§ Debate on Second Reading resumed.
§ 4.23 p.m.
§ Lord Clement-Jones
My Lords, this is a large Bill of some 98 clauses which introduces long-needed reforms in a number of vital areas. I join the noble Earl, Lord Howe, in thanking the Minister for his extremely crisp summary of its provisions. We all come to the debate today with a particular individual perspective. Although I could go through the Bill delivering a set of ticks and crosses against the various clauses, from these Benches I want to concentrate on a number of key items of principle which arise under the Bill. Like the Minister, I look forward to the speeches that will follow.
First, there is the question of the regulation of independent acute healthcare. Concerns about the quality of healthcare in non-NHS hospitals are widely shared, not least by the more reputable and competent operators themselves, particularly in areas where there is a need for intensive care and areas such as cosmetic surgery. My noble friend Lady Nicholson can, sadly, bear personal testimony to that fact. I know that she will be making an important contribution to the debate today.
Increasingly complex matters are now dealt with by private medicine. Half the abortions in this country are carried out by the private sector. Thirty per cent of psychiatric care is carried out in the private sector. After a period of stagnation between 1991 and 1997, private health insurance is growing again, no doubt prompted by the Government's lack of progress on waiting lists and waiting times in the NHS. Some 11 per cent of the population, or 3.5 million people, are now covered by private health insurance.
It is clear that many private establishments dealing with elective surgery and acute medicine have particular problems. Most are smaller than any NHS 35 hospital and have fewer than 100 beds. There is less medical supervision, fewer qualified nurses and, until recent proposals, less connection with clinical governance for their consultants who work within the NHS than there should be. Above all, there are concerns about the quality of intensive care in the independent sector, with patients often being shunted back to the NHS when there are complications. On these Benches we welcome the late conversion of the Department of Health to its responsibilities to ensure that standards in the private sector are adequate. It took the combined efforts of this House and the Health Select Committee to do so and, indeed, the efforts of my noble friend Lady Nicholson, "Panorama" and other media coverage to persuade the Government to bring the Bill forward.
In evidence to the Select Committee, the former Secretary of State gave the view that quality in the sector was secured essentially by patients and management. There is now at least some recognition that the continuation of the purchaser/provider split inevitably means a mixed economy in healthcare, exactly as has been recognised in social care for some considerable period of time. One ideological blockage to proper regulation of standards in the private sector has therefore been overcome. Sadly, a further ideological blockage to which the Government have succumbed has yet to be overcome: the question of which body regulates the private sector.
As a result of the Bill, through the powers given to the Secretary of State under Clause 21, there will be the anomalous situation where patients in NHS-pay beds and patients being treated at NHS expense in private beds may be subject to wholly different regulations and standards from those paying directly or through private health insurance for private treatment. There is absolutely no logic in having such separate standards. It means that the many NHS consultants who work in the private sector will potentially be subject to a wholly different set of standards depending on whether they work within the NHS, on NHS private beds, or in independent hospitals. The activities of doctors should be subject to the same standards wherever they work.
The current proposals to include the regulation of independent acute hospitals within the national care standards commission is in many ways worse than the proposals the Government themselves put forward in June this year. At least then a separate regulator was envisaged. In their consultation document, Regulating Private and Voluntary Healthcare, they said:There would be a single 'custom built' independent body charged with ensuring a common national approach to regulating private and voluntary healthcare. The new body and its inspection teams would have a clear focus on healthcare and the Commissions for Care Standards would be able to focus on their prime responsibility without the risk of being distracted by responsibility for acute healthcare. A dedicated national regulatory body would be better placed to develop the particular skills and expertise necessary for the regulation of private and voluntary healthcare. Ministers believe therefore that establishing a new regulatory body for private and voluntary healthcare is the right way forward".36 We have gone backwards since June. We do not believe that it is appropriate to regulate independent hospitals, including psychiatric hospitals, alongside care homes. Some 20,000 nursing and residential care homes will require to be regulated under the Bill. By contrast, the provision of healthcare is on a different scale: 230 independent acute hospitals and 64 independent psychiatric hospitals. It has been and still is our consistent view that the Commission for Health Improvement set up by the Health Act 1999 is the appropriate body to regulate the independent acute health care sector, on the basis of its fees in so doing being met by the independent sector. Of course it should. As my honourable friend Peter Brand proposed to the Health Select Committee, all patients in whatever establishment they are treated should at least have access to the Health Service Ombudsman.
I turn to the national commission for care standards. Unlike the noble Earl, Lord Howe, we on these Benches greatly welcome the Government's decision to set up a single regulator in the form of the new commission in England for the provision of care, whether this is for the elderly, the adult vulnerable or with disabilities or children; or whether the homes are NHS run, private, voluntary sector or run by local authorities. This implements the Government's commitments made in their White Paper in November last year, but in a more coherent way with one national commission rather than several regional ones.
We also welcome the proposal to make an adequate complaints system a pre-condition of registration. I believe that it is the most significant reform in social care for a generation and will affect hundreds of thousands of lives, not least 500,000 older people in care homes and 55,000 to 80,000 children in care at any time. We welcome the fact that its responsibilities will include monitoring standards, representing consumers and ensuring that care homes are measured against national benchmarks.
However, we have a number of issues to raise in this connection. What philosophy informs the Government's regulation of care? Do they accept that where possible, domiciliary care is normally preferable to institutional care and that every effort should be made to allow people to remain independent within their own homes? Indeed, I welcome the Minister's indication of that in earlier comments.
Why are establishments providing day care for the elderly not covered by the Bill's provisions other than in respect of their staff? Why have the draft regulations on standards for care homes been so slow in coming? The original report by the Centre for Policy on Ageing was produced in January this year. Why did it take the department nine months to issue a consultation paper? We are not waiting for the results of the consultation which will lead to regulations, but in the meantime the Government are trying to rush through the primary legislation.
Above all, the Bill brings residential homes and nursing homes together in a common definition for the purposes of regulation. Pending the Government's long delayed decision on long-term care, do they 37 expect as a result to means-test those within nursing homes as well as those within residential homes? When will they finally respond to the Royal Commission's report? Is it not high time that older people and their families had the security of knowing that they can afford residential care?
As regards children, there is provision for the appointment of a children's rights director. Is that intended to be a step towards giving all children in care the right to advocacy? Many voluntary organisations are dedicated to achieving that and we on these Benches fully support their campaign.
Furthermore, inspection can be a costly business. The report of the Social Services Inspectorate in 1992, Almost Half, pointed out that half the inspection units which it inspected failed to meet the statutory targets for frequency of inspections. At the end of the day, will there be adequate resources for new standards to be set and enforced? Currently, widely differing rates are set by local authorities up and down the country. Major disparities in rates will make it very difficult to achieve national standards.
Thirdly, we welcome the setting up of the social care council and the follow-up to last year's White Paper in terms of improving standards in the workforce and giving it a wide range of registration, standards setting and education and training responsibilities, and also the proposal to protect the title of social worker.
However, again, there are some issues to be addressed. How will the council be funded? Is it expected to break even purely through registration fees? How will that tie in with existing and proposed improved structures for self-regulation by healthcare professionals such as nurses, midwives, health visitors and healthcare assistants?
The registration of social care workers is expected to come into effect in April 2002, while the new body for nursing, midwifery and health visiting—which is assumed also to include the regulation of healthcare assistants—is expected to come into effect in September 2001. How will those two lock together?
Fourthly, we welcome the proposals relating to child-minders and children's day care and the transfer of regulatory responsibility to Ofsted. What additional resources will be required to carry out this work and when is it envisaged that the transfer will take place?
Fifthly and finally, we welcome the proposal to set up a register of those considered unsuitable to work with vulnerable adults. But, again, how will this tie in with existing and proposed structures for self regulation by healthcare professionals? What will referable cases be? Will they lead to striking off from professional registers as well? Most importantly, what safeguards will there be for those referred? My honourable and noble friends raised concerns about that issue in relation to the child protection Bill, a similar piece of legislation, and I know that my noble friend Lord Phillips of Sudbury intends to speak on it in the gap.
38 Except for its treatment of independent acute healthcare, there is much in the Bill to commend. But as is so often the case with government Bills under this Government in particular, so much of its framework needs filling out before it can be judged properly. I have no doubt that we shall have an interesting and challenging Committee stage on our return in the new year, when I hope that the Minister will have more detail than is currently available.
§ 4.35 p.m.
§ Lord Laming
My Lords, I, too, thank the Minister for his helpful introduction to this important Bill. I say "important" not particularly because of the new regulatory framework, which in general I welcome, or because of such matters as safeguarding the title of social worker, but because its measures are intended both to protect and to improve the quality of care of the most vulnerable people in our society. The services covered by the Bill range from those for very young children right through to the personal care of house-bound and perhaps even bed-bound elderly people. Each of those people will have special needs and, in their different ways, without the protection of the law they could be open to abuse, neglect or exploitation.
It is right that as a society we should be judged by the effectiveness of the way in which we protect and care for people who have little ability to defend themselves. In an age of the geographical mobility of the workforce, resulting in fewer people living their lives in the place of their birth surrounded by a network of family and friends, it is even more important that all of us, but particularly relatives, can be assured that there is in place a robust range of safeguards of this kind.
The Bill builds on the Protection of Children Act 1999 which your Lordships considered thoroughly in the last Session—sometimes too thoroughly for my own comfort! So the measures are long awaited and much the more welcome.
It is particularly pleasing that in future all social care provision, irrespective of whether the provider is a public service, a voluntary body or a private agency, will be registered and inspected by the same criteria. For too long, independent organisations have understandably resented the fact that they have had to comply with standards enforced by local authorities, but not necessarily applied by local authorities to the services they provide.
Furthermore, the Bill reinforces the need for the health services—not only hospitals—to work together in partnership with social care agencies. Yet I hope that in the understandable desire to get people out of hospital as soon as possible, there will remain a strong commitment to recuperation and rehabilitation so that unnecessary and inappropriate placements are not made. Undue haste at this critical stage can result in irreversible decisions which are not in the long-term interest of the patient. Without a proper needs assessment against an effective eligibility criteria, there will be no certainty of appropriate care.
39 The Minister has set out the scope of the Bill, so I shall confine my comments to seeking further clarification on some of the points he raised. First, can he say why the local regulatory framework will not now be operated through eight regional organisations? The eight organisations were set out in the White Paper, but the framework will not be operated by the national care standards commission. I am not necessarily opposed to the proposal, but I and others have yet to understand the reason for the change.
Secondly, I note that the national care standards commission will have a responsibility to promote good practice. That is all well and good, but can the Minister explain how it will relate to the work of the SSI, which has played such a large part in promoting good practice?
Thirdly, the Secretary of State announced recently the creation of a social care institute of excellence. Can the Minister say how these different bodies will now work together?
Fourthly, can the Minister say why the regulation of childminding is to be transferred to Ofsted? Many of the children in childminding facilities have special needs. How will good practice in childcare be maintained under these new arrangements?
Fifthly, will the Minister note how much I and others welcome the amendment of the Children Act in order to bring small private homes into the regulatory framework?
Sixthly, does the Minister agree, as has already been indicated, that Clause 2 relating to independent healthcare sits very uneasily with the rest of this Bill?
The noble Lord the Minister explained in his introductory remarks why this Bill has been included, but can he say something about the range of staff and the special skills which will be needed in order to meet the requirements of such a wide-ranging clause which would cover such very differing facilities? Can the Minister say how this clause would not raise some of the other inconsistencies that have already been referred to?
Seventhly, will the Minister confirm that whereas domiciliary care agencies need not register, nevertheless local authorities and the NHS can make arrangements only with those agencies which are registered?
Finally, I warmly welcome the development of the general social care council and the sensible way in which registration will take place in an incremental manner. Is the Minister willing to pay a tribute to the work of the Central Council for Education and Training in Social Work and its director, Jennifer Bernard? I believe that in recent years the council has done an excellent job of work and has responded effectively to changes in social care services and in bringing training up to date.
Overall, I hope that this Bill will attract the support of your Lordships' House and I look forward greatly to the contribution that will be made today by the noble Lord, Lord Mackenzie of Culkein.
§ 4.41 p.m.
