Report (2nd Day)

Part of Care Bill [HL] – in the House of Lords at 7:30 pm on 14th October 2013.

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Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 7:30 pm, 14th October 2013

My Lords, for the first time the Government will, through this Bill, place adult safeguarding in primary legislation. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. This sends a clear message that safeguarding is not the sole responsibility of one agency but requires the very best of partnership working and information sharing. Amendment 77, which would introduce a power of access to a person for a confidential interview, runs counter to that message. Having said that, I am well aware of the strength of feeling in relation to this matter, both inside your Lordships’ House and elsewhere. Whether there ought to be a power of access or entry is a sensitive question. That is precisely why the Government launched a three-month consultation in 2012 to gauge the opinions of professionals and the public. The consultation revealed no clear consensus. Of 212 respondents, 50% backed a new power, with 40% opposed. However, among individuals, 77% disapproved. The majority of respondents in favour of a new power of access were health and care professionals, yet it was very noticeable that their responses revealed the painstaking weighing of potential benefits against unforeseen consequences.

The mental health charity Mind said:

“A power of entry risks being seen as a quick solution, in place of greater focus on community engagement, co-operation and a preventative approach that can be truly empowering to the people involved”.

This was a theme found in many responses. I stumble over the consequences of what the noble Baroness seeks to do. Here I respectfully but fundamentally disagree with my noble friend Lady Barker who said that there was no real comparison with the situation in mental health. A power such as this might well ensure access but the central issue will remain—how will the professionals then work with the situation to achieve the best outcomes? Trust will have been compromised and, short of a power of removal, which we certainly would not want to see, the options for action seem pretty limited.

Our consultation revealed no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unforeseen consequences. Proposed new Subsection 4(c) of the amendment states that an access order should be granted only if doing so,

“will not result in the person being at greater risk of abuse or neglect”.

I have to ask how a court could ever reliably make such a judgment in these circumstances.

The other key point which I would like to believe may sway the House is the following. There exists no legislative vacuum preventing care or other professionals accessing those in urgent need of assistance. Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises if harm has occurred or, indeed, is likely to occur. The Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005, provide a wealth of powers for use at the front line, and the inherent jurisdiction of the courts to intervene provides a secure safety net. Therefore, it is not the lack of legislation; rather, as safeguarding lead directors at ADASS have put it, it is a question of a “lack of legal literacy” within the social care and other professions. What is needed is greater knowledge of existing legislative options. If they have that, professionals will be fully equipped to support people to be safe. The core role of an adult social worker is to support people. Further legislation for a new power of access risks undermining this approach, sending the message that legal intervention takes primacy over negotiations and consensus. I stress that legal intervention, on those rare occasions when it is needed, is already possible under the law. For those reasons, I cannot accept this amendment.

I understand the concerns behind Amendment 78, tabled by the noble Baroness, Lady Greengross. It is, of course, imperative that anyone, but particularly local authorities and their relevant partners such as those in the NHS, who suspects someone is at risk of abuse or neglect knows what action to take. Our best chance of ensuring that relevant partners take action when they suspect abuse or neglect has occurred will be through the adult safeguarding boards which comprise the local authority and relevant representatives of the NHS, police and anyone else the board considers appropriate. The duties in Schedule 2 provide a clear foundation for boards to produce and refine their own protocols for dealing with suspected abuse or neglect.

Existing regulations and guidance are clear that partners and staff are required to report abuse and we will be issuing new guidance on safeguarding under the powers in the Care Bill. Professional codes of practice, regulators’ requirements and employers’ policies should provide clarity in this respect. Furthermore, the changes we propose to its registration requirements would make it easier for the CQC to take action against registered providers in cases of abuse.

A fundamental truth at the heart of all this is that no amount of legislation will prevent abuse of adults vulnerable to abuse. Rather, it is through developing effective partnerships and ensuring the active engagement of the community that we can best protect individuals.

On Amendment 79, I agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been committed. However, civil law already provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought by this amendment. Further specific offences exist under health and safety legislation which would enable employees in care establishments and agencies to be prosecuted for failing to take reasonable care over the health and safety of others while CQC registration requirements would enable providers of regulated activities to be prosecuted for neglect or acts of omission which cause harm or place service users at risk of harm. Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult, or is authorised to act for the adult under the provisions of the Mental Capacity Act. A specific offence is justified here because of the evidence that such people are highly vulnerable to abuse or neglect.

I turn to Amendment 79A, tabled by the noble Lord, Lord Rix, which seeks to make a statutory definition of “abuse”. Our decision not to do this reflects a desire not to restrict the scope of local authorities’ inquiry duty. It seems to us inevitable that creating any list of types of abuse risks excluding something which a local authority or its partners may wish to inquire into. I think that is a real danger. We have made an exception regarding financial abuse to be absolutely clear on our intention for financial abuse to be included within the scope of the duty when it may not necessarily be considered as falling within the natural meaning of “abuse”. It is worth reminding ourselves that the Joint Committee which carried out pre-legislative scrutiny on the draft Bill agreed that “abuse” is an ordinary English word, capable of being understood without being defined.

Amendments 80 and 82 emphasise the need for involvement of social work-qualified staff—