We now move to Clause 3 which sets out for the purposes of the Bill the definition of a "care home". That effectively brings together the definitions in previous legislation of a "residential home" and of a "nursing home". There is some concern--this is interesting in the light of our discussions on the Statement--that when considering care homes the whole issue of clinical governance will not be considered. For that reason, Amendment No. 7 proposes the insertion of the word "clinical" after "with" on line 42, page 2.
There is an increasing trend for nursing homes in particular to be used to treat NHS patients. When a hip is replaced in an NHS hospital as part of the treatment episode, the patient may be discharged from an NHS hospital to a private nursing home for rehabilitation. I am told that around the country winter pressure money is being used to purchase space in care facilities in order to release beds in the acute sector. That, of course, is of great relevance to what we have been discussing. If the word "clinical" is not inserted in the clause, can the Minister say what procedures would be in place to assess the clinical care delivered to individuals transferred to care homes from hospital as part of their treatment episode? Can he also explain what plans there are to implement clinical governance procedures in the social care setting when doctors and nurses carry out clinical procedures in such care homes? That is precisely what the amendment seeks to elicit.
A further concern has been brought to my attention: the bringing together of the definition of a residential home and a nursing home may well allow, in some back-door way, means testing to be applied across the board. At the moment, nursing homes are means tested but residential homes are not. Can the Minister give a specific assurance--I am not sure that this was delivered on Second Reading--that there will not be any effect on means testing pending the outcome of enquiries such as the Royal Commission on Long-Term Care? I beg to move.
I would be concerned about the inclusion of the word "clinical" in the clause for fear that it would further narrow the definition. It seems to me that in the Bill we are attempting to apply standards, in so far as we possibly can, across the board as regards care in all settings. I would be concerned that the use of the word "clinical"--which has a medical connotation, a medical connection--would too much narrow the definition.
I am grateful for the letter from the Minister following Second Reading which clarified for me some of my anxieties about this part of the Bill. I welcome the single registration system for nursing and residential homes. It should lead to a much more flexible system which is better able to provide care tailored to the patient's needs.
However, I ask the Minister for some clarification about the financial implications of this provision for patients. As we know, at present nursing care provided in nursing homes is means tested, whereas all other health care, such as that provided in residential homes, acute and community hospitals and people's own homes, is provided free by the NHS. We seek some clarification and ministerial assurances that this change in the Bill will not be used to extend means testing of nursing care by the back door.
The amendment of the noble Lord, Lord Clement-Jones, seeks to bring an establishment which provides only clinical care and accommodation within the definition of a "care home". Clause 3(3) excepts hospitals and independent clinics from the definition of "care home" as they are defined elsewhere.
This does not mean that other key services for vulnerable people will fall in a gap between the definitions of care home and of independent hospital or clinic. For example, a hospice which provides palliative care would be covered within the definition of an independent hospital under Clause 2(6) as providing a listed service. Independent clinics and hospitals, as they are defined in Clause 2, are distinct services from care homes, and the Bill is drafted to allow different regulatory provisions to be made in respect of such services.
Regulations and standards will be needed for independent hospitals and clinics which relate to the provision of their particular services--for instance, the staffing required in terms of doctors and nurses in establishments carrying out surgical procedures under general anaesthesia.
Care homes will often provide a permanent home for their residents and so regulations will be needed to ensure that facilities and services are provided that would ordinarily be available to residents if they were in their own homes--clothes laundering, for instance.
So far as concerns the question about means testing and definitions, I do not believe that these provisions will have any impact on those issues. The registration process and the registration certificate that will be given to particular homes will specify the kind of home as which they are registered. If a home was a nursing home, it would continue to be registered as a nursing home. Therefore, the application of means testing would continue as heretofore.
I suspect that the Minister has moved on from the previous point about the clinical care carried out within a care home but, unless I misheard, I do not think that he said what system of regulation there will be with regard to clinical care carried out within a care home--for instance, the kind of rehabilitation and transitional care I described earlier. What regulation applies in those circumstances? That is what the amendment seeks to elicit.
That will very much relate to the regulations and the national minimum standards that will follow from them, and the role of the care commission in inspecting those homes. The definition of a "care home" in Clause 3 is that an establishment is a "care home" if it provides accommodation, together with nursing or personal care, for the persons listed. If in such a home clinical provision was being carried out, as I mentioned in relation to a hospice, it is most likely that that particular institution would be registered as a hospital. But clearly there are judgments to be formed, on the basis of both the regulations and the national minimum standards, in relation to whether an establishment is a care home as defined or an independent hospital.
Clause 3 of the Bill specifies that,
"an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons".
"persons who are or have been suffering from dependence on alcohol or drugs".
I thank the Minister for his reply. I welcome his assurance about the means testing status quo, so to speak. I am no nearer feeling that I have had an answer about the clinical governance aspect. I recognise that the noble Baroness, Lady Pitkeathley, may have reservations about the particular expression in the amendment.
The amendment seeks to elicit an answer from the Minister about the kind of clinical governance regime that will apply to clinical care when it is provided within a care home. Following the Minister's reply, I am no nearer feeling that there is an answer than I was earlier. The Minister seemed to say that such a home has to be defined as an independent hospital before the clinical governance regime can take place. In this amendment we are talking about situations which may be thought of as half-way houses. That brings us back to the old chestnut we discussed earlier; that is, the question of seamless clinical governance between all sectors.
I thought that the main issued being raised here by the noble Lord was the question of an establishment that might fall under the category of a care home or under the category of an independent hospital. I have been trying to make it clear that the care standards commission will need to make judgments according to the regulations and the national minimum standards laid down as to how a particular home is to be registered. In the registration document, specific reference will be made to the services that are to be offered in that particular establishment.
As regards clinical governance, as it were, in care homes, inspectors will visit both residential care homes and nursing homes to check on the healthcare provided to ensure that it is appropriate. I can assure the noble Lord that regulations and standards relating to such provision of healthcare will be laid down. I hope that I have now addressed the noble Lord's queries a little more clearly.
I thank the Minister for that reply, but I am afraid that I must reply, "Not really" to his last comment. I shall read carefully all his responses in Hansard. However, we may well return to the issue because the point here is not only the precise definition of a "care home". We must be assured that a regulatory regime will apply just as much to the social care being provided within those establishments as it will to the provision of healthcare. It is vital that we achieve the right balance.
One problem in the Bill is that of trying to match the two halves of social care and it is a key issue that we must face as we progress through our discussions. In the mean time, I beg leave to withdraw the amendment.
At the Second Reading of the Bill, befuddled though I was by the dreaded lurgy--although I was one of the 8 million who had the jab--I hope I made it clear then how much both I and Mencap, of which I am president, welcome this landmark Bill. For that reason, noble Lords may wonder why I have tabled so many solus amendments. Quite simply, I want to make certain that the improvements in standards for social services and the new safeguards being offered to service users apply equally and appropriately to one of the most vulnerable groups affected; namely, people with a learning disability.
I have had the privilege of submitting a paper regarding those concerns to the Minister, as well as having a lengthy meeting with him and his officials, at which they were most helpful. As a result, I have tabled 28 amendments which appear to be alone and palely loitering, but I believe that the Minister will be well prepared with his responses and I can only hope that those will be favourable.
In speaking to Amendment No. 8, perhaps I may speak also to Amendments Nos. 9 and 10. The amendments to this clause all seek to remove the word "suffering" from the statutory definitions used in the Bill for people with disabilities, illnesses or substance dependence. I do not doubt that we can all cite examples of people who have indeed suffered within the context of all three sets of circumstances; none the less, I do not believe suffering to be integral to any of them. At best the term is superfluous and at worst it is confusing.
My particular concern is with the use of the word "suffering" in relation to people whose disability constitutes impairment of the intellect or a learning disability. As I have outlined on many occasions, suffering indicates the endurance of pain and implies the possibility of eventual cure, neither of which are normative expectations of people with learning disabilities. The noble and learned Lord, Lord Williams of Mostyn, was good enough to remove the term "suffer" from the definition of disability used in the Youth Justice and Criminal Evidence Bill in the previous Session. I hope that that will be accepted as a precedent and I urge the Minister to do the same in the context of this legislation. I beg to move.
When I read the amendment and found that I agreed with it, I am afraid that I had not appreciated the intricacy that lay behind it, which the noble Lord, Lord Rix, has just explained to the Committee. In my innocence, I thought that the noble Lord was engaged in a proper process of using the English language correctly; namely, using one word instead of three. I was prepared to applaud that and wondered whether I should have worked through the Bill with the same kind of toothcomb. The tendency to use convoluted phrases rather than simple English is something to be deplored. If that was all that the noble Lord, Lord Rix, was seeking to remedy with his amendment, he would have my full support.
However, that is not all. The noble Lord has made another most important statement. Those of us who have had responsibility for organisations that look after people suffering from handicap of whatever kind would simply say that "suffering" is not the right word to use. It is therefore for two reasons that I hope that the Minister will be able to make a short speech to tell the Committee that he will be happy to accept all three amendments. I believe that they have a great deal to commend them.
