “inform” rather than “consult”, so that the Secretary of State would simply be notified of the intention to appoint a TSA. The use of the word “consult” clearly suggests a degree of influence. I do not think that would strike a chord—at least not in public, with the Secretary of State’s hands-off approach—nor would it chime with the principle behind clause 88, which we will discuss later. Is the Minister intellectually able to marry two contradictory principles? Given that the CQC will be legally obliged to consult the Health Secretary before it approaches other bodies, including the trust in question and NHS England, are we right to assume that the Secretary of State has more influence over the process than has been implied so far? That would have wide-ranging consequences in the context of clause 118, which we will discuss later.

As the Secretary of State is involved on some level in the consultation process on appointing the TSA, he or she will have some influence on the detail of such an appointment. Therefore, it is right that the Secretary of State should justify to Parliament the detail of the appointment, the reasoning behind it and the extent to which the appointment will satisfy those reasons. There should be an oral statement to the House in which the Secretary of State sits, accompanied by a written statement.

I think that we would all concede that the appointment of a TSA is now etched in the public consciousness as a bad omen, due to its recent haphazard application. We ought to understand the profound effect that the Lewisham case has had on public opinion, with regard to the introduction of the TSA and the use of TSA powers. The negative connotations associated with that mean that there will be great anxiety in communities—we all recognise that—and, in such times, members of the public approach their MPs, who will be compelled to act. Given that the Secretary of State will have the opportunity to discuss the appointment with the regulator, it is only right—and constitutionally just—that elected Members can relay their constituents’ queries to the Health Secretary and that he or she responds.

We recently saw an unsatisfactory example of major service changes affecting Salford Royal hospital in the constituency of my right hon. Friend the Member for Salford and Eccles (Hazel Blears). She had not been informed by the Department of those changes and there was a statement or urgent question relating to that when she was half way from London to Manchester. We want to avoid that situation.

Given the significance of the appointment of a trust special administrator, it is essential that Parliament can scrutinise that decision. The amendment would not just apply a duty to the Secretary of State, but give Parliament an opportunity to fulfil a key duty: performing effective scrutiny. That can only benefit the Secretary of State, the affected trust, the community in which that trust is situated, neighbouring communities and the process and regime in general.

Finally, the appointment of a trust special administrator is extremely significant in a local health economy; as such, it requires serious consideration and effective scrutiny. Requiring the Secretary of State to relay the decisions and the reasons behind them to Parliament would ensure that the decision to appoint was understood to have due significance and would indicate the magnitude of the decision.

I have been particularly brief in my remarks, but only because I hope that the Minister can reassure me on some of the issues I have raised. Will he clarify the Secretary of State’s role in the appointment of a trust special administrator? Will he also assure us that the Government will ensure that the decision to appoint will be properly communicated to Parliament and that hon. Members will have sufficient opportunity to scrutinise the decision? If he can give such assurances, there may be no reason to test the will of the Committee. I sincerely hope that he will give those reassurances in his reply and not rely on a written ministerial statement on a one-line Whip on the rise of the House.

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

I agree entirely with the hon. Gentleman and the Opposition that the appointment of a trust special administrator should be subject to a report laid before Parliament, as proposed in the amendment. The clause enables Monitor to make an order to authorise the appointment of a trust special administrator where it is satisfied that there is a serious failure by an NHS foundation trust to provide health care services of sufficient quality and that special administration is an appropriate solution. It also enables the CQC to require Monitor to make such an order when it forms that view.

If the NHS Trust Development Authority considers it to be in the interests of the health service, it can already advise the Secretary of State to place an NHS trust that it considers to be clinically and/or financially unsustainable into special administration. Provision for the CQC to trigger similar action in respect of NHS trusts will be made through directions to the TDA.

The amendment would require the Secretary of State to lay a report before Parliament following the appointment of a TSA in a foundation trust. Such decisions are taken by Monitor, which is already required to lay a report before Parliament setting out its reasons for the appointment under section 65D of the National Health Service Act 2006, which was laid by the previous Government. An equivalent requirement under section 65B of the 2006 Act applies to the Secretary of State when a TSA is appointed in respect of an NHS trust. Those requirements will apply, whatever the grounds for appointment of a TSA.

The arrangements for parliamentary oversight of TSA appointments remain as robust as those originally enacted in 2006 by the previous Government. The amendment is therefore unnecessary, as there is already a requirement for a report to be laid before Parliament when a TSA is appointed. I hope that that is sufficient reassurance for the hon. Gentleman to withdraw his amendment.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

Those were significant assurances and I will need to consider the detail in the 2006 Act. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 83 ordered to stand part of the Bill.

Clauses 84 and 85 ordered to stand part of the Bill.