§ Lord MacKenzie of Culkein
My Lords, it is with some trepidation that I rise to make this speech, given the very few days that have passed since my introduction to your Lordships' House. However, the subject matter of this Bill—care standards—is something about which I care very much indeed. I hope that your Lordships will give me a few moments to say something about my background. Listening to debates over the last two weeks, it has been clear to me that there is a wealth of expertise in this House. Many professions and occupations appear to be well represented. However, I am told that I may be the first former serving lighthouse keeper to become a Member. What experience and expertise that will bring we shall see. I was brought up in the Scottish Lighthouse Service, where my father was a principal lighthouse keeper. In that service the standard was that only the best was good enough. Lives depended on that discipline and that ethos, and it was good conditioning for later life.
However, apart from the three-year break when I served as a lighthouse keeper myself, I have been involved with nursing and the health service in one way or another from 1958 to 1993, both as a practising nurse and later working for the health service union COHSE. As a nurse, I am pleased to follow three distinguished nurses into your Lordships' House: they are the noble Baronesses, Lady Cox, Lady Emerton and Lady McFarlane of Llandaff, who I see is in her place this afternoon.
In nursing, my speciality was in operating theatres and in trauma intensive care, where again nothing but the highest standards of care were acceptable. It is from that background that I have approached the debate today. I very much welcome the Care Standards Bill and I congratulate the Government on bringing it forward. It is long overdue.
There are one or two areas on which I would wish to comment. First, I welcome the intention to establish a national care standards commission. The independent care sector, which includes voluntary agencies, private care homes, nursing homes and hospitals, as well as the "not for profit" organisations, has grown out of all recognition in the past 20 or so years. With that growth has come great change. No longer can voluntary organisations simply be described as "society's conscience", which was the term used by Lord Beveridge in 1942. Legislation in the past decade has seen a huge shift from local authority social services being providers of care to being instead purchasers of care.
Independent sector organisations, as a consequence, have very often developed a contract culture, which does not always sit easily with a caring culture, particularly in the absence of national standards. In this mixed economy of welfare and personal care provision the independent sector has a much higher profile. There is a mixture of providers and there are different cultures, different organisational structures with a different legal status and different management and financial arrangements. But despite that, I 41 suspect, rather than because of it, the standard of care in many establishments is good. Unfortunately, that is not always the case. It is right therefore that there is to be a national body responsible for the effective regulation of the full range of these services.
I regard it as important that emphasis should be laid on national standards. Even a national service like the National Health Service sometimes struggles to achieve national standards: for example, we hear too much about "postcode care", the notion of which offends everything that I have ever been taught. But unless it is clear from the start that minimum standards are to be nationally determined, there will be an uphill struggle and the main thrust of this Bill may be lost.
The independent sector does not deal just with social and personal care. Private hospitals, clinics and nursing homes come within the purview of this Bill. The National Health Service sends many patients to this sector. I wonder whether my noble friend the Minister can tell the House whether there will be any consequential link or interface between the national care standards commission and, say, the health advisory service or the commission for health improvement. It is important that healthcare standards and clinical governance issues are covered, where relevant, as well as those relating to personal and social care.
I would, secondly, want to turn to Part IV of the Bill, which deals with care councils in England, to be known as the general social care council: a measure which I unreservedly welcome. My former union, the Confederation of Health Service Employees, had a minority membership among social workers and social care staff. Some 13 years ago we developed a policy which called for the setting up of what we called a general social work council and we also called for legal protection for the title of "social worker".
These policy initiatives did not find favour at the time. They were regarded as the idea of a bunch of nurses trying to teach social workers what to do. But these policies were developed by our social work membership. They were right then, and I welcome the Damascene conversions now.
I am delighted to hear the Minister confirm that the GSCC will embrace the different levels of qualification to be held by staff working in social services and social care. I am glad that a mistake which was made in nursing will not be repeated here. I want to dwell on that, if I may, for a moment or two. The minimum entry requirements for nursing have inexorably increased over the past 40 years. Indeed, a substantial number of nurses, including many highly regarded senior nurses, presently in practice would not be allowed into the profession today. Nurse education is now firmly rooted in further and higher education, with appropriate entry gates. I have always supported the idea that there should be a level of nursing education in that sector.
However, the downside of having one level of qualification is flat it has led to a failure to address what I thought was a foreseeable restriction in the supply of practitioners. The result is a critical shortage 42 of nurses in the National Health Service. I hope it is not too controversial to say that I believe the power struggle which caused these developments let the public down. The changes in nursing led to a conspicuous failure, in that unqualified staff are now undertaking what most of us know is the work of a registered nurse, without proper training and without any statutory mechanism for protecting the public from unsafe or incompetent practitioners. These grades of staff should have been kept within the aegis and purview of nursing.
COHSE always believed in the objective of a wholly qualified nursing service, albeit with nurses trained to different levels of competence in the delivery of care. Crucially, we said that all such staff should be registered within the United Kingdom Central Council for Nurses, Midwives and Health Visitors. Nurse leaders and politicians of the day thought otherwise, with the inevitable outcomes which are only now beginning to be addressed. Indeed, had that policy been taken on board it would not have been possible, for example, for nurses struck off the register for misconduct to reappear in another job as care assistants of one kind or another, usually in the private health sector. That does not protect the public and I hope that the social care council will resist any temptation to fall into the same trap of what might be described as "elitism", which can be a weakness rather than a strength.
Thirdly, it appears from paragraph 137 of the Explanatory Notes that registration in the new GSCC will be incremental, with professional social workers being the first group to register. Can the Minister say whether I have understood correctly that once the majority in other groups in this diverse workforce is appropriately qualified, it will be brought into the register as a group rather than as individuals applying to register as soon as they qualify? If it is the group method of registration, I can understand the rationale, but perhaps only from a cost perspective. It does not appear to make sense from a public protection standpoint. If I have understood correctly, I hope that that matter can be revisited in Committee. I look forward to the Committee stage and to the legislation reaching the statute book. The measures set out will go a long way towards protecting the setting of standards and protecting some of the most vulnerable people in our society.
Before I sit down, I say a heartfelt thanks to officers and staff of this House and to the many Members for the kindnesses and help given to me in the past couple of weeks.
§ 4.50 p.m.
§ Baroness Nicholson of Winterbourne
My Lords, it is a great pleasure and, indeed, an honour to follow such a distinguished speaker, who has put forward in his maiden speech to the House this afternoon such an extraordinary portfolio of expertise and knowledge about this subject. It is a great pleasure to be able to welcome him as a maiden speaker, but it is an even greater pleasure to know that we can look forward to a long period in which he will deploy his skill and 43 wisdom in your Lordships' House on a wide variety of topics associated not only with healthcare but, I am quite sure, other subjects also.
Of course, I am bound to feel that the noble Lord was well educated when I see that he attended the Nicholson Institute in Stornaway. It just has to be right. None the less, as a half-Scot—and, unfortunately, I cannot claim any more than that—I have to recognise that for many generations education in Scotland has been somewhat better than that in England. I do not know about Wales. I believe that the noble Lord, Lord Mackenzie of Culkein, demonstrates that level of expertise and education from the very start of his life. When one looks at his career path, one sees that he has worked his way up the ladder, which means that he truly knows what he is talking about. That is what came through so very powerfully in his remarks this afternoon.
I begin to feel sorry for the Front Bench because the noble Lord identified so clearly so many of the issues that the Care Standards Bill presents with regard to private healthcare regulation. He has felt from the beginning of his life that only the best is good enough. He quite rightly ended his remarks by implying that only the best was good enough for the most vulnerable people in our society, whom this whole Bill addresses. I thank him most warmly for his words. I support his views on the right to have a national body for regulation and on the interface between public and private healthcare because of the modern mixture which he has identified so clearly.
I want to start my own remarks by referring to the staff of the private health sector which, of course, is a matter on which the noble Lord has already touched and an issue which is so well known to him. Because it is the easiest thing to do, I quote from a nurse who wrote to me, stating:My experience with Intensive care in the private sector led me to resign my post within 3 months as I felt sure that one day I would inherit a disaster that was not of my making and there would be no support available. My role in this private hospital … was that of a bank nurse"—that means someone who is hired, an agency nursebut the permanent staff working in the 2 bedded HDU [high dependency unit] were virtually all untrained and had little concept of the implications of accepting responsibility for their sick patients".She goes on to highlight the point that,the consultants using the facilities of … private hospitals have NHS commitments and it is to the ICU [intensive care unit] in those hospitals that they bring their patients when they run into trouble".Another nurse wrote to me following the "Panorama" programme to which the noble Lord, Lord Clement-Jones, referred. She wrote:Lately I have been doing agency work and have been hired out to private units … despite the National Association of Theatre Nurses' efforts to raise awareness of patient care and employee vulnerability".She said that she found that worrying circumstances still existed after she retired from an earlier post at a 44 private facility. With regard to staff vulnerability, she wrote:The situation I refer to is that of surgeons who arrive to carry out major surgery and rely upon the theatre staff to act as their assistants. Major surgery such as hip replacements, spinal operations, major abdominal surgery … all carried out virtually single-handed. In the NHS the consultant would expect to have at least one if not two or even three assistants for such operations. And they need them. Good assistance is crucial to the speedy and efficient execution of such surgery. Making do with nurses—albeit informed and obliging—is just not the same".A doctor wrote to me:In my experience many of these private hospitals are badly run and … some of the consultants working in them are not at all mindful of their post-operative responsibilities. In many of these private hospitals the nursing care lacks continuity and is haphazard, the management relying upon temporary, agency and stand-by nursing staff. There is often a complete lack of communication between the different shifts and between the nurses and the consultants. I have seen auxiliary nurses doing the work of staff nurses and sisters".The critical part of this Bill comes before the House as only secondary legislation. Of course, the primary legislation which it offers is weaker than the legislation it seeks to replace. The current Act provides for inspection twice yearly, even though private hospitals are registered only as nursing homes; none the less, they have to be inspected twice yearly and one visit has to be unannounced. This Bill offers only one visit, presumably pre-arranged.
Today the Minister has declared that, although it is not on the face of the Bill, there is to be a separation of regulatory authority; that there will be expert investigators; that there will be proper staffing, and so on. However, I ask him whether these key promises will be on the face of the Bill or whether they will be decided behind closed doors. Decisions taken behind closed doors will not help those staff to whom I have just referred; and, of course, they will not help the patients either.
The evidence of need is very clear. We are talking about situations where there are unqualified or under-qualified staff who take on medical responsibilities for which they do not have the training. It is unfair to place those responsibilities on them. There is no complaints procedure in the private hospital provisions; or, at the very least, there is a complaints provision, but it is one that cannot be triggered by the patient, the patient's family or, I presume, the staff. Then, as has already been mentioned, some staff work in the private sector when they are forbidden to work in the National Health Service. There are misleading advertisements; for example, hospitals advertise that they employ trained and retrained staff, yet that is not always so. When it is not so, to whom does the public complain? The Advertising Standards Authority is not a statutory body. Some of the worst abuses of patient trust come from the highest earning parts of the private sector.
I have already referred to the lack of staff in the operating theatres. Many of the intensive care units should not be called "intensive care units" in that they do not have the necessary resident anaesthetist or 45 highly qualified staff. The risks to patients in many of those private hospitals rise so inexorably that patients lose their lives unnecessarily or unnecessarily early.
I have received many letters and messages, and many examples of tragic cases have come across my desk in recent weeks. Those letters, messages and calls have mirrored the horrors described in July this year to the Select Committee on Health in another place. As a result, last week the Government published a Green Paper which made many recommendations. Having inherited the National Health Service, which is so hard-working, tattered at the edges and under-funded, the Government have responded to the need to drive up standards by establishing the National Institute for Clinical Excellence (NICE), which we all welcome.
But, to put it bluntly, why are the Government so ready to establish NICE for the public sector and put in place nothing like it for the private sector? I remind the Government that nearly 1 million people have operations in the private sector every year. Of course, it is not as such a business sector at all, but 230 individual hospitals. It does not provide healthcare for love or as a public service; these hospitals and medical staff provide healthcare for money. Therefore, these private hospitals are exceptionally competitive. To drive down their costs, they have hired staff who are inadequately trained, under-provisioned, under-funded and not supported sufficiently for the tasks that they are asked to undertake.
