HL Deb 10 January 2000 vol 608 cc486-522

8.33 p.m.

House again in Committee.

[Amendments Nos. 26 and 27 not moved.]

Clause 7 [General duties of the Commission]

Lord Rix moved Amendment No. 28: Page 4, line 30, at end insert ("; and ( ) the provision of services for particular categories of service user").

The noble Lord said: Amendment No. 28 is grouped with my Amendment No. 75, and Amendments Nos. 69 and 77. At the suggestion of the noble Lord, Lord Northbourne, Amendments Nos. 47, 48, 76, 121 and 147 have been added. There is a difference between the needs amendment in the name of the noble Lord, Lord Northbourne, and my amendment which refers to particular categories of service users, although they could lead to needs of a special kind.

Without wishing to make the general duties of the commission too specific—it seems to be overburdened already—I should welcome reassurance that the duty to keep the Secretary of State informed will include information on the provision of services for particular categories of service users. Noble Lords will not be surprised to hear that my concern lies with the common care experiences of people with learning disabilities although the same principle applies to the common care experiences of autistic people, older people or mental health service users. One would expect problems affecting particular groups and good practice to be drawn to the attention of the Secretary of State in the drive to improve quality for service users.

On Amendment No. 75, in my previous comments on Clause 7 I stressed the importance of the commission having the power to take a strategic look at the way services affect particular groups of service users. Consistent with my earlier comments is my view that the national minimum standards should be derived from particular groups of service users. People with learning disabilities cover a wide range of intellectual impairment; and they often have other disabilities too, but there is a strong case for devising distinctive standards based on common need.

It would be wholly inappropriate to apply the best care standards for older people to 19 year-olds with a learning disability or indeed vice versa. Yet national minimum standards need to be specific if they are to be meaningful. Perhaps the Minister will clarify that there is nothing in the legislation to preclude the formulation of national minimum standards for particular categories of service users. I beg to move.

Lord Astor of Hever

I support the noble Lord. I speak also to Amendments Nos. 74 and 77. They are probing amendments to clarify whether the Government will adopt autism-specific standards for registration of residential services. The noble Lord, Lord Rix, has already touched on autism.

Some noble Lords may have watched on television the disturbing Macintyre report on care homes. If so, they will remember the distress of Richard, a man with autism. There is no doubt that minimum standards were absent in that establishment. Anyone with an understanding of autism could recognise Richard's responses to his maltreatment.

Autism is a complex developmental disability which affects the way people communicate and relate to those around them. I declare an interest as the father of an autistic daughter. That is why I speak from the Back Benches. There are approximately 500,000 people on the autistic spectrum in the United Kingdom, many of whom will be in residential care homes. With a greater awareness of autism, and more successful early diagnosis, there will be a significant increase in demand for residential care by those with this devastating disability.

Autism manifests itself differently in each individual. Common requirements for care are an emphasis on structure, consistency, reduction of disturbing stimuli and a high degree of organisation. The absence of these considerations in standards for residential care results, often, in high levels of anxiety for autistic individuals. To help them to reach the greatest level of independence, the environment must be tailored to meet their individual needs.

Standards of delivery need to include autism awareness. Current arrangements whereby standards for learning disability were set locally have resulted in over-prescription in many cases and positive harm to those service users with autism.

That point is illustrated by a case study from a National Autistic Society residential service. A young man with autism had a particular need for space and an absence of clutter in his bedroom in order to sleep. Any furniture, other than a bed, caused him extreme anxiety. However, the local authority inspection unit standards required that every adult with a learning disability should have a room with a wash basin. Service managers tried to explain the distress which that would cause, as well as the fact that it would not be used. However, the fixture was insisted upon. Within 24 hours the young man had ripped the fixture off the wall and thrown it out of his room. There can be no justification for such inflexibility, coupled with ignorance of the nature of autism.

In order to prevent such incidents, the National Autistic Society has pioneered the development of autism specific standards. Indeed, initial funding came from the Department of Health. I therefore hope that the Government will build upon such expertise to raise standards overall.

Lord Northbourne

It may be for the convenience of the Committee to take my Amendments Nos. 47, 48, 76, 121 and 147 with this group. They address the same issues in perhaps a more general way. In the context of the Government's understandable desire to create national minimum standards, my amendments refer to different minimum standards being relevant to different categories of need and of agency or establishment. The amendments tabled by the noble Lord, Lord Rix, refer to the provision of different services for the different categories of service users. Those tabled by the noble Lord, Lord Clement-Jones, relate to the problem of autism and special requirements for special disabilities or conditions. However, the issue is one and the same.

I am not satisfied that the Bill empowers the Minister to set different minimum standards for the different categories of establishment, of people or of service users. I envisaged different levels of medical intervention such as those referred to by the Minister during our discussion on a light level of plastic surgery as against more intensive surgery.

The needs of old people are clearly distinct from those of children. My interest is in the different categories of children and I happen to be a trustee of the Caldecote Community, which contains extremely damaged children. The ratio of adults to children is two to one and the cost per child per year is £75,000. At the other end of the scale are the homes in which the children are less demanding and their needs can be met at less expense.

I cannot see how, without different standards, the Government can meet the different levels of need. That is unless the standard they set is so low as to accommodate anyone and that would amount to little more than having a roof over their heads, hot water and drainage. On the other hand, an unnecessary and unattainable level of sophistication should not be applied.

If there is any doubt that the Bill gives the Minister the necessary powers to create different categories of minimum standards, we should put it right now. If we have it wrong and set it in tablets of stone by approving the Bill, we shall be faced with the need for primary legislation.

8.45 p.m.

Lord Clement-Jones

Members of the Committee have made clear the purpose of these amendments. I want to speak in particular to Amendment No. 69, standing in my name and that of my noble friend Lady Nicholson, and to Amendment No. 77, so cogently introduced by the noble Lord, Lord Astor of Hever.

As the noble Lord, Lord Northbourne, made clear, it is a matter of laying down standards and regulations which are specific to particular establishments or service users. The regulations must be flexible but specific, rather than be laid in a blanket form. I was struck by the example given by the noble Lord, Lord Astor, of the young man who had a need for space and an absence of clutter in his bedroom. That clearly illustrates the kind of specifics that we must reach. I look forward to hearing whether the Minister believes that the Bill can give such a level of flexibility.

Amendment No. 69 attempts to discover whether it is possible for regulations to apply to particular categories of establishment or agency, or particular establishments or agencies, rather than provide a simple set of standards which applies across the board. It is important that the Minister is satisfied that the Bill is sufficiently specific in order for us to go forward with confidence in the belief that all the people whom we are trying to protect and for whom we are trying to provide high quality services will be adequately catered for.

Lord Hunt of Kings Heath

This is an important group of amendments. I share the view of Members of the Committee that it is important that the regulatory system should recognise the specific needs of particular people and client groups. I hope to reassure them that, in agreeing the legislation, regulation can be targeted at those who are receiving a particular type of care. However, we must strike a balance in order to ensure clear, enforceable standards at a national level. I believe that, in the provisions of the Bill and the detail which will be prescribed under it, we have struck that balance.

I turn first to Amendment No. 28. We expect the commission to furnish information about the service provided for particular categories of people. The commission will be inspecting a range of services such as homes for children, older people and those with mental health problems. While doing so, it will learn about the availability and quality of provision of services for those and other groups of people. The information and knowledge gained by the commission will allow it to help policy makers. We expect it to provide a variety of information about the quality and availability of care services, including services for particular groups of people, as well as breaking down the analysis in other ways.

Clause 7 is drafted widely in order to allow the commission to provide different kinds of information. It allows the commission to report information it believes to be important and it allows the Secretary of State to request specific information. I do not believe that the amendment increases that ability and therefore I do not believe that it is necessary.

