Clause 13
Commissioner for Older People (Wales) Bill [Lords]
4:15 pm
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
I beg to move amendment No. 8, in clause 13, page 8, line 19, leave out
‘if the older person consents'.
Hywel Williams (Spokesperson (Culture; Education & Skills; Work & Pensions; Social Security; Health; Disability; International Development); Caernarfon, Plaid Cymru)
With this it will be convenient to discuss amendment No. 9, in clause 13, page 8, line 21, leave out paragraph (a).
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
The clause gives the commissioner or a person authorised by him the power to enter premises that are not private dwellings to interview older people with their consent and in connection with the commissioner’s powers in clauses 3 or 5 to reviewthe functions of specified people. I am using the amendments to probe and elicit some answers from the Minister.
What constitutes
“a person authorised by him”—
the commissioner—in subsection (1)? Would that person have to be a member of the commissioner’s staff, or could it be any person procured by the commissioner to take part in the exercise of entering premises and interviewing an older person? What safeguards are in place to ensure that that person has received the necessary checks to be put into that position? Would it be necessary for anybody who is authorised by the commissioner to deal with such vulnerable people to have undergone Criminal Records Bureau checks or other appropriate checks?
Could the Minister then define a private dwelling? There has been some discussion about that, but we need to avoid uncertainties. Do private dwellings include privately run care homes? If a care home was owned and operated in the private sector, could an individual’s room be deemed to be a private dwelling? I hope that the Minister will give more details on how we define a private dwelling, because the power of entry is very broad. The only building or structure that cannot be entered is a private dwelling, so we need to be certain what the exact definition is.
I would like the Minister to define “reasonable time”. Subsection (3) says:
“The powers conferred by subsection (1) are exercisable at any reasonable time.”
When we read such things in legislation we need to know what is in the Minister’s mind as to what is a reasonable time. For example, an elderly person might go to bed at 9 o’clock at night, but that would be a reasonable time for me, as someone who does not go to bed until about 1 or 2 o’clock in the morning. [Laughter.] Settle down—it is because I am working very hard on the Bill. Notwithstanding that, I would like the Minister at least to explain the term “reasonable time”.
Under subsection (1)(b), the interview with the older person may take place
“if the older person consents.”
When we talk about consent, particularly that of older people, I am concerned about how we interpret it in the case of people who might at first appear to be capable of giving consent to such an interview, but who are subsequently deemed not to be so. I am thinking of elderly people who suffer from dementia and are not capable of giving that consent—or, indeed, who withhold it—but who nonetheless appear to be quite compos mentis. The Minister will be familiar with the issue, because it covers a swathe of law in other instances, but it would be interesting to hear what is in his mind in this instance.
Subsection (2) says:
“The interview must be conducted—
(a) if the older person requires another person to be present, in that other person’s presence; and
(b) otherwise in the presence of others only to the extent that the older person and the Commissioner have consented to their being present.”
Does that mean that an interview could be conducted entirely in private? If so, that would surely defeat the purpose of the interview. Because the interview is part of a quasi-judicial process, there should be an independent advocate or witness at all times. If information is adduced from an interview of an older person conducted entirely in isolation, as a one-on-one exercise, what safeguards are in place to ensure that the individual gives their consent and is in a condition to give that information?
Can someone refuse entry for reasonable cause or refuse to be interviewed? Subsection (3) says:
“The powers conferred by subsection (1) are exercisable at any reasonable time.”
Let us suppose that someone in a home in multiple occupancy had died, or was close to death. It would seem reasonable that the person in charge of the building might refuse entry to the person authorised by the commissioner. What would happen if the individual refused entry? Would that be covered by “at any reasonable time” as a defence to refusing entry and refusing to allow a person to be interviewed?
A matter that also comes under the power of entry and of interview is that of the qualifications of the person authorised by the commissioner to carry out the interview, which are crucial when older and vulnerable people are involved. I want to know what qualifications will be held by someone carrying out that function. A great deal of trust will be put in the individual concerned because he or she will have what appears to be an absolute right of entry and an absolute right to interview an older person.
I think that is all I wanted to say in this debate, but I hope that the Minister will allow me to intervene if anything else strikes me when he replies.
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
The hon. Lady asked me several questions. At the outset, I should say that subsection (1)(b) enables a commissioner to interview an older person but only on condition that the older person consents to the interview taking place. The Committee should appreciate that it is up to the individual older person to decide whether they want to be interviewed by the commissioner or a member of his staff. The hon. Lady asked who is
“a person authorised by him”
and if they would have been subject to CRB bureau checks.
