Health and Social Care Bill

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Sir George Young: I am grateful to the Minister for dealing with some of my concerns. I take it that intervention will be a last rather than a first resort. He listed several procedures and special measures, but they would not necessarily provide a swift solution. My residual concern is about transparency and fairness to the local authority. Will he give an assurance that the reasons for his intervention will be put into the public domain, that the local authority will have an opportunity to respond to them and that, if possible, his concerns will be backed up by impartial, independent, professional opinion, so that it is not just his view or that of his Department? If that were the case, we might be able to cope without the regulations.

We need an assurance that the Minister would not merely say to the local authority, ``I'm sorry, but there has been an awful case in the papers. I want to use my powers of intervention'', and that there would be all the due process of equity, transparency and fairness. There should be an opportunity to respond, and the measure should be used only as a last resort when everything else has failed. If the Minister can give that assurance—in his own words rather than mine—it would allay some of the concern behind amendment No. 259.

Mr. Hutton: To cut a long story short, I can give the right hon. Gentleman those assurances.

Dr. Brand: I support the points being made. I draw the Minister's attention to the debate on the Food Standards Agency. It was recognised that the Secretary of State needed to have the power to withdraw a function if it was deliberately not carried out effectively. In that case, there was a prescribed process, which provided the checks and balances mentioned by the right hon. Member for North-West Hampshire, including an appeal mechanism. The agency took the step and the Secretary of State was the formal appeal mechanism.

Mr. Hammond: The hon. Gentleman has used the example of the Food Standards Agency legislation. This legislation is slightly different, because the Secretary of State would not be withdrawing a power that was originally his and that he had delegated, but would be intervening and taking a power that currently belongs to the local authority.

Dr. Brand: That is an interesting observation. I disagree with the hon. Gentleman, because environmental health is a local authority direct function, just as the delivery of social services and some of the health provision is a direct function of local authorities. Serious checks and balances should be in place before the Secretary of State has the ability to override a locally elected, democratic body. That is why I share the right hon. Gentleman's concern. I hope that the Minister will flesh out the checks and balances and the opportunities for a local authority to make a clear case when a disagreement on policy arises between the Secretary of State and a locally elected body.

Sir George Young: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Hammond: I beg to move amendment No. 305, in page 40, line 9, leave out `and' and insert--

    `it shall notify all statutory patient representative bodies at the time in existence within the area covered by the body of its intention to make a direction under this section and shall invite representations regarding the proposed direction from them and, having taken such representations into account.'.

The Chairman: With this it will be convenient to take the following: Amendment No. 292, in page 40, line 16, at beginning insert--

    `and has consulted with and it is supported by the Patients Forum and other relevant statutory and voluntary bodies in the relevant area'.

Amendment No. 297, in page 40, line 18, at end insert—

    `(1A) The relevant authority may exercise this power only after taking full account of the conclusions of a best value review'.

Mr. Hammond: The amendments would require the relevant authority to take into account the views of the appropriate statutory representative bodies in the area affected. The Minister talked at length about the voluntary nature of the arrangements between local authorities and health bodies under clause 45. We have some doubts about how the arrangements will work, but as long as they are voluntary, we will watch with interest and hope that they succeed.

Clause 46 provides the power to force the arrangements into existence against the will of either of the parties. Many people will question the workability of compulsory care trusts or directed partnership arrangements. I think that the Minister would accept that the concept of a directed partnership is internally contradictory: either people work together in a partnership or they do not. It will be especially important that we scrutinise the circumstances and the situation in which arrangements are made by direction of the Secretary of State under the clause.

The one justification that the Minister has put forward, which on the face of it is valid, is that this provision is about delivering services to service users. When the services fail, the service user must be protected. The Minister claims that it is not a matter of protecting the ego or the self-importance of any particular body, but of ensuring that the services are delivered effectively and efficiently. Surely, if the Government are abolishing one set of statutory patient representative mechanisms and putting in place another set, there should be an explicit requirement in the clause for consultation with whatever statutory representative bodies are in place when the clause comes into effect.

Amendment No. 305 has been deliberately phrased to accommodate the fact that we do not know the timescale for the coming into force of the different parts of the Bill. It is possible that the community health councils will be the statutory representative bodies when this part of the Bill comes into force, and will subsequently be replaced by patients forums and the other mechanisms that the Bill introduces.

Serious issues will arise if the Secretary of State uses his powers to direct a local authority to surrender its powers to him. The justification for the use of such powers will be the failure to deliver adequate services locally, and it will have to be a stark and obvious failure. If the statutory patient representative bodies are to have any meaningful function, they must be involved under such circumstances.

