John Austin

Labour Party | Erith and Thamesmead

All change in health and social care

Care Standards Bill - All change in health and social care
Wednesday 12 July 2000

An overview of the Bill and the expectations of Parliament by JOHN AUSTIN MP

The impetus for change has come from several sources. Some commentators have attributed it to “the transformation of the provider state into the regulatory state” particularly in relation to long-term care of the elderly, where provision in the independent sector has grown at the expense of the NHS and local authorities' own services. This growth in the independent sector, which also affects services for pre-school children, has highlighted faults within the present system and focused attention on areas that are not currently regulated. It has also led to demands for regulation to be even handed as between the public and private sector. Concerns about malpractice in the state sector have also played a part in bringing about proposed changes.

The Bill has generally received a warm welcome. There is widespread support for the establishment of a National Care Standards Commission and a General Social Care Council and establishment of a list of people considered unsuitable to work with vulnerable adults. The proposed transfer of regulation of childcare from local authorities to OFSTED has attracted criticism from some quarters but there is general support for improvement in the system of regulation.

Most of the criticism of the Bill concerns the detail and not the principle. The proposals for reform have developed over several years. The previous Conservative government's review of the regulation and inspection of social services was based on the view that regulation and inspection had a key role to play in safeguarding standards of service without placing unnecessary burdens and bureaucratic controls on service providers. The review led by Tom Burgner described a variety of arrangements that existed for regulating and inspecting different social services and made a number of criticisms, namely:

• limited coverage of regulation
• inconsistency in its application
• lack of even-handedness as between public sector and other providers
• weakness in enforcement; and
• lack of clarity and apparent arbitrariness in determining costs and fee levels.

In spite of these problems, the Burgner Report concluded that statutory regulation was essential in ensuring adequate care standards for vulnerable children and adults.

Many of the Burgner Report's recommendations are reflected in the Care Standards Bill. The Burgner Report proposed a single system for regulation and inspection of social services with flexibility to deal with different client groups. It proposed that there should be a greater national input into standard setting and that coverage of regulation should be extended to areas currently unregulated. Its concern for even handedness as between public sector and other providers is also reflected in the Bill.

The Burgner report, however, concluded that there was no consensus on the institutional arrangements necessary for conducting regulation and inspection. It concluded that the choice was essentially a political one. It rejected self-regulation by provider groups and argued that the other alternatives to statutory regulation, such as local authority contract monitoring were not an adequate substitute.

The report examined some organisational models including OFSTED but concluded that the OFSTED approach was less suited to social services which have to deal with a greater range of provisions and client groups than schools, which were relatively uniform in terms of scale and purpose.

Two other models considered in the report were to build on existing responsibilities of local authorities and health authorities but strengthen the independence of the inspection units; or to take responsibility for regulation away from local authorities placing it either with the Department of Health's Social Services Inspectorate or with a new statutory body accountable to the Department of Health.

The Conservative government accepted many of the key recommendations and the White Paper published just before the General Election in March 1997 proposed that the regulation function should be removed from local authority social services departments. All their regulatory responsibilities, including those for children's services and the regulatory responsibilities for nursing homes exercised by health authorities would be brought together into new local statutory bodies. The government also proposed to develop machinery for setting national benchmarks for care standards.

The proposals were also drawn to the attention of the inquiry set up under Sir William Utting to review safeguards for children living away from home and to the Tribunal of Inquiry under Sir Ronald Waterhouse examining allegations of child abuse in North Wales.

In its election manifesto of 1997, the Labour Party expressed its commitment to an independent inspection and regulation service for residential homes and domiciliary care and in 1998 the Labour government published its White Paper on social services which quoted several influences on government thinking, including the Burgner report and the work of the Better Regulation Taskforce.

The Better Regulation Task Force had laid down five principles of good regulation:

• Transparency
• Accountability
• Targeting
• Consistency
• Proportionality.

The Task Force defined Transparency as meaning that policy objectives, including the need for regulation, should be clearly defined and effectively communicated to all concerned; that the regulations should be simple and clear and come with guidance in plain English; and that those being regulated should understand their obligations and know what to expect from the enforcing authorities.

Accountability meant that regulators should be accountable to government, citizens and Parliament; that proposals should be published and all those affected consulted before decisions were taken and that there should be a well-publicised, accessible, fair and efficient appeals procedure.