Can the Minister say why he has made no commitment to clinical excellence in the private sector? I go further and ask him why it has deliberately been excluded from the Bill. Noble Lords may not have read as clearly as I have Clause 7, which sets out the general duties of the NCSC as monitoring the availability and quality of services, supporting consumers and encouraging the development of better services. What could be more welcome than that? However, subsection (7) of Clause 7 states:In this section, 'Part II services' means services of the kind provided by persons registered under Part II other than the provision of …(b) listed services (as defined in section 2)".That means that the Government have declared that the commission shall have the general duty of encouraging improvement and the quality of Part II services provided in England, except for private hospitals and private healthcare. Why? I do not understand. Something must be wrong. After all, only in June 1998, the Government declared that national benchmarks would be set for each hospital treatment and would form the basis of targets for every hospital. That is why in my Private Member's Bill I have proposed that an independent regulatory authority shall regulate the provision of private health services by institutions in England and Wales so that such services shall be equivalent to those provided in the National Health Service.
I am not suggesting that they should be higher. I accept that the Government have so much on their hands with managing the NHS. None the less it is difficult to understand why the establishment of 46 clinical excellence is not something that the Government wish to achieve for those patients who accept treatment for which they pay on the spot as opposed to paying through the tax system. After all, this year the Government, in their statement on the establishment of NICE, declared,The Government believes high quality health services should be available for all. At present there are unacceptable variations in the quality of care available to different patients in different parts of the country. The Government is determined that this shall change".However, the Government are determined that that shall not change for those who choose to receive healthcare outside the National Health Service. I do not understand that.
The Bill does not provide for clinical audits and says that there has to be a report each year on every hospital, but it does not say on what facets of the hospital's work. Yet with regard to NICE and clinical audits, the Government state:Health professionals need to be able to assess the care they give against established clinical standards. This can be done through clinical audit, which allows them to look at what they are doing against agreed standards and, where necessary, make changes to practice".What could be fairer than that, unless you have the misfortune to go to, or to be sent to, a private hospital? Let us remember that hundreds of thousands of National Health Service patients have operations in private hospitals at the request or the behest of the National Health Service, which simply cannot cope with all the demands due to what modern health provision can offer and which consumers therefore demand.
The public would be appalled if they knew that the Government cared only for public health when that health provision is given in a public ward. I believe that the Department of Health is responsible for the health of the nation, and not just for a part of the nation's health. The public have the right to expect that private hospitals should come under the same umbrella. There cannot be two standards. There should not be two standards, yet that is what this Bill offers.
Of course, the public mistakenly believe that if they "go private" the standards will be higher. We know that to be wrong. My argument is that it is unfair, unethical and unacceptable that there should deliberately be two standards of care in the United Kingdom. I call on the Government to accept a basic upward drive for consumer standards, irrespective of the mechanism of payment. I look forward to this Bill and I look forward to private health provision being placed, where it belongs, within the remit of the Health Standards Commissioner as he has requested.
§ 5.6 p.m.
§ Lord Rix
My Lords, I am delighted to have the opportunity to contribute to the debate. I hope that my voice stands the course. I believe that this is a landmark Bill to drive up standards in social services and to offer new safeguards to service users. Children and adults with learning disabilities are typically 47 frequent and intensive users of social services. They have been at the sharp end of the kinds of failures that the Bill seeks to address.
It is easy to talk in the abstract about problems with quality, failure to meet standards, training deficits and inspection loopholes, but it is important to remember the effects of such problems on people's lives. I make no apology for referring to some of the unpalatable inquiry findings which provide the background to this legislation. Before party politics really get underway, I believe it is important to spell out to the House just how crucial is legislation of this kind.
A most recent and most graphic depiction of failure in the care of adults with learning disabilities was in the BBC television series "Macintyre Undercover", in which an investigative journalist worked in a residential care home and witnessed a catalogue of abuse and neglect. Footage included a resident being pulled from her chair by her hair to be forcibly restrained by several staff. Another is seen being restrained by having his head pushed to the floor by a carer using her foot. Carers were also shown hitting and punching residents.
As we approach the next century we should be duty-bound to promote values of dignity and respect. Treating people with learning disabilities as lesser human beings is quite intolerable.
While inspections of the home in question had taken place, it was all too easy for staff to pull the wool over the inspector's eyes. That is borne out by recent social services indicators which demonstrated that local authority inspections have been poorly timetabled, and in some cases neglected altogether, and have often been more concerned by the size of rooms and the number of fire extinguishers than by the welfare of the residents.
The BBC film was also revealing in its depiction of the struggle that relatives and carers face when trying to get hold of information to influence their choice of home. While posing as a family member looking for a place for a relative in residential care, the reporter approached social services to ask for information. He was told that any allegations which may exist against the home would be "confidential" and could not be disclosed.
Clause 6 of the Bill proposes to establish a national care standards commission, which will be responsible for the proper registration and thorough inspection of residential care homes and other establishments. The commission will have a general duty of encouraging improvement in the quality of the services it oversees, and will have a duty to make information about services available to the public. This is truly good news. But let us not wait for the Care Standards Bill to be fully implemented before action is taken: the work needs to begin immediately. Indeed, I believe that a moral question has been raised by the BBC holding back the Macintyre report so that the programme would have the necessary effect when it was transmitted and his other investigations would not be revealed. There is a moral issue there which, possibly, needs addressing.
48 I would be delighted to see these duties enshrined in law. Bringing registration and inspection under the jurisdiction of a single body independent of all providers should help to bring consistency, efficiency and transparency to the process. I look forward to the work of a commission with a policy of consulting widely. I hope that the Secretary of State will consider the appointment of a director for disabled people, as well as a director for children's rights, to champion improvements in the care of individuals with disabilities.
The scope of the commission is broad. It will cover some of the substantial gaps which have hitherto existed in various registration and inspection regimes. Home care will now be registered, which is something I warmly welcome, and I would encourage a limited inspection role to be developed subject to the service users' approval. The status of adult placements will also be formalised in the new legislation. This should help to confine to history cases such as the one last year in North Devon where an establishment with fewer than four residents fell between two stools of classification, allowing horrific abuse to go unchecked.
Other care settings, such as children's respite care centres run by health authorities, will now come under the law. In the past, this kind of provision has not been subject to regulation and instances of abuse and neglect have emerged. Only last week a highly critical report was released regarding a Nottinghamshire care centre for disabled children. Fortunately, this centre is one of the more positive stories, having now undergone a transformation with a new management structure and new staff appointed at the respite unit for children with severe learning and physical disabilities.
For the first time, child minders and pre-school provision will come under a framework of inspection; as will independent schools and colleges. I would expect monitoring in these settings to look at the support for children with special educational needs and, in the context of pre-school establishments, procedures for the early identification of special educational needs.
But despite a radical overhaul of the system, there are still, as we have already heard, a substantial number of care settings that are not covered—most notably, day services for adults with learning disabilities, such as day centre attendance. While we are slowly seeing some success in getting people with learning disabilities into work, there is still a substantial number of people for whom day centre attendance is the norm every week. Those who attend may require quite intensive care from staff over a substantial period.
Physical and emotional abuse is not confined to residential settings. Vulnerable people who are unable to speak up for themselves can be just as isolated at a day centre, as in a residential home. A case in point is the Woodfold day centre in Sheffield—now fortunately closed—where people who attended were abused and neglected over a 14-year period. Abuse should be stamped out regardless of the setting in which it occurs.
49 Another gap is in the protection of disabled young people between the ages of eight and 17. The legislation recognises that staff working in care settings with disabled young people up to the age of 17 should be properly vetted, but there is no provision for the registration and inspection of day services for children over the age of eight. I urge the Government to rectify this matter—not for the sake of consistency of legislation, but for the sake of young disabled people, who may still be exposed to settings in which those purported to care for them are not bound by legislation governing their conduct.
One final gap in registration is in relation to hospices. Some of our most sick and vulnerable young and elderly people reside in hospices, which are establishments designed to maintain patients' dignity through the latter stages of terminal illness. Measures should be in place to ensure that the care ethos of the hospice movement is a reality in every single case.
In terms of inspection procedures, I would expect inspection teams to be well trained in seeking the views of people with learning disabilities-—allowing for full support in the interview situation, where necessary. In some cases, it may be beneficial to consult with parents and carers, too. They may be in a position to speak out about physical abuse or best recognise signs of emotional distress. It is fundamentally important that medical examinations can be made and medical records consulted in all cases where abuse is suspected, unless the individual registers discontent.
We need a working policy of zero tolerance of physical and sexual abuse. That is why I welcome the new provisions in Clause 18 for the urgent revocation of registration where it appears there is a serious risk to a person's life, health or well-being.
The decision to devise national minimum standards applicable to care establishments is, I think, a good one, although care will need to be taken to ensure that they are not general to the point of being ineffectual. I would advocate learning disability national minimum standards, alongside standards for older people, mental health service users and other groups. I would particularly urge the Government to look at minimum standards for restraint, whether in children's services, residential schools or in adult homes.
The restraint procedures demonstrated in the BBC's recent film and documented in countless abuse inquiries are not only painful, distressing and demeaning to residents; they are also life threatening. Mencap is aware of fatalities arising from improper restraint, which have been recorded as "accidental death". Death by asphyxiation is no accident. A clear legal and policy framework is urgently required on the management of physical intervention. We would also expect people with learning disabilities who have experience of using these services to be directly consulted in drawing up any standards that will affect their lives.
Proper registration and inspection procedures will go a long way in driving up standards in care, but it is also crucially important to have an effective structure 50 for monitoring and approving staff who work in care settings. Sadly, too many care workers are inadequately trained for the job that they have to do, and there is little concentration on the quality and value of care provided. This demonstrates the importance of the proposed general social care council, which should, in time, ensure that all staff have relevant qualifications and training.
During the last Session, I extended my support, along with other noble Lords, to a Private Member's Bill introduced in the other place by Debra Shipley MP, which has now become the Protection of Children Act. This Act received support from Members on all sides of both Houses who were keen to strengthen recruitment procedures for people appointed to work with children. I am delighted that the Care Standards Bill is building upon the foundation of that Act, and is looking to strengthen procedures for the recruitment of staff working with adults who are judged to he vulnerable on account of their care requirements. This is an important step, and one which is long overdue.
Eighteen months ago the Department of Health concluded an inquiry into Longcare homes, two privately run residential homes for people with learning disabilities in Buckinghamshire. More than 50 people suffered physical and sexual assaults at the hands of the owner, Gordon Rowe, and his staff. Rowe registered the home in 1983, when he was already under investigation for abuse allegations in a different local authority. This information did reach Buckinghamshire local authority, but it failed to act upon it. This case stresses the importance of ensuring that staff are properly vetted to prevent perpetrators from moving from one part of the country to another to seek employment, or from one care setting to another thus avoiding detection.
Lessons learnt need to be translated into action. Sadly there have been all too many inquiries of this kind up and down the country. Now is the time to protect for the future. I welcome the Department of Health's commitment to taking a strong national lead in response to national problems, and I look forward to a future for people with learning disabilities which looks very different from the past. Proportionately, the same number of adults with a severe learning disability are living with parents in 1999 as were living with parents 30 years ago in 1969. There simply have to be better guarantees that those who leave the family home to live elsewhere will find support and opportunity and, above all, complete safety.
§ 5.21 p.m.
§ Baroness Pitkeathley
My Lords, like many of your Lordships I feel that I have been waiting a long time for this Bill. In some senses, I feel that I have been waiting more than 30 years, since I started my professional life as a very green, very naïve and very unregulated social worker in Manchester's Moss Side. Your Lordships will appreciate that working in such surroundings I did not remain naive for long.
Life in social care has changed a great deal since then. For a start, we use the words "social care". Then, we might have referred to "social work" as our 51 profession, but social services departments were not yet even a gleam in anyone's eye and "social care", although it was going on all around us, was not yet a recognised term. More shockingly—I am ashamed still to admit it—many of the problems which face social services departments now were simply not on the agenda. Principal among those was the issue which now forms such a significant part of all social care; namely, the protection of children from abuse in all its forms. My blood still runs cold when I remember all those children who were undoubtedly suffering but whose plight was ignored by me and by those authorities that were charged with protecting them.
I am thankful indeed that much has changed and want to pay tribute to all those who have devoted so much of their lives to providing good social care, often in the face of criticism, and frequently pilloried by the press.
The Bill itself is wide ranging and we shall have the opportunity to debate many important aspects of social care provision and its regulation during its passage. It is, I think, particularly appropriate that it begins its passage in the House of Lords as so many of your Lordships have an abiding interest in these matters, as has been evidenced by the speeches today. Today, however, I want to concentrate on one aspect only and in doing so to declare a specific interest.