The Minister will no doubt say that there are powers in the Bill to make regulations specifying how things are to be done. He will no doubt assure us that those regulations will include arrangements for consultation. Later, I will say something about the Minister's assurances, and how much value we may attribute to them. Clause 46 allows for the compulsory transfer of power from one body to another at the instigation of the Secretary of State, on the grounds that patients' interests are seriously affected. I hope that the Minister accepts that there should be an explicit requirement in the Bill for consultation with statutory bodies of patients' representatives before any such transfer occurs.

Mr. Burstow: Amendment No. 297 is designed to probe the Minister on the role of local authority best value in establishing whether or not a service is failing, which could trigger the exercise of the powers in the clause. When will a best value regime be introduced into the NHS? I understand that guidance on best value in the NHS is being produced. It would be useful to know when it will be published. Clearly, the closer the two regimes are, the better they can be married together in the context of a care trust. It would be useful if the Minister could say something about that, and if he could deal with the question that I posed earlier concerning the arbiter. Will he say more about who will appoint the arbiter, and what the arbiter's role will be? What powers will he or she have to resolve the question of what functions are transferred?

Mr. Hutton: Amendments Nos. 292 and 305 would require consultation with statutory local patient representatives before either the Secretary of State or the National Assembly for Wales made an order for a care trust to be established. Amendment No. 297, tabled by the Liberal Democrats, concerns the duty to require a best value review before making a direction to use a partnership arrangement.

If the hon. Member for Runnymede and Weybridge carries on like this, he will make my job much easier for me. If he anticipates my response, perhaps I do not actually have to make it. That would save us all a lot of time. He rather ungraciously thought that he should question my assurances on the clause before he had heard them. That was uncharacteristically unkind of the hon. Gentleman. I hope to reassure him. We need to be clear about all the relevant matters.

The clause is about ensuring that action can be taken on services that have patently failed, presenting a risk to vulnerable people—adults or children. Of course we want to be as open as possible about the action that is being considered. We want to be able to include users and carers in making decisions about the services that they depend on. We need to talk to people as soon as we can about the intentions that may lead to the power of direction being used. However, throughout all those discussions we must keep in mind why we are considering intervening. The reason is to protect vulnerable people.

We will not intervene lightly, or without giving organisations an opportunity to work to improve services themselves. In fact, we expect that there will be a such clear process. However, what we are proposing will be part of an existing process. There is no question of inventing yet another new approach. We will use existing mechanisms such as performance management, monitoring, reviews, inspection and intervention powers, to give the Secretary of State another option with respect to the use of partnership arrangements.

12.45 pm

Clearly, however, where patient or client safety is a matter of immediate concern, action might need to be taken more swiftly. Or, indeed, as the situation developed, advice was provided and the underlying causes in the failure of services were identified, the Secretary of State or the National Assembly for Wales might consider other models of intervention under best value or through the modernisation agency. The power is therefore not intended to replace current performance management or intervention powers but as an additional tool, where appropriate.

As to amendment No. 305, representatives of statutory representative bodies will be closely involved in considering and implementing the directed partnership

arrangements. Therefore there will be an opportunity to comment on what is intended, and their views, together with those of others, will be taken into consideration before the final decisions are made. I have made it clear in other statements to the Committee that the more we listen to users and users' representatives about the best approach, the more likely we are to get our proposals right, and the more likely we are to be able to respond to their needs.

Amendment No. 297 relates to best value. The power that we want to introduce does not interfere with other responsibilities of the relevant bodies, including the duty of best value placed on local government by the Local Government Act 1999. Local authorities are of course required through best value reviews to improve their services. Those who do that well and in the spirit of the legislation have nothing to fear from the clause, because they will be acting in the best interests of the users and the local community. Best value is intended to improve services. Our power of direction is aimed at doing the same when there is a need to intervene.

We have considered the impact on the authority's best value duty in circumstances in which a social services function was found to be failing. The Local Government Act 1999 is clear. Where there is failure local authorities can be inspected, rather than carrying out their own best value review. The power of direction will be used when there is clear evidence of a need for the use of the partnership arrangements. The services will have been inspected and we might need to act. We would not be able to wait in the wings for the completion of a lengthy process that could be a stalling tactic. Our concern at that point would be the needs of users and carers. I agree with the hon. Member for Sutton and Cheam that the duty of best value needs to be fulfilled. The power of direction will be used in the context of the powers that relate to best value. A best value review at the point in question would not help and might delay and confuse the issue.

The hon. Member for Runnymede and Weybridge referred to the Secretary of State's power to make regulations governing the use of his powers under clause 46. I do not want to add to what I said in relation to clause 45 and the amendments. We expect a proper opportunity to exist for effective consultation of local groups on the use of the powers. That is how we intend the procedures to be used and activated. I am sure that the hon. Gentleman will understand that we may need in some circumstances to act quickly and decisively. The rationale of the clause is the interests of those who use social services and of national health service patients. We must serve their interests always. We expect consultation to be an essential part of the process.

 
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