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Lord Warner: I am slightly puzzled by what the noble Baroness has said. I had believed that we were discussing special measures under Amendment No. 300, which is not in this group.

Baroness Noakes: I beg your pardon. I had expected Amendment No. 300 to be in this group. It is another amendment that has been in and out of groups over the past 48 hours. I shall speak to my amendment again when we come to the group, but more briefly.

Lord Warner: I thank the noble Baroness. I am all in favour of big groupings as the noble Baroness knows. The practical effect of this group of amendments will serve to require CHAI and CSCI to give NHS bodies and local authorities the chance to comment upon the contents of reports before they are published where they have found significant failings. It is right that CHAI and CSCI should discuss the findings generally with healthcare providers and with local authorities prior to the publication of the reports. Indeed that is standard good practice within the current Commission

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for Health Improvement and the Social Services Inspectorate, which we fully expect CHAI and CSCI to continue. That makes certain that the trusts and local authorities concerned are able to ensure that the inspectorates make an accurate assessment of the services that they provide. Early sight of the contents of those reports would enable the body concerned to make a start on its action planning, hence bringing about early improvements to the services that it provides.

However, the Committee has to balance that with the fact that we are establishing CHAI and CSCI as authoritative independent inspectorates providing patients and service users with clear assurances about the safety, quality and efficiency of the services that they receive. If the inspectorates did not have the freedom to take action quickly here, that could lead to delay in some cases and to protracted action. Healthcare providers or councils might be in denial—in my experience that has happened—about the quality of their services and it would be difficult to confront the issue. That would not be in the best interests of patients and service users. CHAI and CSCI must, in our view, reserve the right to disagree with the inspected body and to take immediate action where they have the evidence to do so. This group of amendments does not put the service user first and tends to leave providers in the driving seat, possibly to the disadvantage of the user.

I acknowledge that other inspectorates, such as the Chief Inspector of Prisons and Ofsted, give the bodies they inspect sight of reports in advance of publication to give them the chance to correct factual inaccuracies. However, as I understand the position, there is no statutory provision to require those inspectorates to give the bodies they inspect prior sight of their reports before publication. I agree that we should aim for consistency between inspectorates in this respect. I am minded to consider further the principle behind the amendment without necessarily accepting this particular wording.

Baroness Barker: Perhaps the noble Lord will give his views on Amendments Nos. 299 and 308, which are in the group. Amendment No. 299 requires CHAI to report on failing in relation to the provision of guidance issued by the Department of Health. For example, the ombudsman's report earlier this year criticised the department for its failure to give clear guidance on continuing healthcare criteria, which had a very direct effect on NHS and local authority performance in that area. I agree with the noble Lord that the CHAI studies on the strategic nature of health and social care will be highly important. Should they not also include an assessment of the Department of Health and, in particular, the Secretary of State's guidance? That would be a true measure of the independence of the bodies we are setting up. There is a need to have that on the face of the Bill. Perhaps the noble Lord will comment on the issue.

Lord Warner: We have already made it clear that there is nothing to stop CHAI giving advice to the

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Secretary of State on anything which it considers is relevant to its function. We have said repeatedly that we do not think that it is right to force CHAI, in effect, to act as a judge of government policy when that is set out in guidance to the NHS. If CHAI has concerns about this—in terms of it causing problems in healthcare delivery—it will be open to CHAI to put its views to the Secretary of State.

Amendment No. 308 would enable CHAI to undertake specific studies in relation to particular statutory provisions or any other direction or guidance issued to the NHS. Presumably the amendment's purpose, as the noble Baroness says, is to hold the Government to account for their health policies.

The amendment is not necessary because Clause 53 already provides powers for CHAI to give advice as it feels fit, either to or at the request of the Secretary of State or, indeed, the Welsh Assembly, on any matter connected with the provision of healthcare.

We do not believe that it is right to set up CHAI as a judge of government policy, and, in a sense, an arbitrator on government policy. Equally, however, the Bill provides for CHAI to give advice to the Secretary of State when it thinks that is appropriate.

Baroness Barker: Will CHAI's advice be publicly available? Will CHAI have a role in advising the Secretary of State on its guidance to local authorities and NHS bodies? Therefore, it will not be a commentary, as such, on government health policy; it will be about how that government health policy is being conveyed to the bodies being judged on their performance in carrying out and implementing that policy, which is a different matter.

Baroness Howarth of Breckland: What I am about to say may help the Minister rather than elucidate what was said by the noble Baroness, Lady Barker. Will CHAI be carrying out similar functions to CSCI in terms of the Royal Commission function, which means that it will be gathering information that will reflect on government policy once it is formalised and conceptualised? Presumably, all that information will go into the public arena—and directly into the public arena because there is a responsibility to report directly to Parliament. Will that not clarify this issue?

Lord Warner: The contribution of the noble Baroness, Lady Howarth, is helpful. Essentially, this comes back to the primary purpose of CHAI and CSCI. Their primary purpose is to inspect the work and performance of health bodies and local authorities on their delivery of social care. Therefore, we are setting up these independent bodies. Their primary purpose is not to second-guess whether government policy is right or wrong. It is the Secretary of State's responsibility to answer to Parliament and to the public on that issue.

Where CHAI or CSCI perceives that a particular piece of advice may be causing specific problems in operational terms in the delivery of healthcare, it is perfectly open to CHAI under the terms of the Bill to

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give that advice to the Secretary of State. But it is not its primary purpose. It is worth bearing in mind that much of the guidance issued by the Secretary of State does not simply come out of the blue; it follows a consultative process within NHS interests and local government. So it does not come as a surprise to the health service or local government that they are getting this guidance. We are operating in that context.

Behind these amendments there is a suggestion that somehow these things come as a great surprise and are not thought through and that we need these independent watchdogs to review the Government's policy. That is not the purpose of these two inspectorates. We do not think that the amendment is necessary. We think that what is proposed would divert them from their primary purpose.

Of course the inspectorates will publish their annual reports. If they have given advice to the Secretary of State on a particular issue, no doubt that issue will be covered in their annual report.

Baroness Noakes: I thank the Minister for his response. I think I can paraphrase it to the noble Baroness, Lady Barker: the Secretary of State is above review; it is everyone else that has to be reviewed. I am sure that the matter will come up again at later stages of the Bill.

The Minister talked about CHAI needing to get reports out quickly. My amendment states that the body has to respond within a reasonable time. It was deliberately drafted to recognise that one size would not fit all and that it would be possible to have different timescales. But I think that the principle of involving the body, even if only for 48 hours, is extremely important.

I am grateful to the Minster for saying that he would take away the issue. I look forward to hearing his further deliberations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 [Failings]:

[Amendment No. 299 not moved.]

Baroness Noakes moved Amendment No. 300:


    Page 20, line 2, at end insert—


"( ) For the purposes of this Part, "special measures" means one or more actions that are specified in regulations."

The noble Baroness said: I shall speak very briefly to Amendment No. 300, having spoken to it once already. I remind the Minister of my questions. What are measures and what are special measures? Is it possible for cruel and unusual punishments to be imposed on NHS bodies? I beg to move.


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