I turn to Amendment No. 69 and make it clear that the regulations will recognise, for example, that suitable requirements for the premises of a care home will differ from those of a private clinic. Regulations made under Clause 20(1)(g), relating to the number and type of persons working at an establishment or agency, will have to recognise the different staffing needs of children's homes compared with those of a private hospital. The need for regulations to be applied appropriately and for different regulations to be made under the same power was borne in mind as the Bill was being drafted. Accordingly, Clause 94 provides that any power to make regulations under the Bill, may be exercised either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case. Subsection (5) of the same clause allows a particular power to be exercised to make the same provision in all cases or to make different provisions for different cases. As that provision is already within the Bill, I hope that Members will understand why I should be unwilling to accept the amendment.

I emphasise that, when it comes to considering the different sorts of standards for different types of care home catering for different types of people, that does not mean to say that the standards expected will be completely different. It is quite likely that there will be some core standards common to all care homes, but beyond that there will be additional standards specific to different categories of care home. The same will apply to children's homes and other establishments and agencies. Clause 21 as drafted already allows the Government to prepare and publish different sets of national minimum standards for different types of establishments and agencies.

In relation to Amendments Nos. 75 and 77, I believe that the points raised by Members are covered. The noble Lord, Lord Astor, raised some pertinent points about the particular issue of autism. I am satisfied that under the Bill and the regulations we can make specific standards for homes looking after people with autism. As with other arrangements for national minimum standards, of course we shall wish to discuss with those most intimately concerned—both the users and the providers of care—the range and extent of those particular standards. I shall certainly make sure that the noble Lord's comments are very much borne in mind as we take the work of the commission forward.

I turn now to Amendments Nos. 47 and 48, which essentially cover the same ground. Clause 3 of the Bill gives a general definition of a care home as being an establishment which provides accommodation together with nursing or personal care for people who are, or have been, suffering from an illness, who are disabled or infirm or who are, or have been, dependent on drugs or alcohol. That over-arching definition encompasses a whole variety of different possible care homes for different users.

However, that is not to say that a single care home will be able to take any type of client no matter what his or her needs. We do not believe that that would be at all appropriate. As I have said, people will have different needs and require different types of care. The needs of the young adult with a physical disability will be different from those of an older person with Alzheimer's disease. Obviously different types of care home will be needed to accommodate them. Homes will he registered to provide certain types of care only, which will be specified in the registration certificates.

I am grateful to the noble Lord for tabling the amendment because it enables me to say a little more about how that will actually work out in practice. People applying for registration will be required to give certain information in their applications. That will include the type of care that they wish to provide as well as the numbers of people they wish to accommodate, their age range, and so on. The commission may then grant the application either unconditionally or subject to such conditions as it thinks fit, provided, of course, that the establishment meets the relevant regulations and standards. In the case of a care home, the commission will always impose registration conditions relating to the category of care that the home may provide, the maximum number of residents it may accommodate and their age range. Those will be the minimum conditions of registration placed on all care homes.

As Clause 10 already allows the Government to make the necessary regulations, I hope that the noble Lord will accept that these particular amendments are not needed.

I turn now to Amendment No. 76. I reiterate that Clause 21 as drafted already allows the Government to prepare and publish different sets of national minimum standards for different types of establishments and agencies. That point is well covered.

I turn to Amendment No. 147. I again agree with the noble Lord that there will need to be different standards for different categories of schools. For example, one would not expect boarding schools for children with special needs to have the same standards as mainstream boarding schools. One would clearly expect staff to demonstrate different skills. Clause 86 as it stands already provides the powers that we need to ensure that there are appropriate standards for the full range of different types of boarding schools.

On Amendment No. 121, I can assure the noble Lord that the clause provides for all three types of persons listed in it to be included in the definition of social care workers. It is a drafting convention to indicate alternatives as "(a), (b), (c)" and not as "(a), or (b), or (c)". I hope that on those grounds the noble Lord will feel that that amendment is not necessary.

In conclusion, I very much take the points that all Members of the Committee who have taken part in the debate have raised. The standards required must fit the purpose of the particular establishment being inspected and registered. I hope that I have indicated that the Bill as drafted allows that to happen.

Lord Rix

I am grateful to the Minister for the comprehensive response which he has given all four of us who have moved amendments this evening. To a certain extent I am assured that at least his intentions are honourable and I hope that they will be fulfilled. However, it was such a comprehensive answer that I am sure he will understand if I consult with my noble friend Lord Northbourne, the noble Lord, Lord Astor of Hever, and the noble Lord, Lord Clement-Jones, when we have Hansard in front of us so that we may decide whether we wish to return to this matter on Report. With that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

Baroness David moved Amendment No. 29: Page 4. line 32, at end insert— ("( ) The Commission shall receive and consider information on all representations including complaints made in respect of the provision and quality of Part II services in England.").

The noble Baroness said: Amendment No. 29 is tabled in my name and that of the noble Lord, Lord Clement-Jones, but also in this group are Amendments Nos. 33, 64, 66, 72, 169 and 170A, in the names of other Members.

My particular amendment aims to give the national care standards commission a duty to monitor all official complaints relating to its remit. Section 26 of the Children Act 1989, with associated regulations and guidelines, set out a statutory procedure for responding to all representations, including complaints about Part III services. An essential element in that was the inclusion of an independent person in the local authority's consideration of all complaints received by the designated complaints officer. Independent advocacy was also an option, although it was not required. In addition, there was incomplete overlap with the procedure for adult services in the National Health Service and Community Care Act which required an independent element only for complaints which went on to the relevant review panel stage. Many local authorities have run the two procedures together and, for that and other reasons such as cost, have never fully implemented the statutory requirement to involve independent people, let alone independent advocates, in their procedure for children's services.

The guidance of subsequent Social Services Inspectorate reports rightly emphasised the desirability of dealing with as many complaints as possible informally, locally and quickly. That has been used as another reason for not implementing the procedure in full. The independent element is seen as a bureaucratic and time-consuming factor to be avoided even when complaints have not been successfully resolved informally and have been received by the complaints officer.

As SSI noted, in treating most or all complaints as informal, many authorities also fail to monitor them and thus to collect essential information on which to base the improvement of their services. Complainants, especially children, are often denied their statutory right to have an independent person involved in consideration of their complaint, as well as, arguably, even more valuable support from an independent advocate, which has not been a statutory right. The Utting report, People Like Us, recommended that that should be a right for children who are looked after, and that has been accepted by the Government.

The procedures have been applicable only to certain services and with some confusion: for example, how best to apply them in respect of children being looked after in private and voluntary settings. Some residential establishments believed that they had to devise their own procedures. As the Bill is currently drafted, there is a risk that some of those sources of confusion will persist. There would be an ideal opportunity in the Bill to ensure that a civil complaints procedure with an independent element based on that of the Children Act with the additional right to independent advocacy be required for all children needing or receiving children's services, especially those placed away from home. However, all complaints or their outcomes could be monitored centrally while the regional children's rights directors would have an important impact on the Government's ability to hear the views of the most vulnerable children and to improve services accordingly.

Having re-read the Second Reading debate at the weekend, I believe that the Minister is quite responsive to some of those requests. Therefore, I hope that he will be pleased to support the amendment and to accept it when he comes to reply to this group. I beg to move.

Lord Clement-Jones

I rise to support the noble Baroness, Lady David. In speaking to Amendment No. 29, I shall speak also to Amendments Nos. 33, 64, 66, 72, 169 and 170A. All the amendments spring from a feeling that Clause 20(3)(j) is inadequate in the way that it provides for complaints to be dealt with in the independent sector, whether that applies to social care or healthcare. Certainly, the noble Baroness. Lady David, made a very strong case for complaints to be dealt with in the way that she described.

However, the amendments provide a somewhat à la carte possibility to the Minister and his advisers. There are several different ways of dealing with that issue. Some would say that what is needed is a consistent form of complaints system which is independent and with clearly defined standards across the board for the independent sector. There are those who would say that the way to achieve that is to bring in the health ombudsman—the Health Service Commissioner set up and codified in the 1993 Act. The amendments, in their various ways, attempt to provide different ways of doing that. Indeed, the possibility of establishing a public complaints director in Schedule 1 is another way of achieving some of the same aims.

