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Earl Howe: My Lords, I was particularly grateful when the Minister accepted my amendment at Third Reading to include nurses agencies within the remit of the commission. However, the issue of healthcare

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workers supplied by such an agency to NHS trusts or other areas of the health service was left in the air. I wonder whether the Minister could clarify how agencies supplying healthcare workers who are not domiciliary care workers are regulated under the Bill.

I should also be grateful if the Minister could say something more about medical agencies. The question arose in another place that, although an independent medical agency is defined in Clause 2(5) as an undertaking that consists of or includes the provision of services by medical practitioners, there appears to be nothing in the Bill covering the direct supply of a nurse-led clinical service in the home. Will the Minister comment on that? Health services provided in the home by nurses unsupervised by a doctor can be far from straightforward, as I am sure that he knows. The examples of blood transfusions and chemotherapy were given in another place. The same lacuna, if I can call it that, appears to apply to services provided in the home by physiotherapists and occupational therapists. Am I correct in believing that those services are not covered by the Bill?

Lord Clement-Jones: My Lords, I generally welcome the amendments. However, I should like to ask about what appears to be a change of status for hospices. Have the hospices made any response to their change of status resulting from Amendments Nos. 9 and 10? What consultation was carried out with them about it? They are now to be treated as independent hospitals, which I had understood was not previously the case.

I welcome Amendment No. 13, which requires nursing, midwifery and health visitor agencies to register. I do not want to reopen a debate on whether all dentists, not just those who administer anaesthetics, should be covered, but I welcome the interim provisions in Amendment No. 45 on private dentists, bringing them under the 1984 Act, and the fact that NHS dentists in the same position will also be subject to regulation.

Baroness Masham of Ilton: My Lords, I add my thanks to the Minister. I repeat the question of the noble Earl, Lord Howe, about nurse assistants. Thousands of them, many coming from abroad, are used in people's homes. Many of them come from the same agencies as nurses. It seems wrong for them to be left out.

Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Clement-Jones, asked about hospitals. I am happy to provide further details about the nature of the consultation, although I do not have the information here. There was extensive discussion and consultation with all the establishments that were likely to be covered by the Bill. I believe that the outcome of those discussions was that it is right to draw a distinction between hospices--which in many senses can be regarded as hospitals--and the normal process of providing care for residents of nursing homes who may be dying. I hope that helps to clarify the position.

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The noble Earl, Lord Howe, again raised the issue of nurse-led services and mentioned domiciliary physiotherapy services. There are two points to be made. Many such services will be covered one way or another, either through domiciliary care agencies or nursing agencies. An outreach service from a private hospital would certainly be covered.

The main comfort that I give to the noble Earl is the provision in Clause 39 which allows the power to extend the application of Part II. This is an important part of the Bill. The criticism that was always made of the Registered Homes Act was that it was inflexible and did not allow us to change the nature of regulation as the nature of healthcare changed. A good example is that of private hospitals; clearly, the Registered Homes Act 1984 was not up to the task of regulating those hospitals. The answer is that many of the services will be covered in one way or another. If in the future we identify gaps in the regulatory mechanisms, clearly the Government will need to consider whether it is necessary to bring Clause 39 into play.

So far as concerns the regulation of healthcare assistants, a number of messages of comfort can be given. First, many healthcare assistants would be employed through nursing agencies. As those agencies are covered by the scope of the legislation, that in itself provides a safeguard. Secondly, agencies outwith that situation will still be covered by the Employment Agencies Act. Although noble Lords have expressed scepticism as to whether that is sufficient, and that was reason noble Lords wanted nursing agencies to be covered in this way, it does represent some safeguards.

The third point is that the Department of Health has commissioned De Montfort University to examine the whole issue of the regulation of healthcare assistants. I am not in a position to say when its report will be published, but we need to keep the matter under review.

On Question, Motion agreed to.

COMMONS AMENDMENTS

11Clause 3, page 3, line 23, at end insert--
("( ) persons who have or have had a mental disorder;")
12Page 3, line 30, after ("is") insert ("of a description")
13Clause 4, page 4, line 10, leave out from ("agency") to end of line 11 and insert ("or employment business, being (in either case) a business which consists of or includes supplying, or providing services for the purpose of supplying, registered nurses, registered midwives or registered health visitors")
14Page 4, line 12, at end insert ("description of")
15Page 4, line 18, leave out subsections (8) and (9)
16Page 4, line 34, leave out ("nurses'") and insert ("nurses")

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 to 16.