The hon. Lady also asked about the qualifications of those who will carry out the interviews. It will be an important part of a job specification for members of staff who carry out the role that they are experienced in dealing with older people and able to conduct interviews and elicit information in a sympathetic way, especially as the older person will have made a complaint or expressed concern.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
What sort of qualifications does the Minister envisage the individual having?
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
I imagine that they would be experienced in social work and in dealing with elderly people. I am not saying that they should have a particular degree, but they should have experience in dealing with older people perhaps in a social services framework. They may well be solicitors with a legal qualification who can take evidence from individuals.
I am not setting out a series of qualifications, but obviously the commissioner must be mindful that the interviews have to be conducted sensitively to elicit information.
David Davies (Monmouth, Conservative)
To prevent a re-run of the controversy when the deputy Children’s Commissioner was appointed, does the Minister agree that it would be desirable if the commissioner for older people was not a member of the Labour party?
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
That has altered the tone of the debate. The deputy commissioner has an extremely long history of dealing with children and their care issues. She was eminently qualified for that job, and remains so. She obtained it on the basis of her qualifications and experience, not her membership of any political party. I am certain that a deputy for the Commissioner for Older People will be appointed purely on their experience and qualifications, not on their membership of any political party.
The hon. Lady asked what was a private dwelling—an important issue because the Bill refers to it. A private dwelling is a person’s own home. That includes where a person holds a tenancy agreement. It also includes a family home where an older person is accommodated with his or her relations. However, “private dwelling” would not in our view include the communal areas of a care establishment, and the commissioner will therefore have the power to enter such establishments under the Bill’s provisions.
Any unwanted intrusion into a person’s home would be likely to constitute a disproportionate interference with an individual’s right to privacy and a breach of article 8 of the European convention on human rights.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
Will the Minister confirm that someone’s own room within a care home setting would not be capable of attracting the powers of entry under clause 13, so they will apply to the common parts of that home but not the individuals’ rooms themselves?
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
I refer to what I said at the beginning. Subsection (1)(b) enables a commissioner to interview another person but only on the condition that the older person consents to the interview taking place. If the older person who has made a complaint or is part of a case wants to be interviewed by the commissioner and is resident in a care home, the managers and owners of that care home cannot prevent the commissioner from coming in to see and talk to that individual, as long as the individual wants to talk to the commissioner or a member of his staff. I hope that the hon. Lady accepts that, if we did not have that power, it is distinctly possible that an individual who had made a perfectly legitimate complaint about the standard of care in a particular home would not be able to speak to the commissioner because he would not have the power of entry into that home to speak to the individual.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
It is an extremely complex situation, because a complaint may be made by an individual in a care home setting who presents as though they are capable of making a complaint and consenting to be interviewed, but in fact they are not, which would be known to the people running the care home. The interviewer from the commissioner turns up, comes into the general part of the care home, but then the alleged consent, which could not have been given in the first place, may be withdrawn or may continue to be given even though that person is not capable of giving the evidence. A fairly complex situation could be emerging on the ground with regard to the interviewing process, the disruption to the home, the individual being there, and so on.
Will the Minister confirm that a private room within a care home cannot be entered?
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
I come back to what I said earlier.
Madeleine Moon (Bridgend, Labour)
Perhaps I can add some clarification. What has been asked is no more than any inspector would do in a care home on any day on which they were visiting. Any inspector has a right of entry into a care home at any time, day or night. They certainly would not wish to intrude on someone who did not wish to be interviewed, and that would be equally true for a service user who was asleep or who did not want to talk.
In terms of capacity, we are moving into extremely difficult areas. Most people are deemed to have the capacity to speak for themselves if they are making allegations. Allegations would always need to be substantiated. It would be extremely rare for an inspector, or, I assume, the commissioner, to take a statement from an individual without being able to substantiate it by looking at records, interviewing other service users or interviewing members of staff.
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
I am grateful for that informative intervention based on my hon. Friend’s long experience in the Care Standards Inspectorate. May I help the hon. Lady again? I will add to what my hon. Friend said. The hon. Member for Chesham and Amersham specifically asked whether a commissioner would be able to go into a person’s own room in a care home. He would be able to enter the care home, but he could enter the individual’s room only at their invitation. I come back to the point I made before about subsection (1)(b), which enables the commissioner to interview an older person but only on condition that the older person consents to the interview taking place. I hope that the hon. Lady is now satisfied on that point.
