I think the noble Lord has misled himself. The way in which we envisage the system working for both trusts and foundation trusts, where we have a provider that looks as though it might be clinically unsustainable, is to encourage commissioners and the provider concerned to come together and have a grown-up conversation about the configuration of services. That is the first resort and it is the normal course of action that we would expect, whether it is an NHS trust or an NHS foundation trust. In either case, trust special administration is going to be a last resort.
The noble Lord is right that, while we envisage the process of trust special administration to be broadly the same in both instances, there has to be a difference. The difference arises from the fact that foundation trusts are, in statute, much more autonomous bodies than NHS trusts. NHS trusts are still subject to directions from the Secretary of State. What the TDA does is act as the Secretary of State’s proxy in overseeing their quality, sustainability and governance. That is why there is a process around referral to the Secretary of State before a trust special administration can take place for an NHS trust, whereas that is not the case with a foundation trust. That is because Monitor is the independent regulator for FTs charged with doing that.
The noble Lord does not need to make too much of the differences that he has purported to identify in that document, which I will, of course, re-read in case we have inadvertently misled the Committee. The point I sought to make was that in no way do we envisage a material difference in the process which will ensue from a clinically unsustainable provider, or one whose quality is in question.
The noble Lord, Lord Warner, asked what will happen to NHS trusts that do not meet expectations of the accountability framework published last December. The accountability framework covers clinical and operational metrics, governance, leadership and finance. If the TDA judges that a trust is failing the accountability framework, it has a number of options. It can request recovery plans—Monitor is also in a position to do that with FTs; it will increase the frequency of its engagement with the trust; it can commission an independent investigation; it can review the skills and competence of board members. Again that is something that Monitor can do with FTs. It can commission interim support to provide additional management capacity—again that is something that in theory Monitor could do under its licensing arrangements. Ultimately, the TDA can exercise the Secretary of State’s functions and terminate appointments. Monitor has similar powers. I want to reassure the noble Lord, Lord Warner, that there is not such a gap as he has made out in this area.
Incidentally, the noble Lord called into question the speed of progress of the foundation trust pipeline. I can assure him that the pipeline is moving. It may look rather glacial from his perspective, and I can understand why. However, even though the TDA was established only on 1 April, two foundation trusts have been authorised since then—Kingston on 1 May and Western Sussex, which was announced today.
The noble Lord, Lord Warner, sounded a warning that this kind of arrangement posed a risk that money could end up being taken away from successful trusts to bolster poorer performers. It is precisely to avoid that that we need to grasp the nettle in some cases as we had to do in south London to ensure that one part of the NHS did not drain the resources that should be shared out more equitably among the rest of the health service. Certainly, this is not the intention of our policy. In fact, the purpose of special administration, if it is deemed necessary, is to ensure both clinical and financial sustainability. When it is clear that a hospital cannot resolve quality failures in its current form, we will no longer have to wait until a trust fails financially before action is taken. That is why I shall talk about special administration in more detail in a second.
In future, issuing a warning notice to a trust or foundation trust will be a sign that there is a serious quality issue at that trust and that significant improvements are required. I fully agree with the noble Lord, Lord Hunt, that it will be important to determine what significant improvements could encompass, as proposed by Amendment 64A. We have been clear that the new warning notices are designed to highlight serious failings, such as a systematic failure to meet fundamental standards. As noble Lords will remember, the fundamental standards are a concept that Robert Francis put forward, whereby treatment or practices in a trust could be said to be absolutely unacceptable by anyone’s measure. The fundamental standards themselves have not yet been defined; that process will be taken forward in the coming months with full consultation with the public, and we need to get that right. That is the issue underlying the provision around significant improvements. Under the 2008 Act, the CQC is already required to publish guidance to detail its approach to issuing warning notices. This will be revised in light of this Bill to include its interpretation of “significant improvement”. That is a flexible and proportionate approach.
When a trust receives a warning notice, just as happens now, it will be published and the CQC will send a copy either to the TDA or to Monitor, depending upon whether they relate to an NHS trust or foundation trust, as proposed by Amendment 65. Clause 74 amends Section 39 of the 2008 Act, which requires that a copy of the notice be sent to Monitor and any other persons whom the CQC considers appropriate. When the notice relates to an NHS trust, this would include the TDA.
I have listened carefully to the noble Lord’s arguments in favour of Amendment 66ZB regarding large providers spread over many sites. This is not a new issue; having a regulatory system that is flexible enough to cope with such organisations has always been critical. At present, the CQC has to ensure that they can take a differentiated approach and can deal appropriately with providers, ranging from large multisite hospital trusts to care homes. This will continue to be the case, so I feel that this amendment, while I sympathise with its intent, is unnecessary.
Clause 75 introduces changes to ensure that when failures are identified, there is a prompt and firm response. We have been clear that when a provider receives a warning notice, the responsibility to resolve problems will remain with the provider in conjunction with the local commissioners, as I referred to earlier.
