HL Deb 26 November 1992 vol 540 cc1055-64

3.31 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (The Earl of Arran) rose to move, That the draft order laid before the House on 19th October be approved.

The noble Earl said: My Lords, the purpose of the draft Registered Homes (Northern Ireland) Order 1992 is to introduce provisions broadly in line with those already in force in England and Wales by the enactment of the Registered Homes Act 1984. I believe that it may be helpful to the House if I comment briefly on the order and then say a few words about the detailed provisions.

The order strengthens, updates and replaces the existing Northern Ireland legislation on the registration and inspection of residential care homes and nursing homes in the private and voluntary sectors. These homes provide accommodation and care for a wide range of people who are unable to continue living independently in their own homes because of old age and infirmity, illness or disabilities.

The review of legislation which led to the promotion of the order was prompted by two main factors. The first of these was the very substantial increase in recent years in the number of private and voluntary sector homes in Northern Ireland and the growing pressure on the registration authorities, the four health and social services boards, to ensure that satisfactory standards are maintained. The second main factor was the more up-to-date legislative provision made in England and Wales through the Registered Homes Act 1984 and its associated subordinate legislation.

The order includes a number of new provisions which strengthen the powers boards have to ensure that private and voluntary sector homes provide high standards of care for their residents or patients. It provides for the registration of both the person or organisation in control of a home and, where different, the manager. It enables the department, by regulation, to require notice to be given during prolonged absence of the registered person or persons. It enables a home to be registered both as a residential care home and a nursing home. It introduces a procedure for the urgent cancellation of a registration in cases where a justice of the peace is satisfied that the residents are at serious risk. It gives the department and health and social services boards a right of entry at all times to residential care and nursing homes operated by the private and voluntary sectors. It enables the department, for the first time, to prescribe by regulation registration fees and annual fees for residential care homes and annual fees for nursing homes. Current legislation provides only for the charging of registration fees for nursing homes. The introduction of fees will help to ensure that, as far as practicable, the boards' work of regulating these homes will become self-financing. It establishes a Registered Homes Tribunal to hear appeals from proprietors of private and voluntary homes against the decisions of the boards.

The order also takes account of the provisions of the Registered Homes (Amendment) Act 1991. The equivalent provisions in the order are intended to provide the minimum controls necessary to prevent unsuitable people operating small residential care homes for fewer than four people. I should add, however, that under the existing legislation in Northern Ireland such small homes have always had to be registered.

These provisions are designed to safeguard vulnerable people from unscrupulous owners of small homes, without subjecting families who are participating in such worthwhile schemes as the stay-a-while scheme for elderly people and adult placement schemes for mentally handicapped people to the full rigours of registration applied to the owners of larger homes.

The order also provides a convenient vehicle for an amendment to the Health and Personal Social Services (Northern Ireland) Order 1972 which is required to ensure that the department and health and social services boards have unequivocal powers to make contracts with the private and voluntary sectors for the provision of health and personal social services.

This amendment is contained in paragraph 2(1) and (2) of Schedule 1 to the order. Although this amendment can only be related loosely to the other provisions of the order, it is required as a matter of urgency following legal advice that the existing contractual powers in the 1972 order are open to challenge.

The order will make a significant contribution towards safeguarding the welfare of vulnerable people living in private and voluntary sector homes in Northern Ireland. I commend it to the House.

Moved, That the draft order laid before the House on 19th October be approved.—(The Earl of Arran.)

Lord Prys-Davies

My Lords, at the outset I should like to thank the House authorities for making it possible to discuss Northern Ireland matters at a reasonable hour of the day.

This is an important order for the elderly and infirm in Northern Ireland and for those suffering from disabilities and those who are vulnerable to abuse. The noble Earl, Lord Arran, is the Minister with direct responsibility for this area of policy in Northern Ireland. I want to thank him for explaining to the House so clearly the anticipated effects of the order. I propose to spend a little time on the order but the House will be pleased to know, particularly my colleagues from Scotland, that I shall not be spending long on the second order.