Part IV of the Bill concerns the functions and provisions of the general social care council (GSCC) and the care council for Wales. I am privileged to chair the advisory group which has been established to advise the Secretary of State and to conduct projects of work to help with the early development of the key functions of the GSCC when it is established. The membership of the group is drawn from a wide cross-section of those who are concerned with these developments. I want to record my most grateful thanks to all members of this group for their commitment to so much hard work in order to prepare for the establishment of a body which is so long awaited. I add my thanks to those of the noble Lord, Lord Laming, for the work done by the Central Council for Education and Training in Social Work.
The group I chair is undertaking initial work on drafting codes of conduct for social care staff and employers and a framework by which codes of practice for staff can be developed. We shall also examine the registration functions of the GSCC, its regulation of professional social work education and training, and the establishment of the body in shadow form during the course of the next year, depending on the progress of this legislation.
Like many other people who have worked in this field, I have awaited the formation of such a council for a long time. I first heard it discussed as long as 20 years ago. We greeted each report which recommended its establishment with eagerness and support, but each time we were disappointed.
Over 1 million people are employed in personal social services in the United Kingdom, providing social work and social care services for large numbers 52 of children and adults, including many elderly people. They work often on their own initiative, in people's own homes, and away from direct supervision. They provide support and care for children and adults who may be physically or intellectually dependent, and who often suffer disadvantage, stigma and social exclusion. Many service users rely on social workers and social care staff to provide their day-to-day personal care, look after their interests, protect them from harm, or prevent them becoming a danger to themselves or to others. The circumstances which bring them into contact with social care services may also make them particularly vulnerable to misconduct, bad practice or abuse on the part of staff in those services.
It therefore seems incredible that up to now no government have been willing to set up such a body as exists in most other professional and caring fields with the task of protecting the public by regulating standards of conduct and practice for those working in the field. There has, of course, been growing public concern in recent years about examples of gross misconduct, bad practice and abuse by a minority—I stress that it is a minority—of social care workers. Naturally, support has grown for a concerted initiative to raise standards, and to tackle abuse and bad practice.
The primary function of the councils—I refer also to the council for Wales—will be to protect the public and set standards for the professional and occupational groups working in the social services field, whether in local authorities, voluntary organisations or the private sector. The councils will have the heavy task of winning the confidence of service users, their carers and families by the way they set the standards and the way in which those standards are enforced. Therefore, the councils must secure the commitment of all those who work in social care to high standards of conduct and practice. They must also gain the co-operation of employers in providing support for good practice, tackling misconduct and abuse, and excluding from the workforce those in serious breach of the standards.
The councils must also work with education and training bodies to raise standards and increase levels of training. Of course, they must also take steps to improve public understanding of the nature of social work and social care, and to build public confidence in social services and the occupational groups working within them. These are not easy tasks but there is a will to tackle them if the advisory group which I chair is anything to go by.
I should like to draw particular attention to one part of the councils' work which I believe is of the greatest importance; namely, the empowerment of service users. Although many social services departments and agencies have made serious attempts to address the issue of user participation, most users would say that there is still a long way to go. This partly reflects the inherent difficulty for all organisations of giving up power and reducing control, even when their philosophies and values embrace the principle of being responsive to users. However, we must never forget that it is also a particular feature of social care that 53 many of the groups which use its services comprise those who are disadvantaged and disempowered as a result of what took them into the social care field in the first place; namely, as a result of youth or old age; learning or communication disabilities; and, of course, racial, religious or cultural differences. Such groups have few opportunities to have their say or to influence decisions. All too often, in social care as in the wider society, their views are dismissed or ignored.
The councils therefore will have an important part to play in encouraging a climate of greater responsiveness to users and their families, but they will also have obstacles to overcome to secure real user and carer ownership of their own operations. It will be of the utmost importance that provision is made for users and lay members to be in the majority on the councils. We shall need assurances from the Minister that he is totally committed to ensuring that this works in practice as well as in theory.
One million social care workers will not be registered and regulated instantly, but this long-awaited Bill makes a vital start. There can be no one who is concerned about this important issue who does not welcome that.
§ 5.30 p.m.
§ Baroness McFarlane of Llandaff
My Lords, I am sure your Lordships will not be surprised that I wish to add my congratulations to the noble Lord, Lord Mackenzie of Culkein, on his magnificent maiden speech. Rarely have I listened with such pleasure to a maiden speech. I enjoyed the way in which he stated the personal values with which he comes to the work of the House and also his authoritative analysis of the terms of the Bill.
I am gratified to think that nursing is now represented on almost all of the Benches of this House. That is right and proper when one considers the work that nurses undertake in the health service. I was almost tempted to appropriate to myself the words, "Lord, now letteth thou thy servant depart in peace". I feel that the noble Lord, Lord Mackenzie, will represent us with skill and authority in the future.
The Government are to be congratulated on their determination to grasp the nettle of care standards in a wide range of settings. I welcome the intention to establish the national care standards commission to regulate social care and private and voluntary healthcare.
Most of us have a profound sense of shame as we encounter and read of flagrant abuses of the trust of care—we have heard these referred to very graphically by the noble Lord, Lord Rix—but the reported cases may be only the tip of an iceberg. I believe that there is a far greater quantity of substandard and even abusive care which remains hidden and which can lead to days and years of misery and a life lived out with a lack of human dignity or worse.
Some of us have had cause to visit institutions which give us profound unease as we enter them; their ambience depresses us beyond measure. Whereas I appreciate some of the evidence brought forward by 54 the noble Earl, Lord Howe, about the dilemma in which nursing and residential home owners find themselves because of some of the standards which are to be brought in, the physical provision for care is extremely important. Even though the inmates of a home may spend only a certain time in bedrooms, there needs to be room for two nurses to operate around a bed and for all the common provisions for caring to be made. I see a need for far more stringent standards in physical provision than we have had before. There is also a need for standards of staffing in homes. These have fallen way below the level at which they should be.
As we cast a critical eye on some of these institutions, I am conscious of how grateful some of us should be for the excellent provision of care in others. I have visited places where the standards of care are exemplary. I am sure that, like me, many of your Lordships will have cause to be personally grateful for the care received by members of our own family circles. My mother lived until she was 108. For the last 10 years of her life she received marvellous care in a home in Leicester which I could not better myself. I should like to pay tribute to the care that is given in so many of these homes.
I am also intensely proud of the care given in the hospice movement and the standards that have been set there. The care given in our hospices could well be a model for the care given in the health and social services generally.
From my background, I want to comment on four aspects of the Bill in general terms. We shall have the opportunity to return to the Bill in detail as we go through the clauses at the Committee stage and beyond as we discuss the Bill. First of all, I should like to comment on the range of the Bill. The Minister said that it was very broad. I was staggered as I read of the range of provisions that it covers: the variety of settings, institutions and domiciliary care; the way in which it covers every age group, from children right through to the elderly; the settings of short-term and long-term care; and the provision for not only physical care but for mental care and terminal care.
I begin to wonder what kind of commission would be competent to encompass this wide range of kinds of care, with the very different standards that will have to be added to different forms of care. Speaking from the point of view of my own profession of nursing, if we are to have the promised concentration of expertise in the commission, how does one get a concentration of expertise that will cover geriatric nursing, mental health nursing, palliative care, mental handicap nursing, children's nursing and so on? These are all specialties in nursing that will come under the purview of the commission. How does one get that concentration of expertise?
My second and major concern is to probe the distinction made in the Bill between social care and healthcare. In the past the distinction has been invidious. My hope would have been that the Government would have given this matter more thought. It is my view that for many nurses the 55 distinction between social care and healthcare is artificial and that the Bill with its definitions could lead to further polarisation between these aspects of care.
It is my experience that persons requiring long-term social care often have a multiplicity of health needs; and those requiring healthcare have social needs. It is invidious to attempt to polarise these kinds of needs for care and to designate people to institutions accordingly.
The definitions of personal care form a fundamental element in what is, by definition, part of basic nursing care. Henderson described it many years ago as,to assist the individual, sick or well, in the performance of those activities contributing to health or its recovery (or to a peaceful death) that he would perform unaided had he the necessary strength, will or knowledge, and to do this in such a way as to help him gain independence".As has been said, much of this is now carried out by care assistants and yet it is a basic nursing task. It needs to come under the purview of experienced nurses who can assess the need for nursing care and monitor it effectively. We have slipped up in the way in which care has been organised in some of these institutions at present. This basic nursing role is a necessary element in what makes a person feel cared for, and it needs to be under the supervision of qualified nurses. If personal care and healthcare are distinguished too finely, the care of the individual is fragmented and becomes task centred rather than person centred—and yet we have had the assurance from the Minister that this is not the objective.
That leads on to the distinction between residential homes and nursing homes. There is an implication in the Bill that long-term care is about social care and that nursing homes are about healthcare. I know that the Royal College of Nursing has long been of the view that the patient's interest would best be served by removing that artificial distinction and moving to a single system of homes. I wonder why the Government have not taken advantage of this opportunity to take that step.
Noble Lords have already referred to the overlap in regulatory functions. As has already been said, I believe that there is an overlap between the function of a commission, between CHIMP and NICE, clinical governance and many other forms of regulating the quality of care. I wonder whether we can have clarification of how these different institutions will relate to one another and to the professional organisations. We have already had reference to how they will relate to the commission in their responsibility for professional practice.
I now turn to a small point. The Bill states that a person's employment in some homes would be prohibited unless he or she is registered with the social work agency. But many nurses will be working in the institution. Does that mean that the Government want them to have dual registration as nurses and with the social work agency? We look forward to the future stages of the Bill and being able to take up these and other points.
§ 5.41 p.m.
§ Baroness Crawley
My Lords, this Second Reading debate, with the excellent maiden speech from the noble Lord, Lord Mackenzie, gives us all the opportunity to put on record our appreciation of the hard work carried out by so many social care staff throughout the country.
In our rightful condemnation of that small minority of people in the social care workforce who truly neglect and abuse those in their charge, it is sometimes left unsaid that many in the care workforce bring relentless dedication and compassion to their work, often on ridiculously low wages. They will welcome the opportunity that this Bill gives to improve further their levels of care and professionalism.
The Care Standards Bill will also be heartily welcomed by the half-million people living in care homes in England and Wales, including elderly people, disabled people and children in children's homes. We are told that there are over 30,000 care homes and over 1,000 children's homes as well as hundreds of smaller children's homes, private and voluntary hospitals, and clinics. The Bill will also cover 3,000 domiciliary care agencies, 70 residential family centres, 80 independent fostering agencies and 44 adoption agencies.
The new national care standards commission will replace a plethora of confusing and differing regulatory regimes and, in some cases, bring regulation where there was none before. This is part of the Bill that is long overdue and one that I hope will be welcomed, at least in its aims, across the House.
It is a disturbing thought that of the 1 million-strong care workforce, only 20 per cent have any recognised training qualification at all. In the context of the Bill, that yawning gap in standards will be filled by the general social care council, which will at last promote the highest training standards across this diverse workforce and not only, as we have heard from noble Lords, among the relatively small number of professionally trained social workers numbering 40,000 in all.
Part VI is an important section of the Bill which imposes a duty on the Secretary of State to maintain a list of individuals who are considered unsuitable to work with vulnerable adults in the care sector. The imposition of this duty to strike off those who would abuse and mistreat our most vulnerable citizens is a reflection of the seriousness with which this Government take the care of the most defenceless among us.
While the Bill covers the entire age range, perhaps I may linger for a moment on our duty as civilised citizens to our elderly people. We know that the care of the elderly must from now on attract only ultra-professionalism. Why? It is because, first of all, people in their 70s, 80s, 90s or 100s, after a lifetime of working and giving, deserve our respect. It is also because the demography of our country and continent is changing. Thankfully, people are living longer with, in many but not all cases, increasing disposable income. They are demanding higher and better standards of care in retirement. They are looking to a varied and fulfilling 57 retirement and. as always, professionalism is ultimately much cheaper and much more cost-effective than incompetence.
Care of the elderly should be the new "rock and roll", attracting the most original thinking and the greatest energy in policy and cultural terms. What could be more exciting, liberating and revolutionary, as we step into the new millennium, than the real prospect of a peaceful and prosperous old age for all. It is a prospect that needs a great deal of work and commitment because a significant proportion of elderly people feel less than confident that such a benign retirement and period in care awaits them.
My own family has taken the all too familiar route which, I am sure, is known to many of us, of traipsing from one residential care home to another looking for a suitable home, in our case, for an elderly widowed aunt who had become very confused. The variation in standards, hygiene, personal space, care and warmth was surprising, if not shocking. Although my aunt is now happily established in an excellent home, the at times harrowing process of finding that home for her was an education we could have all clone without.