The noble Lord, Lord Jenkin, has already said much of what I was going to say. However, I should like to emphasise that when you have a disability, you generally have that disability for life or for the long term. "Suffering" and "illness" are confusing words in this context and they put out the wrong message. They also suggest that a person will get better. We are referring here to hidden disabilities, which are not dealt with directly in the Bill but are often referred to elsewhere. We must remember that legal language always makes reference both backwards and forwards through legislation. If one is suffering from an illness, one may recover from it. However, with a disability it is more likely that coping strategies will be developed. For that reason, if any ambiguity can be removed from the face of the Bill, that will aid not only the legislation before us, but also other Bills in this area. Furthermore, I can only concur with the noble Lord, Lord Jenkin, that one word is invariably better than three.
I shall be brief. I fully understand the desire of the noble Lord, Lord Rix, to ensure that the wording of the Bill is as modern as possible when describing people who receive care services.
If the noble Lord will allow me, I shall take this amendment away and discuss the exact wording with him between now and Report stage. We shall then ensure that the Bill is rectified in due course.
I shall be happy to accept the proposal of the Minister so long as we agree that one word should be used rather than three. I am sure that this marks the beginning of a happy new year so far as concerns the Care Standards Bill and I hope only that my other amendments will be accepted as speedily and with such aplomb by the Minister. I beg leave to withdraw the amendment.
The next group contains a large number of amendments. I shall speak to all of them except Amendment No. 17 standing in the name of the noble Lord, Lord Rix. The intention of my amendments is to draw attention to the number of gaps in Clause 4. Voluntary organisations are concerned that, as presently drafted, Clause 4 does not include some establishments that should be included. I am looking for the Minister's reaction to the establishments which we have set out in our amendments.
Amendment No. 12 deals with the home-based care agency, which we define as meaning,
"an undertaking which consists of or includes arranging the provision of health care that requires the supervision of a registered nurse or doctor in their own homes".
We are talking here about home care, which in many ways seems to lack regulation in terms of the Bill.
Amendment No. 13 deals with respite care. I shall not go through the full definition. If, before tabling my amendment, I had seen the amendment of the noble Lord, Lord Rix, I certainly would have taken on board that much shorter and more desirable form of words. It is necessary to regulate respite care, which is not currently covered by the Bill.
Of even greater importance is the question of sheltered housing. Voluntary organisations in this sector are concerned that some close care sheltered housing might be care homes in disguise and might well become so in order to avoid inspection. The provision of such housing is growing and it is often financially driven because housing benefit is available. But people being cared for in that setting are frail and vulnerable and deserve the same protection as that afforded to those in care homes.
Amendment No. 16 deals with daycare centres, in relation to which there is a major hole in the Bill. Our definition may not be the most felicitous, but we have tried to bring in the kind of daycare that is generally thought of as being such. We do not understand why such daycare centres are not being brought within the terms of the Bill.
The other amendments in the group are by and large consequential except those dealing with nursing agencies. This issue has given rise to considerable discussion, particularly within the nursing organisations. Clause 90 abolishes the Nurses Agencies Act 1957, which required nursing agencies to be inspected and listed and that the placing of nurses by an agency should be supervised by a registered nurse. However, local authorities were applying the Act patchily and at least one local authority was not aware that it was supposed to be carrying out those duties. The intention of our amendment is that nursing agencies should be regulated in the same way as doctor and other medical employment agencies are regulated under the Employment Agencies Act. However, if that was followed through in the Bill, it would mean that the requirement for agencies to inspected, listed and supervised by a nurse would be lost.
We believe that that would be undesirable and that the requirement should be retained. The amendment would require nurses to be registered and inspected by the commission and would allow, under regulations, for nurse supervision of that. We believe that there are significant differences between the operation of nursing agencies and agencies supplying doctors. A nursing agency will supply nurses often at very short notice and often for very short periods--sometimes for just a few hours. In those circumstances, it is not always possible to ensure that the nurse is qualified and suitable for the placement. For doctors, it is normal for CVs to be sent by the agency to the client and for placements to be of a longer duration.
There is significant concern, particularly in the voluntary sector, that there are gaps in the Bill. I look forward to the Minister's response to the amendments. I beg to move.
I rise to speak to Amendment No. 15, which stands in my name. The amendment is identical in spirit to Amendment No. 12, to which the noble Lord, Lord Clement-Jones, has just spoken, although, with all respect to him, the wording of that amendment reads a little oddly as it suggests that the relevant home-based healthcare is provided in the home of the nurse or doctor, which of course is not the case.
I wish to re-emphasise a key point. Healthcare provided at home is becoming increasingly common. I refer not just to day-to-day nursing care but to often highly intensive and sophisticated medical procedures. The care of people in their own homes rather than in a hospital or a nursing home is to be welcomed. I believe that the Government are in agreement with that. The Bill should reflect current developments in healthcare. I urge the Minister to consider this issue with particular care.
A point closely allied to that is the need to regulate healthcare assistants engaged in delivering healthcare at home. I shall talk more about healthcare assistants when we reach a later group of amendments. Suffice it now to say that if both they and the work that they are doing for people in a domestic setting are unregulated, that runs directly counter to the theme of the Bill.
I suggest that these are amendments to which the Government will wish to give a good deal of thought. I referred earlier to the Forest Healthcare Trust, of which I used to be chairman. The trust ran a hospital-at-home service. Such services are becoming more and more common as a way of relieving the pressure on beds within hospitals and in many cases giving patients a very much better service in the familiar surroundings of their own homes. In fact our experience was that they received a much better service in the hospital-at-home.
I remember one dreadful case. I need not go into the details but it was the only case where I felt it right, as chairman of the trust, to sit through the whole of the coroner's hearing on the patient, who had in due course died. There had been rather deplorable treatment in the hospital, amounting to quite serious neglect. The patient was sent home to a hospital-at-home and the nurses immediately recognised what had gone wrong. The family said that under no circumstances did they want the patient to go back to hospital, but the person actually died of other causes.
The hospital-at-home is becoming a valuable service, but it needs to be effectively regulated. The example to which I referred came wholly under the NHS and therefore would come within the Minister's definition of "management". But it could equally well have been a service which the trust had contracted out to a private concern. In those circumstances, regulation should be applied because it is not always the case that the trust contracting out will have the resources properly to assess the value and quality of the care being given. Exactly the same can happen with respite services.
There is also the question of psychiatric services. It is increasingly the case that psychiatric care is given to patients in their own homes. There has been a transition-- from doctors and nurses who have been used throughout their careers to a ward-based service in large psychiatric hospitals to a system of delivering psychiatric care in the patient's own home. Here again, if it is an NHS service, no doubt the NHS management and the CHI will provide a proper form of quality control. But if that service is contracted out--the Minister has already referred to the fact that a good deal of psychiatric services are now provided by independent concerns--it is all the more important that there should be effective regulation.
The noble Lord, Lord Clement-Jones, is on to a good point with at least some of these proposals. I hope that the Minister will take them away and examine them carefully. In a Bill that is supposed to bring the whole system under a single, common national standard of care, we do not want to find ourselves with any gaps.
Before speaking to my Amendment No. 17 which is included in this grouping, perhaps I may say to the noble Lord, Lord Clement-Jones, that I hope, if he proceeds with Amendment No. 13, he will take the advice of his noble friend Lord Addington, so that the subsections appear in plain English and use one word instead of three.
Amendment No. 17 seeks to provide a definition of day services to allow for their inclusion within the standards, registration and inspection provisions contained in the Bill. I believe that it will be of some help to the Minister and his department.
One of the great strengths of this legislation is that it seeks to bring coherence to the hitherto unco-ordinated registration and inspection regimes, which are often not comprehensive. I believe that the Bill will bring greater co-ordination to the social care sector and that it goes a long way to making the system more comprehensive. But with the exclusion of day services, it simply does not go far enough.
At Second Reading, I cited the example of a day centre in Sheffield where physical and sexual abuse had gone undetected over many years. It is our responsibility to act upon the evidence. I do not believe that there is a palpable distinction between residential services and day care services in terms of vulnerability and risk; indeed major independent inquiries such as the Longcare abuse inquiry in Buckinghamshire have also recommended that inspections should be extended to day services. Adults with learning disabilities spend substantial proportions of their everyday lives in services which are not registered, not approved, not checked and not accountable. That state of affairs must change. I should welcome the Minister's assurance that the political will exists to effect that change.
Perhaps I may make three brief points. First, respite care is a feature of many care establishments. It depends whether Clause 3 of the Bill as presently drafted incorporates both short and long-term care. If it incorporates both, it should incorporate respite care. If it is intended to convey only long-term care, the amendment proposed by the noble Lord, Lord Clement-Jones, seems essential. If I may say so with good grace, Amendment No. 15 seems to be an illustration of the difficulties that will remain throughout the Bill if Clause 2 stands.
As regards Amendment No. 17, I, too, am surprised that day services appear to have been excluded from the regulation and inspection system. The wording of Amendment No. 17 is extremely helpful.
