Health and Social Care Bill

These amendments, which were tabled by my noble friend Lord Warner, the noble Earl, Lord Howe, and the noble Baronesses, Lady Cumberlege and Lady Murphy, rightly probe whether particular functions of the commission will apply to the commissioning of health and adult social care services. This is one of the most important discussions that the Committee will have had. Although we have tended to focus on PCTs in this debate, it is worth noting that some of the amendments would also affect commissioners of social care, making the issues considerably more complicated, as the noble Baroness, Lady Barker, pointed out. Amendments Nos. 29, 33 and 36 would amend Clauses 4 and 5, which set out the definitions of various terms for registration purposes. Noble Lords will be aware that regulations under Clause 4 will set out the activities that will require registration with the new commission. Clause 4 makes it clear that these activities must involve or be connected with the provision of health or adult social care. Clause 5 defines health and adult social care; it is intended to be framed broadly enough to include not just those services that we know need to be covered, but those that could potentially be included in the future. Amendments Nos. 29, 33, and 36 would ensure that these definitions encompassed commissioning. I understand noble Lords’ concerns, but I am equally concerned that such amendments would create duplication and a burden on the system. NHS commissioners are held to account and are performance managed by strategic health authorities through the Secretary of State; they are accountable for ensuring that concerns about poor performance at the operational level in PCTs are addressed effectively. I think that we all agree that commissioning assurance is important. SHAs have the primary role for commissioner assurance in the NHS and have been working hard to build commissioning capacity locally, as noble Lords have mentioned. The commissioning assurance system, which is part of the World Class Commissioning programme, will help to deliver improved commissioning through strengthening the SHAs’ roles. The Care Quality Commission will also play a vital role by publishing independent comparative information on the performance of commissioners for public accountability purposes. We will expect PCT commissioners and SHAs to take account of this information in determining how they can provide a better service to their population. It is clear that a service failing is sometimes a system-wide failing, not just a failing by an individual organisation. It is quite right that, in reviewing the outcomes that are being achieved through periodic reviews, or when conducting a special review or investigation, the CQC should look across the whole system, including at the effectiveness of the commissioning process. Ultimately, it will be for SHAs to address concerns and ensure that improvement plans are put in place if PCTs are not commissioning effectively. My noble friend Lord Warner mentioned the potential scope of the CQC regarding gene therapy. There is no reason why that could not be covered by the definition in Clause 5, but I am happy to take the issue away and check that with lawyers. The consultation will define which services will need to be registered. On the question raised by the noble Baroness, Lady Cumberlege—and I thank her for the notice that she gave me—PCTs clearly have an important job and it is for local commissioners to review their provision of community services and to consider how they should be provided. There is a range of options that PCTs can consider, including the provision remaining with the PCT, with the appropriate governance arrangements in place. The options include social enterprise, general practice, care trusts, NHS FTs, third-sector providers, partnerships with local government and other options centred on service delivery, including vertical integration and joint ventures. PCTs ensure that community services are locally driven and offer a real opportunity for working closely with clinicians and partners to ensure that the best innovative care pathways across health and social care are developed to ensure seamless care for patients across the community. PCTs will want to consider a number of drivers when reviewing provision of services, such as improved quality, improved efficiency and ensuring that they are fit for purpose to take forward shifting care closer to home. The 2008-09 operating framework states that, during 2008-09, all PCTs should review their requirements for community services and use this process to consider all the options for models and provision. While this is being undertaken—from 1 April 2008—all PCTs should create an internal separation of their operational provider services, business and financial rules as applied to other providers. The reviews support World Class Commissioning and ensure at least internal separation of PCT provision to help PCTs to focus on World Class Commissioning and ensure transparency in decision-making. The CQC has a role but it is one player in the broader system and we need to ensure that we do not unnecessarily create another layer of accountability or duplication. The registration system has been designed to apply to both health and adult social care providers across the sectors to ensure that the services provided to the public are safe and of acceptable quality. A registration system for providers is right and we are consulting on this, but I do not believe at present that it is appropriate to extend that scope to commissioners when we have existing mechanisms such as the Secretary of State and SHAs to address issues of failure. I turn now to the various amendments, which, I believe, are based on differences in interpretation. Amendments Nos. 73, 84, 85, 86, 91, 98 and 103 would ensure that the Care Quality Commission could look at PCT commissioning in its periodic reviews under Clause 42, its special reviews and investigations under Clause 44, its advice to the Secretary of State under Clause 49 and its inspections under Clause 56. As has been mentioned, these points were debated in Committee in the other place. We believe that the definitions of ““health care”” in Clause 5 and the provisions in Clauses 42, 44, 49 and 56, as drafted, already meet the intention behind the amendments. Indeed, my honourable friend the Minister for Health, Ben Bradshaw, stressed that we agree the commission must be able to look at commissioning in carrying out these functions. We have also provided reassurance on this point to the Healthcare Commission and amended the Explanatory Notes that accompany the Bill to make this clear. However, I am conscious that noble Lords are seeking clarification and I am prepared to look again at the drafting where the Bill refers to healthcare and the provision of healthcare to see what can be done. Finally, on Amendment No. 69, it is not our intention to set standards on the commissioning process. We have already set out the guidelines that we are publishing as part of the assurance system towards achieving World Class Commissioning. There is therefore no sense in duplicating this work. Standards under Clause 41 will be quality improvement tools aimed at NHS healthcare providers, whether in the public sector or private sector. We will provide commissioners and patients with additional information to help them to compare the quality of service between providers. Indeed, Clause 133 places a duty on PCT commissioners to take the standards into account in fulfilling their duty of improvement under that clause. They will also provide clinicians, other health professionals and NHS managers with a method of measuring how they are currently performing and a definitive level of quality at which to aim. To clarify the situation for the Committee, at present I am resisting Amendments Nos. 29, 33, 36 and 69 and I propose to consider Amendments Nos. 73, 84, 85, 86, 91, 98 and 103. With this clarification, and with my undertaking to look at the definition of commissioning, I hope that the noble Lord will feel able to withdraw the amendment.