My Lords, I welcome this very interesting debate which has gone in various directions. We have a number of amendments to consider here.
Amendment 73A would transfer the responsibility for the National Reporting and Learning System from NHS England to the Care Quality Commission. We wish to take the opportunity to underline the importance of the data and information available through the NRLS to the work of the Care Quality Commission. Indeed, a key component of the CQC’s new three-year strategy sets out how it will make better use of intelligence to inform inspections. However, I remind noble Lords that it was only on 1 June that responsibility for the National Reporting and Learning System was transferred to NHS England. This transfer puts patient safety at the heart of the NHS—I heard what the noble Lord, Lord Hunt, said, but I think it is extremely important that it is at the heart of the NHS—and will build on the excellent work of the National Patient Safety Agency. NHS England plans to develop a responsive NRLS that will provide a one-stop shop for NHS clinicians, patients and the public.
Additionally, noble Lords may be aware of the Berwick review of safety—reference was made to it—which seeks to learn lessons from the Francis report. It will report in July on a whole system approach to ensure that there is zero tolerance of harm in the NHS. We will, of course, give full consideration to any recommendations that that review might make on the effectiveness of the NRLS. In view of these important developments and reviews, we believe that reallocating this work now would be unnecessarily disruptive.
Amendment 73B introduces a new clause which would require the CQC to have regard to guidance on staffing numbers and skills mix in carrying out all its functions. I fully understand the sentiment behind this. All noble Lords will agree that high-quality care is dependent on the people giving it. We heard from
the noble Lord, Lord Campbell-Savours, about the problems that arise when that breaks down. Clearly, the right staffing in terms of numbers and skills is vital for good care. It therefore follows that staffing levels and skills mix are key considerations for the CQC in regulating quality of care. However, as the noble Lord, Lord Campbell-Savours, says, that is not necessarily sufficient. The CQC’s registration requirements place a clear legal duty on providers to have sufficient numbers of suitably qualified, skilled and experienced staff in place for the services provided. It is the responsibility of individual providers to be accountable for staffing levels and the skills mix of staff in their organisations. Where a provider does not meet the staffing registration requirement, the CQC is able to use its enforcement powers to protect patients and service users. However, I note what the noble Baroness, Lady Finlay, said about this being an issue which is not necessarily best placed in primary legislation. The point is to try to achieve quality, safety and efficacy.
The CQC will shortly review and consult on its registration requirements. We intend to amend the requirements so that they will include fundamental standards. These will set the basics below which standards of care must never fall. We can assure noble Lords that the new chief inspectors that we talked about previously, based within the CQC, will have the power to inspect and assess staffing numbers and the skills mix as part of examining the quality of care and will be able to take any necessary action as they consider appropriate. Noble Lords asked whether NICE might become involved in that. We believe that the current legislative arrangements already require the CQC to assess staffing levels. However, we will work with NICE, the CQC, NHS England and other partners to review the use of evidence-based guidance and tools to inform staffing decisions locally.
Amendments 76B and 77 each introduce a stand-alone duty of candour in primary legislation. We had an extremely interesting debate that demonstrated the complexity of the issue. As the noble Lord, Lord Warner noted, it is a complicated area. The noble Baroness, Lady Finlay, illustrated that, as did my noble friend Lady Jolly and the noble Lord, Lord Campbell-Savours. He noted that there could be unintended consequences such as unwanted litigation. However, my noble friend Lady Jolly said that often all that patients and their families need is clarity and something being admitted to. All these issues show how complicated the area is. The noble Baroness, Lady Finlay, spelt that out.
The Government share the view that providers of health and care must be open in their dealings with patients and service users. Our response to Robert Francis’s report makes a clear commitment to introduce a statutory duty of candour. I therefore wish to reassure noble Lords that we are doing that. In particular, I should like to reassure the noble Baroness, Lady Masham, on that point. That is what we are doing. The route that we are taking is perhaps endorsed by the nature of this debate. We see this as something that is better taken through by secondary legislation. Let me spell that out. The Government intend to introduce an explicit duty of candour on providers as a CQC registration requirement. This will require providers to ensure that staff and clinicians are open with patients
and service users where there are failings in care. I hear the warnings voiced by the noble Baroness, Lady Finlay. In the end, the aim has to be to improve the quality, safety and efficacy of care. I note what she said about confidentiality.
As with all requirements for registration with the CQC, the Government intend that the duty of candour should be set in secondary not primary legislation. There are very strong reasons for that. Using secondary legislation will enable us to expedite the introduction of this duty and provide a degree of flexibility to get the design of the duty right. I am sure that the department and my noble friend Lord Howe will welcome noble Lords’ engagement, bringing their own wet towels if they wish to, as we take this forward. Secondary legislation will still allow for full parliamentary scrutiny, given that the changes to the regulations that set CQC registration requirements will be subject to the affirmative procedure in both Houses. The duty itself will have the same legal power in secondary legislation as it would in primary legislation. There is also the additional advantage that in such a new and important area we can refine this new duty over time, if noble Lords’ warnings prove to be significant. That is why I commend the Government’s preferred approach of setting the new statutory duty of candour through secondary legislation.
Amendment 77A has the effect of removing the power to specify the type of information and the type of care provider within scope of the new false or misleading information offence. This is a different but obviously related area. This would mean that we have a criminal sanction that applies to all information required by legal obligation, including under contract, which would be disproportionate. It is important that the offence does not inhibit providers from sharing information voluntarily, but we also need to keep the flexibility to respond to new information or different priorities for information over time.
We appreciate that noble Lords will be interested in understanding more about the types of providers to which this offence will apply. The Government are still considering the scope of the offence and I am absolutely certain that my noble friend Lord Howe will be happy to discuss this further with noble Lords.
We start from the issues raised in the Francis inquiry. We are therefore clear that the offence will apply to providers of NHS secondary care. This includes NHS trusts, foundation trusts and independent sector providers of NHS secondary care. We are giving further thought to whether the offence should also apply to other types of providers. We will consider whether, for example, there is a case for extending the offence to providers of adult social care, general practice and mental health services. We will consider this, working together with our stakeholders, and we will of course keep noble Lords informed as to our thinking as this moves forward.