Perhaps I may add a word about those who live at home and have carers. I implore the Minister to do something about regulation of the agencies and possibly the carers. The situation is impossible at present. Charges are extraordinary. In some agencies there is no regulation at all. Some charge an amazing amount. Perhaps I may talk to the Minister outside the Chamber about this matter. We need to employ two, if not three, carers for my husband. Some agencies are exceedingly good; some are very dangerous. There are many vulnerable people living in their own homes under a tremendous amount of medication and getting into serious difficulties. There is no regulation as regards people who may be alcoholics coming in to work. So much needs to be done. But it is the expense of care in the home which causes problems. I hope that during the passage of the Bill we shall be able to do something about it. I have sent some information to one Minister regarding the regulation of care homes. The matter needs addressing. If, at this very moment, all the New Zealand, Australian and South African people went home, very vulnerable disabled people would have a real problem.
I note the comments of the noble Baroness, Lady Masham. I have some experience of the issue and support every single word she said. There are serious problems. For example, when I asked one carer who was sent into my home about her training, she said, "I used to work in an electronics factory. I happened to pass by the care agency last Saturday and the people there said, 'There's a lovely job going. Would you be prepared to do it?'" It was ludicrous. She had no idea at all of how to cope with a disabled person. There has to be some regulation.
Perhaps I may turn first to Amendments Nos. 12 and 22 tabled by the noble Lord, Lord Clement-Jones. I am grateful to the noble Lord for explaining the purpose of his amendments. It was not entirely clear from the drafting, which, as it stands, could be taken to include general practitioner home visits and district nursing services.
I listened with great interest to the noble Lord's points about home-based care agencies and to the more general points raised about issues relating to private medical services undertaken in people's homes. Rather than say any more about the matter at this time, I should like to reflect on those issues without any commitment at this stage and take on board the comments made. No doubt we can debate the matter again on Report. Some important issues have been raised which require reflection.
Amendments Nos. 13 and 20 offer a definition of a "residential respite care establishment" and require such establishments to be registered. I am in full agreement that care homes which provide care on a short-term basis should be registered in the same way as care homes which provide people with permanent accommodation and care. It is certainly the intention that such respite centres should be registered with the national care standards commission, and the definition of "care home" in Clause 3 of the Bill is wide enough as it stands to cover that type of establishment.
The definition reads:
"an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons", and subsection (2) lists those who will come under the provision. The word "accommodation" is not qualified in any way, so I assure noble Lords that it would cover accommodation for as little as one night only. In other words, any establishment which offers nursing or personal care overnight for the categories of persons listed in subsection (2) of Clause 3 will need to be registered as a care home. I hope that I have managed to reassure the Committee on that point.
Amendments Nos. 14 and 21 define a "close care sheltered housing establishment" as being an establishment which provides people who are ill, disabled, infirm or dependent on drugs or alcohol with accommodation together with personal care or nursing--but not board--and require such establishments to be registered.
In the Registered Homes Act 1984, a residential care home is defined as an establishment which provides accommodation together with both board and personal care for persons in need of it by reason of old age, disability, past or present dependence on drugs or alcohol or past or present mental disorder.
We are aware that this current definition is unsatisfactory. We know that there are establishments which provide accommodation and personal care for vulnerable people and which are to all intents and purposes residential care homes but which escape the requirement to register because they do not provide board. For example, they may make residents pay for their meals each day rather than include food in the overall contract price. We do not believe that that is acceptable. The Bill therefore offers a new definition of "care home" as an establishment which provides accommodation together with nursing or personal care only. There is no longer any mention of "board". Therefore, in future, even if board is not provided, such establishments will be required to register as care homes.
I turn to Amendments Nos. 14A and 22A which concern nurse agencies. Under our proposals nurse agencies will have a level playing field regulated by the same system as other employment agencies, including all those supplying other healthcare professionals under the Employment Agencies Act 1973. I have listened with care to the points raised. I believe that to suggest that nurses agencies should be registered and inspected in addition to complying with the provisions of the 1973 Act may be taken to imply that nurses are less professional than other healthcare professionals. I am sure that that is not the intention of the Committee. We shall ensure that should any additional safeguards be needed they will be put in place, for example, through codes of practice for employers. I am convinced that what we propose for nurses agencies will provide better protection for employers, the nurses engaged by agencies and vulnerable people while also minimising the regulatory burden on business. I hope that I have reassured noble Lords on that matter.
I turn to Amendment No. 15. The new regulatory framework for domiciliary care is designed specifically to include care that is of a personal and non-clinical nature. It is not our intention to confuse this with nursing or clinical tasks which involve a fundamentally different training and skill profile. We believe that that would distort the nature and purpose of the domiciliary care regime and stretch it so widely that it would lose its focus and impact. That focus is specific to the needs of domiciliary care which is essentially a sector with extremely low levels of training and qualifications. The domiciliary care regulation scheme will be a powerful driver to address that deficiency. On the other hand, nurses are highly qualified and registered professionals with professional responsibility for their own clinical practice. I do not believe that to extend domiciliary care regulation to nursing and clinical services is a helpful move.
I turn finally to Amendments Nos. 16, 17 and 19 which all deal with day care services. However, Amendment No. 17 has a wider definition than Amendment No. 16. I am conscious that there is disappointment that day care services are not included in the services to be regulated when the national care standards commission comes into force and starts its work. I hope the Committee accepts that that is in no way because of lack of concern for people with, say, learning disabilities, who are major users of such services, or the quality and standards of day care. It rests upon the practical question of what we can sensibly expect the commission to do when it takes on its considerable and very important responsibilities. In addition to its responsibility for the many thousands of care homes and other services which are already regulated, the commission will be given responsibility for regulating a number of new services not previously regulated. This represents a very significant extension of the scope of regulation. We believe that that is as much as we can expect it to deal with at the beginning of its life. We do not want to overload the commission. We believe that it must be allowed to concentrate on carrying out its new duties effectively. We shall, however, keep the remit of the commission under review.
Clause 39 allows the Secretary of State to extend the provisions of Part II to other social care services equivalent to those which may or must be provided by local authorities in the exercise of their social services functions. It may be that in time other services, such as day services, will be brought within the scope of regulation. Certainly, the inclusion of such a clause in the Bill means that we have day centres in mind as a likely example. We have said as much in the Explanatory Notes. Although the noble Lord, Lord Rix, may press me, I cannot at this stage give an absolute assurance as to when this may happen. We must be careful that we do not ask the national care standards commission to undertake an impossible task with the risk that it simply cannot cope and vulnerable people are put at risk.
Before I conclude, I note the different definitions of day care in the amendments. I believe that the wider definition of day services, which may include a number of dispersed services not attached to any particular facility and not specific to those who receive care, will present significant difficulties in terms of boundaries. Regulation must always be appropriate, targeted and proportional. But I have already had a very helpful discussion with the noble Lord, Lord Rix, about this matter. There may be workable ways to define the tasks. That is one of the issues that will need a great deal of work and consultation before the Government can use Clause 39 to add such services to be regulated by the commission. I hope that the noble Lord is assured as to the possibilities of including day care in the regulatory system and will therefore not press his amendment.
Perhaps I may intervene on the question of the inspection of day care services. Obviously, I am disappointed that for the moment the Committee cannot obtain from the Minister a direct promise. The Minister used the expression "in time". That fills me with slight perturbation. It may mean when I am dead and gone. I believe that the need to regulate and inspect day care services at the very earliest moment is as great as for any care homes or housing. The scope for abuse in day care services is limitless. I told the Minister of a court case in the London area that occurred only three or four years ago in which, in the context of day care services, a young woman had been constantly sexually abused by a man. I hope that during the passage of the Bill through this House the Minister will be able to return to the Dispatch Box and give a slightly more definitive statement as to the future inspection of day care services rather than the expression "in time".
I endorse the observations of the noble Lord, Lord Rix. I believe that the general power in Clause 39 includes a number of activities which may not yet be in contemplation. We are dealing here with a whole group of vulnerable people. We have an ever-expanding population as people live longer and no doubt an ever-growing range of services may be available to it. To ensure that Clause 39 takes account of those matters which are not at present in contemplation is very sensible. It may well be that we shall want to consider whether it should be subject to affirmative rather than negative resolution. Nevertheless, it is there.
As to day care services, I believe that the noble Lord, Lord Rix, makes a very important point. I should like to consider whether an amendment can be tabled at a later stage of the Bill to place the Government under an obligation to extend the provisions of the Bill to day services so that we are not left with the rather vague and slightly depressing "in time". As Shakespeare said,
"In time the savage bull doth bear the yoke".
But that might be a very long time. I believe that the case made by the noble Lords, Lord Rix and Lord Clement-Jones, is a very strong one and I hope that the Government will reflect upon it.
I was asked whether the new regulatory system would have an impact on the current arrangements for means testing. I said that the process of registration and the registration certificate would specify the type of home. If it were a nursing home, it would be specified as a nursing home. Therefore, that would not have an impact on the means testing arrangements currently in place or on the distinction between care homes and nursing homes.
Is it correct that a care home is not means tested, whereas a residential home is?
If someone has to be in a home for weeks, who pays the mortgage and electricity bills, and the expenses of the children, or does the individual come out with large debts? If he is disabled and goes into hospital and perhaps into residential care, he loses his benefits. What happens when the bills pile up?