On Targeting the taskforce suggested that the approach should be aimed at the problem and not scatter-gun or universal; that a goals-based approach should be used where possible allowing future flexibility and leaving the providers a degree of freedom in deciding how to achieve the goals; also that regulations should be reviewed periodically to examine whether they were necessary or effective.

Consistency suggested that new regulations should be consistent with existing regulations and compatible with EU regulations.

And Proportionality meant that alternatives to regulation should be fully considered and that the impact on those affected by regulation should be identified, establishing the right balance between risk and cost, not making needless demands on those being regulated and ensuring that any enforcement action or sanctions were in proportion to the seriousness of the offence.

In December 1997, the government set up the Royal Commission on the funding of long-term care. Although this is primarily concerned with the funding of long-term care, its report published last year included proposals for a National Care Commission to monitor trends, including demography and spending, ensure transparency and accountability in the system, represent the interests of consumers and set national benchmarks.

Another influence, relating specifically to children in care, was the Utting report published a few months after the government came to power. Whilst the report was concerned with a broad spectrum of measures, registration and inspection were a key part of its recommendations and in its response the government announced its intention to bring forward proposals for new independent regulatory arrangements.

The White Paper on social services published in November 1998 dealt specifically with regulation and inspection pointing out that responsibilities for regulating the various services for adults and children were divided between 150 local authorities, 100 health authorities and the Department of Health centrally. It also pointed to the fact that other services, notably councils' own care homes, small children's homes and domiciliary care were not subject to any regulation at all. The combination of responsibilities for purchasing, providing and regulating care services and the conflict of interest that this causes means that people in local authority care homes do not benefit from independent regulation.

The report also pointed to a lack of coherence because responsibilities were split between different authorities and different professional disciplines - social services professionals on the one hand, and mostly professional nurses on the other - resulting in ineffective scrutiny of nursing care in residential homes and social care in nursing homes.

Originally the government intended to create commissions for care standards at regional level based on the boundaries of the NHS and social care regions providing eight such authorities in England and there would be new statutory regulation of services not currently covered, including domiciliary care and small children's homes. In December 1999, in a debate on the report of the Royal Commission on long-term care and in response to its recommendation for a National Care Commission, the Secretary of State announced a switch in policy from eight regional commissions to national ones for England and Wales.

In the debate Alan Milburn made clear that the National Care Standards Commission would be responsible for ensuring that all long-term social care is provided to a consistently high standard. For the first time, there would be a single, independent, national watchdog, which would be responsible for ensuring high standards of care wherever it was provided and whoever provided it. It would be simpler and more streamlined but crucially there would be a level playing field for public and private sector providers.

When the Care Standards Bill was introduced in the House of Lords it was welcomed by peers of all parties and in particular the level playing field for public and private sector regulation, the regulation of previously unregulated areas and the introduction of national standards. There appeared to be no divisions on social care issues.

The main changes made during the passage of the Bill through the House of Lords were to bring nursing agencies within the scope of the Commission and to make it compulsory for domiciliary care agencies to register with it.

Whilst the Conservatives broadly welcomed the Bill, they described it as an empty box, a legislative framework with little indication of content. And they complained that much of the detail was left to regulations which would subsequently be issued by the Secretary of State. The government's argument is that the framework Bill will enable the government to respond to future developments more easily.

The opposition was also critical of the government's abandonment of its proposal for regional commissions in favour of a national one and argued that social services were local services varying from one part of the country to another in response to differing local needs and circumstances. The Liberal Democrats on the other hand welcomed the decision to set up a single regulator in the form of the new commission for the provision of care, whether for the elderly, vulnerable adults or those with disabilities, or children; and whether the home was NHS, private, voluntary sector or local authority.

The government believes that a single commission will ensure greater consistency across the country. After all, that has been one of the great motivators in making the changes. One commission instead of eight will avoid duplication, minimise the potential for arbitrary and confusing operational differences and provide the government with one overview of the provision and quality of care services.

It is also questionable whether the regulation of independent healthcare would be feasible with eight independent commissions.