In discussing in some detail the terms of Clause 20(3)(j), it is important that there is a uniform, robust complaints procedure which is acceptable to the commission. Surely that should be one of the requirements for registration of independent healthcare establishments. However, there is no current uniform complaints procedure within the independent healthcare sector. I am told that the BMA has been working on drawing up proposals for such a procedure. As part of its initiative, quite recently—in October—it held a major conference with the medical royal colleges. That involved a wide range of interested parties. The need for a coherent complaints procedure in private healthcare was discussed. Indeed, the BMA continues to have discussions with the various parties in an attempt to generate consensus about a uniform complaints procedure which would give patients a clear avenue for redress.

Amendment No. 33 attempts to deal with the matter by charging the commission with being proactive in dealing with complaints from the independent healthcare sector. If it is satisfied that a complaint has not been dealt with properly, it refers the matter to the Health Service Commissioner. I wonder what role the Minister believes that the commission should play in assisting interested parties to develop a complaints procedure. I wonder whether he believes that there is a role for the health ombudsman in that process. Also, it is not clear in Clause 20(3)(j) quite what services can form a subject of complaint. Amendment No. 64 is designed to include the word "clinical" so that that is made rather clearer.

Another issue is that that complaints system should be compatible with that of the NHS. That has been raised with us by the NHS Confederation. The NHS commissions services from the private sector on behalf of its patients, often in instances where the NHS does not provide a service or where it cannot provide treatment immediately. In those circumstances, there must be a mechanism to lodge a complaint, and a complaints procedure must be able to cope with situations where a patient is passed from the NHS to private care. The information which the independent complaints commission collects about complaints must be in a common format to the NHS information. Indeed, the information collected by any complaints system, whether independent or not, must be in a common format to the NHS information in order to allow those complaints to be dealt with in an adequate fashion.

Amendment No. 72 is rather simple in its design. It brings in the ability of a complainant to be able to come to the health service ombudsman directly, whether he has been treated in the NHS or in the independent healthcare system. We believe that the remit of the health service ombudsman should be extended to cover the private sector. That means that patients who are not satisfied with the outcome of their in-house complaints procedure would have access as NHS patients to an independent review of their complaint, which is, after all, the object of the exercise.

The final amendment with which I wish to deal is to Schedule 1. This involves the appointment of a public complaints director working within the commission who would be able to discharge the functions of the commission in taking an overview of complaints made by those who have been treated in the private healthcare sector.

Some organisations which have briefed us on these Benches believe that cosy relationships may sometimes exist between inspectors and care homes which prevent complaints being investigated properly. This is encouraged by a situation where the same inspector is expected to foster a good working relationship with a home—to work on promoting good practice—and also to investigate misconduct and abuse. For that reason, it is intended to separate out dealing with complaints by creating a public complaints director. We believe that complaints should be dealt with separately from other functions and by different inspectors.

That is rather a compendium of different possibilities. I do not think we are wedded to any particular amendment on these Benches, but we believe that the Government should have an open mind about improving the system currently laid out in the Bill. We believe it to be wholly inadequate to deal with complaints in a proper fashion.

Earl Howe

I support these amendments, two of which, Amendments Nos. 33 and 64, are in my name. I should like to focus my remarks on complaints in the context of private hospitals.

The key point is that it is not enough for each independent hospital to have its own formal complaints procedure although I do not in any way belittle its importance. The complaints procedure should be a standard, recognised and trusted system which applies across this sector as a whole. It is essential that we understand how proactive the commission will be in bringing this system into being and what role it will play as adjudicator.

If, in a particular case, someone wanted to complain about the way the complaints procedure operated in a hospital, that requirement comes into sharp focus in the context of the NHS's use of the private sector, as the noble Lord, Lord Clement-Jones, rightly emphasised.

What happens when an NHS patient moves to a private hospital as an NHS patient and something goes wrong? The system in the private sector needs to be fully compatible with that of the NHS. For the private hospital just to conduct its own internal investigation is clearly not enough in such circumstances.

I was encouraged to see a recent press release in which the noble Lord's colleague in the Department of Health, Gisela Stuart, said: Under the new arrangements all private hospitals must have proper complaints procedures in place. They must make it clear to patients what to do if something goes wrong. And we will introduce arrangements for independent investigations where patients are not satisfied with how their complaint was handled. I hope that the Minister can give us some reassurance along those lines and put flesh on those bones.

Baroness Masham of Ilton

Perhaps I may ask the mover of the amendments, and perhaps the Minister also, whether a time limit for complaining will be written in. I have always felt in all complaints there should be safeguards so that complainants are not persecuted in any way. Many people do not complain because they are frightened that they will not get a service afterwards.

Lord Clement-Jones

Perhaps I may reply on behalf of some noble Lords who have tabled these amendments. We believe very strongly in independent complaints systems because we believe that they encourage people to come forward which may not happen in the cosy relationships which I described earlier. We believe people would not have confidence in those adjudicating on their complaints. The commission has a strong duty to ensure the complaints system is adequate. That is why we wish to see incorporated into the Bill a fully independent system and, if possible, the inclusion of the Health Service Ombudsman.

Lord Hylton

On this group of amendments dealing with complaints, it is possible that England and Wales may be able to learn something from experience in Northern Ireland. In that region, there are statutory establishments known as training schools which take a variety of young people who are at risk and who sometimes have offended. In recent years, there has been organised an independent advocacy service which enables aggrieved individuals to articulate their grievances and complaints in a much better way.

The result is that some frivolous and invalid complaints can be eliminated at an early stage and the more valid ones can be heard and dealt with more effectively. I happen to know about that as president of a voluntary organisation called NIACRO which has had responsibility for the recruitment and training of those independent advocacy persons. That is perhaps particularly relevant to establishments which are taking young people or others who may be, for one reason or another, relatively inarticulate.

9.15 p.m.

Lord Laming

Anybody that takes on the responsibility for licensing any activity and determining that certain people are fit to manage those activities must have not only a strong complaints procedure but also a complaints procedure which has within it an independent element which can reassure users, carers and, indeed, the rest of us that complaints will be taken seriously.

Complaints can be mischievous. That is one of the reasons why procedures need to be in place. But very often they are also an early indication that something is going wrong in a particular establishment or centre; that there is something not right in the way in which the activities are being managed.

It is extremely important that when complaints are made, they are seen to be taken seriously. For that reason, I hope that the Minister will consider carefully the thrust of the amendments. Earlier, we talked about the commission's responsibility to promote the wellbeing of users of services. The other side of the coin is that the commission should take seriously any concerns which anyone has about the quality of service which is delivered.

Lord Hunt of Kings Heath

This has been an important debate, I very much agree with the sentiments expressed by the noble Lord, Lord Laming, when he talked about the absolutely essential need for complaints to be taken seriously and when he referred to the indications that complaints give in relation to the adequacy or otherwise of the services which are under consideration.

I want to make it clear to noble Lords that we are determined to ensure that proper arrangements are put in place for the effective handling of complaints. It will be a condition of registration that those running regulated establishments have complaints systems and publicise them. Furthermore, for the first time, we are determined to introduce an independent element to investigate cases where the complainant is not happy with the way in which his complaint about private healthcare has been handled locally.

This group of amendments concerns matters relating to complaints generally and the specific issues relating to the investigation of complaints against registered healthcare providers.

Perhaps I may deal first with the general points. I fully agree with my noble friend's view, expressed through Amendments Nos. 29 and 66, that the commission should have an active role in pursuing complaints about regulated services. That is a function which is exercised currently by local authority and health authority inspectors. Investigation of complaints about breaches of standards and regulations often provides a source of information about the overall fitness of an establishment which does not surface during inspections. Sadly, we know that a few unscrupulous individuals have been adept at concealing abusive behaviour.