While this Bill calls for more detailed content, which will be forthcoming, it will help to restore confidence among our elderly citizens and others in care that their welfare and well-being is uppermost on this Government's agenda.
§ 5.47 p.m.
§ The Earl of Listowel
My Lords, the theme of this afternoon's debate has been the commission, and concerns that it will not have regional arms. Perhaps I may make a suggestion to the Government that each commissioner should be encouraged to spend one or two hours a week in the field in a psychiatric hospital or a special needs school in order to keep in touch with what is happening on the ground.
My father took immense comfort from spending his last illness at home. I wholeheartedly welcome this Bill's measures to allow the cared for to remain at home rather than being obliged, for the convenience of bureaucracy, to move to an institution.
By far the majority of the workers I have met, while volunteering for work in hostels, are committed to it. However, there are also the few who might never be allowed a position of responsibility elsewhere and enjoy the exercise of power over others. There are also those who take personally the problems with conduct that cared-for young homeless people sometimes have and who respond inappropriately and unkindly.
That is very distressing for the colleagues of such people and, most importantly, it leaves the cared for feeling badly about themselves. Therefore, I also welcome the encouragement given to training and registration which the general councils covering social and care workers provided in this Bill will introduce. I hope that this legislation will cause the most obviously flawed candidates for care work to be rejected outright or at least prevent them from rising to a position of responsibility. After all, some of the homeless are 16 and 17 year-olds; they are still children, and 40 per cent 58 of those children have spent time in care. They are vulnerable, and there are Napoleons among hostel staff just as there are in other social care work situations. Proper inspection and registration of hostels, registration of the staff as "social care workers", an expectation that they should be "fit persons" and at least trained to NVQ level 3 will increase the standard of care and staff morale.
I fear that I have missed a page of my notes. Those remarks were to suggest to the Minister that homeless hostels should also be included in the new arrangements set out in the Bill, at least for young people up to the age of 21. Their carers and staff in the hostels should have to have at least the same level of skills as those demanded in other residential settings for vulnerable people.
Children's homes are failing their children. Perhaps the most disturbing figures reflecting this are that one-quarter of young women are leaving care with babies, and one-half are mothers within two years, as compared to the one in 25 women normal to that. age. Research by Centrepoint and the Peabody Trust, Safe in the City, shows that the most important predictor for youth homelessness in deprived areas is to be the child of a mother whose firstborn was produced before she was 25 years old. The prospects for many of the children of recent care leavers must be bleak, both for their children and their children's children.
Those with experience and expertise in the care of looked-after children say that the most important goal is a good quality of relationship between staff and children. It is essential to retain staff over several years, to resist children being removed from one home to another, and to foster trusting, significant relationships. Children need to feel connected to adults who really do care about them.
What aids children to connect? Two things do this: the continuity of contact with staff; and its significance. Children who have never felt secure with their parents or guardians need to know that staff will stick with them for years; that at least one staff member will allow intimacy; and that they can communicate their feelings and sometimes dreadful past experiences without threatening that special relationship. How can a child ask for help if there is no one he can trust or feel standing close to him? However, the problem is that children who have been poorly treated are likely to treat others poorly, especially their new carers.
In a crisis, when one is faced with an impulse, one is of course tempted to act upon it. If it is a destructive impulse, one has to pause, think for a moment, and recognise the damaging consequences of gratifying that impulse. When caring for troubled children, one must resist responding to insults with insults, kicks with kicks, and seduction with seduction. The capacity to stand back and think is essential. By insisting that the managers of children's homes are properly trained and by moving towards the training of all staff working in children's homes, the Bill is encouraging a considered approach among staff. However, because of the exceptional needs of these particular children, it 59 needs to go further still. There remains the danger that workers will lose their self-possession. The saddest example of this is when a young homeless person with conduct problems is expelled from a hostel because workers are unable to plot the most constructive way around him.
I have been very impressed with the results of supporting hostel staff by providing weekly meetings with a psychotherapist. Fewer young people are expelled and there is a greater enthusiasm among staff for their work. The meetings stimulate the care staff to think about their practice, to question their behaviour and to better understand the young people they care for—their wards. The service allows some staff to see that there is an infinite amount to learn from their work. Virtually unqualified staff have gone on to write masters' theses on the relationships between staff and residents. The residents are very grateful to have found a place in which they feel accepted and understood. Young people who can recite a litany of previous hostels come, at last, to rest.
In Committee, I intend to move an amendment to ensure the following provision: that the staff body of a children's home should have a right to a weekly visit from a psychotherapist registered with one of the three recognised United Kingdom bodies for psychotherapy, or from a mental health worker with three years' relevant experience and one who is himself undergoing psychotherapy with a practitioner registered as above.
The trade-off of a dynamic, risk-taking economy such as ours is greater social exclusion. Compared with Europe, our rate of unemployment is lower and our economy is performing better, but we also have the highest rates of divorce and teenage pregnancy, and, after Portugal, the second highest imprisonment rate in the European Union. However, Britain's incidence of social exclusion is far less than that of the United States, the world's most successful free market economy. Perhaps a recognition of this trade-off is implied by the Government's twin goals of enterprise and fairness. Our choice of economy over the past two decades has increased the number of children in care. I suggest that we have a duty to target some of that prosperity on to the most vulnerable. As the family has fared worst, children in care deserve a disproportionate share of our new wealth.
Furthermore, investment in good social care saves money. For example, as the noble Lord, Lord Murray of Epping Forest, pointed out during the Second Reading debate of the Children (Leaving Care) Bill, reducing by 10 per cent the number of care leavers graduating into young offender institutions would save £7 million per annum.
I hope that the Government will consider making further provision fully to resource the service that I propose, should that be necessary. At the same time, I acknowledge that the Government are already increasing spending in this area by 3 per cent per annum for the next three years. The innovation I have described would be a bold, imaginative and effective step in bringing order to the chaos in many children's 60 homes. As the noble Earl, Lord Howe, pointed out, this piece of legislation is a box in which no obvious and tangible elements are immediately obvious. Most of the improvements set out in the Bill will take years to bite. However, this simple proposal would bring improvements in months. Children in care have already been waiting for far too long.
Over the coming months, I shall be working with others to establish a pilot service in children's homes. I should certainly appreciate advice from the Government and noble Lords on pursuing this project.
Finally, I should like to pay tribute to all those who care for children not their own, to those who adopt children, to foster parents and to the staff of children's homes. Who could ever claim to match the nobility of their endeavour to give hope and love to an unsupported child?
§ 5.58 p.m.
§ Lord Lipsey
My Lords, the speech of the noble Earl, Lord Listowel, reflects what has been a theme of today's debate; namely, that speakers have been talking on subjects they really know about. Furthermore, that applies too to the wonderful maiden speech of my noble friend Lord Mackenzie of Culkein.
There is only one part of the Bill of which I have particular knowledge, and that concerns the care of the elderly, so I shall confine my remarks to that subject. The reason I know a little of the subject is that I was a member of the Royal Commission on the Long-term Care of the Elderly. That commission spent an exciting 13 months discussing and investigating this subject. Some noble Lords will know that, sadly, the commission was not unanimous in its conclusions. I was one of two commissioners who signed a substantial note of dissent. However, we did agree on a good many matters, and the need for a national care commission was one of them. I very much welcome the fact that that commission will come into being as a result of this Bill.
I believe that to be right for two principal reasons. First, when one goes round the country looking at care homes, one is struck by the huge variety in the quality of provision. There are wonderful homes with wonderful people doing wonderful work. But as I stand before the House, my stomach still turns at the recollection of the description of one home in the south east of England written by a member of the commission staff who went in and saw old people being treated, it is hardly an exaggeration to say, like animals. That variety of provision is what the Bill is intended to deal with.
Incidentally, it is not a matter of money. According to the Audit Commission, there is practically no correlation between standards in homes and the amount of money each place costs. Some of the worst homes are the most expensive and some of the best homes are relatively cheap. It is a matter of having uniform standards, and therefore a national commission is required. If it were left to local authorities, the variety would be greater. A national 61 commission will not mean instant equal standards. But as we have too much variety rather than too little, a national commission is the right way forward. I am glad that the Government have moved away from their earlier idea of having eight separate regional commissions.
I have a second reason for favouring a Bill in this field. Under it, for the first time, local authority-run homes will be subject to external inspection. There is an interesting piece of social history as to why local authority-run homes have not been subject to external inspection. It is to do with a time in our national life when it was felt that if something was run by the state it must be all right and the standards must be good. But we have moved away from that idea. Indeed, the only area where local authority homes on the whole excel is expense. The average public sector residential home costs £366 per week compared with £238 in the average private home. That is a 54 per cent difference. Some small part of that may be attributable to the fact that a more needy kind of person tends to live in a local authority home, but the most likely explanation for much of the discrepancy is sheer inefficiency.
The extra money does not bring higher standards. Perhaps I may give one example. Whereas only a minority of independent sector residential homes—a little over 20 per cent—would fail to meet the new space and amenity standards to be introduced by the Government, in the public sector, I am ashamed to say, 55 per cent of homes would fail that test.
I do not like to be dogmatic but in the long run I have no doubt that local authorities will have no business running care homes. The right model is for local authorities to commission from private providers the care that they need. According to the calculations of the minority report, if all local authority homes were closed tomorrow and were replaced by equivalent private sector homes, there would be a useful saving to the public purse of £1500 million a year. In fact, it would not be right to close them all tomorrow because it would be awful for all those people who were hoping to see out their days in the home they are in and who would have to be forcibly moved elsewhere. For better or worse, the homes exist; and they will continue to exist for a period, though the numbers are, I am pleased to say, diminishing. But it follows from the fact that they will continue to exist that they must be brought within the system of regulation. I also dare to hope that regulation in itself will bring home to authorities, which have let these problems go on in some cases for years and years, that they are providing a not very good service at an unnecessarily high cost and persuade them to run down these homes as swiftly as is practicable and humane.
We are to have more consistent regulation as a result of the Bill. That is excellent. Under the proposals in the Government's June consultation paper, Fit for the Future, we are also to have much higher standards for care homes. That, too, is excellent. But it bears with it the vital concomitant—the noble Earl, Lord Howe, referred to this point earlier—that we need a flourishing private sector able profitably to provide places of the standard required. It is strange that when 62 we come around to the need for a flourishing private sector, more noble Lords on these Benches seem to support it than on the Benches opposite. Perhaps that shows the changes that are occurring with time. We need a profitable private sector.
However, we have a difficulty. There is a growing mismatch between the fees which local authorities are prepared to pay for residential care and the costs which homes incur in providing that care. Indeed, if I were not disinclined, by reason of my former profession of journalism, to any exaggeration, I would say that we have a crisis on our hands. I shall spare the House the full weight of the facts that lead me to that conclusion but I shall give just a few. Fees paid from the public purse account for around two-thirds of the income of care homes. According to the latest authoritative Laing and Buisson survey of the field, the fees paid by local authorities last year rose by 1.6 per cent for nursing homes and 2.2 per cent for residential homes. However, the wages of women working in those homes—that is the key cost factor in most homes—rose by 4.4 per cent. It is not easy to continue to increase productivity in this field. How do care home workers increase their through-put of feeding people meals or chatting to them when that is what they need? One cannot just do that.
The result is not very surprising. It is that returns on capital are deplorable and the share price of the big care firms languishes. In October we learnt that Advantage Care, with more than 3,000 beds, had gone into administrative receivership. That followed the collapse of Grampian Care in June this year. Tamaris plc, one of the four remaining quoted long-term care companies, has been experiencing severe financial difficulties.
Higher standards, as I have said, are excellent. But higher standards inevitably cost money. For example, the Government's own estimate of loss of revenue to homes as a result of the space standards set out in Fit for the Future is of between £80 million and £300 million a year. That will not all be incurred at once but the danger is of a greater squeeze on profit margins, more closures and, even in defiance of the Government's regulatory efforts, more corner-cutting and worse care.
Some noble Lords may say that we do not want so many homes for the elderly, that surely we want people to be cared for in their own homes, and that therefore it would be a good thing if care homes were to go out of business. Alas, that is not so, for the population is continuing to age. Even on the most optimistic assumptions as to the proportion of older people who can live at home, our need for care homes will rise. On the best estimates put to the Royal Commission, it will double between now and the year 2050. Twice as many people will need care homes. The required investment will be at least £15 billion. If we close homes now in order to shave costs for local authorities and then later on we have to reopen them, the cost will be many times what is required to keep them going now. Having been a student of the Treasury for many years, I know how 63 reluctant it is to accept arguments of spending now to save later. I hope that this argument might have some resonance.
