§ 3.6 p.m.
§ Read a third time.
§ Clause 4 [Other basic definitions]:
§ Baroness Masham of Ilton
moved Amendment No. 1:Page 4, line 8, at end insert—("( ) "Nursing and care staff agency" means any employment bureau supplying nurses in any part of the Register of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting.").The noble Baroness said: My Lords, first of all I must declare an interest as I have to use nurses agencies for my husband. These agencies differ considerably, with huge variations in standards. There is no doubt in my mind that minimum standards should be laid down in the Care Standards Bill for all these agencies providing nurses and carers.
We employ two people for my husband at the moment. One is a trained nurse and the other is a carer. Because my husband is large, he needs two people. They come through the same agency. It seems quite ridiculous to me that the agency which provides them would be in the Care Standards Bill for the carer but not for the nurse. Both these people live in our house and I expect the same standards from each of them, even though the nurse could undertake some procedures that the carer could not.
I have my name to Amendments Nos. 1 and 3, and 2 and 4. The Royal College of Nursing prefers Amendment No. 2 because nurses registered with the United Kingdom central councils are trained nurses. But both amendments are supported by Action on Elder Abuse, Age Concern, the Anchor Trust, the Association for Residential Care, the British Federation of Care Home Proprietors, the British Healthcare Trades Association, BUPA, the Care Forum (Wales), the Carers National Association, the Continuing Care Conference, Counsel and Care, the Hampshire Care Association, Help the Aged, the Independent Healthcare Association, Marie Curie Cancer Care, Mencap, the National Care Homes Association, the NESTA Healthcare Group, the Recruitment and Employment Federation, the Registered Nursing Home Association, the Relatives and Residents Association, the Royal College of Nursing, the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, and the United Kingdom Home Care Association.
Clause 91 of the Bill repeals the Nurses Agencies Act 1957 and brings nurses agencies under the Employment Agencies Act 1973. That means that, instead of being licensed by local authorities, nurses agencies will become regulated in the same way as all other employment agencies, with the Department of Trade and Industry holding ultimate responsibility.
The Royal College of Nursing's Nursing and Care Agencies Managers' Forum has around 1,000 members who own or manage nursing agencies throughout the UK. The RCN has long argued for the 1203 need to update the Nurses Agencies Act 1957. However, the RCN is concerned that the proposals to repeal the Nurses Agencies Act and to regulate nurses agencies under the Employment Agencies Act 1973 will not provide sufficient protection for the public, including some of the most vulnerable members of society.
There are serious concerns that the move to give the DTI responsibility for regulating nursing agencies under the Employment Agencies Act will lead to an even weaker regime. The Employment Agencies Act does not rely on an inspection and monitoring regime, but rather relies on complaints to trading standards officers to trigger investigations. That seems inadequate when vulnerable people's lives are at stake.
It seems advisable and desirable that nurses should supervise the recruitment and placement of nurses. Nurses agencies should be required to register with a regulatory body and should be routinely inspected to ensure standards for all patients at risk. There should be a register of nurses agencies, so that performance can be monitored and operators can be traced, controlled and excluded where a practice falls below standard.
It seems to be the unanimous wish of all the associations concerned, including the Royal College of Nursing, that the national care standards commission should be the regulator for nurses agencies, and that to leave nurse agencies out of the Bill would be a big mistake. I hope that the Minister, representing the Government and your Lordships, will agree that the definition. "nursing and care staff agency", will be part of Clause 4 of the Bill. I shall be happy with whichever is the better amendment, so long as no agencies providing care to vulnerable people are left out. I ask the Minister to give an assurance that nurse assistants working in a hospital who come via an agency will be covered by the provisions of the Bill if Amendment No. 2 is preferred. I beg to move.
§ The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)
My Lords, with the leave of the House, it may be of assistance if I indicate that it is my intention to accept Amendment No. 2.
§ Earl Howe
My Lords, I should like to thank the Minister very much indeed for what he has just said. Perhaps I may speak to my Amendment No. 2. It may be helpful to the House if I add something to what the noble Baroness has said so ably. The difference between the noble Baroness's Amendment No. 1 and my amendment is merely technical in the light of drafting proposed by the Royal College of Nursing.
The noble Baroness has summarised the arguments very well. It seems extraordinary that we should have a Bill that regulates doctors' agencies and domiciliary care agencies but not nursing agencies. Nurses deliver care to people in all kinds of settings. That care can often be intimate; it can often involved dispensing medication and treatment; and not infrequently nurses 1204 are literally responsible for people's lives. Any agency that supplies nurses, whether to the NHS or direct to people's homes, must know what it is doing.
That means making sure, among other things, that the person responsible for the placements is accountable in a professional sense for the service given and is in a position to give proper support to the nurses. It is not satisfactory to have someone in charge of a nurses agency who knows nothing about the technical side of nursing or about issues such as medical confidentiality; yet that is what we could get if nurses agencies were to be regulated purely under the Employment Agencies Act.
I was particularly struck at Report stage by the intervention of my noble friend Lord Jenkin of Roding. The DTI, for all its many and varied talents, can hardly boast a great deal of expertise in the regulation of nurses agencies. That particular government department does not seem to be the right home in which to place this responsibility, especially because, when it comes to enforcement, its modus operandi is essentially reactive. Unless inspection and enforcement are regular and proactive, in a poorly run agency the damage might already have been done.
Like other noble Lords, I believe that this Bill—and in particular the commission—provides a much better vehicle for the regulation of nurses agencies. That is also the view of a great many providers and professional groups. Nothing in the amendment would prevent the DTI's employment agency protections from extending to nurses. Everyone is agreed that the Nurses Agencies Act 1957 has had its day. The question is what to put in its place. I am delighted that the Minister has taken the opportunity to reflect further on the matter and has seen fit to accept my amendment.
§ Lord Jenkin of Roding
My Lords, I should like to give my special thanks to the Minister for the promptness with which he has reflected on, and reacted to, the opinions expressed on all sides of the House. It is a wise move, and one which I hope the Front Bench opposite will imitate a great deal more often.
I was struck by one sentence in a letter I received. It said that people do not die of accountancy but they do die of inadequate nursing. That is the big difference. This decision is absolutely right and, again. I thank the Minister.
§ Baroness O'Cathain
My Lords, although I did not put my name to the amendment, I should have wanted to do so. I welcome what the Minister has said. However, I am slightly concerned that he has opted for Amendment No. 2 rather than Amendment No 1. I wonder whether "carers" employed by agencies will slip through the net. Many thousands of people employ not fully qualified nurses, but carers, in a domiciliary situation. Such people are often required to look after dysphasic patients—patients who do not need nursing as such, but who do need constant care because they are unable to do anything. Those employed are not necessarily nurses, but come through 1205 nursing agencies. I speak as someone who has employed such people for over eight years. Some of the qualities required of carers need to be, as it were, supervised, particularly if they are dealing with dysphasic or aphasic patients. They can get away, not literally with murder, but with not providing a satisfactory service.
Carers should be subject to the same regulations as nurses, and "nursing and care staff agency" would fit the bill. In my experience, employing carers through a "nursing agency" which has not been subjected to regulation has not been satisfactory on every occasion. I put that point to the Minister and hope that he will accept it.
§ Lord Clement-Jones
My Lords, I do not wish to add to the debate. The noble Baroness, Lady Masham, and the noble Earl, Lord Howe, have put the points extremely well. I thank the Minister for responding to the weight of opinion on the matter, which was extremely strong; and, in doing so, demonstrating the good sense and flexibility which has been characteristic throughout the Bill.
§ Lord Rix
My Lords, I hesitate to appear as an extra in the final scene, having had star billing when the amendment was moved previously. However, I stress that I would have supported the amendment and wish that my name were attached to Amendments Nos. 1 and 3 tabled by my noble friend Lady Masham of Ilion. I recognise the important point raised by the noble Baroness, Lady O'Cathain, from the Opposition Benches. The inclusion of care staff may be an important adjunct to the clause.
Having said that, I, like other noble Lords, welcome the Government's acceptance of Amendment No. 2. I am most grateful for the alacrity with which it has been done.
§ Baroness Emerton
My Lords, as a nurse, I add my thanks to the Minister for accepting the amendment. I urge also that consideration be given to the issue of carers. Carers are becoming involved increasingly in closer contact with intimate care of patients, sometimes in an unsupervised way.