The noble Baroness widens the debate somewhat. The Government appointed a Royal Commission on Long Term Care to consider some of the issues and the pressures on people faced with that situation. The noble Baroness will know that the Royal Commission reported some months ago with a majority report and a minority report. The Government are considering how we respond to that.
It has been an interesting debate. Noble Lords have demonstrated, as always, their understanding and expertise in these areas.
The Minister's reply was welcome in some respects. He said that he would consider whether there were any gaps with regard to home-based healthcare agencies. He believed that respite care and close care sheltered housing establishments were caught by the terms of the Bill. I shall read carefully his words in Hansard.
The Minister also said that the necessary safeguards as regards nursing agencies would be put into regulation. I hope that regard will be given to the 1957 Act, aspects of which should be duplicated in the regulations. I refer in particular to inspection by a registered nurse. It may be right that the general framework of regulation should not be different but perhaps the system of inspection should vary from one type of agency to another.
The big disappointment--it has been expressed by other noble Lords--relates to day services. My amendment does not go as far as the amendment tabled by the noble Lord, Lord Rix. I prefer to be associated with the noble Lord's amendment. It is spot on with regard to the needs of those going out into the community from their care homes. That situation must be regulated by a certain date. The noble Lord Jenkin remarked that it was not good enough to say that at some stage in the future the matter will be regulated. During the course of the Bill we should like an undertaking from the Minister that day services will be regulated at the earliest practicable moment. We understand about work loads. However, we should like a definition in the Bill. Then Clause 39 can be triggered at the earliest practicable moment. That is the solution towards which we are aiming. As we move towards Report stage and Third Reading, I hope that it will commend itself to the Government. In the mean time, I beg leave to withdraw the amendment.
Grouped with Amendment No. 23 standing in my name are Amendments Nos. 30, 45, 53, 65, 71 and 151 standing in the names of other noble Lords.
Amendment No. 23 introduces a principal aim for the national care standards commission. The amendment seeks to set in primary legislation the fact that the first duty of the national care standards commission should be towards the users of services--children, elderly people, and those with illnesses or disabilities--rather than the service providers.
The wording follows that used under Sections 37 and 41 of the Crime and Disorder Act 1998 in relation to the principal aim of the youth justice system and the corresponding duties of the Youth Justice Board. The principal aim under that Act was to prevent offending by children and young persons. The principal aim under this amendment is even simpler: to promote and secure the welfare of those who are cared for under the provisions of Part II of the Act.
The point of placing the commission under this primary duty is to make its job clearer and therefore easier. Without such a principal aim, other important considerations such as cost, staff morale, public/private management, or media or political opinion might have equal claim. Under Clause 7 the commission is placed under the vague general duties to inform the Secretary of State on availability and quality of services and to encourage improvement in that quality.
"Quality of services" is a phrase which can be used to defend all sorts of practices--for example, financial cuts under the name of efficiency--and needs greater precision, which the amendment provides. I hope that the Minister will look kindly on the amendment. I beg to move.
I support the amendments. I speak in particular to Amendments Nos. 45, 53, 65 and 151. In the first instance, some of us approached the Bill in a state of high expectation only to find that it has a number of gaping holes, one or two of which have been mentioned. However, one of the most serious is the absence of any duty on the part of the national care standards commission to monitor clinical standards or to promote quality of care for patients in private hospitals. Indeed, from reading the Bill one could be forgiven for wondering where the well-being of the service users came in. That is why I identify myself with the remarks of the noble Baroness.
The Government's quality agenda should be all embracing. It should not be confined only to the public sector. Maintaining high standards should be an across-the-board objective. That was my complaint during the passage of the Health Bill. Ministers apparently believe that the main issue for government is the protection of private patients. With respect, that is no more than a tiny fraction of the issue. Standards in the private sector are high. Everyone wants them to be even higher. But what the Bill says is that for all practical purposes it is up to the private sector to deliver whatever standards of healthcare it wants. We have moved far beyond that stage. Indeed, I do not think that people understand the attitude that if it is not done in the NHS, it somehow is not proper healthcare. That attitude is plain silly as well as being a slap in the face to the private sector.
The point of giving the national care standards commission a duty to publish statistics relating to its remit, and combining that with a duty to promote quality, is to ensure that standards of healthcare in the private sector will be capable of being assessed on a like-for-like basis with those in the NHS. That, in turn, will promote a verifiable consistency of standards in both the private and public healthcare sectors, which we all want to see.
Private hospitals also have a duty to play their part in informing the public. That is why I tabled Amendment No. 65. I welcome Clause 20(3)(k), which appears to introduce for the first time a line of accountability within private hospitals between practitioners and managers. However, the words "appropriate quality" and "appropriate standards" in the subsection must be given meaning and substance in addition to an element of transparency.
The time has come when we should make the quality agenda a reality in all branches of healthcare, and the Bill provides a golden opportunity to do so.
Surrounded by the praetorian guard of the noble Earl, Lord Howe, and the noble Lords, Lord Astor of Hever and Lord Clement-Jones, I feel secure in supporting Amendment No. 45. I welcome the emphasis on maintaining and improving quality, as must all Members of the Committee. However, without the direct control exercised over directly provided services, and without incorporation in contracts of specifications for bought-in services, that may be thought a vague requirement. In my book, it is an important requirement, even if it does no more than state an aim.
If the list of services within the scope of the Bill is broadened, as I hope will be the case--for example, to include day services--I trust that the quality requirement will also extend to those additional services. We are talking about vulnerable people and basic services. If the coffee in your Lordships' Dining Room were not of the highest quality, which of course it is, that would be an inconvenience, but it would not undermine the welfare of those who drink it or impair the fundamental enjoyment of their lives. But poor quality in the services we are discussing means misery for the people receiving them. Misery is not something we can wish on those who are now our neighbours and one day could well be us.
Increasingly, we are defining quality in terms of the experience of those receiving the service. A good quality service is one in which people--children or adults--are listened to, respected, treated as individuals and feel that the staff are there for their benefit and not that they are there for the benefit of the staff. Achieving that should be the prime aim of managers and owners.
I support Amendment No. 23. The Government accepted a similar amendment which I tabled in respect of the General Teaching Council. I believe that object or principal aim clauses are increasingly important in so far as any challenge to our legislation in the European courts will be looked at in the context of its overall objective. That should be stated in general terms and quite clearly at the beginning of the Bill.
I have a slight doubt about the drafting of the amendment. It is surely not right that the principal aim of the commission should be to look after only the children. We are also discussing old people's homes; perhaps some redrafting on Report may be appropriate.
I support Amendment No. 45. I want to give the Committee an example of a private hospital. My husband--I hope that he does not mind my quoting him--had to move from a National Health Service hospital, where he received exceedingly good care, to a private hospital. The NHS did not have a consultant to carry out an assessment for a particular condition. After six days in the private hospital in Leeds, I discovered that he had not had a wash. I was annoyed with myself for not having checked previously. I wrote to someone at the headquarters of BUPA who said that an inquiry would be conducted. A few weeks later I received a reply stating, "He never asked."
Someone who has had a stroke or who has diabetes, Parkinson's disease or various complications, does not ask; he or she expects it to happen, especially if a man! Therefore, it is most important to lay down minimum standards for all hospitals.
I support the idea behind this group of amendments and the emphasis which they suggest should be put on quality. Over the years and in various guises, many of us have visited homes for old people or those with handicaps. One can tell almost within minutes whether the quality of the service is good. When one is inexperienced one sees the bathrooms, the bedrooms and the facilities and says, "Gosh, what a marvellous place!" But with a little experience and using one's other senses--not least one's nose--one can quickly tell whether the quality of care is good.
I remember visiting a local authority home in Coventry. I was taken there by Mr White, a distinguished director of social services whom the noble Lord, Lord Laming, will know well. He said, "I want to show you what we can sometimes achieve." Within minutes of entering one sensed an atmosphere in which the standard of care was high. One visits some homes and sees, as I have said previously, a whole lot of "cabbages" sitting around doing nothing. One realises that the standard of care is poor.
I am sorry that I could not take part in the Second Reading debate, but I want to turn to a point that was made then. No doubt the document Fit for the Future? will provide much of the flesh which will cover the bones of the Bill, but one has the impression that the Government are still at the stage of dealing with the facilities; the size of the room, the number of plugs and so forth. They are measuring what can be measured. However, it is most important that there is a clear statement in the Bill that the overall quality of care lies at the heart of the whole process.
With great respect to the noble Baroness, Lady David, I share the misgivings that her amendment achieves that purpose. We shall need to reflect on what has been said today, but I totally support the view that the Bill must set out that objective in the clearest possible terms. People will refer to it--there will be an argument within the commission or between those who are being regulated and the regulators--and someone will say, "Look, this is what Parliament has required of us. We must go for the best quality of care that can be provided in all the circumstances", whatever the correct phrase may be. That it needs to be there seems to me clear beyond peradventure. I am not sure how many Members of the Committee remember the Pollution Prevention and Control Bill, which contained no statement of purpose at all. As a result of the efforts of my noble friend Lord Renton and others the Government took the Bill away, there was a recommittal and some good purpose clauses were put into the Bill. That is what this Bill requires. Most of us have supported the general thrust of securing an even more standard form of regulation of the services for vulnerable people, but the quality of the care of those people must lie at the heart of what it is all about. The Bill should set that out beyond peradventure.