Therefore, we intend that the new commission's role in complaints should be firmly related to its regulatory functions in a variety of ways. First, each registered service will have to meet standards with regard to its internal complaints procedure. Those will be monitored during inspections, and service users will be asked about their level of satisfaction in relation to the handling of complaints.

Secondly, if a complainant has a concern which he is not confident to make to the operator of a service, the commission will accept complaints directly.

Thirdly, all the standards will contain a section on the whistle-blowing procedures which each service should have. I hope that that answers one of the points made by the noble Baroness, Lady Masham. That is included in Fit for the Future?, the current consultation document.

On the matter of an independent review panel, it is important to emphasise both the independence of the registration authority, which represents a change from the current situation, and its wide powers of investigation. As my noble friend Lady David suggested, under the current arrangements the health and local authorities responsible for registration of services may also be providers, so their independence could, under certain circumstances, be brought into question, as I know has been the case on occasion. One of the key features of the new arrangements is the full independence of the regulatory body.

In addition, the regulatory authority will have wide powers to investigate any alleged breaches of regulations or standards. Indeed, alleged breaches of that nature will be at the heart of the vast majority of disputes between service user and service provider. Therefore, any service users involved in such a dispute who consider that their complaint has not been dealt with properly can be assured of an independent investigation by the regulatory authority, which may result in enforcement action being taken.

A further level of independence arises should any enforcement action be taken to remedy deficiencies in a service; for example, through prosecution, the imposition of certain conditions, or even cancellation proceedings. In each case, either a court or a tribunal will review independently the evidence and the outcomes.

I hope that I have convinced noble Lords that the concept of an independent review panel is not necessary to the functioning of the commission which, in fact, has powers which may prove more effective in securing any improvements in services which may be necessary. Reputable providers, of course, will have nothing to fear from any of these measures. However, the disreputable ones will be dealt with vigorously.

I now turn to matters relating specifically to healthcare services. I fully share the concerns of noble Lords as expressed in Amendment No. 64 that clinical complaints need to be investigated. I am pleased to be able to reassure noble Lords that the drafting of Clause 20(3)(j) refers to all services, including clinical services.

In regard to Amendments Nos. 33 and 72, I also share the concern of noble Lords about the way in which complaints about private healthcare are dealt with at present. We are committed to introducing proper complaints arrangements for independent healthcare in which service users will have confidence.

First, it will be a requirement of registration for all hospitals and clinics to have in place a local complaints procedure which can address all complaints, both clinical and non-clinical. That will need to be well publicised to users of the service and we expect there to be a clearly identified person in each private hospital responsible for handling complaints. We hope that the majority of complaints can be effectively dealt with at that level.

However, we recognise that some complainants will be dissatisfied with the way in which their complaint has been dealt with locally and, for the first time, we are committed to introducing an independent complaints investigatory mechanism. We believe that it is wholly unsatisfactory that such arrangements are not in place now. Therefore, on the principle of the issue, I do not believe that there is anything between us.

On the mechanism for achieving that, I believe that there is room for debate. Certainly the Health Service Commissioner does an excellent job, but his post was established to investigate complaints in the NHS, not the private sector. I am not convinced that it is necessarily right to add those responsibilities to his office. However, currently we are considering how best to deliver what we all want. Our intention is to introduce appropriate amendments, either here or in another place, before we have finished our consideration of the Bill.

To the noble Earl, Lord Howe, I say that it is my understanding that if NHS patients receive care in a private hospital as a result of a contract arrangement between the NHS and a private sector operator, they are deemed to be NHS patients and in that respect the NHS complaints system operates.

I turn to Amendments Nos. 169 and 170A. I hope I made clear in my previous comments that dealing with complaints is integral to the functioning of the commission as it exercises its powers. For example, if a complaint about the furnishings or equipment in a registered home is made, and not handled to the satisfaction of the complainant, the commission's inspectors could investigate further. If they upheld the complaint and found that a breach of standards or regulations had occurred, they could require the proprietor to make improvements.

Action would need to be taken on a day-to-day basis and not be referred to a person such as that envisaged in Amendments Nos. 169 and 170A. I suggest that identifying a separate director for complaints is an issue that is best left to the chief executive of the commission to determine as an operational matter. Of course, he or she will want to set clear performance objectives for inspectors and other staff and have a monitoring system in place to ensure that the whole issue of complaints is dealt with satisfactorily.

I hope that I have indicated to the Committee that we take the issue of complaints seriously. The commission has a vital role to play in that regard. It will provide the independent element necessary and, as a result, members of the public can feel confident that, in using the services encompassed within the Bill, a proper complaints system will be in place.

Lord Clement-Jones

Before the noble Baroness, Lady David, responds, perhaps I can make a few points. That was one of the most helpful responses the Minister has made this evening. A number of green shoots were lurking in his remarks which may grow into something larger as the Bill progresses through the House. In particular, what we need, even as regards matters in the Bill, is a little more teasing out of the chapter and verse. For instance, the Minister says it is a condition of registration that specific establishments must have a complaints system. Indeed, he went on to say that the requirement would be to provide an independent element to investigate complaints. On the face of it, the Bill makes no provision for that. However, that is a helpful indication of the way in which the Government's mind is working.

It was extremely helpful for the Minister to say that the commission should have an active role in pursuing complaints and that it will accept complaints and have wide powers. But again, that is not obvious from reading the Bill. In order to accept his view—I take it in good faith—that an independent review panel and public complaints directors are not needed as part of the commission, it is important that he provide us with further information as to the regulations proposed and as to how the Bill might be amplified in that respect. I appreciate his statement that alleged breaches of standards will be investigated by the commission and also that, within his definition, "services" is wide enough to encompass clinical services.

I was interested to hear the Minister talk of complaints in the independent healthcare system and the fact that there needs to be a clearly identified person in that regard. But, further, he said that the Government are committed to introducing an independent complaints mechanism and that there is no difference in principle between us. As I explained from these Benches. in a sense we were presenting some à la carte possibilities; the mechanisms are myriad, it is the principle that matters. The Minister's statement that he was considering how best to deliver that independent complaints system for private healthcare was a strong indicator.

I hope that the Minister will bring forward his proposals for amending the Bill at the Report stage here. Otherwise, we will engage in fruitless discussions, coming up with a further set of amendments, none of which will probably satisfy the Government. It would be much more satisfactory if the Government came back at Report stage with their amendments.

Baroness David

This has been an extremely useful and rewarding debate. It is clear from the number of amendments put down that the complaints procedure is not satisfactory as it stands in the Bill. I was relieved when the Minister said that he would come forward with amendments. As the noble Lord, Lord Clement-Jones, said, I hope that we shall have them at Report stage and that the Minister will reassure us about that. It would save a great deal of time, and avoid our putting down more amendments at the next stage, if he produces them, as I hope he will.

It is clear that the provision in the Bill is not satisfactory. We need the independent element which I stressed in my amendment, as did many other Members of the Committee. If we could have the assurance that we shall receive the amendments at Report stage, I should be happy to withdraw my amendment.

Lord Hunt of Kings Heath

I said that we would hope to introduce amendments either here or in another place. The matters are important and deserve careful consideration but while I should like to give the undertaking for which my noble friend asks, I am not in that position. It is our intention, before the Bill has completed its passage through Parliament, that amendments be brought forward.

Baroness David

I have to accept that, but if the Minister could put pressure on his department, it must be possible to produce something in another fortnight and I hope he will try to use his charm and pressure to bring amendments forward. However, I must now withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

9.30 p.m.

