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Health and Social Care (Community Health and Standards) Bill

Clause 58 agreed to.

Clause 59 [Criteria]:

[Amendments Nos. 311 and 312 not moved.]

Baroness Barker moved Amendment No. 312A:



"( ) If requested to do so by the Audit Commission in any particular case, the CHAI or CSCI may assist the Audit Commission in the exercise of its functions under section 33(1) of the Audit Commission Act 1998 (c. 18) (studies for improving economy etc in services)."

The noble Baroness said: Well, we begin again. I approach the rest of what is termed "today" with all the joy of a junior doctor starting a shift.

This probing amendment seeks to delve into an important area that we have not yet covered in our deliberations. The amendment probes the relationship of CHAI and CSCI—particularly CSCI—with the

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Audit Commission. When it takes over its functions, CSCI will inherit part of the function of the SSI but also elements of the Audit Commission's role.

I do not wish to rehearse the arguments that have already been made about the independence of these new bodies. One great benefit of both the Audit Commission and the National Audit Office has been the independent and thorough way in which they have looked at aspects of health and social care. The Audit Commission, in particular, has produced reports which have been among the most influential in enabling legislators to see the impact of legislation and have also pointed the way to future measures.

The amendment seeks to tease out which elements of the Audit Commission will be drawn on for CSCI, and what the future relationship between CSCI and the Audit Commission will be. I look forward to the Minister's reply. I beg to move.

Lord Warner: Amendment No. 312A is inappropriate in relation to CHAI because the Bill transfers the main responsibility for such studies in relation to English NHS bodies, other than special health authorities, to CHAI. The Audit Commission will no longer carry out value-for-money studies on those NHS bodies.

We agree that it is entirely appropriate for CHAI to be able to assist the Audit Commission in carrying out financial management studies and for CSCI to be able to assist the Audit Commission on studies relating to economy, efficiency and effectiveness on local authorities. However, we think it is already able to do so on the basis of the existing powers in the Bill and the Audit Commission Act 1998, and that this additional power is therefore unnecessary.

The Audit Commission will retain all its Section 33 functions in relation to Welsh NHS bodies. While we think it would be lawful for CHAI to assist the Audit Commission in carrying out those functions, it is the Assembly and not CHAI that will carry out reviews of particular Welsh NHS bodies. Therefore, any assistance to the Audit Commission with respect to studies in relation to Welsh NHS bodies is more likely to be sought from the Assembly than from CHAI.

It should also be noted that the Government have published a Bill in draft for consultation—the draft Public Audit (Wales) Bill. This proposes to transfer all the Audit Commission's functions in relation to Welsh NHS bodies to the Auditor-General for Wales. The draft Bill provides for co-operation with the Audit Commission, and it would be premature to legislate on this matter now.

That is the context. We have already discussed CSCI's relationship with regard to comprehensive performance assessments on local authorities and their relationship to CSCI.

Baroness Barker: I thank the Minister for his reply and shall study his words in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

20 Oct 2003 : Column 1328

[Amendments Nos. 313 and 314 not moved.]

Lord Warner moved Amendment No. 314A:


    Page 22, line 38, at end insert—


"( ) to consult any person specified in the regulations before publishing a statement under subsection (1) or (2);"

On Question, amendment agreed to.

[Amendment No. 315 not moved.]

Clause 59, as amended, agreed to.

Clause 60 [Provision of material]:

[Amendment No. 316 had been withdrawn from the Marshalled List.]

Clause 60 agreed to.

[Amendment No. 317 not moved.]

Clause 61 [Fees]:

Lord Warner moved Amendment No. 317A:


    Page 23, line 14, after "body" insert "or to health care provided by or for that body"

On Question, amendment agreed to.

[Amendments Nos. 318 and 319 not moved.]

Clause 61, as amended, agreed to.

Clause 62 [Fees: Wales]:

Lord Warner moved Amendment No. 319A:


    Page 24, line 6, after "body" insert "or to health care provided by or for that body"

On Question, amendment agreed to.