There cannot be any ambiguity about the contributions of all Members of the Committee who have spoken so far: quality is absolutely of the essence of the Bill. It was therefore with some incredulity that I found, when reading Clause 7 for the first time, that the wording of the duty to encourage improvement in the quality of Part II services provided in England--which many Members clearly wanted to strengthen through their amendments--although not particularly strong by itself, had been deleted for independent acute services so that "Part II services" meant services of a kind provided by persons registered under Part II other than medical or psychiatric treatment or certain listed medical services. That seems to be going precisely in the wrong direction.
Therefore, on these Benches we greatly support the general thrust of the amendments. There may be differences about precise wording, but we certainly believe that quality should lie at the heart and that there should be a clear duty on the commission to promote that. The Private Member's Bill of my noble friend Lady Nicholson is designed to do exactly that. Clearly, running in parallel with a Bill such as this one makes it a rather awkward instrument to influence government policy. But there can be no doubt under that Private Member's Bill that a duty of quality is promoted by the regulating body. We believe that that should be reflected in the Bill.
At this point, I should like to apologise on behalf of my noble friend Lady Nicholson who is unable to attend to speak to Amendments Nos. 53 and 151 in her name. She is detained elsewhere in the European Parliament. It really is important that the Government take another look at the duty of quality right across the board. It seems to us that ideology seems to have raised its head again. Have we truly a Secretary of State for Health--and social services, so to speak--or is the Minister simply looking at particular sectors in a narrow way? On these Benches and from other Benches there appears to be a desire to make sure that the Secretary of State and the commission, through him, take as broad as possible a view of quality. It is the name of the game right across social care and across healthcare. We should wish to see that reflected in the Bill.
I support entirely what the noble Lord, Lord Clement-Jones, has just said. The noble Lord, Lord Jenkin, reveals his vast experience in sharing his thoughts with us, in particular on Amendment No. 23. I support entirely the thrust of the amendment tabled in the name of the noble Baroness, Lady David. I hope greatly that the Minister will feel able to agree to a form of words which captures the spirit of the amendment. Without it, Clause 6 is really about process and does not deal at all with the well-being and quality of care for extremely vulnerable people. The whole purpose of the commission should be to ensure quality of standards and proper protection where it is needed for some of the most vulnerable people in our community, and the notion of promoting well-being as opposed to dealing only with inadequate performance. Promoting well-being should be at the centre of the work of the commission. I hope that the Minister will be able to take on the general thrust of the amendment and come forward with a form of words with which the noble Baroness is happy and which we may all applaud.
I understand the thrust of the arguments being put forward. I have no doubt at all that better regulation of the various establishments and services listed in the Bill will lead to improved quality of service for people who use those services. I have no doubt that that will come about through the establishment of a highly professional central organisation which will prove to be much more consistent in its approach to registration than the previous 200 or so health and local authorities, and that it will have available to it the expertise which local health authorities and local authorities have sometimes missed out on.
However, I make the point that the Bill itself and the purpose of the commission relate to regulation and registration. That is why the Bill is termed in the way that it is. Before I turn to Amendment No. 23, perhaps I may also pick up the point made by the noble Lord, Lord Jenkin, in his reference to Fit for the Future? and his suggestion that the emphasis of the draft consultation paper was rather too much on facilities and rather too little on quality and outcomes. The document is still out for consultation and we shall consider the results carefully. I wish to reassure the noble Lord that the Government are very much concerned with outcomes and not only with facilities. We shall take his remarks very much into account, and indeed, those made by other noble Lords when the Bill was discussed at Second Reading, when many similar points were raised.
I turn to Amendment No. 23, proposed by my noble friend Lady David. The independent nature of the new commission and its coherence and consistency will undoubtedly improve the quality of the services to be registered. As Members have already mentioned, the commission will have a general duty under Clause 7 to encourage improvement in the quality of Part II services. It will have powers also to ensure that the well-being of service users is secured and promoted. The Bill will achieve that by laying a clear and irreducible responsibility on service providers to secure and promote the well-being of those using their services and by ensuring that the commission vigorously carries out its functions.
I draw my noble friend's attention to Clause 20(1)(d) and (e), which give regulation-making powers to require providers to promote the welfare of the relevant service users. Corresponding provision is found in current legislation; for example, that governing residential homes. It is our intention to continue with that provision, and indeed, to strengthen it with the Bill. Regulations together with the national minimum standards provided for under Clause 21 will give strong powers to improve the quality of service provision. Similarly, nothing in the Bill will detract from the existing responsibilities of local authorities and health authorities in respect of the welfare of those for whom they commission or arrange services.
In relation to the question of statement of purpose, I reiterate that the Bill and the work of the commission rest upon the prime function of the agency, which is to regulate. It is through that regulation that the quality of services will improve.
I turn now to Amendment No. 45. I agree wholeheartedly with the noble Earl and the noble Lord, as I have said already, that ensuring the quality of registered services is vitally important. One of the Bill's main aims is to improve the quality of registered services. Its provisions centre on that and it is intended to deliver quality through the enforcement of regulations and the national minimum standards. As I have already mentioned in connection with Amendment No. 23, regulations made under Clause 20(1)(d) will ensure that persons registered in respect of a children's home, care home or residential family centre must secure the welfare of their residents. That is essential to maintaining a quality service.
Regulations under Clause 20(3)(k) will ensure that services provided in independent healthcare establishments or clinics are of appropriate quality and meet appropriate standards. Together with the national minimum standards provided for under Clause 21, regulations will improve the quality of service provision and ensure that registered persons continue to deliver quality. As the Bill already makes provision for maintaining and improving the quality of services, I hope that the noble Earl and the noble Lord will accept that the amendment is unnecessary.
We come to Amendment No. 30, which seems to be based on what I can describe only as a misconception about the role of government in relation to private healthcare. While the Government have a responsibility for the provision of public healthcare through the NHS, they have no such responsibility in respect of private healthcare. I believe that it will be wholly inappropriate to give the commission the same range of duties in relation to private healthcare as we place on it in relation to social care, where it will have wide-ranging responsibilities.
Similarly, it is not the responsibility of the commission or of government more widely to improve the quality of private healthcare. That responsibility rests squarely on the owners and managers of private healthcare establishments. That differs from the Government's role in relation to the NHS where, clearly, we have a responsibility for improving quality. Our role in relation to the private healthcare sector is to ensure that proper standards are laid down and that they are adhered to by those providing care. As I said at the beginning of the debate, that is the difference between the Government's role in managing the NHS and in regulating the private sector.
I turn to Amendment No. 53. I am sure that we all share the sentiments behind this amendment: that it is important for there to be proper arrangements in place to ensure the quality of treatment of patients in private hospitals. I recognise also the need to ensure that if residents in other establishments require medical treatment, they receive it. However, I do not believe that the amendment is necessary. First, as I have already said, we are taking powers in the Bill under Clause 20(3)(k) to make regulations requiring those who run private hospitals and other healthcare establishments to have arrangements in place to ensure the quality of the services which they provide, including clinical services. Secondly, we are already committed to introducing tough national minimum standards for healthcare providers and for those providing social care who will be regulated under this legislation. Thirdly, we are already taking powers to make provision for the welfare of those in children's homes, care homes and residential family centres. In short, we are already making the provision needed to secure proper care for those in private healthcare or social care establishments.
Amendment No. 65 would require managers of independent hospitals to publish information about their services in a form appropriate for the general public. There is nothing between the Government and the noble Lord on this matter. We are committed to ensuring that patients and potential patients have comprehensive information about the services being provided by private hospitals and clinics. We made that clear last spring in our consultation document and we welcome the general support which was given to that proposal by those who commented. As we said in Regulating Private and Voluntary Healthcare, in working out detailed regulatory requirements and minimum standards we shall take account of the comments which were made in consultation. Therefore, I oppose the amendment because I do not believe that it is necessary. The powers set out in Clause 20 will allow us to do what we and the noble Lord want.
Clause 20(3)(a) will enable Ministers to make regulations which cover, among other matters, the provision of accurate information about the services provided by a private hospital. I want to make it clear that we are unequivocal in wanting to impose tough standards and requirements on the private healthcare sector. I believe that I acknowledged previously that the regime which existed was unsatisfactory. We are determined to put that right and, through regulations and minimum standards, to impose stringent requirements on the private healthcare sector.
Amendment No. 71 would require the regulations, but not the minimum standards, which we make to be consistent with standards in the NHS where relevant. Again, I understand the intent behind that and, clearly, in drawing up standards for the private sector we shall want to take full account of requirements in the NHS. However, again, I must make the point that there is a difference between our role in regulating the private sector and our role in managing the NHS.
Therefore, we may lay down standards which are appropriate for the private sector but which may be different from those of the National Health Service, not least because the private sector may undertake many procedures which are not available on the NHS. I give an example: if an independent hospital clinic specialises in the type of low-risk cosmetic surgery under local anaesthesia where patients stay overnight at the most, it may not be reasonable to require it to have the same standards as an NHS hospital taking emergency cases involving seriously ill or injured people. That is not a case of standards being higher or lower, or better or worse, but rather of being fit for purpose. The key point is that, rather than slavishly follow provisions in the National Health Service, we must ensure that the regulations and standards which we lay down for the private healthcare sector provide protection for patients and assurance about the quality of care that they receive.