Lord Clement-Jones moved Amendment No. 31: Page 5, line 6, leave cut from ("than") to end of line 8 and insert ("the "excepted services" as defined by subsection (8) below. (8) The "excepted services" means the provision of—

  1. (a) medical or psychiatric treatment, or
  2. (b) listed services (as defined in section 2).
(9) The Commission shall have the general duty of securing improvements in the quality of excepted services in independent hospitals (as defined in section 2) and shall carry out this duty through the contracting of inspections with the Commission for Health Improvement ("CHI") established by the Health Act 1999. (10) For the purposes of subsection (9) above the Commission shall ensure that the relevant independent hospital pays the full economic costs of any inspection. (11) The standards applied by CHI on any such inspection shall be those which it applies in any comparable inspection of a health service hospital.").

The noble Lord said: We were talking earlier in the debate about standards being consistent and seamless across the NHS and the independent healthcare sector. That is precisely what the amendment seeks to do. We on these Benches could have been more radical and the noble Lord, Lord Laming, has perhaps been the most radical among us, in trying to abolish Clause 2 in its current form. I have a huge amount of sympathy with that approach. I believe that independent healthcare has been bolted onto the Bill in an inappropriate and last-minute fashion.

However, I have been thinking carefully about the way in which the Government put their case for a separate regulator and subsequently mentioned, as the Minister did today, the difference between regulation of the independent sector and management of the NHS. I have no doubt that we will repeat that mantra for the remainder of the Bill as it goes through the House.

It struck me that the best way of dealing with the matter is simply to say, "Let's not worry too much about the registration mechanisms, let's have a separate registration mechanism for the independent healthcare sector. It would be entirely appropriate and deals with the issue of regulation. But when it comes to standards, let's try to ensure that across the board the same standards are applied on inspections in the independent healthcare sector as in the NHS." That seems to me the common-sense formula.

If you asked ordinary people in the street whether they thought there should be separate and different standards in private healthcare from the NHS, they would be horrified. They would have thought it the Government's duty to ensure that standards were common right across the board. That is what the amendment aims to achieve. It proposes that the commission could contract, with the Commission for Health Improvement', set up under the Health Act 1999, to carry out its function of inspecting the independent healthcare sector. Consistent standards between the NHS and the independent healthcare sector could then be ensured. CHI would be in a position to use the expertise gained from inspecting NHS services and facilities and the same limited pool of expertise could be used for the independent healthcare sector. We propose that the relevant independent hospital pays the full economic cost of any such inspection. No one is suggesting that taxpayers should pay for CHI to inspect private healthcare. That was certainly a concern in the minds of Ministers when we tabled amendments to the then Health Bill last year.

This measure does not overturn the apple cart; it simply ensures—as I am sure the majority of Members of the Committee who have spoken in the debate today are intent on ensuring—that there is a common and consistent standard across both sectors. The BMA supports this measure and I know that there is considerable professional support for this set of amendments. It seems to be common sense that those people with expertise as regards review and inspection of NHS facilities should also take responsibility on a sub-contracted basis for carrying out that inspection in the private healthcare sector. I beg to move.

Earl Howe

I can be brief. I rise simply to endorse everything that the noble Lord, Lord Clement-Jones, has said. When we debated the then Health Bill on 17th June last year, the noble Baroness, Lady Hayman, said, in relation to the document entitled Regulating Private and Voluntary Healthcare, the consultation document does, however, acknowledge that a regulator might wish to contract with another body, such as the commission for health improvement … in order to help carry out … inspections. That is an issue on which we explicitly invite views".—[Official Report, 17/6/99; col. 459.] The view of these Benches is that an arrangement of that kind, a standing arrangement, would be a neat way of squaring the circle. It would be a neat way of creating at a stroke a means of delivering what we all want to see, which is consistency of clinical and care standards across the private and public sectors of healthcare, and consistency of enforcement. The Government's position on using the Commission for Health Improvement to regulate the private sector directly is well documented. I do not want to re-open that debate this evening. What we are talking about here is using the Commission for Health Improvement in a strictly limited role as a sub-contractor to the NCSC for a fee to inspect hospitals and monitor standards of care. Is the Minister now in a position to say what conclusions the Government have reached as regards this wider role for the Commission for Health Improvement?

Lord Laming

If Clause 2 is to remain, I hope that the Minister will see this as a lifeline that he can grasp and hold to himself. I support the measure.

Lord Hunt of Kings Heath

I fear that I am not yet desperately diving for that lifeline. Although the noble Earl, Lord Howe, does not want us to go back over old ground, I must say that the Government's position in relation to the Commission for Health Improvement rests very much in the first instance on the different set of arrangements which we believe to be made in relation to the regulation of private healthcare and the management of the National Health Service. It is fair to say—this was always intended—that the Commission for Health Improvement was set up expressly to improve quality in the National Health Service. It has a major task to carry out in doing that. I do not believe that it would be right for the commission to be diverted from that task by taking on the job of inspecting private sector healthcare.

The very purpose of setting up a national care standards commission is to do that, as well as to regulate and inspect social care. It will have independent inspection teams which will be drawn from those people who are well able to carry out the task. It will also be able to draw expertise from elsewhere, including from the Commission for Health Improvement, to help it in its work. I refer the Committee to Schedule 1 which I believe contains the ability for people to be seconded from agencies such as the Commission for Health Improvement to the care standards commission to help it in its work.

However, the amendment goes further. It would require the Commission for Health Improvement to use the same standards in its inspections of the private sector as it does in its inspections of the NHS. That ignores the fact that we shall be setting out clear standards for the private sector which the commission's inspectors will be charged with enforcing.

It would be wrong to create a rigid requirement on the national care standards commission to have to subcontract all its inspection work to the Commission for Health Improvement and to require exactly the same set of standards in this sector as in the NHS. I accept that inevitably in the development of national minimum standards the commission is bound to be informed by the work of NICE, CHI, national service frameworks and other service developments within the National Health Service, but, at the end of the day, it must be down to the commission itself to develop those standards and to have its own inspection arm in order to ensure that those standards are being kept to.

Lord Clement-Jones

I am disappointed by the Minister's reply, although it was not unexpected. The Minister has recited the mantra of regulation and management once again. He said that CHI would be diverted if it were to carry out these inspections on contract from the commission. However, he said that the commission will have its own independent inspection teams which might have secondees from CHI. It seems to me that if one is going to have secondees from CHI, why on earth not simply—

Lord Hunt of Kings Heath

The ability to second some members of staff from CHI to the commission is on a different scale to what is proposed in the amendment. That would involve the Commission for Health Improvement in a major exercise of work at a time when we wish it to focus on its very important responsibilities in relation to the National Health Service.

Lord Clement-Jones

Of course it has very important responsibilities in relation to the National Health Service. But it is a body whose expertise is being built up; it will be an extremely valuable inspection force. It seems to us on these Benches that with a little bit of additional resource it could do extremely well in regulating the independent healthcare sector as well. If one is going to second from CHI into the commission, why not simply sub-contract to CHI rather than have all this business of secondment? That of itself recognises that CHI is a receptacle for expertise.

Lord Hunt of Kings Heath: I come back to the point I raised

it is a very different issue. It seems absolutely sensible and a matter of common sense for an organisation such as the Commission for Health Improvement to be able to second staff from time to time to the commission—and, indeed, vice versa. But the noble Lord's amendment describes a relationship much more fundamental than that in which the sub-contracting of inspections is mandatorily passed over to the Commission for Health Improvement. That is very different.

Lord Clement-Jones

Before finally replying, perhaps I may ask the Minister whether or not he would accept an amendment that said the commission "may" sub-contract to CHI?

Lord Hunt of Kings Heath

No. As I said, the Bill already allows for the secondment of staff. I should have thought that that would have met the noble Lord's position.

9.45 p.m.

Earl Howe

In that case, why did the Government's consultation document specifically invite views on the possibility of the regulator contracting—as I quoted—with another body such as the Commission for Health Improvement? If they were not serious about that proposal, why did they invite views on it?

Lord Hunt of Kings Heath

We are an inclusive Government who wish to listen to what people have to say in this area as in other areas.

Lord Clement-Jones

I apologise for once again interrupting the Minister. Perhaps I may ask him how many representations he has received against the notion of sub-contracting to CHI.