§ Baroness Gardner of Parkes
My Lords, I disagree with many of the points made, although I agree with a number of others.
It is excellent to hear that the Minister will accept Amendment No. 2, but I do not believe that that amendment is good enough. The points raised by the noble Baroness, Lady Masham, are sound. There needs to be provision for care assistants also. The nursing world is in chaos at present because of the desperate shortage of nurses. As time goes by we shall have to find some answer to that. The answer may well be more care assistants.
The fact that the Minister will accept Amendment No. 2—it covers only qualified nurses—indicates the great power of the Royal College of Nursing. I have 1206 nothing against that. It is a marvellous organisation which does a great deal of good. But the Minister overlooks the comments of 24 well-known, reputable, caring organisations, providing only for qualified nurses. The noble Lord divides nurses and those who do not have the full qualifications. As I have said previously in your Lordships' House, many people cannot become qualified nurses because the entry standards are too high. The only alternative for those people is to become care assistants. It would be wrong if those people were farmed out to the Department of Trade and Industry. That is not the right department. They need to be considered as responsible and caring for their patients as fully qualified nurses. Complete devotion to patients is a genuine dedication. One cannot simply say, "Because I have a few more letters after my name I am more capable of looking after you". One is more trained and more skilled but not necessarily more caring.
I have added my name to the amendment. If the Minister does not accept the addition of caring people, I press the noble Baroness, Lady Masham of Ilton, to seek the opinion of the House. I feel very strongly on the issue. To accept Amendment No. 2 but to leave out all carers is not good enough.
§ The Lord Bishop of Wakefield
My Lords, I shall not detain the House by repeating the helpful remarks made in the past few moments. Your Lordships will know that the Churches in many guises have a great deal to do with the pastoral welfare of those individuals about whom we speak. The points made in support of Amendment No. 1, as opposed to Amendment No. 2, would gain the support of my colleagues on these Benches, and represent the views of many people from many churches who have a great concern in this area.
§ 3.15 p.m.
§ Lord Hunt of Kings Heath
My Lords, I thought that I was going well!
First, I thank noble Lords for their kind words. One of the characteristics of the debate is that due to the lateness of the hour we were unable to discuss the issue in Committee. Therefore it was only a week ago on Report that we first paid attention to these matters. For that reason, when I come to talk about care workers I assure noble Lords that we shall pay close attention to the remarks of the noble Baroness, Lady Masham, and others.
I agreed last week to reflect on the matter. In doing so, I emphasise to noble Lords that all along the Government have been committed to an effective system of regulation for nurses agencies. I acknowledge, as have other noble Lords, that there is almost universal agreement that the current regulatory system for nurse agencies is inadequate. The Nurses Agencies Act is widely agreed to be out of date and in need of reform. There has been a great deal of inconsistency in the way the Act has been policed (if that is the word) up and down the country. There is evidence that some local authorities have failed to carry out their duties effectively.
1207 We took that into account in first proposing that nurse agencies should be brought within the remit of the Employment Agencies Act. I listened with great interest to the suggestion that the Department of Trade and Industry is perhaps not as caring a government department as perhaps is the Department for Health. The fact is that the Employment Agencies Act provides a much tougher framework of protection for agency nurses and those for whom they care. For example, the Act's regulations require agencies to obtain sufficient information from workers and hirers for the purposes of selecting a suitable worker. Those checks will be further strengthened by the revised regulations currently out to consultation.
However, we want the system to be effective and to protect vulnerable people. I have concluded that a system that encompasses registration and routine inspection for nurses agencies will help to achieve those aims. The Government accept, therefore, that the national care standards commission should regulate nurses agencies.
Not surprisingly—I have learned that all Opposition amendments are always technically deficient—there is a slight deficiency in Amendment No. 2 which the Government intend to accept. In accepting the amendment, it would be our intention to propose in another place a slight redrafting to cover that technical amendment.
I should like to take this opportunity to say a few words about how the system will work. We shall be developing the necessary standards under which the commission will regulate nurses agencies. These standards will be developed in consultation with the agencies themselves and other key stakeholders. However, I wish to be clear about two areas. First, I fully expect qualified nurses to be involved in the commission's inspection work, which will be particularly apposite in inspecting nurses agencies. Secondly, I would expect the standards applied by the commission to encompass a requirement for a qualified nurse to be in charge of the placement of nurses. I hope that that meets a specific problem which noble Lords raised.
Our commitment to repeal the Nurses Agencies Act remains, and nurses agencies will also come within the remit of the Employment Agencies Act. This will ensure that nurses agencies will be on the same footing as domiciliary care agencies. Agencies which provide both care workers and nurses will be subject to broadly the same regulatory requirements across the whole of their business.
Essentially the commission will provide an additional tier of regulation. But we accept that this additional level of regulation by the commission is necessary. Although that means regulation by two systems, agencies will need to register under only one: the national care standards commission.
Of course, it will be a matter of concern to ensure that the impact of two separate regulatory systems does not create al unjustifiably heavy burden on the agencies themselves. Indeed, that has been the theme of some of the contributions made by noble Lords 1208 during the passage of the Bill. We shall look carefully at the scope for dovetailing the inspection role of the commission and the employment agencies standards inspectorate to ensure that the two organisations work together closely.
So far as concerns care workers, many care workers in the community will fall to be covered by the provisions in the Bill for the regulation of domiciliary care agencies. Of course, we would expect healthcare assistants (to use the correct terminology) within hospitals to be properly supervised and managed. The provision in the Bill allows for the commission to ensure that effective management and employment procedures are in place. However, I have taken note of the comments concerning a nursing agency which perhaps also hires care assistants to work in private sector hospitals. Rather than give a hard reply this afternoon, I say to noble Lords that it is a matter to which we shall give further consideration.
§ Baroness Gardner of Parkes
My Lords, before the noble Lord sits down, perhaps I may ask for some clarification. I did not understand the point that he made regarding whether or not care staff will come under the same regulatory system. It seemed to me that at one stage in his speech he indicated that they would. However, as he continued and said that he would look at the matter again, I believed that he said that they would not. Then he made the point about two different groups and two different regulatory authorities. Again, I find that very unsatisfactory. Perhaps he will clarify the point.
§ Lord Hunt of Kings Heath
My Lords, I believe that confusion has arisen because noble Lords have spoken about two different areas. They have talked about care workers in the community, and I believe that the noble Baroness, Lady Masham, also referred to care assistants working in private hospitals. There is a difference.
§ Lord Hunt of Kings Heath
Indeed, my Lords. I was endeavouring to say that staff who are employed by domiciliary care agencies come within the regulation of the Bill as it stands. With regard to healthcare assistants within hospitals, we would expect those staff to be properly supervised and managed by the hospitals concerned. That would be a matter for the national care standards commission to check and inspect. So far as concerns the question of a nursing agency which might hire healthcare assistants to those private hospitals and establishments, that is an issue to which the Government would wish to give further consideration in the light of the debate this afternoon.
§ Baroness Masham of Ilton
My Lords, I thank all noble Lords who have spoken and, particularly, the Minister and the Chief Whip for their negotiations. I should like to make it clear to the Minister that nurse 1209 assistants are also employed in National Health Service hospitals. I am glad that he will look at that matter.
§ Lord Hunt of Kings Heath
My Lords, if the House will give me leave, I should like to point out that we have commissioned de Montfort University to study the question of whether healthcare assistants who are employed within the National Health Service should be regulated in the future. That work is ongoing and, of course, is in parallel to the other provisions in the Bill concerning the regulation of social care workers.
§ Baroness Gardner of Parkes
My Lords, before the Minister sits down, perhaps I may ask whether he is giving an undertaking to look at the position of care assistants who are not covered in any other way in the Bill? Will he consider whether they will be covered by this Bill rather than by the Department of Trade and Industry?
§ Lord Hunt of Kings Heath
My Lords, I believe that I gave a commitment to look at the specific regulations in relation to nurse agencies and to consider the extent to which those regulations should cover care assistants.
