Health and Social Care Bill

I cannot better the speeches of the noble Lord, Lord Warner, and the noble Baroness, Lady Murphy. However, I should like to add some brief remarks. The Bill is not absolutely explicit about whether commissioning is to fall within the ambit of the CQC’s regulatory duties. Reading the Hansards of the debates held in other place, I detect that the Government intend it to do so. However, if we read what the Bill actually says, we see that it refers to, "““the provision of health or social care””." It may be that the legal interpretation of this phrase is different from the ordinary language interpretation and that it does in fact encompass commissioning. However, if that is so, it is not clear. In Clause 5(2), ““health care”” is defined in a way that appears to exclude commissioning and, if we look ahead to Clause 42(1), which covers periodic reviews, we see that it states that the commission must, "““conduct reviews of the provision of health care by the Trust and by other persons pursuant to arrangements made by the Trust””." Again, ““health care”” in this context is defined in Clause 92(2) in a manner that seems to focus exclusively on the provision of services. We need to be clear in our minds about why this issue is so important. We have heard a number of the reasons already. Those noble Lords who have read the evidence given by Anna Walker to the Public Bill Committee in the Commons will have been struck by her succinct analysis of why it would make no sense for there to be statutory regulation of healthcare providers without simultaneous regulation and oversight of what happens at the commissioning and purchasing end. It could be argued that, as commissioners, primary care trusts benefit from being overseen by strategic health authorities, whose job, as we have heard, is to performance manage what they do. But performance management and assessment by an independent regulator are two distinct things. Anna Walker spoke specifically about the CQC’s power to conduct wider reviews. She said: "““The difficulty is that it is limited to providers only. What we find in health care … is that you can say to a provider, ‘Look, that service simply is not good enough’, to which their answer can often be, ‘But we are not being paid to provide any more than that’. In order to get the issue right, on behalf of the user and the patient, you have to look at a mixture of commissioning and provision; at what the primary care trusts are doing, as well as what the provider is doing””.—[Official Report, Commons, Health and Social Care Bill Committee, 8/1/08; col. 17.]" That point was endorsed by Chris Heginbotham of the Mental Health Act Commission, who pointed out that monitoring the way in which commissioning is undertaken is important as a means of ensuring that the money is available to pay for any necessary changes or improvements. I thought that that was a very telling point. A basic further point relates to this: without good and effective commissioning, it will be next to impossible for standards of care to be driven upwards, which is part of what the CQC is there to facilitate. Performance management on its own will not do that. Moreover, as practice-based commissioning becomes more established, as it surely will, the importance of this area of the CQC’s work will most certainly increase. What the CQC will undoubtedly do in the area of commissioning, as in other matters, is to make the NHS more publicly accountable. That principle surely has to be right.