I am sure the Minister can confirm that over recent years there has been substantial growth in the number of residential care and nursing homes in Northern Ireland. I believe that there has been a fourfold increase over the past seven years. The incidence of infirmity and disability in Northern Ireland is even higher than on the mainland. Given that small piece of statistical information, I should like to know from the department whether it is financing research towards identifying broad groups of elderly and infirm people within categories of disability, and also research into the need for particular services. I have seen many references to planning research units, but what areas do they research? I know of the good work that has been undertaken at the Professorial Department of Geriatric Medicine at Queen's University. I wonder what specific areas of research it is undertaking which is helpful to the department.

The noble Earl confirmed that the order establishes a new framework for registration and cancellation of registration. He did not touch on closure but he could have mentioned that closure and inspection of care homes and nursing homes in the private and public sectors is based on the Registered Homes Act 1984 and the amending Act which came before the House last year.

We submit from this Front Bench that it is not satisfactory that the elderly and infirm in Northern Ireland should have to wait eight years for the shield of the 1984 legislation to be in place in Northern Ireland. We do not blame the Minister for that failure, but it is not good enough for Ministers to come up with the excuse, "This delay has enabled the Northern Ireland department to gain valuable experience". We accept that lessons have been learned since 1984, but, on the other hand, vulnerable elderly people in care homes and nursing homes in the community in Northern Ireland may have suffered unnecessarily as a consequence of the delay in updating the 1984 legislation. If the 1984 Act was then deemed to be necessary for England and Wales, with their lower incidence of disability and infirmity, should not the department have given a higher priority to the formulation and issuing of the order?

The Minister has confirmed that not all nursing and care homes will be covered by the order. Children's and young persons' homes will be exempted. If I am correct in assuming that that exemption applies because children's homes are already regulated and inspected under the Children and Young Persons Act 1969, perhaps I may ask the department whether it is now actively engaged in drafting an amendment to update the 1969 legislation in line with the relevant provision of the Children Act 1989.

There is a second exempted group which is worrying: homes governed by chartered bodies, the health boards, or social service trust boards will also be exempt. I notice that that baffled Members in another place and they know a thing or two about the failures of the present arrangements in Northern Ireland. It is our experience that within all human institutions there is a gap between aspiration and performance. We therefore say that all residential and nursing homes in Northern Ireland, be they in the public or the private sector, should be subject to the same controls and regulatory procedures. Perhaps the Minister will explain why that exemption is justified in the public interest.

The order came before the other place on 11th November. The business immediately ahead of it having collapsed, an opportunity opened up for the articles and the important schedule contained in the order to be discussed for about four hours instead of the usual 90 minutes. In fairness to the elected Members from Northern Ireland, they took advantage at very short notice of the opportunity that had offered itself and they fired a barrage of questions and criticisms. I suggest that Hansard of that debate is essential reading, because it records the interests and anxieties of all the Members who spoke, apart, possibly, from one voice which I shall not name. It will not be lost on the readers that their criticisms broadened out to include membership, policies and irregularities—if I may use that neutral term—of the health boards, about which we hear a great deal. I sought to voice many of those criticisms when we debated the latest appropriation order during the summer.

I could not help but read in the Hansard report of the debate in the other place that some criticism—I have mentioned this to the Minister—was made of the Minister's own office, and the Minister's alleged inability or unwillingness to meet representatives of the owners of homes in the private and voluntary sectors. Does the Minister intend to meet representatives of the Northern Ireland Care Homes Association in the near future?

Again, I cannot help asking why Sir Edward Archdale, holder of the DSC, a retired naval captain and, as I am assured, a well known figure in the County of Fermanagh, felt it necessary recently to resign his membership of one of the health boards. That is worrying. I am realistic enough to know that some of the evidence reported to Members in another place may have been innocently exaggerated by constituents, but I have a strong feeling that the core evidence which was referred to recently during the debate is not far off the mark. It is an old but reliable adage that there is no smoke without fire. I trust and hope that the Minister will confirm to the House that all claims and allegations of irregularities which went unanswered on llth November in another place will now be vigorously examined by the department's senior officials, with outside help if necessary, so that the alleged mischiefs can be identified and removed.