I recognise the very real concerns about the possible remoteness of a national organisation. One senior manager here today remarked to me recently that locally based inspectors were more likely to identify problems in, for example, residential establishments whilst standing in the queue at Sainsbury's or from an anonymous whistleblower than from an unannounced inspection. My colleague, David Hinchliffe, a former social worker, made the same point in the debate. One of the strengths of the current system is local knowledge and accountability. Local knowledge must be built into the National Care Standards Commission, because it is fundamental to pick up intelligence about where things may be going wrong.

The Bill does give the Secretary of State the power to direct the commission to appoint regional directors, but in association with that I would also expect the commission to have local offices because the people who will actually carry out inspections will be locally based. Many of those who are currently employed within health and local authorities as inspection officers will transfer to the employment of the Care Standards Commission.

The government also made abundantly clear their intention of ensuring that proper arrangements are put in place for the effective handling of complaints. Indeed it will be a condition of registration that those running regulated establishments have complaints systems in place and publicise them, and the government has announced its determination to introduce an independent element to investigate cases where the complainant is not happy with the way in which their complaints about private healthcare have been handled.

Investigation of complaints about breaches of standards or regulations often provide a source of information about the overall fitness of an establishment which does not surface during inspections. Recent scandals and public inquiries have shown us how a few unscrupulous individuals have been adept at concealing abusive behaviour.

The report of the Waterhouse inquiry was not published until the Care Standards Bill was making its way through the House of Lords but it has influenced subsequent debate.

The reforms relating to Children's Homes in the Bill, to unify the disparate forms of regulation that now exist and to end the exemption from regulation of small private sector homes appear to have been uncontroversial in the Lords. The Burgner Report, the previous government's White paper and the Utting Report were all in favour of bringing small private children's homes into the regulatory framework. The Bill does provide for small homes to be regulated before the Care Standards Commission comes into operation and they will have to register with local authorities until such time as the new system under the Commission is brought into force. But the key point of the reform is that all children's homes come under the regulation and inspection by the Commission and no distinction is made between community homes provided or financed by local authorities, voluntary, independent not-for-profit homes and registered i.e. independent for-profit homes.

The Bill also extends the powers of the Commission to those boarding schools which provide accommodation for periods longer than the normal term.

In terms of number, it is the independent sector residential care for adults and nursing homes which dominate the services covered by the Care Standards Commission. There are 22,650 independent residential care homes, 2,220 local authority residential care homes and 5,780 independent nursing homes. This compares with 3,000 domiciliary care agencies and 1,230 children's homes which are the two next largest categories.

Again the Burgner report recommended that local authority provision should be subject to registration and that registration should be even-handed between the public and independent sector.

The Report also questioned the distinction between nursing homes and residential care homes made in the Registered Homes Act whereby local authorities are responsible for registering independent residential care homes and health authorities responsible for regulating nursing homes. Whilst the Act provides for a system of dual registration, Burgner described this as cumbersome, inflexible and bureaucratic and creating problems for the efficient use of nursing skills. Burgner concluded occupants of many residential homes were people with dependency levels whereby they might earlier have been placed in hospital or nursing homes and he commented that “the boundaries between social and nursing care have shifted since the Act was passed in 1984”. He proposed joint local authority/health authority inspection units and consideration being given in the longer term to ending the division between nursing homes and residential homes by creating a single category with a single regulatory regime.

The Conservative Government's White paper saw the attraction in moving towards a single category but wanted a more thorough assessment. Its position on the public sector, however, was not how to regulate it but how to restrict its operations and proposed to reduce local authorities' powers to provide residential care directly.

In its White Paper, the present Government indicated that it wished to bring local authority homes under an independent regulatory scheme subject to the same inspection and enforcement procedures as voluntary and private care homes and to introduce a single registration category. The Bill does this and defines a care home as one which “provides accommodation, together with nursing or personal care for people who are or have been ill, who are disabled or infirm, or who are or have been dependent on alcohol or drugs”. Obviously a single care home would not be able to take any type of client and homes will be registered to provide certain types of care only, which will be specified in the registration certificates.

Domiciliary Care Agencies are not subject to social care regulation but the Burgner Report, the Conservative government's White paper, the Labour Party Manifesto and the present government's Better Regulation Task Force have all called for registration of the organisations providing the care. It was surprising, therefore, that the present government's White paper suggested that registration would not be compulsory although local authorities would be able to make contracts only with those which were registered.