My hon. Friend the Member for Bridgend(Mrs. Moon) and the hon. Lady referred to the capacity issue, which is important. In circumstances where it is determined that an older person lacks capacity to make decisions, this will mean that they lack capacity to give consent to the specific request for an interview. It is not appropriate to give the commissioner a general power to interview the older person in those circumstances. Where a person lacks capacity to make decisions, there may be exceptional circumstances where it is considered appropriate for them to be interviewed by the commissioner.
In practice, this is an issue that the commissioner will need to handle sensitively—as my hon. Friend said, inspections of care homes are taking place regularly—in light of individual circumstances and legal and medical advice, including the application of the key principles and best interests checklist in the Mental Capacity Act 2005. More broadly, the commissioner may want to draw up a good practice protocol on requesting consent which he and his staff follow when they deal with individuals who lack capacity.
The hon. Lady also asked what the commissioner can do to enforce his powers of entry. In fact there is no enforcement power that will enable the commissioner to gain entry. However, if he were concerned about an older person and was refused entry he could alert the Care Standards Inspectorate for Wales, the police or social services as appropriate so that further action could be taken.
Glenda Jackson (Hampstead and Highgate, Labour)
I take my hon. Friend back to the definition of what constitutes a private dwelling. Mention of elder abuse was made earlier. No one in the Committee is labouring under the delusion that such abuse occurs only in private nursing homes. It can happen in the family as much as in any other situation. If the commissioner has no right to enter a private dwelling, what will happen if someone lays concerns before him and he, having examined them, thinks that there is a reasonable case to presuppose that a family is abusing an elderly person? Who then would be empowered to carry forward that investigation if the commissioner is not allowed to go into that private dwelling?
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
I am grateful to my hon. Friend for that important point. If the commissioner were alerted by a neighbour, a relative or another person that something might be happening in a private dwelling, his or her response would be immediately to contact the police or social services, who have power of entry, to examine and check whether the allegations put to him were accurate and therefore immediately protect the elderly person who might be suffering abuse. I assure my hon. Friend that the role that the commissioner would play as the one-stop shop to which the hon. Member for Carmarthen, East and Dinefwr (Adam Price) referred means that he would then refer the case immediately to the appropriate agency. In this case that is likely to be the police and the local social services.
The hon. Member for Chesham and Amersham asked about qualifications for interviews, which will be an important part of the job specification. She also asked about reasonable time, which is an important point, particularly when one is dealing with elderly people. Obviously, the reason for the visit and the person being visited would have to be taken into account. For example, they may be out during the day for day care. If it would be more appropriate for the interview to take place in their own home, it may have to be in the evening. If the interview is to take place in a care home, arrangements can be made to ensure that it fits into the pattern of care in the home.
I appreciate the point that the hon. Lady makes. Elderly people may want to have a nap during the afternoon, for example, and an interview would not be appropriate at that time, but I am sure that interviews would not take place at 1 or 2 o’clock in the morning—although I know that the hon. Lady would be awake at that time.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
May I just take the Minister back to the person authorised by the commissioner? He did not entirely satisfy me on one point. Is it envisaged that the interviewer will be a member of the commissioner’s staff, or could it be someone who is not employed by the commission and therefore acting as an agent, in which case would criteria be laid down to ensure that they carry clear identification? It seems clear from the legislation that interviewers are not restricted to staff of the commissioner’s office, and that there will be occasions when others would be used to carry out interviews.
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
In the fullness of time, that may wellbe the situation. As more cases come to the commissioner’s attention and he needs to act expeditiously, a senior social worker may be required to act on his behalf. Clearly, they would have to satisfy his rigorous qualification that they were a suitable person to carry out this type of interview. Again, I hope that my comments have satisfied the hon. Lady and that she is now prepared to withdraw the amendment.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
I beg to ask leave to withdraw the amendment.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
I beg to move amendment No. 10, in clause 13, page 8, line 25, at end add—
‘(4) The powers conferred by subsection (1) are exercisable in Wales only.'.
This is a very simple amendment. It is about where the powers can be operated. Could they be exercised in England?
Nick Ainger (Parliamentary Under-Secretary, Office of the Secretary of State for Wales; Carmarthen West and South Pembrokeshire, Labour)
No.
Cheryl Gillan (Shadow Secretary of State for Wales, Wales; Chesham and Amersham, Conservative)
That is good clarification. I beg to ask leave to withdraw the amendment.