The order provides a framework, and no more. It will be reinforced by a number of regulations and orders which will be subject to the negative resolution procedure. The noble Lord, Lord Renton, is not in his place nor is the noble and learned Lord, Lord Simon of Glaisdale. If they were here I am sure that they would confirm that that procedure does not provide the best and most effective filter known to legislators. But, given the importance of the order for so many vulnerable people and their families, surely this subordinate legislation should require an affirmative resolution. The order is fairly short. It contains about 38 articles and one significant schedule. I have seen a reference to subordinate legislation in about nine articles. Although I am not certain how many will be published, I am sure the figure will not be so high as nine. Perhaps the Minister will tell us how many orders will be published.

I do not expect the Minister to reply today to the question I shall ask him, but perhaps the department can write to me and put a copy of the letter in the Library. I should like to be assured that the orders will contain criteria on the 10 following matters: the misplacement of residents or patients by virtue of their disability—people in the wrong places; inappropriate treatment with drugs; urinary incontinence; food and diet control; the keeping of residents' medical and care notes; complaints by residents/patients and by staff members—both sets of complaints are at an exceptionally low level in comparison with levels of complaints in the rest of the United Kingdom, which I find rather odd—an adequate level of pocket money; privacy for residents and patients; facilities for visitors; and, lastly, the monitoring of standards. We know from our experience in the UK generally that those are the grey areas which can be so troublesome.

I should like to know whether the Minister can explain why the draft regulations covering those matters—whether it is four, five or six—have not been placed in the Library in draft form. I understand that they are ready to be issued within the next week or so.

Finally on this point, may we receive a firm assurance from the noble Earl that the subordinate legislation will be the subject of adequate consultation with the caring staff, representatives of the residents, the community, proprietors and managers of the homes and also the Labour Relations Agency? I mention that agency as I am informed in a letter received today that there may be a potential overlap or conflict between this piece of legislation, this order, and the employment legislation, although I am not aware of the precise area of conflict.

On the question of consultation, the Minister will know very well that there is a sharp division of opinion as to whether or not this order has received adequate consultation.

I am not quite certain whether the Minister referred to the procedure in the order for the urgent cancellation of a registration, a home certificate, in cases where the residents are at risk. In practice, we from this Front Bench fully support the giving of such power to the boards, but we are concerned that under Article 10, the board has to apply to a justice of the peace for such an order instead of making an application to the resident magistrate. I understand that in Northern Ireland the judicial or quasi-judicial role of a justice of the peace in the petty sessional division is normally carried out by the stipendiary magistrate. Perhaps we may have an explanation on that point.

I come to my last point—and no doubt the noble Earl is pleased about that. It is about Schedule 1, to which the Minister referred. It is an important schedule which introduces four statutory changes and two brand new articles: Articles 14A and 50, which will be inserted in the earlier order. I think it is the correct description that one "stumbles", unalerted, across the sweeping provisions of the new Article 14A. The Minister was frank with the House and, in fairness to him, he did not find the real reason—that this schedule is not directly related to the subject matter of the order. In fact, it seems to many people that Article 14A has nothing to do with the registration and conduct of residential care homes and nursing homes. However, it has everything to do with assisting the owners of homes in the private sector. Its purpose is to empower the department to assist a third party who wishes to provide any health services by permitting him to use premises, vehicles, equipment, goods or materials belonging to the Department of Health or to employ the department's staff on such terms and conditions as may be agreed.

I ask the Minister to confirm that the article does not authorise the department or the health boards to donate or in any way give away or sell at a discount any of their premises, equipment, goods or materials to the private sector; or to provide unfair financial advantage to any party.

I thank the House for having allowed me 16 minutes to present our comments on this important order. I could go on talking about it, but I shall refrain. The order contains some very good provisions, notwithstanding the reservations which I have expressed. I believe that the registration and inspection powers, if applied widely across the sector, could provide a strong shield against the abuse of standards.

Lord Holme of Cheltenham

My Lords, perhaps I too may thank the noble Earl for his presentation of the order. In responding I shall be somewhat briefer than the noble Lord, Lord Prys-Davies, not least because he has very eloquently asked some of the questions which I wished to put. However, there are one or two observations I wish to make and one or two questions I wish to ask.

The first observation is that this is an important order because it deals with the elderly, the infirm, the ill and the disabled—people who are vulnerable and therefore particularly deserving of the protection of the Government and Parliament. I believe it would be a mistake if that observation were to carry any implication that the growing number of homes in Northern Ireland—and the number has grown extraordinarily—as a matter of course ill treat their residents. We all know that the great majority give careful and loving care; it is the exceptions against whom the vulnerable need protection.