§ Baroness Masham of Ilton
My Lords, many people outside your Lordships' House will be very pleased with the outcome of our debate. The matter arose only at Report stage. I thank the noble Baroness, Lady Gardner, for calling the meeting which enabled me to table the amendment. I believe that the Minister understands the point made by the right reverend Prelate and by many noble Lords with regard to care assistants, and I hope that something can be done in another place to make the amendment perfect. I know that we in this House want to make it perfect; that is our job. However, we must work together. Therefore, I thank everyone concerned and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 3.30 p.m.
§ [Amendment No. 3 not moved.]
§ Clause 21 [Regulation of establishments and agencies]:
§ Lord Clement-Jones
moved Amendment No. 5:Page 13, line 25, after ("agency") insert ("which are independent of that person, establishment or agency and so far as possible in accordance with any common industry complaints scheme,").The noble Lord said: My Lords, this amendment, which is similar but not the same as an amendment which I tabled on Report, concerns the requirement that care homes should have a properly independent system of complaints when they apply for registration.
At Report stage the Minister spoke helpfully at some length about how people envisaged that that system of registration would work and the kind of requirement that there would be for a complaints system. Indeed, to some extent the document Developing the Way Forward also expands on that. However, currently the Bill simply requires that there should be an internal system of complaints. Clearly, the department and the commission will try to ensure that for the care homes affected the internal system of complaints is satisfactory.
However, the purpose of my amendment at this and at Report stage is to secure an independent element in the complaints system. By that, I mean simply that there should be an external adjudicator for the complaints at the level of the care home. The Minister very helpfully explained the role that he saw the commission playing in terms of the independence of the complaints system at the higher level, but he did not quite give the assurance about the nature of the independent complaints system at the lower level.
Since then, the Minister has explained helpfully why currently there is no requirement in the Bill for an independent element. He wrote to me as follows:However, there were concerns at the practical difficulties this might pose for small homes and single-handed owner-managers, together with an additional burden of cost and as a result we decided against including this".Therefore, clearly a policy decision has been made against ensuring that that independent system is in place. As mentioned in Developing the Way Forward, the Independent Healthcare Association has been preparing a code of practice which will include an independent adjudicator as part of its local system of hearing complaints. I very much welcome that.
Therefore, my question to the Minister is: if the Independent Healthcare Association believes that that is an appropriate way forward for its members—and it has members among the smaller care homes as well—why does the Minister not believe that it would be appropriate to include that in the Bill? If it is not in the Bill, how will he ensure that those care homes adopt the helpful code of practice drawn up by the Independent Healthcare Association? It seems to me that those are the two key questions in this matter. If the Minister can assure me that in practice an 1211 independent complaints system will be adopted by nearly all those care homes. I for one shall be perfectly satisfied. I beg to move.
§ Lord Hunt of Kings Heath
My Lords, on Report, I set out at length how complaints against registered providers will be dealt with. Perhaps at Third Reading I may give only a brief summary.
We shall use the power in what is now Clause 21(6)(j) to require all establishments and agencies to have a proper procedure for dealing with complaints. The detail of that internal complaints procedure will be spelt out in regulations and has not been finalised at this stage. However, it is likely to include a requirement that all complaints must be logged, dealt with in a certain time, the outcome recorded and so forth. That is a significant advance in relation to the circumstances which pertain in many of the establishments which are to be regulated as a result of the Bill being enacted.
The second big advance made by the Bill is that any person who is dissatisfied with the outcome of the internal procedure will be able to take his complaint to the commission. The commission will have the power to investigate complaints as an integral part of its regulatory function. Service users will also be able to take their complaint direct to the commission if they have a good reason for not wanting to use the internal complaints procedure. Where the commission finds that the complaint is justified, it will be able to use the full range of its enforcement powers to ensure that remedial action is taken by providers.
The Government are confident that this system will give service users all the protection they need. On Report, the noble Lord, Lord Clement-Jones, said that he wanted to see a genuinely independent complaints system for the benefit of people in care homes and users of private healthcare. That is precisely what the commission will provide. It will have the power to investigate any matter relating to a breach of regulations or standards and it will be entirely independent of the registered establishments and agencies as well as of the purchasers of the services. Therefore, its investigations will be entirely objective and impartial.
On Report, the noble Lord, Lord Clement-Jones, argued that the internal complaints procedure should have an independent element. However, the amendment that he has tabled is different because it would allow regulations to be made requiring providers to set up an entirely independent complaints procedure. That would be instead of the internal complaints procedure.
We considered that issue when we were developing the standards far older people in residential and nursing homes set out for consultation in Fit for the Future?. However, we decided against that because we felt that it would impose an unfair burden on providers. We must recognise that some of the providers who will be regulated by the commission will be small businesses. Sometimes, they will be single-handed owners and managers. There is an issue as to the degree of burden that can be placed upon them.
1212 I noted with great interest the remarks the noble Lord made about the views of the Independent Healthcare Association, but one must recognise that it does not speak for all the many agencies and establishments which fall to be regulated by the Bill. Of course, we want to encourage the Independent Healthcare Association to set up its own independent complaints system. It will be free to do so and there is nothing in the regulations preventing it doing so. In answer to the noble Lord's specific question, the commission will encourage providers to consider an independent element within a complaints procedure as a matter of good practice, but I cannot agree that it would be appropriate to make it compulsory for all providers.
The fact is that what is proposed in the Bill will lead to an appreciable improvement in the complaints system. It will ensure that every establishment has a proper complaints system which will be checked and inspected by the national care standards commission, which will then be able to investigate complaints made to it by users of services in those establishments. On that basis, I invite the noble Lord to withdraw his amendment.
§ Lord Clement-Jones
My Lords, I thank the Minister for his reply. Although at this late stage I shall not ambush him on the subject, I do not believe that he has moved far enough. I took encouragement from his comment that the commission would encourage care homes to adopt an independent element as a matter of good practice, but the industry is being more progressive than he gives it credit for. It is moving towards independent adjudication in a most helpful way.
I do not want to press the point unduly, but I believe that it will be a matter of practice for the commission rather than the drafting of the Bill. Therefore, I take some comfort from the fact that the industry is providing the independent element, which will make it straightforward for the commission to ensure that the vast majority of the care homes affected will adopt it in their complaints system. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 3.45 p.m.
§ Clause 22 [National minimum standards]:
§ Lord Hunt of Kings Heath
moved Amendment No. 6:Page 14, line 5, at end insert—("( ) Before issuing a statement, or an amended statement which in the opinion of the appropriate Minister effects a substantial change in the standards, the appropriate Minister shall consult any persons he considers appropriate.").The noble Lord said: My Lords, I have always made it clear that the Government intend to consult on each set of national minimum standards as they are developed and before they are finalised. It is inconceivable that they would not do so. However, on Report, the noble Earl, Lord Howe, pressed for the 1213 reassurance of a mandatory requirement to consult. I am happy to bring forward this amendment today in response to his concerns.
The amendment requires Ministers to consult on the standards before publishing them and before making any substantial change to them. We have reserved the right to make minor changes without consultation as we shall want to keep the standards as up to date as possible and shall need to make minor adjustments from time to time in order to ensure this. Perhaps I may give an example. The draft standards for older people in residential and nursing homes, as set out in Fit for the Future?, include a standard which states that:Residents must have access to their personal records if they wish to in line with the Data Protection Act 1984".In the next edition of the standards, that will need to be changed to refer to the Data Protection Act 1998, which came into force on 1st March this year at which point the 1984 Act was repealed. I am sure that noble Lords will accept that there is no need to consult on such minor changes to the standards, as in the example I have given. I believe that it is to the advantage of all concerned that from time to time the standards are developed and changed. One of the conclusions I draw from the current regulatory regime is that it was not able to keep pace with developments within the care industry. I beg to move.
§ Earl Howe
My Lords, I simply say to the Minister, "For this relief, much thanks". I entirely understand why the amendment has been framed in such a way. I am conscious that there is a need for flexibility and, as we have often said during proceedings on the Bill, it is a question of striking a balance between what we all want to see ideally and what is practicable in the day-to-day lives of Ministers and others in the real world. I thank the Minister again for the care he has taken in addressing my concerns.
On Question, amendment agreed to.
