Get your Act together Ministers

Philip HuntPhil Hunt on the most ill thought out and poorly defined section of the Care Bill

One of the lessons of Robert Francis’s enquiry into the failures at Mid-Staffordshire Hospital was that the current regulations system is not sufficiently focussed on safety and quality.

Clauses 74-76 of the Bill, which the Lords debate today, set out a new failure regime for the NHS. In doing so, they grant several regulators robust new powers to arrest any decline in standards. But whilst the introduction of a single regime focussed on quality, as well as financial failure is welcome, this Bill raises as many problems as it solves.

Taking each clause in turn, Clause 74 affords new powers to the Care Quality Commission (CQC), including the authority to issue a warning notice to any NHS Trust or Foundation Trust deemed to be failing. This strengthening of the CQC’s powers is important. The government however, does not state the criteria on what constitutes ‘failure’ – just an ambiguous goal of achieving ‘a significant improvement’. We have tabled an amendment therefore for such criteria to be clearly defined in regulations.

Clause 75 gives Monitor, the health care regulator powers to judge whether failing Trusts have improved at the end of the timeframe set by the CQC. Although this succeeds in removing the conflict of interest that would present itself if the CQC asked to adjudicate on its own judgement, it also increases the potential for inconsistency.

However, perhaps the most notable case of duplicated powers comes in Clause 76, which allows for both Monitor and the CQC to order the appointment of a special administrator where a Trust is judged to have committed serious failures. Conflict will clearly arise from this dual competence, and the varying levels of discretion displayed by officials from each regulator will see discrepancies between assessments – as well, of course, as disagreements over whether an administrator is necessary. Reference is made to ‘guidance’ being offered on a transparent and evidence-based process, but the government must go further and put this on the face of the Bill.

Another concern is the process whereby Special Administrators can be appointed to replace the board of a Foundation Trust. A somewhat draconian intervention, this makes no mention of an appeals process – something that ought to be there as a safeguard. 

It is clear that these three clauses represent one of the most ill-thought out sections of the Bill, and after so much pre-legislative scrutiny and consultation, Ministers are quite literally still trying to get their Act together. The baffling and often contradictory nature of their intent and detail will only give rise to the development of a fractious relationship between the regulators that the legislation rightly aims to empower. They must listen to our concerns, if we are to create a regulatory system that is fit to serve the needs of the British people.

Lord Phil Hunt of Kings Heath is a Shadow Health Minister and Labour’s Deputy Leader in the Lords

Published 12th June 2013

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