Health and Social Care Bill

moved Amendment No. 43: 43: Clause 16, page 7, line 35, after ““are”” insert ““not”” The noble Earl said: I shall speak also to Amendments Nos. 44 to 47 and 49. Clause 16 makes provision for regulations to be made about the requirements that have to be met before anyone can be registered as a service provider or manager under Clause 8 and which they will continue to have to meet so long as they remain responsible for delivering regulated activities. Perhaps I may stress before going any further that all the amendments should be read as probing in nature. They do, however, reflect a range of concerns on which I should appreciate the Minister’s comments. We have here yet another example of how the Secretary of State in quite a major sense will be in control of what the commission does. I recognise the realities: it is true that we are going to allow the commission to exercise a good deal of discretion in assessing people’s fitness to provide regulated services, but beyond a certain point we cannot have a commission which is allowed to make up all its own rules and enforce those rules without any accountability to Parliament. There are important aspects of its work where parliamentary scrutiny and approval are entirely appropriate and right. However, there needs to be a balance. In giving the Secretary of State the broad powers set out in subsection (1)—they do seem to be particularly sweeping—surely we can also say that there are certain issues with which Ministers and Parliament need not and should not concern themselves, either because to do so would be unnecessarily prescriptive or because they are matters which should more properly be seen as part of the process of due diligence on the part of those who commission health or social care services. Let us look at what the clause sets out. Subsection (3)(a) states that regulations may, "““make provision as to the persons who are fit to carry on or manage a regulated activity””." A similar provision is made in subsection (3)(c) about, "““persons who are fit to work for the purpose of the carrying on of a regulated activity””." Potentially, these seem to allow the Secretary of State an extraordinary degree of control over who can or cannot work in a care home or hospital. In any event, how on earth is it possible to define a priori who are fit persons? What are the criteria that Ministers will use? I could understand it if the Government restricted themselves to proscribing people whose names appear on lists held by the Criminal Records Bureau or who in other ways might be seen as clearly unsuited to being a registered service provider, but the drafting leaves scope for all manner of detailed criteria to be applied, some of them subjective, no doubt. I question how appropriate this is. Could not the wording be tightened? Subsection (3)(b) states that regulations may cover, "““the manner in which a regulated activity is carried on””." What does that actually mean? Taken literally, it would enable the Secretary of State to dictate every little detail of how health and social care services should be delivered but I am sure that the latter has no intention whatever of doing any such thing. For the most part, I hope the Minister will agree that the way in which a regulated activity is carried out is a matter of professional practice, and that is not a matter in which the Government should get directly involved. In subsection (4) we see that one aspect of this issue relates to the, "““control and restraint … of persons receiving health or social care … services””." The rules for controlling or restraining a patient or service user are most certainly a matter that needs to be dealt with by regulations and I have no quarrel with that. However, subsection (3)(b) refers very broadly to, "““the manner in which a regulated activity is carried on””." That is very broad. Why is it not possible to word this part of the clause a little more tightly so as to capture only those concerns which are a legitimate matter for regulation? Subsections (3)(d) and (e) allow regulations to lay down requirements about the, "““management and training of persons who work for the purpose of the carrying on of a regulated activity””," and the ““fitness of premises””. I question whether it is appropriate to prescribe these matters in regulations. Of course, the management and training of staff are not at all irrelevant considerations in this context, nor is the fitness of premises. They are important but, to my mind, they are things that fall to be assessed primarily by those who commission services. A responsible commissioner will wish to make sure that a hospital or care home has the right number of staff trained to the right level and that the premises are fit for purpose, but it is surely wrong to expect regulations to spell out in precise detail what counts as a fit set of premises or an adequately trained workforce. The most that regulations should do is to authorise the commission to reach its own view on these matters when making an assessment of someone who applies for registration. If the intention is for the regulations to make only that sort of generalised provision, why not have wording that achieves that and no more? Finally, on subsection (3)(h), it is impossible to imagine how regulations could ever adequately define in advance the financial position required of a person to be registered as a service provider. There are simply too many factors at play. Of course, no one wants a care home owner to get a certificate of registration only to go bankrupt within a few weeks, but we cannot seriously expect the commission to become bankers or credit analysts, which is what is implied. I should be grateful if the Minister could explain the thinking behind this paragraph. I hope that it is straightforward—for example, that someone should not be registered as a provider if he is an undischarged bankrupt or in receipt of a petition from his creditors. That would be fine, but surely it is not realistic or feasible to go much further. This is all about balance. How far is it appropriate to try to cram provisions into regulations and how much should be left to the discretion and good judgment of the commission? Clause 16 gives us no feeling at all on how that balance is to be struck. I look forward to hearing what the Minister has to say about it. I beg to move.