Last night in the House of Lords (in between the debates on the Justice and Security Committee which led to the Government’s proposals on so-called secret courts being savaged) there was a debate on the regulations that set out how the Chair and members of the committee of Healthwatch England are to be appointed as a sub-committee of the Care Quality Commission.
The regulations are controversial because the subservience or apparent subservience of Healthwatch England to the Care Quality Commission undermine the independence of Healthwatch England as the national body representing patients’ interests – particularly as part of its job in the future may be to raise, on behalf of patients, questions about how the Care Quality Commission has carried out its functions.
The Minister’s response was pretty unimpressive – essentially that the initial appointments made to Healthwatch England were so good that there would never be any problems in the future.
You can read the full debate here.
My contribution was as follows:
‘Lord Harris of Haringey: My Lords, I am pleased to have the opportunity to follow the noble Baroness, Lady Jolly, on this Prayer. She has highlighted the weakness in the Government’s position. I am confident that the people who have set up Healthwatch England are of good will and that they intend and wish it to work; that Anna Bradley will be an excellent person as chair of Healthwatch England; that the outgoing chair of the Care Quality Commission is committed to making it work; and that the chief executive of the Care Quality Commission is committed to making it work. I even believe that Ministers in the Department of Health are committed to making it work.
The problem is that we are provided with a framework of regulation which does not guarantee that in future. One or two appointments down the road, with a new leadership of the Care Quality Commission and, perhaps, with different Ministers at the Department of Health, how will those things be ensured, especially if budgets remain tight and Healthwatch England starts to be effective and makes criticisms which are difficult for Ministers-or, worse still, in this context, for the Care Quality Commission? That is when those problems may arise.
That is why, when the Bill was passing through this House, there was so much concern about the importance of independence for the Healthwatch structure. My concern is that, given that the legislation has passed, this is a wasted opportunity to make it stronger.
One of the lessons that is expected to come from the Mid-Staffs inquiry relates to independence. The report is expected to identify the systemic failure of organisations to focus primarily on the needs of the patients of that hospital. Because each was looking at its own area, nobody was taking the step back to say, “How does this work from the point of view of patients?”. That is where Healthwatch should come in and be influential: to cut through the complicated organisational structures which the Health and Social Care Act has bequeathed to the NHS. That is why the simple issue of how it preserves its independence is so vital.
When the Bill was going through Parliament, the noble Earl held a meeting to discuss how Healthwatch England should work. He made the point that there would be valuable synergies from Healthwatch England being located within the Care Quality Commission. He did not stress, but it was clearly part of the equation, that there would also be some useful cost savings associated with that. The cost savings could be achieved in a whole variety of ways. It would be possible to have an agency agreement whereby some of the back office functions were provided by the Care Quality Commission or any of the plethora of structures that the Health and Social Care Act has bequeathed to the NHS. Similarly, because the duty of co-operation exists, you would hope that those synergies could be activated without the need for the Healthwatch organisation to be subservient to the Care Quality Commission. It would have been possible in these regulations to create a structure which, while preserving the general framework of the Act, would ensure that there was independence.
If we look at the regulations that we have before us, we see a number of flaws. First and foremost, for example, is the size of the Healthwatch England committee. Potentially, this will be a committee of as few as six members. I appreciate that in the initial instance it is larger than that, because people of goodwill are trying to make this structure work. However, in three, four or five years’ time there may not quite be the same atmosphere or there may be a feeling that the wings of Healthwatch England need to be clipped back. In any event, with six to 12 members it is going to be extremely difficult to ensure that there really is the geographical diversity that is necessary; the coverage of all the many major areas of special need that exist as far as health and social care is concerned; and proper recognition of ethnicity and gender within that. Again, the initial membership has provided a reasonable attempt to achieve that diversity, but where is the guarantee of that in the future?
I know there is a feeling that small boards work well. The noble Baroness, Lady Cumberlege, who is not in her place on this occasion, has talked to us glowingly about the value of having small, dynamic boards to run organisations but this is a different sort of organisation. It is supposed to be one that represents the generality of the interests of patients across the whole country and which derives its authority from what is happening in local Healthwatch organisations around the country-the 150-odd local organisations that will exist. It is therefore not appropriate to have a small board in such a case, as it is not the same sort of structure.
Then we have the rather strange arrangements for the appointment process. In the first instance, the chair of Healthwatch England has to get the approval of the chair of the Care Quality Commission before appointments can be made. The future arrangements are that the chair will make the appointments directly but let us be clear: the chair of Healthwatch England is a Secretary of State appointment and has the potential to be the poodle of the Department of Health. I have been in the position of being in charge of the organisation representing patients and I remember successive Secretaries of State, from two parties, making attacks on the organisation because we were being effective and raising issues that were uncomfortable.
Under those circumstances, can we be satisfied with a future arrangement whereby the Secretary of State solely makes the appointment of that individual, who then appoints all the other members of the Healthwatch England committee? In the initial stage, you have a double lock where the chair of the Care Quality Commission gets involved but in future you will have someone who might be appointed as a poodle or to muzzle the watchdog nature of Healthwatch England appointing individuals who are, no doubt, like-minded. That is why the arrangements are strange.
We then have the provision for suspending members, which is set out here. Presumably, the suspension is different from disqualification but the Secretary of State may dispense with the chair of Healthwatch England for a variety of reasons, which includes,
“failing to carry out those duties”.
Who is going to determine what those duties should be? Essentially, we are being told that the Secretary of State will decide what he or she thinks is appropriate for Healthwatch England to be carrying out. Again, the chair then has similar powers in respect of individual members. I make a specific request of the Minister: that in his reply he spells out absolutely that it will not be appropriate for either the chair or the members of Healthwatch England to be suspended from their membership if they are pursuing their interpretation of what is in the interests of patients and their organisations, and the people that they represent.
Because of the requirement saying that the chair of Healthwatch England must be a member of the board of the Care Quality Commission, we are inevitably creating that subservient relationship. Will the chair of Healthwatch England be subjected to, in essence, the collective responsibility of the members of the board of the Care Quality Commission? There have been recent issues with the membership of that commission’s board, where the chair has taken a different view about what the role of individual members should be. That has led to conflict and serious problems.
Let us pan forward a few years: if the chair of the Care Quality Commission does not like the approach being taken by the chair of Healthwatch England, are they then able to say, “You are not fulfilling your duties as a member of the board of the Care Quality Commission because you are not abiding by the collective responsibility of that board’s members. I am therefore asking the Secretary of State to remove you from office and suspend you because you are not fulfilling your roles”? Even if that does not happen we will have, as my noble friend Lord Collins said earlier, the appearance of potential conflict of interest. Ultimately, how are the public going to have confidence in a structure where it looks to them as though the leadership of Healthwatch England is subservient to the Care Quality Commission, one of those important agencies about whose effectiveness it may have to make criticisms?
We should remind ourselves that the aim of all this is to enhance the collective voice of patients in the NHS. You will succeed in doing that only if the public at large have confidence in the structures that you have created. If you build into them the appearance of subservience and potential conflicts of interest, you are weakening that voice. That cannot in any way be in line with what either your Lordships would expect to see from this, or indeed with what I believe Ministers’ intentions to be as far as Healthwatch England is concerned.”