From all this one inexorable conclusion follows. It is that fees must go up; and as fees are paid by public authorities—local authorities and the Department of Health—that means that there will have to be more public expenditure. When the Government embark on the Comprehensive Spending Review, I hope they will give due weight to that need.
I referred at the beginning of my remarks to the disagreement on the Royal Commission. In closing, I return to it briefly. The majority of the Royal Commission wanted care in all care homes to be free to all and not, as now, subject to a means test. That is a tempting proposition. But it is also a very expensive one, even on the majority's optimistic costing—absurdly optimistic, some of us believe—it would cost £1 billion a year now, rising to £6.4 billion by the year 2050.
The minority, to sound a note of dissent, had a different priority. We wanted extra spending—not quite as much as the majority wanted—but not to make free what is now paid for. Rather, we wanted extra spending to improve the care that is now provided and needs improvement.
What matters most—that better-off people who now pay for their own care should in future be paid for by the state so that they can leave their fortunes in full to their children, or that state resources should be used to improve standards for everyone in care homes, providing their proprietors with the incentive and wherewithal to look after their residents with dignity and love? The question answers itself.
§ 6.11 p.m.
§ Baroness Barker
My Lords, like many other speakers, I should like to congratulate the noble Lord, Lord Mackenzie of Culkein, on an outstanding maiden speech. It was joyful to listen to his wisdom and experience, particularly as his remarks were delivered in that most wonderful of accents which can make a telephone directory sound like poetry. I hope that he addresses the House many times again in the future.
Of the 28 Bills announced in the gracious Speech, the Care Standards Bill has prompted comparatively little comment, and overall the reaction has been largely favourable. That is not surprising, given that all the major principles have been trailed in previous legislation and that the contentious parts of the measure—indeed, there will be some—will be contained in regulations not yet placed before the House.
The establishment of an independent regulatory body for social care and private and voluntary healthcare services is welcome. However, that proposal, together with the production of a national service framework for the care of older people within the NHS, announced by the Secretary of State for Health on 2nd December, will lead to an overall better 64 standard of care, not least because service users will, possibly for the first time, have clear expectations about the quality of service that they can reasonably expect in the NHS and in a variety of social care settings.
The proposal for new, independent councils to register social care workers and regulate the training of social workers in England and Wales will also bring a welcome degree of clarity to what is currently a rather patchy and confused picture across the country.
I want to take some time to consider the possible implications of the implementation of the Bill. In doing so, I shall draw to some extent on my experience of working with voluntary organisations which have been involved in lay assessor schemes. Perhaps the most important aspect of the Bill is the provision for registration and inspection. I want to address in particular the inspection of residential and nursing homes. Although the removal of responsibility for inspection from local authorities in order to achieve national consistency is understandable, there is a strong danger that the process of inspection may become so remote that it could become largely reactive. If inspections are carried out in order to monitor national minimum standards, and such inspection visits are carried out infrequently, it is highly likely that all that such inspections will do is uncover the most blatant of bad practice.
There is a danger that, in order to meet the legal requirements of the Bill, some locally based schemes, such as lay assessor schemes, will be forced to end. There will not be the resources to maintain them. That would be regrettable. Such schemes have been very successful in doing an important job; namely, uncovering poor as opposed to bad practice. Such schemes have demonstrated that, often, only after there has been sufficient time for residents to become familiar with assessors and to trust them are issues raised. That is not surprising. If one of us were to experience a difficult problem in our own home, I doubt that our first response would be to discuss it with a complete stranger. I fear that the same will be true in relation to this provision. We should not forget that a care home is usually the only home that its residents have. However bad it is, the fear of losing it remains a powerful incentive to say nothing. If inspection is to work, it has to be carried out in such a way and with such frequency—I stress frequency rather than regularity—that people genuinely feel able to raise extremely difficult and intimate problems.
Furthermore, such schemes have shown that care home owners, who are initially suspicious of inspection, can in time come to regard it as a helpful and valuable way of addressing problems. They, too, need to establish familiarity with inspectors. When the new inspection system is implemented, will there be sufficient resources to allow frequent visits, and also for the inspection process to be carried out in such a way that it is grounded in local circumstances and is not a remote and oppressive process for everyone involved?
65 That leads me to a related issue on which I feel strongly; namely, the need for advocacy. Most older people in residential care are either physically or mentally frail. Whether old or young, people in residential care are emotionally vulnerable. To make a complaint, even informally, against the main provider of one's care requires a great deal of strength. Many people in residential care require support. I urge the Government, when considering the implementation of the Bill, not to overlook the considerable benefits of making provision for advocacy services.
It has been widely acknowledged, and was eloquently put by the noble Lord, Lord Lipsey, that the Bill's implementation will lead to the closure of residential homes, although there is some degree of argument as to the likely scale of the closure. In the early 1990s, in the wake of the passage of the National Health Service and Community Care Act, many residential homes, most in the public sector, closed because they were unable to meet the standards that were set at the time. As a result of many instances in which older people were moved to new care homes and died shortly after, a great deal of research was conducted into the problem. Many valuable lessons were learnt, including the need to involve staff, relatives, residents, GPs and anyone who has anything to do with a home in that process. Above all, it was recommended that advocacy should play an integral part. Moving home is a trauma for anyone. It is well known that if a patient displays signs of stress, the first question a GP will ask is whether someone has died, and when the patient says no, the GP says. "Well, you must be moving". It is the same for those in residential homes. Having an advocate, someone whom they can trust to help them through that process, is extremely important. I should like to see that provision in the Bill.
One criticism that can be made of the Bill is that it places heavier emphasis on the type of establishment in which services are offered than on the nature and standard of the services. It has long been the case in the NHS that services have been judged more on buildings and the state of those buildings than the treatment that individuals receive. I urge the Government—in seeking to bring greater cohesion to the monitoring of services across different sectors—not to fall into the trap of subjecting personal and social care to that same crude measure.
I take issue with the noble Earl, Lord Howe, who listed some of the proposed physical standards for residential care in a disparaging tone. Factors such as the physical layout of rooms are extremely important to residents and to the rest of us. One only has to visit Ikea on a Saturday afternoon to see how worked up people can get about plugs and chairs. We have to get away from looking at such establishments as institutions and consider them instead as homes.
§ Baroness Barker
My Lords, I am grateful for the noble Earl's clarification and am pleased that we agree.
The Government's aims are complex and if the regulations that follow the Bill are based on the report Fit For the Future, the Government will seek to base standards on principles such as choice, dignity and privacy. Setting such standards is not easy. Setting qualitative standards inevitably introduces subjectivity into monitoring. The Government have taken the right course but will require the support of us all in making such a difficult concept work.
Good standards change over time. What is accepted as best practice will cease to be. That is partly because the needs of older people change. The noble Lord, Lord Lipsey, mentioned projections about the older population. That population will in future be increasingly diverse. There will be greater numbers of older people from ethnic minority communities, who are lesbian or gay, or who come with a completely different expectation of good care. I urge the Government not only to make care standards explicit but to ensure that they are regularly updated.
The Bill makes clear that standards count for nothing if staff are not trained to understand and implement them. My experience of residential care is that good home owners value competent staff and that service users value highly staff who perform their duties in a caring fashion. In an industry in which the greatest cost is staff and operating margins—as the noble Lord, Lord Lipsey, said—are tight, the training budget is often the first to be cut. Good training costs a lot. If the new standards are to become reality, resources must be made available within the care sector economy to make sure that the Bill is about good care standards for the future, not a wish list for today.
§ 6.23 p.m.
§ Lord Harris of Haringey
My Lords, the Bill covers diverse issues, many of which have been avidly discussed in various forums for a number of years. In my five years in the early 1980s as the chair of a social services committee, many of those issues kept arising and were the subject of considerable debate among those interested in social care.
The Bill will replace the Registered Homes Act 1984 and the provisions of the Children Act 1989 relating to the regulation of children's homes. Those Acts were important in developing a framework to protect standards in such establishments. The framework offered by the new national care standards commission is even more important because it will provide a national framework and national consistency.
There has been much debate in the health service about postcode prescribing and differential levels of service, meaning that the NHS is not always a national 67 service. The same applies in other areas of social care. If different standards are applied by different regimes in different areas, that should concern your Lordships. The arrival of the NCSC will permit a national framework and that will be valuable.
Some people in local government have expressed concern that the work done by registration units will no longer be undertaken by local authorities. That concern is misplaced, in my view. Although extremely valuable and worthwhile work has been done by many registration units, it cannot be right for local authorities to be responsible for the registration of establishments that they manage; nor can it be right for local authorities to make decisions about registration or de-registration when the authorities are aware that they are financially responsible for a significant proportion of the residents—and thus for sorting out the consequences of decisions. I am not suggesting that some local authority registration units have made wrong decisions, but the possibility remains of a perception that the wrong decision has been made or that decisions have been taken due to other factors or interests. That is unhelpful. There should be clarity of the kind that can only be provided by an independent structure.
Concern has been expressed by the independent hospital sector about the way in which independent healthcare will come under the umbrella of the NCSC. In practice, there will be a clear blurring of the edges between hospital and nursing home care. That already exists in the NHS and the public's mind, and I believe it exists in practice. There is, therefore, considerable logic in bringing the independent hospital sector under the wing of the NCSC. We must make sure that the NCSC focuses on the clinical standards provided within the independent hospital service. We should have the same clinical expectations of private healthcare as we do of the National Health Service. We ought to examine the way in which those two areas are brought together.
I was interested in the argument of the noble Earl, Lord Howe—who clarified it in his exchange with the noble Baroness, Lady Barker—about how the NCSC might set standards. Despite the noble Earl's explanation, he was suggesting that there is almost a dichotomy between standards relating to space and those relating to the skills of those providing care. That assertion is not entirely legitimate. It is surely legitimate to want high standards relating to both space and skills. The noble Earl spoke also about standards invented by inspectors for inspectors, which I am sure was intended as a nice sound bite for "Today in Parliament" or the like, if this debate makes it that far. I believe that that was unfortunate. No one is talking about standards that are of interest only to inspectors. We must ensure that the standards are arrived at following considerable debate which involves both the users of the services concerned and those who care for them. I believe that that is a critical element.
68 The noble Earl specifically highlighted the requirement that there should be two chairs in a room, one of which should have arms. It is an entirely reasonable expectation that there should be two chairs in a room that someone must use as his only bit of near-private space, and that one of those chairs should have arms. Those are the legitimate expectations of many of the service users, and perhaps we should not be too cynical about them.
I also welcome the requirement in Clause 20(3)(j) for the establishment of complaints procedures as a condition of registration. However, perhaps my noble friend will clarify when he replies whether it is intended that there should be a common complaints procedure across the independent sector. Is it intended that that complaints procedure should have a second independent review stage analogous to that which exists in the admittedly imperfect NHS complaints procedure? I believe it is important that there should be not only a local opportunity to review matters but an independent element. I should also like to see the remit of the Health Service Commissioner extended to cover the independent sector as recommended by the House of Commons Select Committee on Health, and supported by the ombudsman.
I turn briefly to the general social care council. That matter has been discussed for many years. Initially, I was extremely dubious about this proposition. It seemed to me that yet another group of middle-class professionals sought to wrap around themselves the cloak of professional indemnity. Those of us who have watched that in action in the legal, medical, dental or even nursing professions wonder whether this is in the interests of the users of the services concerned. I am reminded of Bernard Shaw's observation that,All professions are conspiracies against the laity".When one looks at how some professional councils have operated in the past, one realises the need for reform. I have some doubts about the provision. However, a number of elements of the proposal are extremely important and perhaps many of these doubts can be set aside. First, it is not the intention to create an exclusive band of professionals that excludes others who are engaged in the same kind of work, as happens in some of the medical professional councils. It is intended that this should be a social care not a social work council, and that must be right.
The other danger is that the professional organisations will end up protecting their own. It is very difficult for a disciplinary case to be proven. Certainly, it appears to the general public that the particular profession is protecting its own members and that individual professionals are trying their chums. I am well aware that all of the organisations concerned make big efforts not to be seen in those terms. I hope that my noble friend will make it clear—although it is not explicit in the Bill, I am sure that it is the intention of government—that there will be a very significant role for non-professionals in the council. I do not simply mean the involvement of people who are not social care professionals. Although I can see the case for a nursing professional or medical professional being a member of this body, I want it to 69 be made clear that the majority of its members and leadership should be seen as representative in the broadest sense of those who are likely to use the service. I believe that to be an important principle.