§ Clause 72 [Employment agencies and businesses: duty to refer]:
§ Lord Phillips of Sudbury
moved Amendment No. 7:Page 47, line 26, at end insert ("if it appears to him that, unless such a provisional listing is made, there is a risk that any person will suffer significant harm").The noble Lord said: My Lords, this is the last opportunity that the House will have to consider even this limited amendment to a vitally important section of the Bill. Given the Government's majority in the other place, there is not the slightest chance that any amendment will be made to the listing procedure if it is not done here. Furthermore, although the Government have in this place given indications that they were considering sympathetically improvements to Clause 71—as it now is—nothing has emerged. Other bodies, such as the Royal College of Nursing, have been endeavouring to negotiate employee safeguards and had gained the impression that the Government themselves were going to bring forward improvements.
1214 Perhaps I may briefly recapitulate on key aspects of the blacklisting procedure. First, it potentially covers well over 1 million people, from charity workers through to doctors by way of orderlies and nurses. Secondly, it requires every employer of any such person to report him to the Secretary of State if the worker concerned has been dismissed, suspended or transferred,on the grounds of misconduct … which harmed or placed at risk of harm a vulnerable adult".Noble Lords should note that the risk of harm does not have to be physical and certainly need not be intentional, let alone abusive. For example, as the Royal College of Nursing parliamentary briefing on the clause states,such misconduct could include situations such as a nurse accidentally giving the wrong drug or wrong dosage to a patient or failing to ensure that a frail older person has been fed or had their soiled sheets changed. These are some situations where the misconduct would be the result of an isolated incident, incompetence or genuine mistake".It warns also,Such situations can arise as a result of management failings, such as poor procedures, or because of the huge pressures on nurses and other staff caused by staffing shortages. The RCN is concerned that individuals may find themselves scapegoated and referred to the list when the responsibility and accountability for failings in the case should actually be shared and addressed at a more systematic level".Like me, the RCN is concerned also with malicious referrals. One speaker from the Government Benches last week—I believe that it was the noble Lord, Lord Warner—suggested that no one would do so because it would risk exposing the malice. However, as the Royal College notes,Malicious referrals are made to the United Kingdom Central Council every year, resulting in great stress and misery for nurses who are thus referred and often lose their careers".It points out further—I hope that noble Lords will not mind my quoting, but it is an authoritative source— that,Bullying employers might also threaten to refer workers to the list as a means of keeping their staff under control"—a point which I tried to make in previous debates. Particularly where a worker has stood up for vulnerable people, in residential care, for example, the employer might well threaten dismissal and/or referral if they do not shut up. The Royal College says that that is already occurring before the Bill provides the blacklist weapon—if I may call it that—to unscrupulous employers. What is more, outside the mainstream health institutions to which the RCN is mostly relevant, life is a good deal less internally well regulated.
"But", say the Government, "not to worry. We are going to produce extra statutory guidelines which will require employers to go through a proper internal procedure before they dismiss and so forth a worker for misconduct". That was a point of much solace to some noble Lords who were in two minds about the amendment.
However, that is an argument for doing away with employment tribunals altogether, because in most cases which come before them the worker will have 1215 been through disciplinary procedures comparable with those which the Government are no doubt contemplating for their guidelines. Virtually every organisation of any size these days has theoretically fair disciplinary procedures, often based on the ACAS Code of Disciplinary Practice.
At all events, upon dismissal, the employer must then refer the worker to the Secretary of State. Under Clause 71, all that the civil servant can then do is to consider the information submitted—and nothing else; to make no contact whatever with the worker concerned; and then to make up his own mind as to whether "it may be appropriate" for the worker to be provisionally listed.
One does not need to be a lawyer to realise that where one is considering only the self-justification of one side to a dispute—in this case, the ex-employer— and where the only criterion is whether it "may be appropriate" in due course for the worker to be permanently listed, it is difficult to imagine cases where provisional listing will not almost automatically follow.
I re-read in Hansard with near-surprise—nay, astonishment—the Minister's remarks last Tuesday, that the provisional listing procedure was a consideration of the case "on its merits". All I can say is, only the merits of one side. Yet at the moment that someone goes on the provisional list, his employment prospects—or, if he has another job, his actual employment—are shattered. The career and reputational effects are devastating; far more so than in many criminal prosecutions.
My amendment seeks to add but one requirement for provisional listing; namely, that the civil servant must be of the view,that, unless such a provisional listing is made, there is a risk that any person will suffer significant harm".In the debate last week, I pointed out that in Clause 68 the Government are providing precisely that safeguard, and indeed more, in the provisional or emergency procedure to be followed where a child is to be removed front a registered childminder. The noble Lord, Lord Hunt of Kings Heath, failed to address that point, beyond saying that,It is not meaningful to imagine that the likelihood of harm can be assessed in those circumstances".— [Official Report, 28/3/2000; col. 775.]and that,It could raise issues of interpretation".— [Official Report, 28/3/2000; col. 776.]That is precisely what will be required of those who will deal with emergency procedures for childminders.
If protection of the public is the overriding consideration—many will believe that it is—one must contemplate just how matters will be left if the wording in Clause 71 is left as drafted. It is not fair, as was said on Second Reading, that the overriding need is protection for vulnerable people and that the considerations of fairness to workers with vulnerable people are secondary. That is not right. It does not 1216 strike a fair and proper balance. It is wholly contrary to the traditions of the balancing act which this House has undertaken since time immemorial.
If, for example, one was considering the basic freedoms and protections in criminal law according to the same test, one would receive a dusty answer. One may argue that that case is criminal and this is civil; but I put it to your Lordships that the boundary between civil and criminal is these days growing extremely blurred. As I have indicated, the consequences of a provisional and a permanent listing for an individual are more serious in many cases than would be a criminal conviction.
If the issues of the burden of proof in criminal matters; the right to trial by jury; and the right not to have one's previous convictions read before the case is heard were being considered in this House according to the measures and attitudes prevalent on the Government Front Bench in considering Clause 71, one would be in a rather dire position.
Your Lordships may recollect that on Second Reading I read the forceful opinion of Professor Jowell QC, the distinguished co-author, with the noble and learned Lord, Lord Woolf, the Master of the Rolls, of the standard text on the law in this area. He concluded by saying that,This Bill surely offends principles of English administrative law in respect of the Secretary of State's provisional decision to list in its failure to provide a fair hearing to those included in that list".As I said, I can find nothing comparable with the provisional listing procedure anywhere in our legal system, nor have the Government been able to disabuse me. Doctors, lawyers, teachers and nurses all have protections that preserve the elusive balance in a way which Clause 71 pre-eminently fails to do. This procedure is out of balance with fairness. In the last resort it will harm the very groups which we seek to protect by this Bill, for over time it will deter, as in other areas of caring people are being deterred. It will deter some of the brightest and best from exposing themselves to a system which fails to afford them fair protection. I beg to move.
§ 4 p.m.
§ Lord Warner
My Lords, I oppose this amendment. I admire the noble Lord's persistence on this matter although I take issue with his judgment as to whether a balance has been struck. As a former director of social services, I speak as someone who has had to adjudicate on claims of abuse by staff against children and vulnerable adults. In my own experience the current system is slanted strongly in favour of the alleged perpetrator rather than the victim. That is because of the problems of securing evidence.
The noble Lord has made much of the fact that these cases may be akin to criminal cases. That is simply not so: we are actually deciding these cases on a different standard of proof, which is the balance of probabilities. Even with that lower standard of proof, in these cases it is often extremely difficult to prove the case against the perpetrator, a member of staff.
1217 We have to understand that the purpose of the provisions in the Bill is to protect the civil liberties of vulnerable adults not to be abused as well as the civil liberties of staff. In my judgment the noble Lord's amendment seems to get the balance wrong, given that there is protection for staff already in the Bill. I believe that the noble Lord has been too dismissive of the checks to be put in place against unfair treatment of an employee who is to be provisionally listed, including the guidelines that the Government are preparing.
An employer is under a duty to refer a worker for inclusion in the protection of vulnerable adults' list only when he is considering it; or has decided to terminate a worker's employment or change their duties as a result of believing that they harmed, or placed at risk of harm, a vulnerable adult.
When the Minister receives the referral, he may list the person on a provisional basis. He then writes to the worker and asks for comments on the information that the employer has provided. He may go back to the employer to get his views on the worker's comments. At that stage, and only at that stage, is he in a position to judge whether the worker is guilty of misconduct or unsuitable to work with vulnerable adults. If the answer is "yes", the worker is confirmed on the list. There is still a further right of appeal to the independent tribunal. It seems to me to be unreasonable to expect the Secretary of State to go through that process before provisional listing.