Lord Hunt of Kings Heath

The noble Lord has floored me on that because I do not have the results of the consultation to hand. However, I would again draw the distinction between the ability of the commission to employ various mechanisms to enable it to do its job effectively, including the secondment of staff, and the very heavy-handed approach which the noble Lord has taken in this amendment. It would take away all discretion from the commission.

Lord Clement-Jones

I thank the Minister for that further reply. I would have thought that, rather than being heavy-handed, this amendment is an elegant one. However, there is no accounting for taste in these matters.

I understand the Minister's objections and I appreciate why ha has become so animated when responding to the issues raised here. However, he mentioned that, if inspections by CHI were made as a matter of course, then the amendment would require the same standards. Yes, the amendment does require the same standards. That is precisely why it is the second half of the Minister's reply that worries me greatly. It appears that, by saying that the Minister will issue standards under Clause 21 and so forth, the possibility exists of having two separate sets of standards, one for the independent healthcare sector and one for the NHS. That is exactly what this amendment seeks to avoid. Simply to say that the commission is bound to be informed by the experiences of NICE and CHI is not sufficient.

However, I appreciate that we have different perspectives on the matter, although I believe that after our discussions today, the Minister's view is in a minority in this Committee. Inevitably we shall have to return to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Lord Hunt of Kings Heath moved Amendment No. 32: After Clause 7, insert the following new clause—


(" )—(1) The Assembly may charge a reasonable fee determined by it in connection with the exercise of any power conferred on it by or under this Act.

(2) The Assembly may provide training for the purpose of assisting persons to attain standards set out in any statements published by it under section 21.").

The noble Lord said: We now move on to more serious matters; namely, the question of fees. In moving this amendment I propose to speak also to Amendments Nos. 171 and 172. I should like to speak to the later amendments first because these relate to the national care standards commission. I shall then deal with Amendment No. 32, which provides similar powers for the Welsh Assembly.

Amendment No. 171 is very straightforward. It will allow the national care standards commission to run conferences, seminars and other training events for people who are registered with it—and indeed for anyone else who is interested in attending. The purpose of such events will be to improve the quality of services by helping people to meet the national minimum standards published by the Secretary of State under Clause 21. This is a sensible amendment and forms an important part of the commission's role in trying to ensure that good standards are reached.

Amendment No. 172 deals with fees. In general, the intention is that the running costs of the commission will be met from the fees paid by the regulated services. Fees will be set by the Secretary of State and will consist of a registration fee and an annual fee. These fees will cover the reasonable costs of regulation. However, there are some activities that the commission will carry out which it would not be fair to expect all regulated services to pay for. This amendment allows the commission to charge fees for these additional "non-regulatory" activities.

For example, the commission will be able to give advice and help to applicants, if requested, before they submit their application for registration. In practice, this type of advice can involve several hours' work and include meetings, site visits and so on. The amendment allows the commission to set its own charges to recover the costs involved. It also allows the commission to charge for any training events it puts on. In both cases, the fees must be reasonable and should cover only the costs involved. It may be helpful to draw attention to paragraph 4 of Schedule 1 in this respect. The paragraph places a general duty on the commission to carry out its functions effectively, efficiently and economically. Finally, the amendment prevents the commission charging any fees other than those set out in the Act, without the approval of the Secretary of State.

I turn now to Amendment No. 32. This amendment has the effect of allowing the National Assembly to have the same powers for Wales as are proposed for the national commission in England in relation to providing training and charging fees. The only difference is that the assembly will not of course require the consent of the Secretary of State for any fees it wishes to charge. The provision appears as a new clause as Schedule 1 does not apply to the registration authority in Wales. I beg to move.

Earl Howe

I have a question about fees. How will the funding streams for the social care and the independent healthcare sectors operate? Will money received from each sector be ring-fenced so that there is no cross-subsidy between the social care sector and the independent healthcare sector?

Lord Hunt of Kings Heath

It is a little early for me to be able to answer the noble Earl concerning the financial arrangements when the commission is up and running. As I said, the intention overall is for the commission to be funded through fees from the establishments to be regulated. The fee structures will necessarily have to relate to the costs of the regulation of those establishments, as is the case at the moment. But to talk about ring-fencing may be too rigid an approach to budget setting within the commission, although there will no doubt need to be some consideration of fairness in relation to the resources coming to the commission and the actual service provided.

Lord Jenkin of Roding

I am a little unhappy about this proposal. Many establishments fear that they will be saddled with very considerable costs by way of fees for their own regulation. I have been looking through the Bill and through the Explanatory Notes, and as I can find no indication of what the likely cost of the commission will be, I have therefore been unable to form a view of what the level of fees will be. Where Bills provide that the costs will be met by the Secretary of State, there is a financial memorandum which tells us the additional cost to public funds of implementing the legislation. I may have missed it in what is a quite long volume of Explanatory Notes, but I am beginning to wonder whether we are being asked to buy a pig in a poke.

We are being asked to pass amendments that will allow the commission to charge fees. The Minister told the Committee that the general intention is that fees will cover the cost of the regulatory activities, yet none of us seems to have the slightest idea of what those will be. I do not expect the Minister to produce the information today, but I really do think that we should have some kind of financial information before we reach the next stage; otherwise it will be difficult to advise some of the organisations that are to be regulated as to what they will face. Perhaps it would not be unreasonable to ask the Government to produce some figures on what all of this will cost. It would be helpful if we could have those figures by Report stage.

Lord Hunt of Kings Heath

I shall do what I can to provide information to noble Lords in relation to the issue of financing the commission. It has been government policy since the Registered Homes Act 1984 that providers should meet the reasonable costs of regulation. The White Paper, Modernising Social Services, stated the intention that the new regulatory system would be self-financing.

As I said earlier, much detailed work has to be undertaken before one can come up with a new fee structure. A full study of the regulatory impact will be carried out, with providers being given an opportunity to give their views and to prepare for paying fees, particularly in those areas where they have not previously paid fees.

It is important, as I said in reply to the noble Earl, Lord Howe, to have a fair system which reflects the cost of regulating different services. It seems to me that it would be unreasonable, for instance, for small providers to pay the same fee as large providers. There are examples in the current fee structure which will need to be examined carefully, but I shall be happy to see what other information I can obtain and to write to noble Lords.

Earl Howe

Before we finish this group of amendments, perhaps I may ask the Minister a further question. It is prompted by the pertinent observations of my noble friend Lord Jenkin and relates in particular to Wales. What mechanisms will be put in place to prevent the Welsh Assembly from, as it were, using this provision to create an additional income stream and charging fees that do not relate in any meaningful sense to the cost of inspections? What is "reasonable" in this context? It would be helpful if the Minister could give an idea of the Government's thinking, as well as an indication of what mechanisms might be put in place to prevent the Welsh Assembly—this is not to impute any bad motives to its Members— from perhaps regarding this as a useful income stream.

Baroness Masham of Ilton

As Wales has been mentioned, perhaps I may ask about Scotland and Northern Ireland.

Lord Hunt of Kings Heath

The Bill does not relate to Scotland and Northern Ireland, although a later amendment tabled by the noble Lord, Lord Laming, addresses issues relating to the need for co-operation and the sharing of information between the four countries of the United Kingdom.

The noble Earl, Lord Howe, raised a question about Wales. It stretches the imagination to envisage the Welsh Assembly using this as a huge income generation pool in order to raise resources for other services. I have no doubt that the Assembly will wish to take full regard of the general principles under which fees have been charged in the past. As in England, there will undoubtedly be full consultation between the Assembly and organisations in Wales, with full debates in the Welsh Assembly—although I am treading on rather dangerous ground in commenting on the activities of the Welsh Assembly. I believe that, overall, a sensible approach will be taken, and the general principle that providers should meet the reasonable costs of regulation will be followed, both in England and Wales.

On Question, amendment agreed to.

