Health Bill

As I understand it, the intention of Amendments Nos. 59, 60, 61 and 63 is to tell the Healthcare Commission how it should carry out its role. It is not our intention to tie the commission’s hands and take away its discretion to act and advise as an independent body in its area of expertise. On Amendment No. 59, when the Healthcare Commission issues an improvement notice in response to a failure to observe the code, the notice will require the body to rectify the failing within a specified period. Amendment No. 59 would introduce a requirement that the period specified in the notice must be a reasonable one. I can sympathise with the sentiment behind the amendment. When determining the period for compliance, I agree that the Healthcare Commission should act reasonably. The period should not be unreasonably short, so that it is impossible for the NHS body to rectify the failing in the time available. Equally, it should not be unreasonably long, so that problems are not put right as quickly as they could be. However, the amendment is unnecessary. As a public body exercising its public functions, the Healthcare Commission is expected to take all relevant considerations into account and not to make decisions that are so unreasonable that another public body properly directing itself to the situation could not reasonably comply with them. This would apply when the commission was determining the time by which the failings set out in any improvement notice must be remedied. Furthermore, we expect that the Healthcare Commission would make a decision on the length of the period only after detailed discussions with the body in question. This should mean that the commission would have all of the information that it needed to make a reasonable decision, as well as the duty to do so. That is the reason why not to tie the commission’s hands; it is required to act reasonably. We have no reason to believe that it would not do so, and it is required to specify a timescale on the improvement notice by which change should be made. We believe that, on that issue, the Bill as drafted is appropriate. Amendment No. 60 requires the Healthcare Commission to set out in advance the penalties that would be applied to an NHS body if it does not comply with the requirements of an improvement notice. We do not believe this is a well conceived amendment because it ignores the differences between the roles and functions of the Healthcare Commission and the Secretary of State or Monitor, in the case of foundation trusts. If this amendment were accepted, it would mark a fundamental change in the relationship between NHS bodies and the Healthcare Commission. The commission has a key role in assessing and encouraging the NHS to improve its performance; it is not the commission’s role to impose penalties upon the NHS. That is not a role that it would be appropriate to assign to the commission and from discussions that I have had with the commission, it is not a role that it wishes to have imposed upon it. In the light of this supportive role, proposed section 53A(4) provides a power for the commission to recommend means to remedy the NHS body’s failure. It is then for the Secretary of State and Monitor to consider what sanctions, if necessary, should be imposed where an NHS body fails to comply with an improvement notice. There is a division of functions that is based on the relationship that the Healthcare Commission has with the NHS; it is not a sanctions-imposing body, unless one regards a star rating as a sanction, which would not be a fair description of their purpose. Furthermore, if this amendment were to be included in the Bill, it would imply an expectation by the commission of failure to comply. That is an important consideration. It implies that the commission does not expect the trust to make changes. The intention of the improvement notice process is to support NHS bodies in achieving the requirements of the code of practice, not setting them up for failure. I see that we might have differences of view on that but at the point of issuing the improvement notice it is a reasonable working assumption that the commission would expect the body to comply with the requirements. If after further inspection by the commission at the end of the improvement notice period there are failures to comply, it is not the role of the commission to decide what sanctions will be applied. It is its role to decide if that failure is significant and to notify the Secretary of State and Monitor of that failure. The commission will be able to recommend that the Secretary of State and Monitor take special measures to resolve the problem. It is making a recommendation, but the decision on sanctions is for the Secretary of State and/or Monitor. At the end of the day, in the exceptional circumstances where there is failure to comply with the commission’s improvement notice, it is the responsibility of the Secretary of State and Monitor to decide on the appropriate form of response and to impose any sanctions in relation to the NHS body concerned. Amendment No. 61 takes away the Healthcare Commission’s discretion to advise on how to rectify failings as part of an improvement notice, but it would have no legal effect. The words that it strikes out were included in order to signpost the discretionary nature of the commission’s ability in this area. Were the words removed, the legal nature of the power would be unchanged; however, the signposting of those powers would be removed. As the legal power remains, I believe that we should leave the signposting in place. Amendment No. 63 prescribes the course of action that the Healthcare Commission should take after a body has fully complied with an improvement notice. At present, the Bill does not prescribe what the Healthcare Commission should do in this situation. However, that does not mean that the Healthcare Commission is precluded from taking follow-up action where it considers that appropriate. Under the Health and Social Care (Community Health and Standards) Act 2003, the commission has a general function to encourage improvement in the provision of healthcare by or for NHS bodies. It may do anything that is necessary or expedient for that purpose. These existing powers would certainly enable the commission to monitor the NHS body’s observance of those parts of the code that were the subject of the improvement notice, if it were to decide that that was the appropriate course of action for it to take. Therefore, the amendment would tell the commission how it should be conducting its programme of inspection, which we consider a matter for it as an independent inspectorate. The Committee might dwell on the fact that there has been concern about having a more risk-assessed basis of inspection across the public service and not being excessively prescriptive in telling inspectorates what to do. Furthermore, to apply a duty to take follow-up action regardless of whether the Healthcare Commission considers it appropriate would be unnecessarily burdensome to the commission and the body in question because of the risk assessment approach that we are encouraging inspectorates to take. There have been concerns across the public sector about a heavy footfall of inspectors in particular places as a matter of routine rather than letting them use the evidence on risk to make the best judgments on where they intervene. That is the background against which I suggest that Amendment No. 63 is unnecessary. I have tried to give full explanations on these amendments because I recognise where noble Lords are coming from, but we believe that these areas are best left alone and, in the case of Amendment No. 60, that it is not the commission’s job to take the sanctions route.