In my view, the noble Lord's amendment would make it much more likely that that would be the effect because it raises another hurdle for the Minister to jump before provisional listing. Provisional listing should be permissible on the employer's written referral. That of itself is prima facie evidence of risk of harm and therefore justification for provisional listing.
It is worth bearing in mind that many staff in social care are suspended from duty while a full investigation takes place in order to stop vulnerable people being at risk of harm. That is taking place day in and day out in this country as we debate this issue.
The noble Lord has tried to raise the spectre of unreasonable employers using any excuse to get rid of staff before the full protection of employment law bites at 12 months. In my view, that overlooks the existing checks in the system. Employers are subject to registration and have to have proper complaints and disciplinary processes. Employees will invariably have had the opportunity to put their case within these processes. As the care of vulnerable adults is hardly a sector where people are flocking to work, the idea that employers are going to rush to get rid of staff in a cavalier way seems highly improbable. If they do, they will come to the attention of the registration authorities provided for in the Bill, which can hardly be in the interests of the particular employers.
1218 It is already difficult enough to root out abuse of vulnerable adults even with the improvements contained in this Bill. Many abusers are deceitful and difficult to expose. Erecting a further barrier to provisional listing, which is the effect of the amendment, will work in their favour. I hope that this amendment will be withdrawn or rejected.
§ Lord Rix
My Lords, I intervene very briefly, and conscious that staff can be vulnerable in terms of their careers to false accusations, as service users are vulnerable in terms of their personal welfare to abuse by a small minority of staff. It is important that people should not be labelled as a potential risk without good reason. However, I believe that we have got this broadly right, and that the day-to-day experience of service users argues very strongly against further tipping the balance against them. I choke a little on the term "significant harm", whether in Clause 72, as suggested here, or, as the noble Lord, Lord Phillips of Sudbury, reminds us, in Clause 68 as at present.
I envisage an interview with a potential interviewee, who responds to a question about the effect he or she might have on the lives of customers by saying that there would not be very much harm. The risk of even a little harm seems to me to be too great a risk. Therefore, much as I have the highest regard for the noble Lord, Lord Phillips of Sudbury, for his work for Mencap, I cannot support this amendment.
§ Baroness Pitkeathley
My Lords, since our last debate on this subject I have reflected most seriously on the arguments brought to bear last week. I have also taken soundings of many people who work in social care and those who focus on the clients of social care agencies. The results of these discussions have reinforced the views that I expressed last time: that we must indeed aim for balance in our systems, but if perfect balance is not possible—I believe that we would all acknowledge that it may not be—we must err on the side of the vulnerable person.
I understand the arguments made by the noble Lord, Lord Phillips. If he will permit me to say so, they are lawyer's arguments and very valid ones. But I believe that it is not without significance that those of us who have spoken strongly against his views, and in favour of the rights of the vulnerable person, are largely those who have actually worked in delivering social care. We have seen at first hand the abuse suffered by vulnerable people and, more importantly, the problems not only of bringing to book the perpetrators of abuse but of ensuring that they are prevented from abusing again. It is my very firm opinion that sufficient safeguards exist in the proposed arrangements to mitigate against miscarriages of justice and, more importantly, that they will ensure that, as we have sadly failed hitherto to ensure that abusers do not abuse in one place, this time we shall be able to ensure that once found out or suspected, they will be unable to abuse in another institution or area (as happened in the past because the safeguards to prevent that have not been sufficiently strong).
1219 We owe it to vulnerable people to ensure that follow-up systems protect them and that this time we put in place systems which they can trust, as opposed to those which have failed them so frequently in the past.
§ Baroness Masham of Ilton
My Lords, I feel very strongly that there should be better protection for both vulnerable adults and staff. That could be achieved by more senior staff working at the level of patients and vulnerable people. Senior staff are so often tucked away in offices involved in administration or attending meetings. People are much more important than paper. If there were better management working among patients and staff, there would be less risk of problems arising. Can the Minister say whether there is any hope of getting better standards at ground level? Sisters should never have been removed from ward level.
§ Lord Jenkin of Roding
My Lords, as one who took part in both Committee and Report stage debates on this issue, perhaps I may make my own position clear. I believe that it will be within the recollection of the House that when the noble Lord, Lord Phillips of Sudbury, moved his amendment in Committee I was more than overwhelmed. He made an extremely strong case. However, by the time he moved a further amendment on Report, I was able to listen to many of the arguments that we have heard again this afternoon from the noble Lord, Lord Warner, the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Rix. I must confess that I think that I have moved on this matter. I had been leaning quite heavily in favour of shifting the balance back a little in order to protect employees against the threat of bullying employers, which is the serious threat that must be considered here. But as I have heard further arguments, in particular from those who have had much greater direct experience of dealing with vulnerable adults and children, I now believe that it is better to leave the balance where it is.
I say this with some sadness to the noble Lord, Lord Phillips, because he has made his case with great eloquence, not least again today at Third Reading. Nevertheless, I believe that he has lost the argument. If he decides to test the opinion of the House, I am afraid that I shall not be able to support him.
§ Earl Howe
My Lords, I added my name to an identical amendment in the name of the noble Lord, Lord Phillips, on Report. I have not done so today, not because I do not think that the noble Lord has a good point to make—I think he has—but because, in the light of the full reply then given by the Minister and contributions from other noble Lords, I am persuaded that we should tread carefully here.
The issue that has been raised by the noble Lord is not whether there should or should not be a system of blacklisting. I believe that we are all agreed that such a system should be in place. The issue here is whether some people's names should reach the provisional list and others should not. The point of the provisional list 1220 is clear. It is to ensure that workers who have caused harm to vulnerable adults, or have put them at the risk of harm, and have been dismissed for their actions should have an instant barrier placed in front of them while their cases are being considered so as to prevent them from moving on to do similar harm elsewhere.
To allow some people to pass through that barrier without hindrance is to take a risk. The amendment invites the Secretary of State to make a judgment. However, I believe that I must ask the noble Lord, Lord Phillips—in a friendly and constructive spirit—whether he believes that the Secretary of State, at such an early stage in the process, would be in a position to make a judgment of this kind fairly. The justice or injustice of a referral will emerge only later in the process, when the Secretary of State comes to consider all the supporting observations and information.
Furthermore, I wonder whether the noble Lord's amendment will address the other concern that he raised, perfectly properly; namely, that the referral may be malicious. Malicious referrals are of course a real issue, but I question whether the amendment as drafted would provide a safeguard to anyone whose name has been maliciously referred.
The House will understand that I find myself torn here. The choice for noble Lords is between erring on the side of caution in one of two directions: either, as the Government recommend, guarding against the possibility of anyone moving on to take up new employment where they may harm a vulnerable adult, even though this risks trapping the innocent; or by protecting the civil liberties of the accused, even though this risks temporarily allowing through the net a guilty person. The balance is very fine. I await with interest what the Minister has to say.
§ 4.15 p.m.
§ Lord MacKenzie of Culkein
My Lords, I, too, rise to speak in opposition to the amendment. The noble Lord, Lord Phillips of Sudbury, undoubtedly has an arguable point here. It is a point with which I am familiar. On many occasions when representing staff employed in the National Health Service and in local government social services I have had to make a very similar point. I have represented staff appearing before some of the more notorious committees of inquiry set up under Section 84 of the National Health Service Act 1977. Given that background, why do my views diverge from those held by the noble Lord, Lord Phillips?
I have not spent all of my working life as a trade union official. I was a practising nurse; indeed, I am still a registered general nurse. In that capacity, I have seen bad practice and I find it difficult to justify such bad practice under any circumstances, however many excuses or rationalisations are brought forward. When representing staff as a trade union representative, it was my job to advocate such excuses and rationalisations and to seek to mitigate and deflect any blame. As I have said before in relation to the Bill, I justified those actions to myself by reasoning that the other side had failed to make its case and thus justice 1221 was done. However, I have also said that I have on occasion found that difficult to live with if, say, I got someone off whom I would not, under any circumstances, want working on a ward or in a department for which I had responsibility as a nurse.
I am still a trade union employee—for another 26 days or so. For that reason, I could easily declare an interest that would enable me to support this amendment, as does the Royal College of Nursing. The noble Lord, Lord Phillips, has mentioned that point. However, in considering the matter this afternoon, I must bring to bear both aspects of my working life. In the light of that, I shall speak in support of my nursing experience, which involved the work of protecting vulnerable people.