When originally published, the Bill included domiciliary agencies among those services which would have to register with the commission but contained a provision for a transitional period when registration would not be compulsory and a provision that during this undetermined transitional phase local authorities and NHS bodies may only contract with registered agencies. Lord Hunt indicated that compulsory registration for all agencies would only be introduced after the scheme had been in operation for some time.

The government came under pressure from its own supporters and in the Committee stage in the Lords, and agreed to extend regulation to all agencies and to dispense with a transitional phase.

The Bill also ends the anomaly whereby Nursing Agencies are regulated by local authorities under the Nurses Agencies Act 1957 and not under the Employment Agencies Act 1973 which regulates almost all other employment agencies including locum doctors, dentists and professions allied to medicine. Whilst employment agencies are regulated by the DTI, which has the power to prohibit people from running an agency or business on the grounds of unsuitability or misconduct, there is no requirement to be licensed or inspected and the DTI only intervenes in response to information received or a formal complaint.

The government has responded to concerns on this point and accepted an Opposition amendment to place nursing agencies on the same footing as domiciliary care agencies and whilst nurses agencies will still come under the Employment Agencies Act and therefore be regulated by two systems they will be required to register under only one, the National Care Standards Commission.

So on both domiciliary care agencies and nurses agencies, the government has listened to criticism of its proposals and accepted proposed changes. The government has also agreed to look further at the issue of care assistants. Many care workers in the community will be covered by the regulation of domiciliary care agencies but the government has agreed to look further at the need for regulation of healthcare assistants in NHS hospitals and the regulation of nursing agencies providing care assistants to work in private sector hospitals.

The Bill also extends regulation to adoption and fostering services provided in the independent sector and those provided by local authorities but excludes private fostering arrangements. Adoption and fostering services provided in the independent sector will be subject to registration by the Commission and subject to its regulatory regime. Local authority services will be subject to inspection by the Commission.

In the case of fostering agencies, this will mean that they will be subject to regulation for the first time.

Independent adoption agencies have to be voluntary organisations under the Adoption Act and fostering agencies are generally voluntary but the proposed legislation acknowledges the reality of the growth in the number of both not-for-profit and for-profit fostering agencies. It would appear that fostering is following the pattern of residential care for the elderly in increasingly being provided in the private sector. This is not a trend which I welcome and I believe that it will lead to professional fostering staff leaving local authorities in large numbers to establish private organisations which then contract their services back to the local authority at higher cost but, given the growth in both not-for-profit and for-profit fostering agencies, it is right that the Government should seek to regulate them. The Utting Report did make a number of recommendations regarding private fostering which I believe the Government will need to return to. Certainly a first step which the Government should take is to ensure that the current regulations for private fostering are more effectively enforced.

Day care for adults is another area which I believe the Government must address. Currently day care for adults does not have to be registered and nor does the Bill contain provisions for it to be regulated by the Care Standards Commission. In response to recent pressure, the Government has given an assurance that the Commission's remit will be extended to day centres providing nursing or personal care although it has not yet given a date when this will happen. A number of other concerns have been expressed during debates on the Bill. I am concerned, for example, about holding centres for refugee children and their families which are currently not regulated or required to be registered. This absence does in my mind raise the general issue of children's rights.

The question of a Children's Rights Director is another part of the Bill which has caused a degree of controversy.

The Bill does make provision for a Children's Rights Director who will be accountable to the Chief Executive of the Commission. The adequacy of the children's post and the extent to which the Bill made provision for children's views to be taken into account were repeatedly raised during the passage of the Bill through the House of Lords. The proposal must be seen in the context of the campaign for a Commissioner for Children. When the Health Select Committee conducted its inquiry into children looked after by local authorities, we concluded that the time was ripe for the UK to follow the example of a number of other western countries, including Germany, Spain, the Scandinavian countries and New Zealand, by creating a post of a Children's Rights Commissioner.