[Amendment No. 320 not moved.]

Clause 62, as amended, agreed to.

Clause 63 [Reports and information]:

[Amendment No. 321 not moved.]

Clause 63 agreed to.

Clause 64 agreed to.

Clause 65 [Right of entry: supplementary]:

Earl Howe moved Amendment No. 322:


    Page 25, line 27, at end insert—


"( ) The CHAI must ensure that any documents or items removed under subsection (1) are not retained for an unreasonable period of time and must give reasons in writing for their retention if so requested by—
(a) the person from whose premises the documents or items were removed, or
(b) any other person with an interest in the documents or items."

The noble Earl said: In moving Amendment No. 322, I shall speak also to Amendment No. 335.

At the beginning of Clauses 65 and 71, which parallel each other, we see the familiar words "necessary" and "expedient". In the context of these clauses, which relate to the right of entry and inspection of premises by persons suitably authorised to do so, those words inevitably sound an alarm bell.

If you are someone whose premises are raided by CHAI or an equivalent official from the Welsh Assembly, what rights do you have? Not many, judging by the list of things that an inspector is entitled to do, as described in these clauses. That begs the question of what constitutes fair and reasonable

20 Oct 2003 : Column 1329

behaviour by the person who decides, let us say, that it is necessary and expedient for him to remove from a set of premises the computer equipment, accounts and records that are housed there.

We are talking not just about NHS premises. As we all know, CHAI's remit, and that of the Assembly, covers independent businesses as well. I have no problem about putting the NHS and the private sector on to an equal regulatory footing, but at the same time there are other considerations. Those who manage private hospitals and clinics have businesses to run. These businesses cannot continue without the means at their disposal to do so. Records and accounts are an integral part of running a business day to day.

My proposal is not to deny the official inspector any of the rights granted to him but to balance those rights, albeit partially, with a corresponding right for the person whose documents or property are removed to ask for reasons if he considers that he has been deprived of their use for an unreasonable time. CHAI in turn would have to supply the reasons.

The amendment is not much, but it is something—perhaps enough to ensure that CHAI and officials in Wales remain conscious of the burdens that they place on business by exercising their rights to take charge of other people's property. There is only one way in which to ensure that, which is to add my amendment or one like it to the Bill. I beg to move.

Lord Warner: Amendments Nos. 322 and 335 would place a duty on CHAI and the Assembly to justify the removal of documents and to return the said items within a reasonable period of time. I have sympathy for the amendment, but the powers under the clause are very similar to those provided to the National Care Standards Commission in Sections 31 and 32 of the Care Standards Act 2000.

I want to make it clear that we do not envisage that the provisions will entail removing vast quantities of documents from sites that CHAI inspects. We also believe that CHAI, should it feel a legitimate need to do so, will normally obtain any additional information that it may want to remove from the premises by agreement. However, the power to remove original material may be necessary where inspectors suspect tampering of data for fraudulent purposes, for example. It emerged in the Shipman inquiry that there had been a considerable tampering of records. In such situations, it is right that individuals acting on CHAI's behalf are able to remove such material for examination without first having to supply promptly a statement of reasons. So that care providers can continue their day to day operations, they will of course be free to take copies of documents that CHAI intends to remove. We envisage that CHAI will want to conduct its business with minimal interruption to service provision and so would expect it to return documents in their original condition as soon as practicably possible.

Given the sensitivities of the power, and should CHAI not return removed material within a reasonable period of time, the organisation involved

20 Oct 2003 : Column 1330

would of course be entitled to seek judicial review or redress via the Parliamentary Ombudsman. The clause as drafted makes it clear that CHAI has the authority to have access to all relevant information. The amendment, if carried, would dilute the effectiveness of CHAI's review and investigative functions. In the light of those assurances, I hope that the noble Earl, Lord Howe, will be willing to withdraw the amendment.


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