Moved, That the House do agree with the Commons in their Amendments Nos. 11 to 16.--(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

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COMMONS AMENDMENT

17Clause 6, page 5, line 9, at end insert--
("( ) The powers of the Secretary of State under this Part to give directions include power to give directions as to matters connected with the structure and organisation of the Commission, for example--
(a) directions about the establishment of offices for specified areas or regions;
(b) directions as to the organisation of staff into divisions.")

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17. I shall speak also to Amendments Nos. 18, 19, 21, 23, 24, 49, 204, 205 and 206.

Amendment No. 17 enables the Secretary of State to issue directions to the national care standards commission about organisational and structural matters. Clause 6(2) provides powers of direction relating to the commission's functions. These might be used, for instance, to require the commission to deal with applications for registration and representations against its proposals within strict time limits or to set up a complaints procedure for people to use if they are unhappy with how the commission has carried out its responsibilities.

We may also need to give directions to the commission about its structure and organisation. We hope that in practice those directions will not be necessary, but we consider it important to make it clear that powers of direction over the commission extend to giving directions about its structure and organisation.

Amendments Nos. 18, 49 and 204 are minor changes. Amendment No. 18 corrects a typographical error. Amendment No. 49 reproduces in Part III the commission's power to advise the Secretary of State about the standards that exist for Part II services in Clause 7. Amendment No. 204 clarifies the wording of the Schedule 1 provision that allows for the National Care Standards Commission, the General Social Care Council and the Care Council for Wales to contract with individuals not on their own staff to undertake work. That might include engaging expert advisers to assist with inspection work rather than having to employ them full time.

Finally, Amendments Nos. 19, 21, 23, 24, 205 and 206 are minor changes to ensure that the Bill properly and accurately reflects the position in Wales. Amendments Nos. 19, 21, 23 and 24 give the Welsh Assembly the same powers as the Bill already provides for the National Care Standards Commission in respect of general functions and inquiries. Amendments Nos. 205 and 206 tidy up a duplicating reference. Under Section 144 of the Government of Wales Act, provision is made for the Secretary of State for Wales to have powers to make provision for accounts, auditing and so on for Welsh public bodies, which would include the Care Council for Wales. As specific provision is already made for these matters in Schedule 1, these amendments disapply Section 144 in respect of the Care Council for Wales.

Moved, That the House do agree with the Commons in their Amendments Nos. 17 to 19.--(Lord Hunt of Kings Heath.)

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On Question, Motion agreed to.

COMMONS AMENDMENT

20Clause 7, page 5, line 37, leave out subsections (8) to (11)

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 20. I shall speak also to Amendment No. 22.

We come back to a favourite topic of your Lordships, which we seem to have debated not only in relation to this Bill but also in the passage of the 1999 NHS legislation. As regards the consensus approach which I have detected throughout the debate on this Bill, there is a common purpose here to ensure, first, the proper regulation of private and voluntary healthcare and to ensure that these services are provided to proper standards. There can be no doubt that the present regulatory system which regulates independent hospitals as care homes, is totally inappropriate and outdated.

Through this Bill, private and voluntary healthcare will for the first time be properly regulated, with independent hospitals being regulated as independent hospitals and having to meet national minimum standards developed to reflect the nature of the service provided.

We are putting in place a system where the private and voluntary healthcare sector will be regulated by the independent national care standards commission. Within the commission there will be a separate division dealing with private healthcare. That division will be headed by a director of private and voluntary healthcare, who will be a senior member of staff.

By putting in place a system that recognises the specific nature of private healthcare, we will ensure that proper quality of care is provided. We will do this through the regulations and national minimum standards which we are developing. But, importantly, and for the first time, we have a regulation-making power to ensure that private healthcare establishments provide quality care. I assure the House again that this will cover clinical care.

The amendment inserted by your Lordships during Report stage required the commission to contract all its inspections of independent hospitals to the Commission for Health Improvement. This amendment was removed in the other place but--and I stress this--our discussions in your Lordships' House served a very important role. They highlighted the need for the commission and the Commission for Health Improvement to work closely together. That is why we have brought forward Amendment No. 22 to ensure that that is the case.