[Amendment No. 33 not moved.]

10 p.m.

Clause 8 [Inquiries with respect to the Commission]:

Lord Hunt of Kings Heath moved Amendment No. 34: Page 5, line 10, at end insert— ("(1A) The appropriate Minister may cause an inquiry to be held into any matter connected with a service provided in or by an establishment or agency.").

The noble Lord said: In moving Amendment No. 34, I speak also to Amendments Nos. 35 and 37. Clause 8 of the Bill enables the Secretary of State to set up an inquiry into the way in which the commission has exercised its functions if there are any concerns that it may not have exercised them properly. However, as currently drafted, this clause applies only to the commission and the exercise of its functions and not to the establishments and agencies that it regulates. The purpose of this amendment is to extend the clause in order to allow the Secretary of State to set up a statutory inquiry into any matter connected with a regulated service. For example, if a consultant surgeon working in a private hospital is found to have unusually high death rates among his patients, the Secretary of State will have power to set up an inquiry to investigate. Without these amendments, he would be unable to do so.

The intention is that the power will be used only very rarely. In the normal course of events, the commission will pick up any problems in the establishments and agencies that it regulates. This may happen during one of its routine visits or inspections, or the commission may be called in to investigate a particular complaint, concern or allegation about the establishment. If the commission discovers that standards are not being met or that regulations are being breached, it will use its powers to ensure that the matter is put right as quickly as possible. If it is not sorted out satisfactorily, the commission can take appropriate enforcement action. In the vast majority of cases, we expect that to be sufficient to sort out any problems. But we consider it essential that if the problem is extremely serious or it falls outside the regulatory functions of the commission, the Secretary of State should have the power to set up an inquiry to investigate it. The amendment also gives the Welsh Assembly the same power.

Amendment No. 35 is consequential upon the main amendment and allows the Secretary of State or the Welsh Assembly to direct that an inquiry under subsection (1A) shall be held in private. Amendment No. 37 is consequential on the main amendment and ensures that subsections (2) to (5) of Section 250 of the Local Government Act 1972 apply to any inquiry set up under Clause 8. I am sure that noble Lords recognise the importance of these amendments and I commend them to the Committee. I beg to move Amendment No. 34.

Baroness Masham of Ilion

Can the Minister say whether the process will be speeded up? If a consultant is suspended on full pay for years and years, as has happened, it is a waste of money and the health service is faced with great expense.

Lord Hunt of Kings Heath

We are all aware of the length and cost of some inquiries. I cannot tell the noble Baroness that I have a magic wand to wave to enable such inquiries to be speeded up. A number of factors come into play to explain why some inquiries take such a long time. I believe that these occasions will be few and far between. The essential point is that sometimes it is necessary for such an inquiry to be set up and we are particularly keen that the Bill should allow that to happen.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendment No. 35: Page 5, line 11, after ("State") insert (", or, as the case may he, the appropriate Minister.").

On Question, amendment agreed to.

Lord Laming moved Amendment No. 36: Page 5, line 14, at end insert— ("( ) The Secretary of State shall publish all reports made by the Commission as a result of an enquiry.").

The noble Lord said: I am sure that the Committee agrees that sometimes, for a variety of reasons, it is best for inquiries to take evidence in private. I believe that as a quid pro quo there should be a commitment on the face of the Bill that inquiry reports are published. The findings of inquiries should be public documents as a matter of good practice. This is related to freedom of information and the confidence of the public. I hope that the Minister is able to accept the amendment. I beg to move.

Lord Rix

I support my noble friend on this issue. Noble Lords may recall that the national development team for learning disability—mental handicap in those days—had to keep its reports secret. About 10 years ago, there was a tremendous row about that. The then Minister for Health, the right honourable Kenneth Clarke, accepted that such secrecy was totally inappropriate and the necessary arrangements were made. I think the same argument applies to this amendment.

Lord Hunt of Kings Heath

I thank the noble Lord, Lord Laming, for proposing Amendment No. 36, which would oblige the commission to publish the report of an inquiry. We would normally expect an inquiry's findings to be published. However, I am advised that there may be circumstances where it would be inappropriate for the detail of the findings to be publicised. The Bill already provides for inquiries to be held in private, for instance in cases involving sexual abuse of children. Although the report could protect the identity of those concerned by omitting their names, there may be other circumstances in which it would not be appropriate to publish the details of the inquiry. Therefore, I cannot accept the noble Lord's amendment in its terms which would require all inquiry reports to be published. However, I should be agreeable to discussing the issue further with the noble Lord to see whether we can find a way through.

Lord Laming

I am grateful to the Minister for that extremely helpful reply. I would not wish anything to be published which would be damaging to vulnerable people. If it is possible to find a form of words which achieve the objective of the amendment while protecting vulnerable people, I shall be very happy. With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath moved Amendment No. 37: Page 5, line 18, at end insert ("; and references in those provisions as so applied to a Minister shall be taken to include references to the Assembly").

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Requirement to register]

Earl Howe moved Amendment No. 38: Page 5, line 23, leave out ("of any description").

The noble Earl said: I realise that the purpose of the amendment is impossible to discern from its wording. It is designed purely as a device to enable me to ask the Government about their policy on the registration of domiciliary care agencies. The Explanatory Notes state that registration of domiciliary care agencies will not be required in the first instance, although it will be possible for an agency to apply to register voluntarily. However, any local authority or NHS body which carries on a domiciliary care agency will be required to register from the outset; and any outside domiciliary care agency with which it does business must be registered as well.

Why have the Government approached the matter in this way? The point of registration is that the public should be protected. It is the domiciliary care agencies which do not register about which we should be concerned. Those are the services which deal typically only with private users. If I, as a user, receive via an agency a service commissioned by a local authority or my local NHS trust, I have the reassurance that the agency is above board, because it is registered, and that if anything goes wrong I can go straight to the local authority and get it to sort the matter out.

That is entirely as it should be. However, if I contract through an agency personally to arrange my own care, why should I not be able to rely on that agency equally? If it is registered, well and good, but it might not be. If it is not, I should not have the local authority or anyone else to turn to. I do not understand that, nor do I understand how paragraph 56 of the Explanatory Notes is reflected on the face of the Bill. Perhaps the Minister can enlighten me. I beg to move.

Lord Clement-Jones

I support the noble Earl. I must admit that I was one of the small minority who did not immediately understand the thrust of the amendment. I am sure that we shall debate the issue further when we reach Clause 30. In the meantime, I believe that the issue is opaque and it is difficult to understand why the Government have taken this approach to domiciliary care. Surely, there should be one common system across the board.

Baroness Masham of Ilion

This is a most important matter. If the Government lose the chance to round up the cowboys, they will not protect the many vulnerable people. I hope that the Minister, who understands such issues, will look at the problem and do something about it. We greatly want to improve the Bill and I fully support the noble Earl, Lord Howe.

Lord Hunt of Kings Heath

The first point to be made is that for the first time the Bill introduces a statutory regulation system for domiciliary care. Although it might not go as far as Members of the Committee would wish, one should acknowledge that it is a new development that has been widely welcomed. As has been suggested, the regulatory system will not in the first instance require compulsory registration for all domiciliary care agencies.

We believe that we are taking a sensible approach. The national care standards commission is embarking on a completely new area of regulation with untested definitions. There are potential difficulties in relation to who will be covered and who will not. With a compulsory registration scheme, it would be an offence not to be registered and the commission could be at risk of spending all its early days taking through difficult test cases on whether a particular agency should register or not. That would detract from its important task of inspecting and scrutinising services such as care homes which are already regulated.

It is our consideration that at such a crucial and challenging time in the commission's early life that would be a challenge too far. However, the important point to make is that the Bill does not prevent any domiciliary care agency from registering if it wishes. The Government believe that providers will see the merit of registration in terms of attracting business and assuring purchasers. In addition, any domiciliary care that is provided by or on behalf of a local authority or NHS body will be required to be with registered agencies. That should cover the majority of services in this sector.