The Health Committee has proposed a Commissioner who would have the duty of promoting awareness of the rights of children, highlighting ways in which present and proposed policy and practice fail to respect those rights, conducting formal investigations where breaches of children's rights were considered to have taken place, for instance in cases of abuse in children's homes, seeking to ensure that children had effective means of redress when their rights were disregarded by, for instance, monitoring children's use of complaints procedures, and carrying out or commissioning research relevant to the safeguarding of children's rights. We made a firm recommendation that the Government should introduce the necessary legislation as soon as possible. We also recommended that there should be a Cabinet sub-committee on children and young people, to ensure that the needs of children – including children looked after – are taken seriously at the heart of government. I hope that the Government will look afresh at this proposal and the proposal for a Children's Rights Commissioner. Since the publication of the Health Select Report in 1998, my colleague Hilton Dawson MP has introduced a Ten Minute Rule Bill which is supported by more than 100 children's organisations. In introducing his Bill, Hilton Dawson said that the Commissioner “would analyse the impact of government policies on children and would provide the ultimate back-stop to ensure that systems designed to protect children did not let them down. The Commissioner would need real power to investigate and undertake public inquiries, produce his own reports and require that he be consulted. He would also need power to insist that Departments and other bodies issued child impact statements on policy proposals and to ensure that he is involved in the reporting obligations of government under the UN Convention on the rights of the child.”

The provisions in the Care Standards Bill regarding the Children's Rights Director are brief, simply saying that

• 1. The Commission shall appoint a Children's Rights Director who is to be a member of the staff of the Commission.
• 2. The Director shall have such functions as may be prescribed.In its White Paper, “Modernising Social Services”, the Government envisaged that the Children's Rights Director would:
  a) help the Care Standards Commission to give full and effective coverage of children's services and children's rights in their statutory regulatory responsibilities and in the reports they make on the discharge of those responsibilities;
  b) ensure that the views of children placed in the facilities and services regulated by the Care Standards Commission are given proper weight in that regulatory task;
  c) report directly to the Chief Inspector of the Social Services Inspectorate any significant evidence relevant to the rights and safety of children gained from the Commission's regulation and assessment of services for children, which might help local authorities or other providers to improve the services and support they give to children.

I don't take issue with the proposed terms of reference for the Director but it falls far short of the concept of a Children's Rights Commissioner.

In this context it will be interesting to observe the consequences of devolution.

The Waterhouse Report was commissioned under powers which had not been devolved to the Assembly for Wales but the Report has been passed on to the Assembly as many of the recommendations will be for it to implement under its devolved powers. The National Care Standards Commission is the registration authority for England. Under devolution, the responsible registration authority in Wales will be the Welsh Assembly.

The idea of a separate Children's Commissioner for Wales predates the Care Standards Bill and last year the Assembly Secretary for Health and Social Services announced that she was asking the Assembly's Social Services Committee to work out proposals to establish a Children's Commissioner for Wales. The Waterhouse Report of the Tribunal of Inquiry into the abuse of children in care in Wales gave added impetus as it also proposed that there should be an independent Children's Commissioner for Wales. It will be interesting to observe how things develop in Wales, what powers are given to the Commissioner and what implications this may have for England.

Another area which has caused controversy is the regulation of private health care.

In the Report of its Inquiry into private health care, the Health Select Committee, concluded that the current arrangements whereby private hospitals and clinics are registered as “nursing homes “ under the Registered Homes Act were inadequate and inappropriate.

These facilities include among others. Private psychiatric hospitals, maternity homes, hospices, premises where surgical procedures are carried out including terminations of pregnancy, laser treatment, dialysis and other procedures including cosmetic surgery and intensive care. It was clear from the Health Committee's Inquiry that some of these establishments used unqualified nursing staff, surgeons who were called specialists but not specialists in the procedures which they were carrying out and there was very real cause for concern. There was also a call for regulation from the private sector itself, in order to weed out the cowboy operators and from the BMA. Clearly the registration procedures for nursing homes were woefully inadequate.

The Health Select Committee recommended the creation of an independent regulator for healthcare outside the NHS, responsible to the government to identify appropriate standards and relevant activity and to provide for its regulation.

The government has taken these recommendations on board and has designated the National Care Standards Commission as the appropriate registration authority.

This proposal, that the National Care Standards Commission should be the regulator for both private social care and private health care has proved to be the most controversial, leading to a defeat for the government in the House of Lords. The Bill does, however, make a clear distinction between traditional nursing homes, that is those providing long-term nursing care, which are classed together with care homes from hospitals, clinics and other establishments whose main purpose is to provide medical or psychiatric treatment or where listed services are provided including anaesthesia, sedation, obstetric services, abortions, cosmetic surgery, palliative care and treatment using prescribed techniques or prescribed technology. And although both nursing and care homes on the one hand and independent sector hospitals and clinics on the other will be regulated by the NCSC they will be subject to different regulatory regimes reflecting the different services they provide.