I turn to Amendment No. 151. Again, I thank the noble Baroness and the noble Lord for tabling the amendment and accept that the commission will need to collect and publicise information. Indeed, it is a regulator first and foremost and could not function effectively without collecting information. I believe also that in general the commission should make publicly available the information in its inspection reports and registers. However, there may be circumstances where it would not be appropriate for information to be available to the public; for example, cases relating to vulnerable children.
I move on to say that the Bill already provides for the commission to collect and publish whatever statistics or information are necessary for the discharge of its functions. Clause 31 provides for regulations to be made requiring services to make annual returns to the registering authority. That information will be supplemented by inspections. The powers under Clauses 28 and 29 will allow the commission to collect information to satisfy it that its service meets regulatory requirements and national minimum standards.
I believe that on that basis, and given that the framework of the Bill already allows provision for the commission to collect and publicise information for the exercise of its functions, Amendment No. 151 is not necessary.
There are a number of options available. The commission can bring to the attention of a home problems which it is hoped the home will wish to put right. If a serious situation arises in which the commission considers that harm may be done to residents, an application can be made to a magistrate for the home to be closed. If a situation arises which is not serious but in which none the less the home has refused to make good whatever are the deficiencies, the commission can go through a process which would lead to eventual de-registration. There are also offences in the Bill relating to homes which are carrying on as a home but are not registered. There is also an appeal mechanism, a tribunal to which homes can appeal if they are dissatisfied or aggrieved with the commission's action. There is a whole phalanx of actions that can be taken, depending on the seriousness of the case.
Yes, we would very much encourage the commission to invite comments from members of the public.
Before the Minister sits down--I apologise if I misheard him--did he say that if, for example, someone stayed overnight in an independent hospital providing cosmetic surgery, he would not need or receive the same safeguards as if, for example, he had that treatment in an NHS hospital or even an NHS pay bed?
No, I did not say that. I pointed out an example where, in relation to minor low-risk cosmetic surgery, the standard required for that surgery might be different from that required from a hospital providing major emergency services.
I should like to thank those noble Lords who have supported me in my Amendment No. 23--the noble Lord, Lord Jenkin, even though he was not quite sure about the wording, and the noble Lords, Lord Laming and Lord Northbourne.
But I should like to say to the noble Lord, Lord Northbourne, that, in fact, the amendment does not refer to children at all. It refers to the users of the services--those cared for under the provisions of Part II of the Bill. When I spoke, I referred to the users of the services--children, elderly people, those with illnesses or disabilities. I hope that the noble Lord will understand that this amendment, unlike many of my others, is not about children alone.
As far as the Minister is concerned, I must say that I was rather disappointed with his response. I shall, of course, read carefully what he said and look at paragraphs (b) and (e) of Clause 20(1), as he asked me to. But I thought the thrust of my amendment was generally felt in the whole group and I shall read the whole debate on this group with great interest and consider what to do and whether to come forward with this amendment again with, perhaps, fresh wording.
But in the mean time, I beg leave to withdraw my amendment.
This is the first of a number of amendments which I have tabled about children. I should like to say that these are probing amendments--I have no intention of dividing the House on them--but I should also like to say that they are backed by the Children's Advocacy Consortium which comprises the NSPCC, the Children's Society, Childline, children's rights officers and advocates, national youth advocacy services and Voice for the Child in Care. So they have support from a great number of organisations which do a lot of work for children.
This Amendment No. 24, which is grouped with Amendment No. 26, seeks to ensure that the national care standards commission considers the wishes and feelings of children.
The Children Act required both the courts in private family cases and local authorities in regard to looked-after children to give consideration to the wishes and feelings of children affected by their decision-making. It is therefore consistent under domestic law that the national care standards commission should be placed under a similar duty.
Considering the views of children is, of course, also a requirement of Article 12 of the UN Convention on the Rights of the Child, ratified by the UK after the Children Act was enacted. The Government are due to report to the UN-based Committee on the Rights of the Child and would gain credit if they had made some effort in implementing Article 12 since they last reported. This is very important. Our support for the UN convention should be recognised.
Under this amendment the commission is not bound to follow the views of children, simply to give them due consideration. The amendment's purpose is simply to ensure that the commission keeps in touch with the views of those it is trying to help. This is something that the Government have continually urged local authorities to do under the Quality Protects programme and it is difficult to see how they should not apply the same principles to the national care standards commission. I hope that the Minister will be able to reassure us on this.
I now move to Amendment No. 26, which seeks to create a separate children's commission within the national care standards commission.
The White Paper Modernising Social Services recognises the risk of the national care commission not giving sufficient priority to children's interest and views. That is why regional children's rights officers were proposed. While the reintroduction of these regional posts is necessary, this alone would not ensure that the commission works for children. It is proposed that an arm of the national care commission is established to deal with all matters connected with the regulation of children's services.
The establishment of a children's commission would have three main benefits. First, its philosophy and framework would be developed completely with children in mind. Secondly, staff recruited to work within the commission would have an unequivocal commitment to, and expertise in, safeguarding children's welfare. Thirdly, children and young people would regard the commission as theirs and would be more likely to participate in its work and view it as a place to which to turn when their rights or welfare were being seriously jeopardised. So I ask the Minister to think seriously about this amendment. It would be a great help to children. I beg to move.
I rise, very briefly, to support the noble Baroness, Lady David, in Amendments Nos. 24 and 26. The Bill, of course, makes provision for a children's rights director. But, in our view, that does not go far enough and we should like to see a separate commission appointed by the commission itself to provide a clear focus on children's issues. It would be separate, promoting the rights and interests of children and young people in accordance with the principles and standards of the UN Convention on the Rights of the Child, to which the noble Baroness referred.
Those articles of the UN convention complement recent government child-centred initiatives, such as Quality Protects and Sure Start, and therefore would be entirely consistent with that. But we believe that it is necessary to go further in the way the noble Baroness has suggested. We very much support these amendments.
Having been a member of a board of visitors of a young offender institution for many years, I have often thought those young people had much more protection than those in children's homes. They could come to a member of the board of visitors which had direct access to the Home Secretary and could take an issue forward. I should therefore like to support the two amendments. Children should have their voices heard.
I thank my noble friend for allowing us to discuss these very important issues.
I deal first with Amendment No. 24. There is no doubt that a crucial role of the regulatory process is that the views of service users are heard. I refer my noble friend to Clause 28(3)(f) which contains the relevant provisions. Clause 28(3) states:
"A person authorised by virtue of this section to enter and inspect premises may ...
(f)-interview in private any patient or person accommodated or cared for there who consents to be interviewed".
Interviewing children during inspections is a core activity. It has been a requirement of the Social Services Inspectorate for a number of years. I assure the Committee that children's views will be at the forefront of the regulatory process, including inspection. Ensuring that children are listened to will be a crucial function of the children's rights director who will be a key senior appointment in the commission.
I turn to Amendment No. 26. I draw attention to the Government's previous statements as to the particular importance of children's rights as a responsibility of the national care standards commission. That is reflected in the establishment of a children's rights director in paragraph 10 of Schedule 1. It is extremely important for me to emphasise that that will be a senior post, accountable to the chief executive of the commission. The postholder will play a major role in safeguarding the interests of looked-after children or others in receipt of services regulated and inspected by the national care standards commission.
My noble friend put forward arguments for a children's rights commissioner. She referred to the first sentence of Article 4 of the UN Convention on the Rights of the Child which states that parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in this convention. It is true that that sentence has been interpreted by those in the field of children's rights as a mandate for structures and/or institutions to be created such as an ombudsman or commissioner for children. Members of the Committee will appreciate that the remit of a children's rights commissioner in that interpretation will inevitably span the responsibilities of a number of departments, not just the Department of Health.
The Government considered whether there was a case for a children's rights commissioner to be appointed. It was considered by Ministers and discussed with children's rights groups early in 1998. The Government concluded at that time that they were not persuaded that it would be desirable to create such a national mechanism. However--it is important to stress this--the Government are extremely committed, through a range of other initiatives, to keeping the issues of children's rights and safeguards clearly and firmly on the Government's collective agenda. That includes the ministerial task force on children's safeguards and the proposal in this Bill to establish a children's rights director.
I turn to Amendment No. 26. A further tier within the national care standards commission, as proposed in the amendment, would lead to the risk of duplication and a general confusion of functions. I do not believe that such an arrangement--one body within another--would be practical or that it could work. Within the commission there must be clear lines of accountability and responsibility. I know that we shall return to those issues when we debate the schedule. I believe that children's rights and interests are best safeguarded through the commission having responsibility for them and through the establishment of a children's rights director.
I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Masham, for their support. I think I can accept what the Minister said about Amendment No. 26. I see his arguments against the amendment and I think I accept those.
I am not so happy with his response to Amendment No. 24. It is extremely important that the views of children should be heard and that something about that should be on the face of the Bill. Providing for children to be interviewed, as the Minister said, is not at all the same as being able to listen to the views of children. I think that is important.
I believe that my noble friend referred to Article 4 of the UN convention whereas I referred specifically to Article 12. I am sorry that he did not accept that. I should like to think very seriously about this amendment. I shall read carefully what he said and I shall read Clause 28(3)(f) as he asked me to do. I am not altogether convinced, but I may return to the issue dealt with in Amendment No. 24 at the next stage of the Bill. I beg leave to withdraw the amendment.
This returns to an issue of concern to the medical profession which was raised during the passage of the Health Act in this House. During the progress of that Act, the Government conceded amendments which safeguarded the confidentiality of personal health information in relation to the functions of the Commission for Health Improvement. This amendment replicates those safeguards to ensure that the national care standards commission, while carrying out its functions, provides the same standard of safeguard for the identification of patients in the independent healthcare and social care sectors.
Section 23(2) of the Health Act 1999 ensures that the Commission for Health Improvement--CHI--will be able to obtain confidential information about individuals only in limited circumstances if such particular information related to a person's physical and mental health. Section 23(3) provides that CHI would not be able to obtain information, the disclosure of which is prohibited by another Act, regulations or directions. Regulations provide that if the information would identify an individual, CHI may require information to be produced in such a way as to prevent the identification of the individual.
Personal health information will be collected for the provision of care for individual patients and generally, of course, it should not be used for other purposes without a patient's permission. Only where there are exceptional circumstances may information be used without consent; for example, where disclosure is essential to avoid risk of death or serious harm to people and where it is not possible to obtain consent. The grounds for disclosure must be of sufficient severity to justify a breach of a duty of confidentiality.
Therefore, Amendment No. 25 is designed to introduce precisely those safeguards contained in the Health Act into the current Bill so that the national care standards commission would be bound by similar duties. I beg to move.
In speaking to this amendment, I shall speak also to Amendments Nos. 87, 98, 99, 100, 112, 113 and 114 which are all grouped with this amendment. First, I fully endorse everything which the noble Lord, Lord Clement-Jones, has just said.
During the passage of the Health Bill last year, my noble friend Lord McColl argued persuasively for better and fuller safeguards against breaches of medical confidentiality in the section of the legislation dealing with the powers of the Commission for Health Improvement. We all remember how appreciative we were when the noble Baroness, Lady Hayman, took away our concerns and later ensured that appropriate government amendments were tabled to address those issues.
I wholly agree with the noble Lord, Lord Clement-Jones, that there is a direct parallel between CHI and the national care standards commission. Identical provisions should apply in each case.
My Amendment No. 87 to Clause 28 is intended to put it beyond doubt that inspectors should not have an automatic right of access to medical records. Grouped with these amendments is a series of other amendments with a broadly comparable theme. We must be terribly careful about allowing reports on adoption or fostering agencies to be placed in the public domain when they may contain references to specific named children or adoptive or foster parents. It is more than possible to imagine such details being included in a report about a particular agency if the inspectors consider such information to be material and relevant. But access to such detail should be restricted to those few people who have a need to know. I hope that the Government will take away this issue and consider it.
All these amendments concern medical records and confidentiality. I shall begin by addressing the issues raised by Amendment No. 25.
Of course, I appreciate the concerns of noble Lords and why the amendment has been tabled in relation to disclosure of confidential information to registration authorities and persons authorised by them. It is the case that a registration authority will need access to confidential information in order to regulate services effectively. The Bill provides the registration authority with appropriate access to confidential information. Inspectors will, for instance, need to ensure that residents in a care home have a proper care plan.
The Bill already applies restrictions to the commission's access to documents such as medical records. As the commission will have to comply with the requirements of the Data Protection Act, I hope that the noble Lords will now feel reassured.
I am grateful to the noble Lord for raising the question of access to medical records in Amendment No. 87. Clearly, that is an important and delicate matter. It is also a matter covered by technical legislation, including the Data Protection Act 1998, which is due to come into force on 1st March this year. As I have already stated, the national care standards commission will be bound by that legislation.
The commission will regulate healthcare establishments that will be required to maintain records which will, of necessity, contain sensitive personal and healthcare information. In order to carry out its regulatory functions, for example, to ensure that proper care and treatment are being given, or to investigate concerns about the quality of such care, it may need to inspect medical records. That will, of course, have to be carried out by an appropriate health professional.
The current legislation already allows for clinical records held by a registered nursing home to be inspected by medical practitioners. I believe that the commission should also have that power to carry out its functions properly and, therefore, I would not advise accepting this amendment.
Turning to the other amendments in this group, particularly Amendments Nos. 98 to 100 and 112 to 114, I recognise that they are made with excellent motives in mind, those being the desire to keep the names of children, parents and foster carers confidential. We know that parents are concerned that their children should not be identified. We know that parents would not wish to be identified. We know that local authority foster carers and adoptive parents would not wish to be identified. The inspectors' reports are written keeping such matters in mind. We recognise that individuals want to be able to carry on their lives without the glare of publicity being turned upon them. It is right that their wish for privacy should be protected.
However, there may be legitimate times when private concerns may have to give way to a public interest. Although such occasions will be rare, as a general rule we would expect names to be kept confidential. That is good practice and we would expect it to be followed, but there may be times when it is in the public interest to name individuals. We need flexibility in the Bill to be able to do that.
Having heard our reasons for not accepting these amendments, I hope that noble Lords will withdraw them.
I have always found that one is on shaky ground when giving examples. However, one example that has come to mind is the case of Mr Roger Saint. A number of authorities approved Mr Saint as a foster carer although he had a conviction for indecent assault. Later he was charged and convicted on numerous charges of indecent assault against foster children in his care. If an independent fostering agency or a local authority were to approve a person as infamous as Mr Saint as a foster carer, the commission may want to name him when assessing the appropriateness of the behaviour of the authority or the agency. I am aware that that may be an excessive example, but there could be other cases where it may be appropriate to name an individual and we would want that power to be available. As I said earlier, I believe that that would occur rarely.
Perhaps I may press the Minister on this important point. The example that he has given is of a person who presumably has been before the courts and subsequently convicted, in which case his name would have been known publicly. As I understand the point made in Amendment No. 25 and in the amendment of my noble friend Lord Howe, we are not talking about people like that, but about possible prospective foster parents, adoptive parents and possibly children.
I believe that the whole issue of confidentiality is extremely important. I have listened to the arguments and the Minister certainly has not satisfied me on how the power will work. A lot of people could be genuinely concerned that their names may become public knowledge. The more people who know about the people involved, the more likely it is that there will be a leak. These days we are all conscious of how difficult it is to keep anything confidential.
We need to have the matter spelled out carefully. I suggest that one needs to have, certainly before the next stage of the Bill, much more detailed examples than the one given to my noble friend Lady Knight. How do the Government consider that this will work? Who would have access to such information and in what circumstances may it be made public? We need answers to those questions which are not hypothetical.
I said that I thought it was risky for me to use an example. I was seeking to suggest to your Lordships that there may be circumstances in which it is in the public interest for the commission to be able to name a person. In that context, it is important for the Bill to allow for that flexibility on the part of the commission. I accept that this is a serious matter and one that should not be undertaken lightly. That will be well understood by the commission. As a general rule, we would expect names to be kept confidential. I have said that I believe this is good practice and one that we would expect to be followed.
I am grateful to the Minister. I shall reflect carefully on what he has said as regards the confidentiality of foster and adoptive parents. However, I do not believe that he has covered the point I was seeking to make about children. I cannot think of any situation in which the identity of a child should be disclosed to the general public. Of course, there are circumstances when the name of a child needs to be mentioned in a report, but my amendments seek to ensure that only those few people with a need to know--and nobody else--should have access to that sensitive information. Between now and Report stage, I shall reflect on how to take this issue forward.
I too thank the Minister for his reply. However, I am somewhat puzzled that he does not seem to have taken on board the points made during the course of this debate--a feeling expressed by other Members of the Committee who spoke. The Minister has not given satisfaction to those like myself who were seeking a more narrow amendment purely in terms of medical confidentiality; nor has he given satisfaction in relation to the broader range of amendments tabled by the noble Earl, Lord Howe.
The Minister seemed to be saying that the new commission will be subject to the new Data Protection Act and that that will solve everything. But I cannot see any reason why medical professionals--I proposed that this new commission should be on all fours with the Commission for Health Improvement which will also be subject to the new Data Protection Act--should not have the same protection for confidential information about their patients, and indeed for the patients to have that protection, as in the case of the commission. The rules of medical professional confidentiality were discussed at some length and were fully accepted by the Minister's predecessor, and I cannot see any reason why they should not be incorporated into this Bill.
I therefore urge the Minister, between now and Report stage, to look again not only at the narrower Amendment No. 25, but also at the broader anxieties relating to confidentiality raised in the debate. In the meantime, I beg leave to withdraw the amendment.
I am not sure whether opposing Clause 6 is the correct way to achieve my purpose. I hope that the Committee will excuse my inexperience in these matters. However, in speaking to this issue, I should like also to speak to my Amendment No. 27.
Members of the Committee will recall the Government's White Paper, Fit for the Future? In that White Paper the Government proposed that eight regional bodies should undertake the work of regulation and inspection of care facilities, which your Lordships have been discussing throughout this Committee stage. At the present time those functions are undertaken by 150 local authorities (more if we include Wales) and a large number of health authorities. There is therefore good reason for wanting to achieve a higher standard of consistency and greater uniformity of regulation and standard setting than can operate across such a large number of different organisations.
On the other hand, it is clear that in matters of this kind--the noble Baroness, Lady Masham, referred to this earlier--local intelligence is an important aspect of the work. Access to carers, to people who may have anxieties--members of staff and former members of staff--in relation to the standards being applied in homes or centres is essential. It is therefore important that there is good communication between the people charged with regulating facilities of this kind, which deal with some of the most vulnerable people in our community.
I assumed, when the Government recommended that eight regional bodies should undertake this work, they would follow the boundaries of the current regions of the National Health Service; and that the idea was to facilitate good communication across social and healthcare authorities where there is a responsibility to protect vulnerable people, and to ensure that those who have concerns have ready access to the regulatory body.
Since the White Paper was published the Government have come forward with the Bill before us. It does not recommend eight regional bodies; it recommends one care standards commission. As we have already said, this national commission will have an enormous range of responsibilities covering the whole age spectrum and most of the different aspects of social care needs that people experience in their lifetime. It is important that the way the work is undertaken commands the confidence not only of those who use the services and their carers, but also the wider community. The purpose of Amendment No. 27 is to secure an undertaking that if the Government intend to move away from providing eight local bodies, they ensure that the machinery is in place within the national body to facilitate that essential local contact.
The point made by the noble Lord, Lord Laming, is extremely important. I do not support his Amendment No. 27 in relation to regional authorities. In some areas regions are quite clear but in others they are very unclear. I am not sure that the amendment would be helpful either administratively or in any other way. I therefore do not support it.
However, a real issue arises in relation to Clause 6 and I should like to make two points. As the noble Baroness, Lady Masham, said, it is one thing to inspect things that are obvious--matters of hygiene, standards in buildings and so forth--but when one is trying to identify members of staff who may be the wrong sort of person to be employed, it is much more difficult. The only ones who will have any idea what is going on are those on the spot. A national commission is unlikely to identify anybody.
This is a difficult but important issue. For that reason, the lower the level at which such inspections are undertaken, the more prospect there will be of identifying those who need to be identified. The same happens in the world with which I am much more familiar, that of education. People can only be identified at school level; it is difficult to identify them anywhere else. They are hardly likely to say who they are and outsiders are unlikely to know unless they are familiar with the circumstances of the organisation concerned. A real point is being made which needs to be addressed.
As to whether Clause 6 should stand part, once again, it is a very general clause. For example, it says in subsection (2),
"The Commission shall, in the exercise of its functions act--
(a)-in accordance with any directions in writing given to it by the Secretary of State; and
(b) under the general guidance of the Secretary of State".
We do not know what that means. We do not know what the Secretary of State is going to say. It is therefore important, before the Bill completes its passage in this House, that we have a much clearer idea of what the Government have in mind on these important issues.
In a long working association I have rarely found myself in disagreement with the noble Lord, Lord Laming, but I am afraid I do tonight. I come from the same point of view as he, that of users and carers. But my experience and all the feedback that I have received tells me that users and carers want the establishment of a national commission in which standards can be applied across as wide an area as possible. The number of times people have asked me why things are different in Newcastle than in Plymouth leads me to say that.
That is where my disagreement with the noble Lord, Lord Laming, ceases because I agree with him that good communications and commanding confidence are essential for the commission. There is no doubt about it. Taking into account the points made by the noble Baroness, Lady Young, feedback from the local level, from the users and carers will be essential. But the establishment of standards is best done at national level so that everyone knows what they can expect.
I have been longing to ask who will carry out the inspection. How many people will it take? Perhaps we should have a national body to set the standards, but surely the people going into the homes must be local. I give an example of what can happen. I received a letter from a lady in a home in Leeds saying that as her letters were read, a friend had to take them out and send them to me and I had to send mine back through the friend. On paper there were qualified staff; in practice there were 16 and 17 year-olds at night. What was going on was appalling. At that time a friend of mine served on Leeds health authority. I asked him to visit the place and he made inquiries. To cut a long story short, that lady was transferred to a home in Harrogate. Afterwards she wrote to me saying, "It was like leaving hell and going into heaven". She arrived on her birthday and they made her a birthday cake.
Some people live in frightening situations. Therefore, there must be people attached to and visiting homes, so that residents have a contact. Someone had said, "Write to Lady Masham", as people have done over the years. That was one of my success stories, although there have probably been many that were not successes. There must be a proper establishment which must be local, even though it could be a national body also.
I find myself more in agreement with the noble Baroness, Lady Pitkeathley, than with the noble Lord, Lord Laming. I draw my reasoning from my experience of the Mental Health Act Commission. It is a national body which has been in existence for a good many years and which manages to carry out its inspections using people who are familiar with the particular hospital or institution but whose standards are entirely derived from a national standard-setting process. They command great respect; there is no question about that.
As chairman of the trust, I always made it a point to attend the final day when the MHAC was carrying out its inspection at Claybury Hospital. I was hugely impressed by the authority of the inspectors and the awe and respect which they commanded from the hospital staff. Almost everyone concerned made a point of turning up--and that is not always what happens in the National Health Service. They paid the utmost attention to the recommendations after the team had spent two or three days inspecting the hospital, talking to patients and so on.
I believe that one must have a national standard-setting body and on the whole, therefore, I am inclined to agree with the Government's change of heart. But I equally agree that it is essential that such people should be seen to command support, understanding and respect locally. That is a task which the Mental Health Act Commission has succeeded in performing over the years under a succession of able leaders. This commission is starting the task from scratch. Its members will need to apply some of the same skills, but they should start as a national standard-setting body. I agree with that, I apologise to the noble Lord, Lord Laming, if I cannot follow him on this occasion, but it is a case where second thoughts are best.
I support the noble Baroness, Lady Pitkeathley, about the national care standards commission setting the rules for the whole country. However, I am curious to know why the Government changed their mind about the eight regional officers. One needs local information and local people to go round ascertaining what is going on. I shall be interested to hear what the noble Lord has to say.
My experience with nursing is that the central body is the standard-setting body. It then devolves its functions to eight regional offices to ensure that the standards are carried out. I regret that I cannot support the noble Lord, Lord Laming, who sits in front of me. I support the noble Baroness, Lady Pitkeathley. There must be a central standard-setting body, but the process of enacting those standards must be devolved.
I shall deal first with why the Government changed their mind about the original intention to establish eight regional commissions as contained in the White Paper, Modernising Social Services, of November 1998. It was felt at the time that that would address the problems of a lack of independence and coherence in the current system. However, with eight care commissions there would still be problems of inconsistency between those eight. Although, probably, within each of the eight regional commissions, we would have had a more professional inspectorate and greater internal consistency, it was felt that there would none the less be inconsistency between the eight different commissions. In view of that and the many comments that the Government received, we felt in the end that it would be better to have one single national commission.
However, I very much recognise the concerns of the Committee that it would not work effectively if it were an organisation remote from the practice and experience of people working in the field at local level.
A number of factors should address the Committee's concerns in the area. First, we envisage that the commission will discharge many of its functions through a regional structure. Schedule 1 to the Bill gives the Secretary of State the power to direct the commission to appoint regional directors. But in association with that we would also expect the commission to have local offices because the people who will carry out the inspections will be locally based. Many of those who are currently employed within health and local authorities as inspection officers will transfer to the employment of the care standards commission. I take the point of the noble Lord, Lord Jenkin, about the calibre of the inspection officers. I argue that it is essential that we build on the foundation of the experience of those people.
I hope that in that way the commission will be informed by the experience and professionalism of its local inspecting officers and that, through their knowledge and the information they provide, the commission's work at national level will be undertaken with sufficient knowledge and understanding of the inspection process at local level. On those grounds, I hope that the noble Lord will withdraw his objection to the clause.
I am grateful to the Minister for that helpful reply. This has been a useful discussion because it has revealed that in all this there must be not only balance but an understanding of different levels of organisational accountability. The centre has a responsibility to set the standards, many of which will be accommodated in secondary legislation. The centre has the responsibility for promoting good practice, but, as the noble Baroness, Lady Young, rightly said, local authorities and those even more local than some local authorities, gain a great deal of knowledge about people working in their area and issues of local concern, such as the example given by the noble Baroness, Lady Masham. Therefore, there has to be a proper organisational arrangement which will accommodate both direction from the centre and local availability, access and sensitivity.
None of that is accommodated in the way the Bill is framed at this stage. I am grateful to the Minister for his comments. I hope that as the Bill progresses we shall be able to establish a greater understanding of how these different levels of responsibility will find an accommodation within legislation to make sure that we do not, as it were, throw the baby out with the bath water and move from the present arrangement with local authorities to a central commission without having the machinery in the middle which will secure the best of both of those worlds. However, in the light of what the Minister has said, I withdraw my opposition to Clause 6.