As regards private individuals who wish to use a registered agency for their care needs, we will ensure that the commission provides appropriate information in readily available and accessible forms to help people to know where to find such an agency in their area. We would expect to include a telephone information service. Registered agencies will also use a recognisable kite mark and their registration status can be confirmed with the commission.

The Bill also allows for the Government to make the registration scheme fully compulsory at an appropriate stage. That might occur after the scheme has been in operation long enough to ensure that all the necessary experience has been gained to make that a possibility.

I hope that I have satisfied Members of the Committee in that respect. The legislation is a major new departure which I believe will be widely welcomed. However, it is important that we learn from experience before a compulsory scheme is introduced.

Baroness Masham of Ilton

Before the Minister sits down, care in the community has been going on for quite a long time now. There is nothing new about it. This will be a missed opportunity. The good agencies will register and the cowboys—people making a lot of money out of extremely vulnerable people—will not register.

Lord Hunt of Kings Heath

The noble Baroness is right to say that care in the community has been a policy of governments for many years. I was suggesting that the regulation of domiciliary care is a new and welcome departure. I was suggesting also that in such a new territory the approach we have adopted is the most sensible way to enable us to learn through experience in order to be able to have a fully comprehensive system.

Baroness Masham of Ilton

Too many people have already learned from very bad experiences.

10.15 p.m.

Earl Howe

I am grateful to the Minister and to all Members who have taken part in the debate. I understand that this is a new area of regulation; it is a welcome area of regulation and yes, we are dealing with untested definitions. The Minister said that if the commission was not careful it would be saddled with more work than it could cope with and that it might prove a challenge too far to sort out which agency had to be registered and which did not. The simple answer to that is to require all agencies to register. The fact is that some 85 per cent of all domiciliary care agencies deal in one way or another with local authorities or NHS trusts. The vast majority will have to register. If 85 per cent are registering, that leaves only a small number which will not be doing so.

I do not believe that it will make the difference between overload and the opposite of overload, whatever that is—"underload"—to require all agencies to register. The commission should be able to handle that. I hope that the Minister will reflect on the remarks made this evening because I feel I must return to the issue on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 39: Page 5, line 30, at end insert— ("( ) Any person who privately fosters a child under the age of 16 for a consecutive period of 28 days or more without being registered under this Part shall he guilty of an offence.").

The noble Baroness said: Amendments Nos. 39 and 41, tabled in my name and that of the noble Lord, Lord Clement-Jones, aim to secure that private foster care comes within the remit of the Bill. Children who are privately fostered surely deserve the same kind of protection as other children who live away from home. They are just as vulnerable and their numbers significantly exceed the numbers of children living in community homes. A large proportion of privately fostered children are from minority ethnic communities and a failure to safeguard such children could be construed as institutional racism.

The Children Act 1989 requires persons who intend to foster a child under the age of 16 privately for more than 28 days to notify their local authority. Local authorities are required to safeguard the welfare of privately fostered children, but they do not have to approve or register private foster carers. That is an anomaly. Local authorities have a duty to approve and register child minders and other day-care providers, yet children in such care return to their families each day while foster children do not. The current system is not working. Local authorities have not consistently advertised the duty of private foster carers to notify them.

A 1993 Social Services Inspectorate report concluded that, potentially vulnerable children were being placed in the care of strangers, without any checks being undertaken as to their suitability to care for children". Even if local authorities were being notified of all private fostering arrangements, their current responsibilities towards such children would still be lacking.

Sir William Utting, in his comprehensive review of safeguards for children living away from home, concluded that current legislation is not protecting children: Private fostering is clearly an area where children are not being safeguarded properly: indeed an unknown number are likely to be seriously at risk … all children living away from home should be safeguarded and those who are privately fostered should be no exception".

The amendments would require prospective private foster carers to register with the national care commission. They would undergo an assessment of their suitability to look after children, and the care they offer would be monitored periodically. The national commission would liaise with local authorities, notifying them of all children in their area who are privately fostered and sending them copies of their assessment reports. Those reports would highlight whether additional safeguards needed to be put in place for individual children. The children would not be looked after in care. This provision would still allow parents to make their own arrangements.

However, if passed, the amendments will ensure that all private foster carers are assessed in relation to their suitability to care for children and will set in place a system for local authorities to receive formal notification of any concern in relation to individual children. If the Government agree to the amendments, as I hope they will, various consequential amendments will be needed, for example, to Clauses 11, 12, 15, 17, 18 and 20. I have and can produce the consequential amendments. They are available for the Government if they agree to these amendments, which I sincerely hope that they will.

I cannot understand why this situation has been allowed to continue for as long as it has. I hope strongly that the Minister can agree to support the amendments. I beg to move.

Lord Clement-Jones

I rise briefly to support the noble Baroness, Lady David. I believe that she put the case extremely cogently for this clear gap in the Bill to be filled. It seems extraordinary. The Government have been quite vigorous in pursuing many of the recommendations of Sir William Utting. However, the quotation that the noble Baroness, Lady David, gave us from his original report about private fostering makes an extremely strong case for including private foster carers within the terms of the Bill. They should be registered. They should be subject to the national care commission. I very much hope that the Government will listen to the noble Baroness's wise words.

Lord Laming

Perhaps I too may encourage the Government to listen to the noble Baroness, Lady David, and, indeed, to the noble Lord, Lord Clement-Jones. At this hour of the evening I shall not detain your Lordships longer. The fact is that this matter has been a source of concern for a number of years, as the noble Baroness has already made plain. I hope that the Government will take this as an opportunity to address other concerns.

Earl Howe

In the interests of brevity, I shall say simply that I identify myself wholly with the remarks of the noble Baroness, Lady David. I am most supportive of what she said and I hope that the Minister will take due note.

Lord Hunt of Kings Heath

My noble friend is right that we have not planned for the national care standards commission to be responsible for dealing with private foster carers. I certainly appreciate the intention behind the amendments, which is to ensure careful safeguards for children who are fostered in this country by private arrangement between their families and the carer. However, the Government do not consider that there is a need to extend further the wide range of offences associated with private fostering. As we said in response to the Children's Safeguards Review, we consider that the current regulations concerning private fostering are adequate as long as they are enforced.

I believe that concentration and focus should be placed on the terms of enforcement. We are concerned that the regulation of private fostering is little known. Therefore, we are planning a publicity campaign to promote awareness of the regulations and particularly of the need to notify private fostering arrangements to local authorities. The campaign will be targeted to affect the most vulnerable groups of children.

We plan also to work with relevant interests to develop a voluntary code of practice for foreign language schools, which often arrange accommodation in family homes for their pupils. Therefore, we intend to take those measures to ensure that the existing system is properly in force. However, we do not believe that the registration of foster carers is necessary or desirable.

Baroness David

I am extremely disappointed with that answer. The Minister said that there are safeguards as long as they are enforced. I believe that it is quite clear that they are not being enforced. I shall not press the amendment to a Division tonight. However, I feel strongly about the matter and I shall certainly bring it forward at Report stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 [Applications for registration]:

Lord Rix moved Amendment 40: Page 6, line 14, at end insert— ("( ) Notification of applications for registration shall be published in such form as shall be prescribed by regulations.").

The noble Lord said: Amendment No. 40 is grouped with Amendment Nos. 42, 43, 44 and 107, to which other noble Lords will speak. As registration is to be, in effect, some guarantee of respectability, service providers will have to be registered to be used by their local authority. The decision to be registered should be soundly based. We have a tradition in this country of giving interested parties the opportunity to comment, thereby to improve the decision-making process. Marriage banns immediately spring to mind. When the use of a building changes, change of use regulations require this to be advertised. When an extension is added to a house requiring planning permission, proposals are posted with an opportunity for comment.

The registration authority can enlist the views of local individuals or voluntary bodies when a request to register a care business is published in the local newspaper. