Schedule 5
Health Bill [Lords]
6:30 pm
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I beg to move amendment 104, in schedule 5, page 53, leave out lines 25 to 35.
Unlike in the previous clause, the amendments to this one are sequential rather than grouped. We had some discussion on that but, given that we are not under so much pressure, it will be easier to take them separately as I have prepared them.
On amendment 104, the Bill as drafted suggests that an action is to be treated as an action taken by the legal person of the provider. In other words, in terms of liability, an action is to be treated as an action taken by the provider if it is taken either by a person employed by the provider, a person acting on behalf of the provider, or a person to whom the provider has delegated functions. Those are quite common legal concepts. The provisions suggest that the conduct of individuals will not be considered or commented upon, which seems odd, both in itself and if and when we move to a fully registered work force.
We need to be clear that one of the potential key benefits of the process is that it is able to ensure that lessons can be learned from its findings on complaints. We are dealing with potentially extremely sensitive and vulnerable situations, and it behoves all of us to ensure that lessons are quickly learned. One of the most shocking recent absences in relation to adult social care is what has taken place at Stafford hospital, and the Mid Staffordshire NHS Foundation Trust was prayed in aid by some of the earlier amendments tabled by my hon. Friend the Member for Hemel Hempstead. It is absolutely vital that we keep in mind how quickly we need to ensure that lessons are learned.
I also need to know, if I may press the Minister, what happens if a provider goes bust but the management team continue trading under another name. I assume that the body remains accountable, but there must be a question mark on the concept of being able to pierce the corporate veil. As a lawyer, I will not go into the detail of that, because I dare say that other members of the Committee are familiar with the concept at a legal level. While that is not a completely happy analogy, it helps promote my point, and I would like the Minister to comment on how far one can get behind the legal person of the incorporated or unincorporated body actually to get to some of the individuals involved.
The amendment raises the important principle of liability, and I hope that the Minister will clarify the schedule as drafted. I do not for a moment suggest that the amendment is particularly elegant or happy, but it has given me the opportunity to raise a point, and I hope that the Minister will offer some analysis and comfort on the issue.
Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)
New section 34A includes the definitions of adult social care and adult social care provider for the purposes of the new scheme set out in new section 34B. The meaning of adult social care is the same as that in section 9 of the 2008 Act. The amendment would remove subsections (4) and (5) of new section 34A, which provides that action taken on behalf of the provider should be treated as action taken by that provider. Not referring to the ombudsman being able to investigate action taken on a provider’s behalf would introduce uncertainty about the coverage of the scheme, and I am glad to have the opportunity to set out why that would not be desirable.
Our aim is to ensure that complaints about social care that is provided under any arrangements where the provider has delegated a service remain within the ombudsman’s remit. We want the ombudsman to have a fair degree of discretion. The provisions cover action taken by an employee, by a person with whom the service provider was contracted to provide the service, as well as where the service is provided by a less formal arrangement with another person. I do not believe that anyone would think it right for a service provider to evade investigation of poor practice just because someone acting on their behalf carried out the service for them and was directly responsible for the actions.
Suppose a care home provider contracts with a person for that person to come into the home and provide a particular service, which is then the subject of a complaint. Under these provisions, the care home provider is still responsible for what happens within that care home and they should rightly be subject to an investigation if there is a complaint to the ombudsman. Without these provisions, it would be easy for such a provider to escape investigation by arguing that the service that had been the subject of the complaint was carried out by someone else on their behalf. That would be wrong and therefore I trust that the hon. Gentleman will feel able to withdraw the amendment.
The hon. Gentleman rightly raised the issue of those who trade under different names and he asked to what extent we can pierce that corporate veil. It is our intention that the ombudsman would be able to examine all the circumstances in a case and would have broad discretion in the way that that would be done. It would be the facts that would be investigated rather than a corporate individual. If the ownership of a particular care home was to change and was passed among a number of organisations, each of which was a separate corporate entity but owned by linked individuals, the ombudsman would still be able to look at the facts and the circumstances before taking a view on the matter.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I am most grateful to the Minister, because this is obviously an important point and I think that he recognises that it is important in terms of the way that accountability flows.
I have had a case in my constituency that caused the most monumental nightmare for everyone concerned. After an inspection, the lady who originally owned the care home in question was found to have been operating something that was very sub-standard and indeed she faced some allegations that she had provided very poor care. Of course, her permission to operate was withdrawn under the various processes that applied.
It then turned out that that sanction had been wholly and wrongly misapplied to her, because the inspectors had placed an over-reliance upon information from the owner-boss of the care home; I will not name the case, for obvious reasons. During the inspection process, the company had been sold, it had become part of a larger group and there was a conflict of personalities between these two individuals. Consequently, there was an attempt by the new owner effectively to get rid of the former owner, so that the new owner could make efficiency savings; the removal of the former owner was certainly not going to do anything to improve patient care. It was an absolutely despicable case at every step. However, the difficulty was being able to get behind the issues of ownership.
As I say, I am grateful to the Minister for his clarification. I am sorry that this is a long intervention, but I am grateful to him because, as he said, the process is about investigating the facts. However, it can often happen in these cases, after the inspection and regulatory process, that matters reach the courts. The case that I mentioned reached the courts purely because there was a restraint of trade case that took place in the courts, because of the attempt by the new owner of that care home to restrain the original owner from going into competition with them after she realised that her future plans were being blocked. That was why we had huge difficulty in getting behind the different corporate entities.
I am glad that the Minister was able to take my point seriously, but this is a real issue; we are trying to ensure that patients do not suffer.
Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)
In trying to get to the facts in a case, there is obviously a requirement to get the relevant information. Where an ombudsman is concerned, it is always difficult for them to collate and obtain the information that they need. Some people may say that they just will not co-operate with the ombudsman and that remains an issue for us. I just want to warn the hon. Gentleman about that, because these provisions are not panaceas. They are ways of helping, instruments that are available to those who are badly done by, and we need to ensure that they are in place where they are needed. However, let us not pretend that they will solve all the problems or that they will be able to do more than they can.
There is also the point about an individual’s liability versus the liability of a home or a company. Let me say that an ombudsman can report, but whether compensation is paid or what the final outcome of a case will be is all a matter of law and there is also the question of whether there will be co-operation with the ombudsman.
These are complex issues and I just wanted to put on record the fact that there are a number of caveats, so that it is clear that I am not claiming that these provisions will provide all the guarantees that we might like to provide. They will provide a tool to ensure that complaints can be dealt with more effectively and to ensure that people have somewhere to go and some prospect of getting a remedy.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I am grateful and the Minister is right; it is obviously a complex area. He is also right to be cautious because, while, as we have already stated, we more than welcome the proposal, there will always be some who seek to escape the full consequences of the law and everything that runs up to that. On the back of the discussion, which moved matters forward sufficiently, I beg to ask leave to withdraw the amendment.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I beg to move amendment 64, in schedule 5, page 54, line 4, leave out ‘not’ and insert ‘choose not to’.
Quite simply, and this may display my ignorance, can the Minister explain what proposed new schedule 5A to the Local Government Act 1974 covers and why the ombudsman is not given discretion over investigations?
Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)
New schedule 5A excludes from the ombudsman’s remit the commencement or conduct of civil or criminal proceedings before any court of law. That mirrors the arrangements in the local authority scheme and also those for all other public service ombudsmen. For example, a complainant could not complain to the ombudsman about how the High Court dealt with a claim against a care home. That would not be appropriate for the ombudsman to investigate.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
That is fine. I beg to ask leave to withdraw the amendment.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I beg to move amendment 65, in schedule 5, page 54, line 37, leave out ‘an order in Council’ and insert ‘regulations’.
Robert Key (Salisbury, Conservative)
With this it will be convenient to discuss the following: amendment 66, in schedule 5, page 54, line 39, leave out from beginning of line to ‘made’ and insert ‘A regulation’.
Amendment 144, in schedule 5, page 54, line 40, leave out from ‘(10)’ to end of line 41 and insert
‘may not be made unless a draft of the Instrument has been laid before and approved by a resolution of each House of Parliament.’.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I am happy to say that I will withdraw the amendment but before I do so I need to say something about it. I would like clarity from the Minister about Privy Council responsibility and using Orders in Council rather than regulations. I move the amendment to get an answer.
Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)
At present the Bill provides for changes to be made by an Order in Council. An Order in Council is a form of statutory instrument and, as such, may be annulled in pursuance of a resolution of either House. That is what the Bill specifies. Orders in Council are made by Privy Councillors and have often been used to amend primary legislation governing public service ombudsmen. The use of regulations, on the other hand, is a power given to a Secretary of State, so is linked to a particular Department. Matters relating to the ombudsmen are not strictly departmental matters, which is why Orders in Council are used to make changes relating to ombudsmen in legislation. The new scheme will sit alongside the existing local authority scheme in the 1974 Act, under which there is already provision for the equivalent schedule of exclusions to be amended by Order in Council. If the power under proposed new section 34B is ever used, it is highly likely that it will be at the same time as the existing power. It would be cumbersome to have to have two different statutory instruments—one by Order in Council and one by regulation. I trust that the hon. Gentleman is satisfied that that is a reasonable way to proceed.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I beg to ask leave to withdraw the amendment.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I beg to move amendment 67, in schedule 5, page 55, leave out line 6 and insert—
‘(a) a person who has power of attorney for D’.
As drafted, a complaint can be made
“(a) by D’s personal representatives (if any), or (b) by a person who appears to a Local Commissioner to be suitable to represent D.”
I am sorry to use the wording in the Bill but it is probably the easiest way to ensure that the Minister understands what I am trying to say. The amendment substitutes “D’s personal representatives”—D being the person in care—with the more tightly defined power of attorney holder. We want to probe the Minister on what those phrases mean, particularly,
“(a) by D’s personal representatives (if any)”
and tease out how loosely “D’s personal representatives” is to be understood. Does it mean anyone speaking on behalf of D, or is it limited to a particular category of people because of the proof of a certain degree of connection or authority?
Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)
The Bill allows persons to complain on someone else’s behalf. If someone has died, or is otherwise unable to authorise someone else to complain on their behalf, a personal representative, or someone who appears to be suitable to the ombudsman, may complain. It gives a certain amount of discretion to the ombudsman. If someone has died, the estate or personal representatives in law will be in that category. The amendment would remove the right of personal representatives of a deceased person to complain, and instead, create the right for someone who has the power of attorney to do so.
The Bill allows someone authorised in writing by the person affected to make the complaint on their behalf. This could include a person with the power of attorney, so the power of attorney could, in any event, do that. But that is not enough for two reasons. First, since many service users are elderly and frail, it is a sad reality that they could have died before the complaint can be pursued. Secondly, they may be unable to authorise someone to act on their behalf. If the person affected has died, there may be a personal representative who will need to take that forward for the broader public good and to ensure that they are satisfied about how things were done in a particular circumstance. It is appropriate that they should have the ability to do so.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I am satisfied with the Minister’s answer. The difficulty arises, as both he and I and indeed all members of the Committee will recognise, because our political generation faces the enormous demography of an ageing population. Yet, outside this particular arena, where we are effectively setting up a complaints process, there is also the process of people being represented at the onset of dementia and Alzheimer’s. There is always a tricky phase between the point at which we do not want someone’s independence, dignity and inner confidence impugned and when it is becoming too difficult for people to handle their own affairs. At that difficult time, it is possible that the personal representative’s approach in the complaints process will have a read-across to something that is not as formal as the power of attorney, or an enduring power of attorney, which now seems to be one of the areas that is causing quite a lot of problems. Does it take place before someone becomes a candidate to go into a residential care home, or does it happen after they have made their own decision to go into the care home? All sorts of issues surround this area, so I urge the Minister to comment on the potential of taking that example and looking at it a bit more widely. That would give us a bedrock on which to address some of the wider issues about the ageing population.
Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)
The aim here is to give the ombudsman at least a broad degree of discretion about whom he accepts a complaint from. It is right that when we are looking at such issues, we are conscious that it has a broader and general applicability. We are dealing with the ombudsman, and therefore, in a sense, we are taking the issues outside the legal, formal arena. In that arena, the courts will have a view about who is appropriate to make a complaint and what the circumstances are in which an organisation or individual is obliged to respond. That would be a matter of law. Here, again, it is a matter of law, but we want to give greater flexibility to the ombudsman to take a view about what sort of complaint it will be prepared to consider and from whom.
I accept that there is a wider general applicability to the issues. I am a bit more cautious than the hon. Gentleman wants me to be about how we go down the route, because I am conscious that we will have both legal and non-legal—in a sense, outside the formal, legal processes—obligations that we have to take account of. I do not want to make general statements about the capacity of individuals to make complaints on behalf of others, if the courts take a view that under its procedures, it would be not permissible for it to go much further than to the ombudsman with that sort of complaint.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I am grateful. I hope that that was a useful exchange. I am satisfied on the actual substance of the amendment that it can be withdrawn. Effectively, the power of attorney point is included, rather than excluded. The general point that I made, using the issue as a hook to make it, is a discussion for another day. But there are some important issues that need to be established. As we are looking at contentious processes—this is the ombudsman effectively being brought into a process—it is part of a more appropriate way of dealing with complaints, particularly where the courts are involved. That is often a more contentious and difficult process, and often a barrier to access; an ombudsman is not, because of its availability and access to all. There is clearly an area in which such thinking may be a spur to thinking that needs to go on elsewhere. Hopefully, the courts will take good cognisance of it as we develop the process. I beg to ask leave to withdraw the amendment.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I beg to move amendment 68, in schedule 5, page 55, line 14, leave out ‘12’ and insert ‘36’.
The ombudsman can take complaints only within 12 months of the event, although he has the power to suspend that. The simple question is: why 12 months, especially as the whole arena of complaints procedure was first promised—certainly more than mooted—in 2007? We felt that in fairness the time should stretch back to then and that is why we have substituted 36 months, which is around the average length of stay in a care home and might make some correlating sense. Furthermore, if the ombudsman can take complaints from events 12 months in the past, what assessment has the Minister made of the initial wave of complaints, which may meet the arrival of the framework? Paragraph 32 of the RIA states that the Government envisage up to 1,000 people a year having their complaint looked at. Where does the Minister get that figure from and is he concerned that up to 1,000 people will put in complaints on the first day, in addition to the 1,000 over the first year?
To some degree we have the example of what has just taken place in relation to the parliamentary ombudsman, with whom I had a meeting recently. A number of complaints already in train in the Healthcare Commission have now been taken on by the ombudsman, because the Care Quality Commission has taken over the Healthcare Commission’s role and the complaints process is with the parliamentary ombudsman. We have now reached the point at which the ombudsman’s own work load is arriving, as well as what has effectively been taken on from the previous Healthcare Commission work load. The Healthcare Commission was a public body, so had there been any allegation of maladministration or other such things in the broader remit of what the ombudsman can consider, there would of course have been some referrals from the Healthcare Commission to the ombudsman. There were three categories. That assessment needs to be made and clearly understood, as does the sourcing of the estimation in the regulatory impact assessment given by the Minister.
On the amendment, the RIA addresses set-up costs for the ombudsman in 2009-10, at paragraph 15, noting that they are in the region of £500,000 to £770,000. I would be grateful if the Minister could let us know whether the process has begun and when he expects the ombudsman to start.
Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)
There are a number of reasons why we have specified a time limit of 12 months. Before going into those, the hon. Gentleman is right that there needs to be a balance. I am sure that some people might have complaints from further back than that that they might well want dealt with, but we have to look at some basis upon which we judge how far back to go.
The measure mirrors the provisions in part 3 of the Local Government Act 1974, governing the ombudsman’s role in relation to local authorities. Twelve months is a reasonable time and the vast majority of complaints would reach the ombudsman well within that period. If we were to have a longer limit—for example, the three-year period proposed by the hon. Gentleman—some investigations could potentially be made more difficult, because key staff had moved on, or managers in the service might have moved to another job, and those that remained would find it difficult to recall accurately events going back three years in the past.
It is not impossible to do that—the courts do, the tax authorities do—and all sorts of provisions require longer periods, but we wanted to ensure that the ombudsman, who has a difficulty enough job in any event, is not burdened with all the problems of calling evidence, which would normally be done. Such issues are usually resolved in a hearing, but the ombudsman would normally want do this on paper. Therefore, it is necessary to have a situation in which a reasonable period of time is looked at. I would not suggest that there might not be cases in which it is right to allow more than 12 months. For that reason we have provided in subsection (3) for the ombudsman to have the power to disapply those time limits. However, we would very much see that as a decision for the ombudsman.
The ombudsman’s remit would not extend to self-funded adult social-care users until 1 October 2010, when the new CQC registration starts applying to adult social care. I am happy to write with more details on the impact assessment’s assumption about the 1,000 people; we shall go back, check the detail and report on the sources of that assumption. Our proposals in the Bill include the local government funding and money set aside to cover the establishment of a scheme.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I am most grateful. That was helpful and I shall look forward to the letter covering the other point. I beg to ask leave to withdraw the amendment.