NHS pay beds, however, are not included in those facilities subject to regulation by NCSC since these are covered, as are NHS facilities by the Commission for Health Improvement since they are part of the "managed system". The government was defeated in the Lords on an amendment calling for both NHS and private hospitals to be regulated by the Commission for Health Improvement. The government's view is that the role of the NCSC is to lay down minimum standards and ensure that services are of an acceptable quality whereas the Commission for Health Improvement has a wider role in regard to the NHS to modernise and improve the quality of NHS services.

A compromise appears to have been reached in the Committee Stage by the introduction of a government amendment providing for joint working of the NCSC and CHI. Tonight, in the Commons we shall see if the compromise sticks.

I referred earlier to the role of OFSTED. The government recognises that for young people the line between care and education is becoming increasingly blurred and proposes to bring together the regulatory systems for child care and nursery education. Responsibility for child minding and day care regulation will transfer from local authorities to Her Majesty's Inspector of Schools. I think that Lord Laming described this in the House of Lords as "just plain daft".

In the 2nd Reading debate in the House of Commons, David Hinchliffe and I both expressed our grave reservations that child minding was essentially a care service and should be dealt with by people who understand the care issues. I am not sure that OFSTED is suited to this role given its per-occupation with league tables and performance related pay. David Hinchliffe suggested that we might end up with targets for tots. In his blunt Yorkshire manner he put it most clearly when he said he had a serious worry that we were turning our children into robots, that they were under pressure to achieve academically, with league tables putting teachers under more pressure and he did not want these inappropriate pressures to be brought into child minding for the under fives. I fully endorse that view. In the debate I argued that child minding was about social care and good child care practice rather than education. The Minister argued that those responsible for child minding registration in local authorities would transfer to OFSTED bringing their skills and knowledge but my concern is that they will be in an alien environment, divorced from their colleagues engaged in social care. The Minister has said that this will be a separate arm of OFSTED - all I can say is the more separate the better.

But let me end on a positive note. Let me first of all join in the universal praise for CCETSW and the role it has played but also join in the almost universal welcome for the creation of the General Social Care Council and because it is universally welcomed I will not dwell on its role and function only to say that one million people work in social care, two thirds in the independent sector. 80% of this large workforce which works directly with very vulnerable people have no recognised qualification or training. As the government's White Paper points out, they are called upon to respond to some of the most demanding, often distressing and intractable human problems. There are few public accolades for getting it right and virulent criticism for getting it wrong. Staff can feel embattled and undervalued. I hope that the creation of the General Social Care Council will be seen as a step in the right direction in redressing that.

The three main measures I have outlined, the National Commission for Care Standards, the General Social Care Council and even the regulation of early years provision by OFSTED, all deal with positive registration, that is they deal with people or bodies considered suitable to carry out the functions concerned. Part VI is the negative side of the Bill - it deals with maintaining a list of people considered unsuitable to work with vulnerable adults complementing and amending the legislation on the lists of people considered unsuitable to work with children that is already in existence.

No doubt during the course of the day there will be criticisms that the Bill goes too far in some directions, the Independent Health Care Association and the Tories for example have warned that regulations on staff numbers, quality of environment and room sizes will force care home providers out of business. I would merely comment that financial policies in the 80s put too many of our elderly people in residential care, when we should have been putting that money into rehabilitation and domiciliary care. The 80s saw an explosion in private residential care and we don't need to seek ways of filling the 25,000 empty places in private residential care with people who ought to be cared for in the community. I hope this Bill will put an end to wall to wall geriatrica.

And there will be others like me who feel the Bill does not go far enough but I hope I have given an even-handed, even if at times personal, view of the legislation which I think puts us on the right road to put the interests of the users of services first and not the providers, whether they be public or private. It is the government's intention to drive up standards and I believe this Bill sets us on that road.

I wish your conference well and I hope that your deliberations today will help in the process of informing and influencing the government in the framing of the necessary regulations.

John Austin
12 July 2000

John Austin wishes to acknowledge the assistance and factual information provided by the House of Commons Library: Research Paper 00/52, 16 May 2000

(www.parliament.uk/commons/lib/research/rpintro.htm)