New Clause 1 - Rights of appeal

Care Bill [Lords] – in a Public Bill Committee am 8:55 am ar 4 Chwefror 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

‘(1) In section 26 of the Health and Social Care Act 2008 (registration procedure: notice of proposals), after subsection (4) insert—

“(4A) Where a proposal under subsection (4) names an individual and specifies action that the Commission would require the registered person to take in relation to that individual, the Commission must give that individual notice in writing of the proposal.”

(2) In section 28 of that Act (notice of decisions), in subsection (6), for “subsection (7)” substitute “subsections (7) to (9)”.

(3) In that section, after subsection (7) insert—

“(8) But in a case where notice of the proposal has been given to an individual under section 26(4A) subsection (7) does not apply unless, by the time the Commission receives the applicant’s notification, it has received notification from the individual that he or she does not intend to appeal.

(9) And if the Commission receives notification from the individual after it receives the applicant’s notification and before the end of the period mentioned in subsection (6)(a), the decision is to take effect when the Commission receives the individual’s notification.”’.—(Norman Lamb.)

Brought up, and read the First time.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I beg to move, That the clause be read a Second time.

It is so good to be back for the final time. I do not know whether the shadow Minister saw the notice again as he came into the office this morning, “The end is nigh”, but it certainly is for this Committee’s deliberations.

People at the head of an organisation set the tone for the quality of care provided. Events at Mid Staffordshire hospital and Winterbourne View starkly illustrated that some people in charge of organisations delivering health and social care services did not pay enough attention to the safety and quality of care that the organisation was providing. I think we all agree that this is completely unacceptable, whoever the provider is. The Government have been clear that there needs to be a sharper focus on  corporate accountability for failures in care—who let it happen, how were the conditions created that enabled it to happen and how can we hold individuals and boards to account for that failure? We have made it clear that we will introduce a new fit and proper person test for directors of providers registered with the Care Quality Commission. That will allow the CQC to take action against a registered provider that would result in the removal of an individual director.

The Department will shortly consult on a new requirement for registration with the CQC. It will specify that directors of providers registered with the CQC will need to be fit and proper persons to fulfil their role within a registered provider. That new requirement will fill a gap in the current arrangements for accountability to the CQC, and will apply across the board with all registered providers, public, private or third sector. It is our intention that this new regulation will come into force in October alongside the new fundamental standards. The key responsibility for the fitness of directors will continue to lie with providers themselves, but the new requirement will enable the CQC to form its own judgment about the fitness of directors. It will do this when providers apply to the CQC for registration, refusing to register those providers that cannot satisfy the CQC of the fitness of their directors.

In the case of providers that are already registered with the CQC, it will be able to assess the fitness of directors when it inspects providers and when it is notified of the appointment of a new director. There is already an obligation on providers to notify the CQC of the appointment of a new director. In cases where the CQC cannot be assured that a director is fit, it will be able to place a condition on the provider to require that director’s removal. It is only right that in such cases the individual director, given that the CQC would in effect be removing their livelihood, as well as the registered service provider, has a right of appeal against the CQC’s actions. The new clause introduces a right of appeal to the first tier tribunal for individuals who are removed from their post as a result of action taken by the CQC. I hope that that satisfies the Committee.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I am grateful to the Minister for tabling this new clause. We believe that the principle behind it is eminently sensible, and there is no opposition to it from these Benches. Only two small points require clarification. First, it is absolutely right that protections must be in place for workers at any level to ensure that they can be removed from their position only when it is absolutely just and, sadly, necessary. Can the Minister give assurances that this measure will not allow people who should not be in their positions to hang on indefinitely through lengthy legal procedures?

Secondly, on the opposite side of the coin, we need to ensure that persons in place cannot be removed too easily. Will the Minister assure us that the fit and proper persons test is not a moveable feast, is not open to unnecessarily broad interpretation, and cannot be altered simply to get rid of a person for a reason other than their conduct in their job or their performance?

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I thank the shadow Minister for those perfectly legitimate questions. We are agreed here about the purpose and principle of this. One cannot have a  situation whereby someone can lose their livelihood without any right of challenge, and the new clause provides for that right of challenge. The aim is absolutely to ensure that there is a robust test for deciding whether someone is a fit and proper person, and that the CQC undertakes that properly when notified of a new director or when a provider first registers. The CQC must not act arbitrarily, and of course it would be challengeable by way of judicial review if it acted in that way. Both extremes are equally to be avoided, and the test must be used properly to prevent people who are not fit and proper from continuing in their role. That would have potential consequences for the care of individuals, which is what this is all about. Yet, equally, someone must not be removed without good reason.

The right of appeal exists in relation to both action by the CQC and also for an individual, such as an employee director or an executive director, who is removed by a company. They still have their normal employment rights, which continue to exist without any disturbance as a result of the new clause. This is an added protection, which ensures that the power to remove is not used inappropriately or arbitrarily, to the unfair disadvantage of an individual. It has to go alongside what I consider to be a very welcome test of whether a director is a fit and proper person to undertake work that is of acute importance in the sector.

Question put and agreed to.

New clause 1 accordingly read a Second time, and added to the Bill.