Finally, I welcome the provisions which recognise that there should be protection of vulnerable adults as well as children. Abuse can take all forms, and those who perpetrate it need to be prevented from working in other establishments in future. Therefore, the Government's proposals on that are extremely welcome.
The Bill contains a diverse range of issues, and I believe that it takes the debate forward in many areas. For many years these matters have worried those who are concerned about the standards of social care. We have made step-by-step improvements in regulation and the setting of standards. I believe that this Bill takes the process forward, and I welcome it.
§ 6.35 p.m.
§ Baroness David
My Lords, I apologise for having missed just over an hour of the middle of this debate. In particular, I apologise to my noble friend for missing his maiden speech. I was chairing the All-Party Children Group which listened to children talking about Article 12 of the UN convention. I hope that I shall be excused.
I should like to talk briefly about this very welcome Bill as it relates to children. In 1993 the Gulbenkian Foundation produced a valuable report entitled One Scandal Too Manywhich argued the case for comprehensive protection for children in all settings. Two years later was a member of the foundation's commission, chaired by Sir William Utting, which produced a major report on children and violence. That contained many of the same recommendations for comprehensive protection. Sir William went on to produce his review of the safeguards for children living away from home entitled People Like Us.
Unfortunately. the scandals have not ceased. The inquiry into child abuse in North Wales comes to mind. We have not yet had the report, although it finished about two years ago. Up and down the country many police forces are engaged in investigations into the physical and sexual abuse of children in all kinds of institutions that purport to care for them. It must stop. We must ensure that this Bill provides an effective framework finally to stop this inexcusable violence against children. In particular, we must ensure that there are no loopholes.
I should like to ask the Minister for clear answers to what I hope are simple questions. First, can he assure us that, following implementation of the Bill, all children living away from home will be protected by consistent regulations from all forms of violence, including physical punishment and humiliating forms of discipline? I hope that the Minister is aware of Children are Unbeatable! which is an alliance of more than 250 organisations and many prominent individuals who campaign to give children the same protection from assault as adults enjoy under the law. It is absurd that children have less protection than us 70 and that at the moment the degree of protection depends on the setting in which the child finds himself. We have sorted out protection in all schools at long last, but we must also get it right in all other child care settings.
Secondly, can the Minister assure us that all children who live away from home will have well publicised and easy access to independent confidential advice, counselling, advocacy and complaints procedures with an independent element? Will the personal adviser proposed in the Children (Leaving Care) Bill fulfil that role? Thirdly, will there be consistent arrangements for regular and, where necessary, surprise inspection of all care settings for children, including an explicit obligation on inspectors to offer children and staff the opportunity to speak to them in confidence about issues of concern? I am particularly concerned that the safeguards in this Bill do not appear to cover the growing number of children who are in private foster care, despite Sir William Utting's clear recommendations.
Further, the exclusions in Clause 1 of the Bill appear to leave some residential establishments for children entirely unregulated. Can the Minister comment on those illogical gaps in protection? For example, holding centres for refugee children and families would be omitted. Refugee children can remain in one of these establishments for a matter of days or even weeks. The centres are not required to have regard to the welfare of the child, do not have a duty to assess their immediate needs and are not covered by the inspection requirements.
I turn to the proposal in Schedule 1 of the Bill that the national care standards commission will appoint a children's rights director. The White Paper referred to eight regional commissions each having a children's rights officer, which the noble Earl, Lord Howe, mentioned in his speech. Is that still planned? It is of course good to get the concept of children's rights into the Bill, but I have heard those appointments being promoted by the Secretary of State for Health as an alternative to appointing a statutory children's rights commissioner for England, for which many noble Lords on all sides of the House have been campaigning for a long time. That really is misleading.
Will the Minister make it clear once and for all that the functions of those children's rights directors or officers relate only to the 200,000 or so children in all forms of residential care and not to the other 11½ million children in England who all need an effective independent statutory institution to represent their rights and interests?
As there appears to be no speaker from Wales on the list and as the Bill extends to Wales, I make a single plea. Could the Bill include a permissive clause enabling the Welsh Assembly to develop, through secondary legislation, a proper children's rights commissioner, which I understand it is keen to do? We may have to go on campaigning for a proper English commissioner, but surely we should not frustrate Wales in its desire to have one.
71 There is much to commend in the Bill. The inclusion of adoption agencies is right. But surely it is high time that the Adoption Act 1976 was updated? The situation where the adoptions were mostly of babies and the very young has changed dramatically. There have been great changes in family structures and in parenting patterns. The majority of adoption placements now occur from the care system. We need a modern adoption framework which makes the welfare of the child the paramount consideration and acknowledges the ever increasing importance of good adoption services for adoptive parents, adopted children and the birth family.
I am pleased that Part V of the Bill amends the Children Act 1989 to bring childminding and day care within the scope of the Bill. The early identification of children with special educational needs and early provision to meet their needs is crucial to children's later progress in the education system. Will Her Majesty's Chief Inspector of Schools provide information and advice to the Secretary of State on how childminders and day-care providers are succeeding in meeting objectives in that area? To which Secretary of State will he report—the Secretary of State for Health or for Education?
This is an extremely important and necessary Bill. It brings together the regulation and inspection system for early years child care and education and it signals an end to the confusion and duplication which two separate systems have created. There will be improvements in the quality of child care and early years education by ensuring that there are highly trained staff, and the status of social care workers will be raised. The general social care council will be responsible for the quality of the training all over the country. Child safety will no longer be a matter of geography, but one of consistency across the country.
I have made a few criticisms during my speech, but I end by saying that there is the possibility of a much brighter future for the most disadvantaged in our society and that it is up to all of us to see that that commitment is kept.
§ 6.43 p.m
§ Lord Phillips of Sudbury
My Lords, I too pay tribute to the maiden speaker. I have only one regret, which is that he has another of those Scottish names that I shall have to look up 53 times in Dod's before I get it right. I congratulate him.
I have four minutes in the gap, during which I want to champion an unpopular cause; that of those accused of misconduct under the terms of the Bill. I pay tribute to the work carried out on the subject by the noble Earl, Lord Howe, in the Protection of Children Act, because the provisions in that Bill were precisely the same in terms of keeping and maintaining a list of those unsuitable for working with vulnerable adults.
Although the Bill is wholly admirable in its intent and although I can honestly say that I have had the most intense personal experience of serious child abuse in my own life as well as professionally, because my 72 firm acts for a number of organisations in that area, it is my thesis that unless we get that part of the Bill right, it will undermine it irreparably. Under no circumstances can the anxiety and indeed, the determination of Parliament and the public to do something much more effective about vulnerable old people and children be achieved while damaging simple justice to accused people.
I put it to the House that if we allow a system such as the Bill contains, which does not adequately protect those accused of misconduct, it will have the effect of discouraging good people from going into those areas of care. It may even have the perverse effect of discouraging people from coming forward to complain when they should about those running homes of various types improperly.
The procedure before which a person is found "guilty of misconduct" under Clause 71(7) does not involve a finding of fact by the Secretary of State; a consideration of the merits by the Secretary of State; or a quasi-judicial consideration by the Secretary of State. It involves merely the finding by him on the basis of his opinion. I repeat that that opinion is not at all the result of a rigorous finding of facts. It is not quasi-judicial, nor is it based on a consideration of the merits. It derives solely from the complaining provider of services.
I need hardly tell anyone in this House who knows anything about that world that it is riven with difficulties and with personal relationships that are often tense. It is riven with 1,001 circumstances where one could imagine someone making a complaint under the provisions under the shadow of the legislation, knowing that what then follows may see the person concerned resigning and possibly having their career destroyed.
Someone's career would be smashed by their going on the list. It is no good saying that there is a right of appeal. In what section of our national life are we content to see someone found guilty and convicted—this is a conviction; the phrase is "guilty of misconduct"—on the basis of no hearing, a private procedure, no regard of merits and no rigorous investigation of facts? Nowhere else; and we cannot do it here.
However difficult it is to contend with the need for an open, merits-based, rigorous investigation of facts, we must do it because the price to innocent people put on that list will not be rectified by the right of appeal provided in the Bill.
§ 6.48 p.m.
§ Lord Craig of Radley
My Lords, with your Lordships' permission I should like to touch on one point of fact. In the explanatory notes and in the course of the debate, reference has been made to Royal Charters granted to private healthcare establishments. I speak as Chairman of Council of the King Edward VII Hospital for Officers, often affectionately referred to as "Sister Agnes", after the founder of the hospital in 1899, Miss Agnes Keyser.
73 Sister Agnes has been privileged to have had a Royal Charter for almost 70 years. We greatly value the benefit of that status for our charitable work. We have been able over the years to help literally thousands of entitled individuals with the costs of their time as a patient in the hospital. We continue to this day to help many who would otherwise be unable to gain quick access to and benefit from the finest treatment and nursing care available anywhere. However, we do not see our Royal Charter status as a reason or excuse not to do everything we can to ensure that our standards of treatment and care are beyond reproach. We do not operate for pr AA. Some years ago we sought inspection by the local health authority. When that was judged to be unnecessary in our case, we invited the King's Fund, now entitled the Health Quality Service, to inspect us. This involved every aspect of the hospital's activity, both clinical and administrative. We were formally accredited by the King's Fund following its inspection. In September this year we were reinspected by the Health Quality Service.
We volunteered for that review. After a most rigorous and detailed inspection of every aspect of our work, including our intensive care unit, our accreditation has been continued. The high standard of all aspects of our nursing care was specifically singled out for commendation by the Health Quality Service inspectors.
I believe that in the absence of a regulatory regime it is in the interests of patients and the good name of the hospital which they may use to submit to regular high quality, independent audit. We at Sister Agnes Hospital will continue voluntarily to do so. For those reasons, I welcome the proposals to regulate more closely the independent healthcare sector, but no doubt as the Bill progresses to Royal Assent there will be sensible improvements to its treatment of private hospitals. However, there should be no loss of charitable privilege which a Royal Charter bestows.
§ 6.51 p.m.
§ Lord Hunt of Kings Heath
My Lords, we have had a high-quality, serious and informed debate. As the noble Baroness, Lady Barker, suggested, all noble Lords who have spoken are agreed that overall the legislative package before your Lordships is crucial to raising standards and leading to more consistent regulation throughout the services. There has been some debate about the means by which we should ensure consistent regulation, and I shall deal with that in a moment, but there is no question of its importance. The noble Lord, Lord Rix, graphically described some of the incidents arising out of recent inquiries which have pointed to inadequacies in the current regulatory arrangements. Therefore, there is no doubt that we must improve on what we have. We must have a high-quality regulatory machinery which provides consistency throughout the country.
However, as was said by the noble and gallant Lord, Lord Craig of Radley, and the noble Baronesses, Lady Crawley and Lady McFarlane, in our discussion of inadequate standards we must acknowledge that in many of the sectors under discussion there is to be 74 found high-quality care provided by high-quality people. As I respond to the debate, tending to dwell on some of the concerns, I want the House to know that I recognise that in many sectors people are doing good work, sometimes in difficult circumstances.
The noble Earl, Lord Howe, suggested that the Bill is a framework Bill with much of the detail to be described in regulations and in the closely related national minimum standards which will inform the regulation and inspection process. I do not apologise for the Bill's dependence on regulations. My experience in this area was as director for the National Association of Health Authorities and Trusts when it produced the first guidelines on how health authorities ought to approach their regulatory function. A frustration in producing the guidelines was that the current Act did not keep pace with market changes. As the noble Baroness, Lady Barker, said, standards change. I believe that through the regulations in the Bill we shall be able to respond to future developments in services and technology. We can ensure that future anomalies or gaps can be tackled immediately.
However, I assure your Lordships that in relation to the regulations which apply in particular to the required standards we shall consult widely with all those who may be affected. Our aim is for that consultation to take place in the summer. The conclusions will be known by April 2001, thus giving a year before the commission comes into operation. The noble Lord, Lord Laming, cautioned us against undue haste. In framing the regulations and the national minimum standards, it is important to take time to consult widely and seek as much input as possible from those likely to be affected.