If the noble Lord's amendment were carried, it would put in place an additional hurdle in trying to reach an adequate definition of the word "significant". That would impose yet another subjective judgment and would place vulnerable people at a degree of additional risk. I accept that the matter is difficult, but in my judgment, my noble friend the Minister has the balance just right.
§ Baroness Greengross
My Lords, I have not yet spoken to any amendments to this Bill because I was not a Member of the House when it received its Second Reading and it was a little too early for me to contribute to the Committee stage.
I agree that this is a difficult balance to strike and that the noble Lord, Lord Phillips, has put forward a persuasive argument. However, I have spent many years looking at the issue of abuse of vulnerable adults, in particular as regards a group that is especially vulnerable to neglect and abuse of all kinds; namely, the growing sector of elderly people who are slowly descending into mental incapacity. Very often they fall between all the different aspects of our welfare services because they are not sufficiently mentally incompetent to be covered by the protections offered in mental health legislation. Such people are frequently abused in terms of financial loss and neglect—sometimes unintentionally—but always with devastating results.
For that reason, in the end I have had to make a decision in support of those vulnerable adults. Nevertheless, because the noble Lord, Lord Phillips, has made such a good case here, I ask the Minister if, in preparing the guidelines, he can ensure that the process of establishing the facts is carried out with the utmost speed in order both to protect vulnerable people and to close the remaining loopholes that have been mentioned by the noble Lord, Lord Phillips. I regret that I cannot support the noble Lord's amendment.
§ Lord Clement-Jones
My Lords, unlike many other noble Lords who have spoken today, I believe that my noble friend Lord Phillips has made a very good case here. If we do not accept that case, we shall come to regret it in the future.
1222 I do not believe that anyone sitting on these Benches is any less keen to root out the abuse of vulnerable adults. That is axiomatic in the way we have approached this legislation and is reflected by the seriousness with which we have addressed this particular issue. Of course appropriate methods must be found to tackle and eradicate the abuse of vulnerable people. However, I believe that the Bill provides so much discretion that, under certain circumstances, a malicious employer could cause substantial harm to an employee.
Let me explain. This is a complicated clause. It is a lawyer's paradise to some degree and it is no surprise, therefore, that it has taken a lawyer to look through it and understand what the problems associated with it are. Perhaps I can draw attention to the subsection which deals specifically with the conditions.
On Report, the Minister and other noble Lords, such as the noble Lord, Lord Warner, talked about the extra statutory guidelines which will apply to care homes and their employment practices. Certainly if the homes follow those guidelines there will be a degree of fairness surrounding the dismissal or otherwise of an employee. But the employer is entitled to refer in circumstances where he only "considered" dismissing the employee. That is extremely loose language. It means that the employer does not have to go through the full procedure of the extra statutory guidelines; he can simply consider dismissing the employee. That seems to drive a coach and horses through the argument.
We know that the outcome of listing is effectively to deprive an employee of his or her livelihood, so we have to take particular care, as my noble friend Lord Phillips said, as to how those conditions operate. Once those conditions have operated and the employer has referred an employee, then the Secretary of State,If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list … shall".So we have two situations. First, the employer merely "considered" dismissing the employee; he did not dismiss, just "considered" dismissing. Secondly, all that the Secretary of State has to consider is,that it may be appropriate".In those circumstances, there is a considerable gap in the Bill.
Our belief is therefore well founded that this clause could well rebound in future years. I do not believe that the "significant risk" test is a high hurdle when we consider the nature of the clause as currently drafted. If the words,or would have considered dismissing him",were not in the Bill, there may well have been a case for not introducing those hurdles. But that particular hurdle does not seem to put the balance too high.
§ Lord Jenkin of Roding
My Lords, perhaps the noble Lord will give way. We had this same argument at Report stage and at that time I, too, was concerned about the words,or would have considered dismissing him".1223 But one must read to the end of the paragraph which adds the proviso, "on such grounds" if he had not resigned or retired. That is bound to take account of the fact that there has been a discovery of abuse and mishandling and, before anyone could do anything about it, the worker left—resigned or retired. What else can we put in the Bill if one of the conditions has to be that the employer could say, "The matter is sufficiently serious so that if he had stayed I would have sacked him"? I follow the noble Lord's argument, but I still do not see what else we could put in.
§ Lord Clement-Jones
My Lords, that is precisely why we need the hurdle. If we could excise the words, "or would have considered", then perhaps one would not need the hurdle. But because of those words, one needs to accept the fact that the full procedures set out in the extra statutory guidelines were not followed. That is a considerable hole and diminishes the safeguards available for the worker in question.
We have had a considerable debate today. There is clearly an issue of principle involved here and I do not believe that we will resolve it easily. Suffice to say that we do not believe that the balance is correct. The noble Lord, Lord Witrner, may well be correct that the current system has the balance completely wrong. But we believe that the system proposed is tilted too far the other way and that the safeguard we propose should be included.
§ Lord Brightman
My Lords, having listened to the debate, it occurs to me that it may be worth considering one suggestion, which did not occur to me earlier. At the moment the Secretary of State has absolutely no discretion. Once subsection (4) is triggered,the Secretary of St ate shall— (a) determine the reference",and shall,(b) pending that determination, provisionally include the worker in the list".The second "shall" is not included in the provision, but it follows inevitably from the wording of the paragraph.
It may be wise for the Minister to give the Secretary of State a scintilla of discretion. All we would need is to add the word "may", so that, if the subsection is triggered, it would read,the Secretary of State shall— (a) determine the reference in accordance with subsections (5) to (7); and (b) pending that determination, [may] provisionally include the worker in the list".Why should the Secretary of State be bound to include the worker in the list? Why should he not have a discretion when subsection (4) is triggered? It could not do any harm and may be worth considering as a possible amendment in the other place.
§ 4.30 p.m.
§ Lord Hunt of Kings Heath
My Lords, this has been a sober and informed debate. I am grateful to all noble Lords who have taken part. It is a debate which essentially started at Second Reading and has followed through all the stages in your Lordships' House.
1224 Like other noble Lords, I want to pay tribute to the noble Lord, Lord Phillips, for the care and passion with which he brought these matters to our attention. But I remain convinced that the difficult balance which has had to be set between the rights of vulnerable people and the rights of the employer is right in the provisions of the Bill as they now stand. I believe also that the noble Lord, Lord Phillips, in bringing these arguments to us, perhaps ignored some of the other elements of the Bill which will raise standards in the care homes we are discussing. They will embrace the way in which the homes manage, support and train members of staff. That is a factor which needs to be taken into account when we come to the issue of potential malicious referrals.
It is worth returning to the work of the Home Office interdepartmental group on preventing unsuitable people from working with children and abuse of trust which met in 1998–99. That group recommended that certain people, including criminals convicted of specific offences, should be prevented from working with children. But the group also considered the protection of vulnerable adults and recommended that there should be a workforce ban for people who abused vulnerable adults. That is what the provisions of Part VI implement.
Much of the Bill in relation to the protection of vulnerable adults follows the same provisions contained in the Protection of Children Bill enacted through both Houses of Parliament last Session. It was during our debates on that Bill that the noble Lord, Lord Rix, raised in particular the need to ensure that the provisions of the Protection of Children Bill were extended to vulnerable adults. In essence, that is what the provisions in the Bill before the House propose.
The protection of vulnerable adults scheme requires the Secretary of State to keep a list of persons who are unsuitable to work with vulnerable adults and provides that those listed are prohibited from taking employment in a care position looking after vulnerable adults. Overall the system is similar to that provided for in the Protection of Children Act.
An individual has to be referred to the Secretary of State for possible inclusion in the list by an employer who has dismissed him on grounds of misconduct which harmed a vulnerable adult or placed him at risk of harm.
As the noble Lord, Lord Clement-Jones, has suggested—although I believe he is unhappy with the provision—to prevent avoidance of the scheme special provision is made to catch those who have resigned so as to avoid such disciplinary action or who have been suspended, transferred or provisionally transferred.
To the noble and learned Lord, Lord Brightman, who suggested a rewording of the word "shall" in the clause, the discretion lies in whether it appears to be appropriate. On referral, the Secretary of State will "provisionally list" the individual if it appears,that it may be appropriate for the worker to be included in the list".That person will then be subject to the prohibition on working with vulnerable adults.
1225 The Secretary of State goes on to disclose the referral papers to the person and to invite observations from him and, if appropriate, further observations from him on any observations made by the referring employer before reaching an opinion as to whether the employer reasonably believed the person was guilty of the misconduct and whether the person is unsuitable to work with vulnerable adults. If both those tests are passed, the person's listing is confirmed. That is the point at which the person has the right to take his case to the independent tribunal.
The tribunal will remove the person from the list unless it is satisfied that he is guilty of the misconduct and that he is unsuitable to work with vulnerable adults. Therefore, the tribunal provides a full hearing of the underlying merits of the case, with a burden of proof that is favourable to the applicant. The applicant will have a right to make oral representations to the tribunal.
I want to emphasise the responsibilities that employers will have in order for the scheme to operate effectively. First, an employer proposing to offer employment in a care position must, before making the offer, check whether the person is on the list. If he or she is on the list, that person cannot be employed in a care position, as defined in Clause 70. Secondly, the employer has a duty to refer workers to the Secretary of State for inclusion on the list under the circumstances I mentioned earlier.
In our debates in your Lordships' House on this subject, the key matter has been the balance to be struck between protecting vulnerable adults and securing the rights of workers accused of harming them. I have given the matter a great deal of consideration, but at the end of the day I am taken back to the basic principle of these provisions which is to offer protection to those who cannot protect themselves. We want to identify workers who have harmed these people and ban them from the workforce so that they cannot be in a position to inflict such harm again.
We have based these provisions on referrals made when a worker's behaviour towards a vulnerable adult has been so bad as to result in their being moved from a care position. We are not dealing with minor incidents or infringements. We are looking at people in need of care and protection who have been harmed or placed at risk of harm by workers in positions of trust.
Whatever provisions are put in place we must ensure that they are fair and that workers accused of harming vulnerable adults are treated justly and fairly. We have safeguards in place to do just that. As I said, the misconduct must have resulted in the worker being removed from a care position, which in many cases will mean dismissal. Workers in employment for more than a year will have access to an employment tribunal if they believe that they have been dismissed unfairly.
All services in this scheme will be required to have proper disciplinary procedures in place. I believe that that will act against malicious referrals and poor 1226 procedures on the part of employers. Before permanent listing, the worker will have the opportunity to comment on the employer's referral.
Finally, there will be a right of appeal against the decision to list an individual. At that point the worker who is dissatisfied with the listing decision can elect to have his case heard by the independent tribunal. Of course, there is a balance to be struck. We believe that in constructing this scheme we have provided both for the rights of the worker involved and for the safety of the vulnerable adults to whom we owe a duty of protection.
I have carefully considered the specific amendment moved by the noble Lord, Lord Phillips. On Report, when we discussed the matter of restrictive provisional listing, I expressed concern that such a move would seriously weaken the scheme we have devised for protecting vulnerable adults. Of course, I am aware of the effect that provisional listing can have on an individual and his or her future. Provisional listing is not a matter that can ever be taken lightly.
I want to assure noble Lords that provisional listing will not happen in every case that is referred to the Secretary of State; it will not be a matter of an employer making a reference and the Secretary of State reacting by immediately listing an individual provisionally. Each case will be considered on its merits and the Secretary of State will have to be satisfied that provisional listing is right in each case. He will have to make a decision that the employer has made a proper reference and that provisional listing is warranted. If necessary, he can go back to the employer and seek additional information if the reference is unclear or incomplete.
We are concerned to ensure that in a referral the Secretary of State is able to take a broad view of everyone concerned when he considers whether it is appropriate to include a worker in the list provisionally. I believe that including such provisions on the face of the Bill would detract from the Secretary of State's ability to act in the best interests of all concerned.
On the specific issue of a "significant" test, I do not believe that there would be benefit from trying to limit provisional listing to only those cases where there was a risk of "significant" harm. Apart from introducing a loophole which might leave vulnerable adults ill-protected, the qualifier "significant" adds nothing. For an act of misconduct to result in a referral to the list, it must have been an act that resulted in the person being removed from a care position. Lesser acts of misconduct would not result in provisional listing.
§ Lord Phillips of Sudbury
My Lords, I am most grateful to the Minister for giving way. Can he explain why, in Clause 68, the test for child carers is "significant harm" when there is an emergency withdrawal of a child from a child carer. If it is good for the goose, why is it not good for the gander?
§ Lord Hunt of Kings Heath
My Lords, the noble Lord was not convinced by my argument on Report, 1227 so perhaps I can try again. Essentially we are not comparing like with like. In relation to the situation of a childminder, an Ofsted inspector undertakes an emergency deregistration to remove that childminder from children. Registered childminders do not have employers to dismiss them when they act inappropriately with children. That is why we seek to give that power to Ofsted inspectors. That deregistration is one stage back from a reference to the protection of vulnerable adults. It is the equivalent of a worker in a care position being dismissed by his employer for harming a vulnerable adult. I do not believe that it is fair to make a direct comparison.
Perhaps I may respond to some other points made by the noble Lord. I believe he suggested that the RCN had put forward the case of a professional worker who had been referred in relation to a specific incident where he had not received any training, for instance, in how to administer medicines or in the proper restraint of an individual. In my view, if a worker has not received appropriate training in such circumstances, or if there is no clear guidance as to how a staff member should handle a specific situation, it would not necessarily follow that that person would be listed.
The noble Lord, Lord Phillips, spoke about people who would be debarred from future employment in the industry. I accept the seriousness with which provisional listing must be viewed, but it is wrong to say that these people will be completely debarred from future employment in the industry. Anyone who is listed will be banned from working with vulnerable adults in the prescribed services, but he or she will be able to apply for jobs in the wider employment field. None the less, I do not disregard the impact that provisional listing will have on individuals, but I believe that this measure is a necessary part of the balance which the Bill seeks to achieve.
The noble Lord also questioned whether the impact of the provisions would deter people from working in this field. At Report stage he referred to voluntary workers, in particular the scout movement. It is my understanding that the scout movement welcomed the Protection of Children Act. The whole purpose of the Bill, not simply these clauses, is to raise standards and public confidence in the whole of the care industry. I believe that in the long term, if not the medium term, these measures, together with the establishment of a general social care council to improve the regulation of care workers and, in turn, public confidence in their work, will enhance our ability to attract into this field good quality people. My goodness, we need to do so, as the noble Baroness, Lady Masham, suggested.
We should remind ourselves of the manipulative and devious nature of the abusers that this scheme is designed to catch. Time and time again serious abuse has been uncovered and recommendations have been made. In his report People Like Us, Sir William Utting said:It is dismaying to find that employers are still allowing staff being investigated or disciplined to resign, thereby avoiding the consequences of their behaviour. Employers who take this easy way out are making it easier for … paedophiles in particular to continue their careers".1228 I believe that those remarks can apply as much to people who abuse vulnerable adults as to those who abuse children.
We have had a very good debate, and all noble Lords who have spoken have contributed very important points. At the end of the day this is a difficult balance to strike, but I am convinced that we have got it right.
§ 4.45 p.m.
§ Lord Phillips of Sudbury
My Lords, I am grateful to the Minister for his usual careful response to the debate. I am also grateful to all those who have contributed to the debate, despite the fact that most of them spoke against the amendment. It is particularly unusual for a mere solicitor to find three of his most esteemed clients, in the form of the noble Baronesses, Lady Pitkeathley and Lady Greengross, and the noble Lord, Lord Rix, ranged against him.
In response to one or two noble Lords who said that my arguments were those of a lawyer, occasionally such points are not bad ones. Sometimes lawyers see things that others do not see, and the commitment to a cause can undermine one's objectivity. That is still my view having heard the extremely careful, thoughtful and deeply-held views of noble Lords.
Having heard the noble Lord, Lord Jenkin of Roding, perhaps I should rename myself "Lord Phillips of Diminishing Returns". My small army has become more and more diluted as debates have proceeded. Even the noble Earl, Lord Howe, who put his name to the amendment at the previous stage, is not quite so sure about it this time. However, I believe that he still supports me at this juncture.