Since we are talking about the vulnerable, I wish to ask why any voluntary home or HSS home which falls under the Children and Young Persons (Amendment) Act 1986 appears to be excluded from the registration and inspection procedures of the order, given that children are the most vulnerable group. In another place, the Minister, Mr. Hanley, said that there was provision in the Children Act itself for registration and inspection. I believe he said that the noble Earl, Lord Arran, would be bringing forward a proposal to update that legislation.

If the legislation needs updating, that suggests prima facie shortcomings under the Children Act 1989. Might it not be desirable therefore to include children under the provisions for inspection in this Registered Homes Order in the meantime? Perhaps the noble Earl can give some idea of the timescale under which he is operating.

I wish briefly to refer to one point made by the noble Lord, Lord Prys-Davies. Establishments which are run by health and social service board trusts are exempt because they will no longer be under board management. That means that they fall outside the inspectorate control envisaged in the order. I shall be interested in the noble Earl's observation on why that should be. Why should there not be parity of treatment?

The issue that the noble Lord, Lord Prys-Davies, mentioned about the justices of the peace also deserves the Government's attention. In Northern Ireland the title of JP does not mean exactly what it means in the rest of the United Kingdom. JPs are not trained as lay assessors. They have no legal experience. They do not take part in the court process. In many ways, the title of JP in Northern Ireland is an honorary one. Would it not be better if registered magistrates were to decide in this situation?

Finally, I wish to raise the question of financing. The board's registration and inspection work with regard to the private sector—and most of these small homes are in the private sector—is to be self-financing. I believe that is stated on page 49 of the explanatory document. Are the Government satisfied that, in this rather marginal and not prosperous sector of the economy, the private sector will be able to finance it themselves? Is it a realistic proposition? Is the noble Earl entirely satisfied, given the importance of the order, that that is the proper way to provide for inspection?

The Earl of Arran

My Lords, I thank both the noble Lords, Lord Prys-Davies, and Lord Holme of Cheltenham, for their general tenor of agreement with the order. I also acknowledge that the noble Lord, Lord Prys-Davies, has personal knowledge and experience in the field. That is why he asked those interesting and profound questions. Therefore, I hope that both noble Lords will forgive me if I take a short time to answer the questions.

The noble Lord, Lord Prys-Davies, asked what research was being done by the department of geriatric medicine at the Queen's University of Belfast. The department of geriatric medicine has been engaged in research into hypothermia and the effects generally of cold weather on elderly people's health. I understand that the department wishes to build further on that research.

The noble Lord, Lord Prys-Davies, also asked why it had taken so long for the order to be promoted when the Registered Homes Act 1984 came into effect on 1st January 1985. As I mentioned in my opening speech, there is legislation in existence now to regulate registration and inspection of residential care homes in Northern Ireland. There is separate legislation to regulate registration and inspection of nursing homes.

Up to the early 1980s there was no significant increase in the establishment of new homes in Northern Ireland. In the 1980s there was a marked increase in the development by the private sector of residential, and particularly nursing home, care. For example between 1982 and 1987 the number of places in nursing homes increased from 347 to 1,564. That represents an increase in five years of over 350 per cent. At that stage it was decided that a review of existing legislation should take place and a wide consultation exercise on the need for, and scope of, new legislation was conducted in 1988 through to 1989. Following hard on the heels of that consultation exercise came the major review of policy on community care for this decade which in itself required legislative provisions to implement the Government's policy objectives on community care in Northern Ireland.

As the noble Lord, Lord Prys-Davies, said, the consequential delay in bringing forward the registered homes order has, however, undoubtedly—I do not use this an an excuse—enabled Northern Ireland to benefit from the practical experience of the 1984 Act having been in operation in England and Wales for several years. Both the noble Lord, Lord Prys-Davies, and the noble Lord, Lord Holme of Cheltenham, asked whether children's homes should not be included in the order. Children's homes are already protected through the provision for registration and inspection contained in the Children and Young Persons (Northern Ireland) Act 1968 and we intend shortly to bring forward a proposal for more up-to-date legislation based on the Children Act 1989 which is in operation elsewhere in the United Kingdom.