However, serious failures in the quality of care must not be allowed to be endure, so Clause 75 makes changes to ensure that, when quality of care at a foundation trust requires significant improvement, Monitor can take timely action to make changes to leadership or governance to secure improvements in those services. It amends Monitor’s powers under Section 111 of the 2012 Act to enable it to impose additional licence conditions on foundation trusts when the Care Quality Commission has issued a warning notice to that trust. At present, Monitor can make use of these powers only if there is a failure in governance. If the foundation trust breaches those additional licence conditions, Monitor will be able to use its powers to suspend or remove directors or governors. The NHS Trust Development Authority already has powers to intervene in NHS trusts or to remove or suspend boards, as appropriate.
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I see where the noble Lord is coming from with Amendment 66ZD, which proposes that Monitor must set out the criteria that guided its issuing of additional licence conditions, but I wonder whether it is wholly necessary, given that the main criteria will always be, as the legislation sets out, that the CQC has previously issued a warning notice, which will provide further details on the nature of the failure and the necessary improvements required. I do not believe that the amendment would add anything substantive to this, although, of course, I am happy to discuss this further with the noble Lord, if he would like that.
The noble Baroness, Lady Wall, in her powerful speech, which brought us to the realities of life in a very vivid way, as the noble Lord, Lord Warner, said, sounded a very appropriate warning about the need to grasp the nettle with regard to reconfigurations. The noble Lord, Lord Hunt, expressed his worry that, taken as a whole, the Government’s approach was a recipe for limbo as regards progress towards the necessary reconfigurations. I do not agree with that. We have been very clear, not least since the debates on the Health and Social Care Bill last year, that those issues, when they arise, should not be ducked.
In the first instance, as I have explained, reconfigurations can typically take place through discussion between commissioners and providers, and many have. Stroke services in London are a classic example of a fantastic series of reconfigurations that took place completely in the public eye and have been outstandingly successful. However, in some cases it may be clear that more fundamental issues prevent an NHS trust or foundation trust from making the necessary improvements in its current form. There may be a series of factors that, despite the best efforts of the board of a trust, are inescapable. In such cases, Clause 76 enables Monitor to make an order to authorise the appointment of a trust special administrator on quality grounds, and for the CQC to prompt it to do so if necessary.
The noble Lord makes a number of fine points on Amendment 65ZF, and I agree that the process of special administration should always be evidence-based and transparent. This will be achieved through a number of provisions, as I will set out. First, before the CQC
or Monitor could put a trust into special administration on quality grounds, it would need to be satisfied both that there has been a serious failure in the quality of care and that special administration is appropriate. If the CQC or Monitor is satisfied that these requirements are fulfilled, it must consult the Secretary of State and its fellow regulator before then consulting the trust in question, the board, and local commissioners before an order is made. Those are safeguards. They are not designed to hold up the process of a special administration where it seems to be in the best interest, but they are, I think, appropriate safeguards when such a radical step is being considered. Section 65D of the National Health Service Act 2006 already requires Monitor to publish its reasons for making the order in a report laid before Parliament. I hope the noble Lord agrees that, given this, the amendment is not required.
For NHS trusts, the TDA has a duty under secondary legislation to advise the Secretary of State if it thinks that it would be in the interests of the health service for him to put an NHS trust into administration. We therefore propose to amend the TDA directions to oblige the TDA to make such a recommendation where advised to do so by the CQC. I hope that the noble Lord, Lord Warner, will see that that is perhaps one of the missing links that he was looking for. We would expect the CQC to consider doing so where an NHS trust had failed to comply with a warning notice, as proposed by Amendment 66, in the same way in which it must for a foundation trust. If necessary, the Secretary of State could exercise his powers under Section 4(2) of the Health and Social Care Act 2008 to direct that the CQC must have regard to this aspect of government policy.
For foundation trusts, the objective of trust special administration is currently focused on continuity of services and financial stability. Clause 77 is therefore needed to ensure that there is necessary focus on the quality of services. To achieve this, Clause 77 broadens the objective of trust special administration as it applies to foundation trusts to include an additional requirement for services to be of sufficient safety and quality. The objective will apply to any foundation trust in special administration, regardless of whether the order was made to resolve a financial failure or a serious failure to provide services of sufficient quality. The intention is to ensure that the CQC is satisfied that the services that continue are not only financially viable but clinically sustainable.
Clause 77 also requires that the CQC is consulted before the trust special administrator provides a draft report to Monitor recommending the action to be taken by Monitor in relation to the trust. The administrator may not provide a draft report to Monitor unless he or she has first obtained a statement from the CQC that the part of the objective relating to the quality of the services has been met. When considering the final report from the trust special administrator, the Secretary of State must also be satisfied that the CQC has fulfilled these functions. So there is, if you like, a “triple lock” here for the quality of services.
In contrast, in reference to Amendment 67, special administration can be triggered for NHS trusts where it is in the interests of the health service to do so. That
is a far broader definition that already focuses on securing quality services. In relation to NHS trusts, we envisage a similar role for the CQC in providing a statement about the quality of services to an administrator that considers the recommendations made in the draft report. This will not require primary legislation. Instead, it will be set out in guidance.
There are a further series of issues that I am sure noble Lords want me to cover. I apologise for the length of my remarks, but this is a very large group of amendments.
I appreciate the concern that there should be clarity throughout the system for providers as to why action is being taken against them and where they stand. However, we need to balance that with the need to act promptly, when necessary, to protect patients. I think we have got that balance right in the clauses as they stand.
Under current legislation—and I am afraid that duty requires me to remind the House that it was enacted by the Opposition when they were last in government—no provider has a right of appeal to the First-tier Tribunal where the CQC issues a warning notice. I see no reason why the situation should be different in the future for NHS trusts and foundation trusts, as proposed by Amendment 66ZC.
Neither is there currently any right of appeal against the imposition of licence conditions under Section 111 of the 2012 Act, as proposed by Amendment 66ZE, just as there is none when the Secretary of State determines it appropriate to intervene to rectify concerns at an NHS trust. Again, this is consistent with the position established by the Opposition when they were in government. To establish one now would be to create an unhelpful discrepancy between the way in which Monitor’s powers under Section 111 would apply to quality issues and the way in which they already apply to failures of governance.
Amendment 66ZG proposes that there should be a right of appeal where there is disagreement as to whether the order should be made. We have included the power for the CQC to ensure that the chief inspector, as the guardian of quality in the system, can direct Monitor to put a foundation trust into administration if he considers it necessary in order to protect patient safety. To allow a right of appeal in that instance would be to cast doubt on the chief inspector’s judgment at what could be a most crucial juncture, if one were to imagine another situation like that of Mid Staffordshire. While I understand noble Lords’ concerns, I think that the approach that we have taken is the right one when one considers that, in the future, such action will be based on expert judgments and reserved for the most serious failures where the priority should be securing safe and sustainable services for local patients as quickly as possible.
I will address the questions posed to me. The noble Lords, Lord Campbell-Savours and Lord Hunt, asked why the Government had not simply accepted the recommendation of Robert Francis to merge Monitor with the Care Quality Commission. We were explicit at the outset that this was one recommendation that we were not going to accept, because we firmly believe that there remains a strong case for maintaining the
CQC and Monitor as separate organisations that fulfil distinctly different functions. The inspection and assessment of quality of care should not be conflated with the responsibility for turning around failing providers.
We agree with Robert Francis that we need to tackle duplication and misalignment, and we will achieve this through the single failure regime. The single failure regime will provide a clearer understanding of roles between organisations, with the CQC responsible for exposing problems and Monitor and the NHS Trust Development Authority responsible for overseeing enforcement action. We have received much support for our proposed approach. For example, the Nuffield Trust,
“recommended against transferring Monitor’s responsibilities to the CQC”,
and the Royal College of Nursing supported,
“moves that will allow for the NHS Trust ‘failure regime’ to be enacted on the basis of failures of quality, instigated by the CQC”.
There is a difference of view between us and Robert Francis. We feel that we have met the spirit of his recommendations in other ways.
The noble Lord, Lord Hunt, pointed to an apparent difference of treatment between NHS trusts and foundation trusts on the one hand and private providers on the other. The CQC’s current powers simply have not been as effective in NHS hospitals as they have been in other sectors. I would go so far as to say that the nuclear option which the CQC currently has of closing down a hospital simply is not credible when one considers that many hospitals are the only show in town in providing services. The CQC has never exercised that power in relation to an NHS trust. It has exercised it in relation to a care home, but I believe noble Lords will readily see that a care home is a rather different animal from an acute hospital, not least because it operates in a market where very often there are alternative sources of provision. That is why we have reshaped these provisions. It is vital that effective and timely action can be taken where quality is found to be lacking in our hospitals, and that the regulators have a range of powers available to them according to the severity of the issue.
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Monitor and the CQC are subject to enhanced duties of co-operation in the 2012 Act. The bodies have also committed to closer working, and these clauses have been developed jointly with them. As I said, the CQC has appointed Mike Richards as the first Chief Inspector of Hospitals, and he will be the authoritative voice of quality. These things have happened since Robert Francis looked at the whole issue. The way in which the CQC and Monitor now work together is a direct product of the events of Mid Staffordshire, even before Robert Francis was appointed to his second inquiry.
Government Amendments 66A, 67A and 68 to 72, in my name, are minor and technical amendments to Clauses 76 and 77, and are necessary to ensure that the requirements which the Bill introduces to consult the CQC in the preparation of the administrator’s draft report under Section 65F of the National Health
Service Act 2006 and when preparing guidance for trust special administrators under Section 65N of that Act will apply correctly until such time as all NHS trusts have been abolished and paragraphs 15 and 24 of Schedule 14 to the Health and Social Care Act 2012 take effect.
I hope that noble Lords are content with my assessment of the failure regime in the light of the amendments tabled and that I have been able to provide reassurance that the approach that we have taken is correct. As I said, these clauses are a direct response to the report of the public inquiry led by Robert Francis, which sets out how regulators, commissioners, professional bodies and the Department of Health failed to secure high-quality care. The single failure regime will ensure that when quality is found to be lacking, a prompt and robust approach will be taken.