A number of questions were asked about the change from the original intention of eight regional commissions to one national commission. I thank the noble Lord, Lord Clement-Jones, for his wholehearted support of that change. The fact is that we have changed our minds. I believe that it is right to do so and to own up to it. On reflection, we believe that a single commission will ensure greater consistency across the country. After all, that has been one of the great motivators in making the changes. One commission instead of eight will avoid duplication, minimise the potential for arbitrary and confusing operational differences and provide the Government with one overview of the provision and quality of care services in England.
However, I take the point that whatever the commission does it must be well grounded in practice at local level. We will expect it to have in place arrangements for keeping in touch with what is happening on the ground, and I agree with the noble Earl, Lord Listowel, that we want members of the commission to make close contact with what is happening at ground level. I accept the stricture of the noble Baroness, Lady Barker, that we do not want a bureaucratic tick-box approach to regulation and inspection. Her comments about the complaints system, advocacy services and the role of lay assessors was important and we shall consider them when considering more closely how the commission will 75 operate. I want to assure noble Lords that I am certain that the commission, in providing the greater national uniformity and consistency that we wish to see, must know about the impact of its decisions on local services.
I turn to a second aspect of the decision to move from eight regional areas to one national commission. It relates specifically to the regulation of independent healthcare. The original comments about a single custom-built body for the regulation of the independent healthcare sector were made on the basis of the Government's original intention to have eight regional care commissions. We did not believe that regulation of the independent healthcare sector within those eight regional commissions would be sensible. We believed that it would be difficult for those commissions to have the necessary expertise to regulate the healthcare sector. That was our experience when regulation was devolved to health authority level.
However, with the establishment now of one commission for the whole of the country, we think it makes much more sense to ensure that it embraces private healthcare regulation. It will enable a seamless approach to regulation as a whole to be taken and our experience of splitting legislation previously between health and local government shows the problems that can arise in relation to boundaries. That was a point well made by my noble friend Lord Harris. However, I recognise that healthcare regulation needs particular skills and we will ensure that those skills are available within the context of one commission.
Different care regimes will be subjected to specific requirements suited to the specific situation of that regime, such as independent healthcare. Those bodies will be inspected by qualified and experienced inspectors in a particular field. In relation to healthcare, we will also ensure that it has its own division with its own director, with inspections made by appropriate professional staff. It would not be responsible for care homes or domiciliary workers.
Perhaps I can say to the noble Lord, Lord Clement-Jones, and in particular to the noble Baroness, Lady Nicholson, who has put much thought and care into these issues, that I believe this new regulatory machinery will have teeth in relation to the independent healthcare sector. It is going to be a tough regulatory system. The commission will have high quality inspections. We will want to shift the focus of regulation towards standards of care rather than being mainly concerned with premises. I will touch on the issue of premises in relation to care homes later.
It will have a proper complaints procedure, in answer to my noble friend Lord Harris. One of the conditions of registration will be the provision of a proper complaints procedure, with independent scrutiny. We want those independent hospitals to be accountable to their customers for the services that they provide. Already Clause 20 allows provision to be 76 made for appropriate quality and for the meeting of appropriate standards. Clause 21 refers to the national minimum standards that should be set.
§ Baroness Nicholson of Winterbourne
My Lords, I welcome the positive comments that the Minister has put forward most warmly and most genuinely. He knows that I would prefer to see some of them on the face of the Bill, and perhaps I could leave that thought with him in case he should kindly offer me a further meeting when we could discuss them.
However, in the context of a Second Reading, could I ask him to assure me that the inspectors will look at clinical excellence in some way or another and that the procedure extensively described by the noble Lord, Lord Craig, in which clinical excellence is not looked at although the nuts and bolts of equipment are, will not in fact be what happens. Therefore it will not be just the shell but the actual procedures that are examined. I am grateful to the Minister.
§ Lord Hunt of Kings Heath
My Lords, the noble Baroness was quite right to refer to the remarks made by the noble Lord, Lord Craig: I think they were very helpful in demonstrating how an individual hospital can, through its own internal processes, look at quality and ensure that it keeps up standards to the extent that we would require. I want to assure the noble Baroness that this Bill intends to provide for the proper regulation of the independent healthcare sector and that must extend to issues of quality. It is not just about room size or the physical apparatus.
The Secretary of State will have powers to make the kind of the provision in regulations which I hope will reassure the noble Baroness: for instance, provision for ensuring that the professional staff employed are qualified and have the necessary skills and experience. There will be provision for making arrangements for clinical audit and for the keeping of effective clinical records, for equipment and services, and also for identification of management and clinical risk. Regulations will also require arrangements for the on-going training, development and support of staff.
Several noble Lords have raised the issue of CHIMP and NICE, the National Institute of Clinical Excellence. In some ways this is a re-run of our interesting debate during the passage of the health Bill during the last Session. The fact is that CHIMP and NICE are about improving quality in the National Health Service. They are part of a managed system; they are part of a series of measures, including National Service Frameworks, tied into performance management in the National Health Service. I believe that there is an inherent difference between managing public authorities—the National Health Service—which is the role of the Secretary of State, for which he is accountable to Parliament, and regulating the independent healthcare system. That is the reason for our different approach in this area.
I can say that as far as the working together of CHIMP and the proposed commission under this Bill, there is provision for staff to be seconded from one to the other. The noble Earl, Lord Howe, referred to 77 NHS pay beds, and the reason for those beds being treated differently goes back to the original point I made earlier. NHS pay beds are part of the National Health Service management system, for which accountability arrangements are well tried and tested. I believe that we have to draw a distinction between management and regulation in the NHS.
Turning to a number of questions on financial issues, I recognise that there is concern about the financial implications of the new regulatory system. As a general principle, we owe it to the people receiving services to ensure that there is an effective regulatory system in operation, providing greater protection for vulnerable people. The cost to providers will be outweighed by the benefits to individual users. However, I hope I can provide some comfort by saying that we intend that the timescales will be realistic and we shall ensure that currently registered providers have sufficient time in which to meet the new standards.
It is also possible to differentiate between one standard and another when deciding on a date for their implementation. I understand the issue of the financial viability of a number of homes. My noble friend Lord Lipsey had some interesting things to say on that point. Of course there is over-capacity at the moment. On the issue of cost and the impact of that on the resources passed by the Exchequer to local authorities, I am afraid I cannot be drawn on that matter, save to say that this would be an issue for any future spending review discussions.
This leads me on to the Centre for Policy on Ageing guidelines and the remarks made by the noble Earl, Lord Howe, about whether the balance was too much towards physical requirements, as opposed to an emphasis on quality. Let me say to the noble Earl that the Government are very much concerned with outcome and overall quality. Although physical requirements are important, as several speakers have suggested, we are concerned that this regulatory system should ensure that issues of quality are given the importance that they deserve. I should also say to him that the first reference I could discover to the 10 square meter bedroom size goes back to 1973, when I think his party was in government. At that time building guidelines were issued by the department to local authorities. However, I have to confess that in the National Association of Health Authorities and Trusts guidance in 1985 we too mentioned 10 square meters, so that figure has obviously been around for quite some time.
I would emphasise the point made by my noble friend Lord Lipsey that the agencies in most difficulty if this 10 square meter size were to be accepted would be the local authorities. In general, the consultation period on this first tranche of potential national minimum standards has been extended to 21st January 2000. We shall consider them most carefully. I believe it is important that we get them right and we shall listen carefully to the remarks which have been made by noble Lords this evening.
78 I turn to the General Social Care Council. As my noble friend Lady Pitkeathley said, that is an extremely important, long overdue measure. I pay tribute to her and to the members of her advisory council, who do so much good work to ensure that the preparations for the new council start with an excellent foundation. Both my noble friends Lady Pitkeathley and Lord Harris made clear that it is important that we have sufficient users and lay people as members of the council. I can confirm that a lay person will be appointed as chair of the council and that lay people will be in the majority.
In response to the question asked by the noble Lord, Lord Clement-Jones, regarding the budget, it is rather early to start talking about a definitive budget. However, as a guideline figure, the CCETSW had a budget of about £5.5 million. One could start from the transfer of that kind of money. In time, it may be that people registered by the council will pay fees. There is no question of the council having to break even simply on the fees that it might take in from those registered.
I also take the opportunity provided by the noble Lord, Lord Laming, to thank the CCETSW for its past work. Its experience will be invaluable in taking forward the work of the general council. In his notable maiden speech, my noble friend Lord Mackenzie asked about the method of registration. Registration will normally be based on completion of approved training. Any other basis will be no better than that which we have at present. We would expect the register of individuals to be opened when the majority or a sufficient number of members in any group have achieved the appropriate level of training.
In response to the point raised by the noble Baroness, Lady McFarlane, we do not seek the dual registration of nurses. We want to see professional regulatory bodies complement each other.
My noble friend Lady David asked about the issue of the children's rights director. The director's responsibility relates to the provisions in this Bill. I know that she is keen to see created a children's commissioner, but that is certainly outside the scope of the Bill and, as she will know, it is not present government policy. I can also confirm to her that there will be only one children's rights director in the move from eight regional care commissions to one. Of course, we believe that that director will have a crucial role to play in dealing with so many of the difficult issues in relation to the rights of children. With regard to whether there will be well publicised access to an independent complaints procedure for children in care, I confirm that the children will have such access and that inspections will ensure that those procedures are well publicised.
I listened with great interest to the noble Lord, Lord Rix, and particularly to the issue of whether people with learning disabilities who attend day care services could have those services regulated. I confirm that the Bill does not introduce regulation for adult day care services. I am conscious that there are those who regret that. We have included a provision in the Bill to allow further services to be brought within regulation at a 79 later date without the need for primary legislation. In the meantime, I am sure that the noble Lord will be aware that my right honourable friend the Secretary of State recently announced a review of learning disability services, including the provision of day care.
I fear that the clock is against me. In relation to domiciliary care, perhaps I may confirm that, as a first stage of the implementation of this section of the Bill, local authorities and the NHS must use only registered agencies. I also say to the noble Lord, Lord Laming, that we would expect the great majority of those domiciliary care agencies to be registered immediately.
As always, I listened with great care to the wisdom of the noble Earl, Lord Listowel. The Bill generally will not cover hostels for homeless young people, although it will cover them when they act as refuges for young people who have run away from home. In such cases, the hostels will be registered as children's homes with special provision for runaways. I look forward to the noble Earl's amendment in Committee.
As he did when we debated the child protection Bill, the noble Lord, Lord Phillips, raised the issue of vulnerable adults. Overall, I believe that the Bill provides an effective procedure. As the noble Lord knows, the Secretary of State must receive a proper referral from an employer in the stated circumstances. A person can be put on the vulnerable adults list only after due process. The Secretary of State seeks views from the parties involved. He considers whether, on the balance of probabilities, the employer was right in forming a view that the person put a vulnerable adult at risk of harm. The individual will know at all stages what is happening. I agree with him that that is a serious matter for the person concerned. That is why we provide an appeal to an independent tribunal. We have also provided for a person to seek a review of the decision 10 years from the date of listing. At that stage, the tribunal could decide to remove the name from the list. I understand that the noble Lord's specific point of concern arises from provisional listing. I believe that that is—
§ Lord Phillips of Sudbury
My Lords, I am not so concerned about the provisional listing as about the listing in entirety. The noble Lord referred to due process in that listing but, I repeat, there is no independent consideration of evidence, there is no open procedure, there is no merits test, and it does not amount to due process in the normal sense of the term.
§ Lord Hunt of Kings Heath
Nevertheless, my Lords, it is still open for the person concerned to appeal to an independent tribunal. I believe that provisional listing is an important issue which we have debated before. It provides a means of immediate protection to vulnerable adults until the matter is decided by the process. I accept that there is a difficult balance to be drawn between the individual rights of a person about whom an allegation is made and the protection of vulnerable people. We believe that we have the right balance, although I accept that the noble Lord thinks otherwise.
80 I have not been able to respond to all the points raised but I shall certainly try to follow up specific questions which I have missed out.
In conclusion, I believe that all noble Lords are agreed generally about the positive impact which the Bill will have in so many care sectors and, indeed, in the private healthcare sector. I believe that the debate has confirmed the general thrust in which the Bill is directed, although I accept that we shall have many interesting debates in Committee and at later stages of the Bill. Therefore, I ask the House to give the Bill a Second Reading.
§ Baroness David
My Lords, before the noble Lord sits down, I asked rather a lot of questions about children but he has not answered many of them. Perhaps he might write to me.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.