Many points have been raised in the debate. I do not propose to reply to all of them now, although they are worthy of response. I very much hope that, in taking this matter forward and considering their guidelines, the Government will consult widely, and with the greatest care, on the civil libertarian aspects that I have sought inadequately to place before noble Lords.
In seeking to prevent the appalling abuse of those who are totally helpless in the face of misconduct—one has the recent examples of the Waterhouse report on paedophilia in North Wales and the case of Dr Shipman and his extraordinary depredations—it is easy to forget that in the midst of it there are hurt, wounded and deranged people, including young people, who month by month can, and do, make allegations against wholly innocent care workers. Those allegations inflict terrible torment on those unjustly accused.
It was in an attempt to bring the position into slightly better balance that I tabled the amendment. That erected another hurdle, and that was the whole point of it. We believe that at the moment the series of tests and hurdles to be overcome before someone is provisionally, and then permanently, listed is too easy. We on these Benches are unimpressed by the fact t hat there is a right of appeal to a tribunal. That will occur six to nine months down the road, and in the interim the person will be deprived of his career. It is all very 1229 well for the Minister to say that such an individual, who may be a highly trained physiotherapist, can do a back office job that does not get anywhere near patients. The reality is that anyone who gets onto this list will be devastated: his career will be blighted and his reputation held up to public ridicule and contempt.
None the less, all has now been said. Although I want to divide the House, in prudence I should not do so. I hope that when this matter leaves this House Members of another place will have a further go at it. It is still not too late for the Government to review where they are at.
Finally, I ask the Minister to reconsider the position of childminders and the case with which we are now dealing. The Minister said that the two cases were apples and pears. That is not correct. In circumstances where one goes to a magistrates' court, not a civil servant behind closed doors, to ask for the provisional removal of a person engaged in childminding, the test is a higher one; namely, whether the child would be "likely" to suffer "significant harm" if the provisional order was not made. What is more, in the case of a childminder, the person who makes the allegation is not the former employer, as in this case, who in some circumstances may have a very big axe to grind, but Ofsted which is an independent, objective and professional organisation. On all counts, I believe that the Government have applied completely different standards to very comparable circumstances. The Government have got it right in Clause 68 but wrong in Clause 71. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 87 [Boarding schools: national minimum standards]:
§ Earl Howe
moved Amendment No. 8:Page 57. line 28, at end insert (", and( ) the quality of school nurses").The noble Earl said: My Lords, I have tabled this very simple amendment because of an apparent gap, or at the very least an ambiguity, in this part of the Bill. In the Bill one has measures to regulate standards of care, including clinical and nursing care, in a variety of settings. In Part VII one has provisions to regulate the welfare of children in boarding schools. What we do not appear to have in that part are measures to square the circle; in other words, provisions to ensure the quality of nursing care for children in boarding schools.
The House is already aware that the Bill amends the Children Act 1989 so that independent boarding schools fall within the remit of the national care standards commission and the Welsh Assembly. Clause 87 makes provision for national minimum standards in relation to the welfare of children accommodated in schools and colleges. At present, most independent schools employ people who go by the name of school nurses but who are neither registered nor qualified as nurses. Yet those are the very people who have what one might term front-line responsibility for the health and welfare of the children under their charge.
1230 If we are serious about raising standards of care across the board, we should be clear about what is and is not appropriate in boarding schools. It seems to me that if, as a proprietor of a boarding school, you employ someone called a "school nurse", that person should be a registered nurse and you should be obliged to carry out checks on him or her.
The minimum standards should also specify that the school nurse has access to a named doctor at all times and that there is appropriate provision for record-keeping. I am told that in one case recently, a nurse went from the NHS to take up a job at an independent school and found that there were no medical records on the children at all.
Consultation on minimum standards in boarding schools is now under way. Will the Minister give an assurance that he will involve the Royal College of Nursing in that process? I hope that he can reassure me also that when defining the minimum standards of welfare, it will not simply be a matter of the number of wash basins in dormitories which will be uppermost in the minds of inspectors but also, principally, the actual health and wellbeing of children. I beg to move.
§ Baroness Masham of Ilton
My Lords, this amendment illustrates how easy it is for important matters to be forgotten or left out as people may feel that the responsibility lies elsewhere. This is a matter for joined-up government or people working in co-operation for the well-being of children.
Children go to boarding schools for many different reasons. They may have a special need due to disability, or a special skill such as dancing or music. Or their parents may work abroad or just want them to be in a boarding situation. Whatever the reason, children are away from their parents and guardians and their home environment. Children in close conditions may be at risk from infections and viruses. They can suffer eating disorders; be at risk from drug abuse or bullying; or be very unhappy.
Most parents would assume that there would be a trained school nurse on the staff to be responsible for the health needs of their children and a dedicated school doctor on whom the school could call. But the Royal College of Nursing is concerned that it is possible for independent schools to employ so-called school nurses who are neither registered nor qualified as nurses but are working in schools with responsibility for the health and welfare of children. As the noble Earl, Lord Howe, said, a nurse who went from the National Health Service to an independent school found that there were no records at all on the children.
This amendment would provide national minimum standards for school nurses who are in charge of children's health. That should not be confused with school matrons who are in charge of housekeeping matters and clothes as well as children's well-being. I hope that the Government will accept this amendment, which is supported by the Royal College of Nursing. I certainly support it.
§ Lord Hunt of Kings Heath
My Lords, we come to an issue we have not debated previously. I thank the noble Earl, Lord Howe, for providing me with an opportunity to clarify some of the points he raised.
First, I assure noble Lords that Part V of the Children Act and regulations published in 1991 set out the requirements on independent schools around the provision of health services to children accommodated in a school or college.
Although the manner in which healthcare is provided will vary according to local circumstances, the guidance sets out an expectation that all children should normally be registered with a general medical practitioner. The guidance also states that schools should, if possible, have suitably qualified staff, such as nurses, to deal with health matters.
The provision of an adequate school health service for children living in a school or college covers requirements relating to access to the full range of all primary healthcare services, including a GP, dentist and ophthalmologist.
In his review of safeguards for children living away from home, People Like Us, Sir William Utting considered healthcare in residential schools. His report states that the review received very few observations on the adequacy or otherwise of healthcare in schools or whether there were particular problems for children living away from home.
But the Royal College of Nursing did write expressing concern that independent and boarding schools did not provide the same healthcare programmes as state schools. I say to the noble Earl, Lord Howe, that I would very much welcome any input which the RCN can give to the deliberations on that important is sue. In considering that comment, Sir William Utting's review consulted inspection reports on independent boarding schools showing that arrangements usually cover arrangements for pupils' access to GPs, storage of medicines and related matters. Some refer to discussions between the doctor and the school staff about general healthcare issues.
As noble Lords will know, the Children Act 1989 applied to independent schools only. That was an unacceptable gap, and through this Bill we shall produce national minimum standards for all boarding schools, including state schools and FE colleges.
I accept very much the sentiment of the noble Earl's amendment but l do not believe that what he proposes is needed. The current power in Clause 87 allows us to draw up national minimum standards for boarding schools. I assure the noble Earl that in developing those minimum standards for safeguarding and promoting the welfare of children, we intend to include as a minimum requirement that any person employed as a school nurse should be registered with the UKCC and should have appropriate qualifications or experience for that role.
1232 On that basis, I hope that I have reassured the noble Earl that we consider this matter to be important, and I ask him to withdraw the amendment.
§ Lord Hunt of Kings Heath
moved Amendment No. 9:Line 4, after ("centres,") insert ("independent medical agencies,").The noble Lord said: My Lords, on Report I introduced an amendment which your Lordships welcomed which requires the national care standards commission to regulate services provided by doctors to private patients in the patient's own home. As a consequence of that change, we need to add "independent medical agencies" to the Long Title of the Bill. I beg to move.
§ Baroness Masham of Ilton
My Lords, should we not add the words "nursing agencies" after the acceptance of the amendment today?
§ Lord Hunt of Kings Heath
My Lords, I am not sure that that is necessary because I believe that nursing agencies are covered. We must consider that, as we shall the amendment which will need to be moved in the other place because of a slight technical deficiency in the noble Earl's wording. We shall certainly look at that.
On Question, amendment agreed to.
An amendment (privilege) made.
§ Lord Hunt of Kings Heath
My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)
On Question, Bill passed, and sent to the Commons.