Perhaps I may take this opportunity to explain the difficulties that the Government found with the amendment inserted by your Lordships. The commission and Commission for Health Improvement (CHI) were designed for different purposes. That is a point widely recognised within the National Health Service. CHI has been specifically designed and developed to help the NHS improve the

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quality of clinical care. Its primary interests are with NHS patients and the arrangements that NHS bodies have in place to ensure high quality healthcare for those patients. CHI is a very important part of our 10-year modernisation programme for the NHS. It is there to help drive up standards in the NHS by providing an independent, external check of NHS processes for monitoring and assuring the quality of clinical care.

Any system for monitoring and assessing the performance of a service sends very powerful messages about what that service is expected to deliver. CHI will play an important role which will complement NHS accountability arrangements and ensure that both quality and efficiency are central to the way the NHS is held to account. It will also provide organisations with access to the skills and expertise necessary to help tackle problems where local efforts have been unable to make a difference. I am absolutely convinced that, with the wider quality agenda, CHI's work will mean that fewer problems occur in future, and, where they do arise, they will be spotted and addressed earlier.

It is the responsibility of the regional offices of the NHS or the health authority concerned to ensure that CHI's recommendations are acted on, with agreed plans for addressing identified shortfalls. In some cases the commission may have a role in following up specific recommendations or may be invited to review progress where the need for significant further work has been identified. That is a very different role from that of the national care standards commission. That body is to be established to regulate, provide safeguards and apply national minimum standards for patients in independent healthcare. It is not responsible for private hospitals and clinics beyond that point, nor for advising the Government about the sector or nurturing the private sector generally.

The key principle of how the national care standards commission and CHI will achieve their respective responsibilities is the second main area of difference between the two bodies. The national care standards commission will be a regulatory body. It will, therefore, register independent healthcare providers and inspect them against regulations and set standards. If an independent sector provider does not comply with the regulations and standards the commission will be able to apply sanctions. CHI, on the other hand, is not a registration-holding, sanction-imposing, regulatory body. It will review the clinical governance arrangements in NHS bodies and provide advice as to how those arrangements may be improved. It will be vigorous but will also provide support to help NHS organisations with problems to tackle them effectively themselves.

The third key area of distinction between the commission and CHI is as to how they will operate in practice when undertaking their rolling programmes. For example, CHI will be concerned with the arrangements and systems that an NHS body has in place to ensure and improve quality. Where an NHS body has a contract with the independent sector to provide healthcare services to NHS patients, CHI will

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review the quality of services that those patients receive as part of the bigger picture of the clinical governance arrangements of that NHS body. That will be undertaken under a three to four-year rolling programme of clinical governance reviews in the NHS.

In contrast, the national care standards commission will be responsible for inspecting at least once a year every independent healthcare provider that it regulates. It will concentrate and specialise on the specific safeguards and quality assurances that each of those individual providers has in place for all patients. It will have a remit that goes beyond looking at arrangements to provide quality in clinical care.

There are also concerns in the field about how the amendment inserted by your Lordships may affect the successful establishment of the national care standards commission. The April edition of Registered Homes and Services reflected those views in commenting on the subsections introduced into Clause 7:


    "At a practical level there are clear benefits in a broad-based national care standards commission. With private and voluntary healthcare outside its remit, the skills and experience which will be developed within its healthcare division will suffer".

The Royal College of Nursing was also concerned about the polarisation of the regulation of healthcare services. However, our thinking on the relationship between the commission and CHI has moved on considerably since the Bill was introduced. The Bill now allows the commission and CHI to second staff to each other, and that will help skills development in both bodies. They will also be able to share information with each other. Another example of this co-operation is the development of the national minimum standards to be used by the commission. In that context, CHI has a representative on the consultation group that is developing those standards.

I believe that we have two separate bodies with two separate functions. I believe it logical that we should merge such situations in relation to the regulation of the care establishments and private health hospitals within the terms of the Bill and the way in which the NHS effectively manages its performance. We have seriously taken on board the suggestion that we must ensure that CHI and the commission work closely together. I believe that the amendments which the Commons considered enable that to happen and I ask for your Lordships' support.

Moved, That the House do agree with the Commons in their Amendment No. 20.--(Lord Hunt of Kings Heath.)


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