The noble Lord, Lord Prys-Davies, asked whether the order applies to statutory homes provided directly by health and social services boards. The answer is no: the order applies only to private and voluntary sector residential care homes and nursing homes. The noble Lord, Lord Prys-Davies, asked how many regulations will be needed to implement the order. The draft order will be supported by three sets of subordinate legislation: first, the residential care homes regulations; secondly, the nursing homes regulations; and, thirdly, the registered homes tribunals rules.

The noble Lord, Lord Prys-Davies, asked whether the department is conducting research on elderly, infirm and disabled people and whether the British Geriatric Society is helping in that work. The policy planning and research unit in Northern Ireland is conducting a survey on behalf of a number of Northern Ireland departments of the levels of disability and the need for services. That survey mirrors and builds on the OPCS survey conducted in the rest of the United Kingdom. To date one out of the seven separate studies in the survey has been published and a second is about to be published. The British Geriatric Society is not participating directly in this major piece of research. The Northern Ireland section of the society, however, is active in promoting the interests of elderly and infirm people and from time to time promotes its own research.

Why have the draft regulations to be made under this order not been placed in the Library, asked the noble Lord, Lord Prys-Davies, and why are they subject to negative and not affirmative resolution? The draft regulations issued on 16th November for consultation were sent to a very wide range of interested parties in the statutory, private and voluntary sectors. They were issued to every Northern Ireland Member of Parliament. Though subject to negative resolution, they have been given the widest possible consultation.

The noble Lord, Lord Prys-Davies, raised the matter of the new Article 14A being inserted into the Health and Personal Social Services (Northern Ireland) Act 1991. The existing Northern Ireland legislation contained in Article 71 of the Health and Personal Social Services (Northern Ireland) Order 1972 permits the health and social services boards to enter into contracts with voluntary organisations to provide any of the health and personal social services. Unfortunately, similar powers do not exist to permit the boards to enter into contracts with private sector organisations for the provision of such services.

Then the noble Lord, Lord Prys-Davies, asked why a justice of the peace is involved in the urgent cancellation procedure and whether the procedure will be on oath. The urgent cancellation procedure is expected to be used rarely and only in cases where there is a serious risk to the well being of the residents. A justice of the peace is involved because of the need for speed. This procedure has been agreed with the Northern Ireland court service. Further, the procedure does not involve the administration of an oath.

I was asked by the noble Lord whether we intend to meet members of the Northern Ireland Care Homes Association in the near future. I have to say that the association has not in fact asked to meet me about the registered homes order. I have had correspondence with the association on other matters in the community care field and certainly if its members still have concerns and feel that I have not fully answered them, I shall be happy to hear from them again.

The noble Lord, Lord Prys-Davies, asked whether there would be consultation with the Labour Relations Agency because of potential overlap between the order and employment legislation. I am happy to state that I am not aware of any overlap between the order which I bring before your Lordships' House today and employment legislation. My department did not therefore have consultation with the Labour Relations Agency.

What will the regulations cover the noble Lord, Lord Prys-Davies, asked. I can tell him that the regulations will cover matters such as the conduct of homes; the provision of facilities and services, including adequate and balanced diet; registers and records to be maintained by homes, including medical records; visits by relations and guardians; religious observance; notification of death and illness; notice of absence of the proprietor or manager; notice of termination of accommodation; complaints procedures; and inspection of homes by the registering authorities.

Finally, the noble Lord, Lord Holme of Cheltenham, particularly asked whether inspection would really be self-financing. We are satisfied that the boards' inspection units should be adequately funded to carry out these registration and inspection duties under this order by virtue of fees paid by the private and voluntary sectors and by virtue of community care funds already made available to them in acknowledgement of their other duties to inspect statutory homes. I can assure your Lordships, however, that I shall be keeping the financial position of the units under very careful review.

I apologise if I have not answered all the questions put by the noble Lord, Lord Prys-Davies, but I shall do so after having carefully examined Hansard. I conclude by saying that the provisions of the order are designed to protect some of the most vulnerable citizens in our society—that point was made particularly by the noble Lord, Lord Holme of Cheltenham—particularly the elderly and severely disabled people.

On Question, Motion agreed to.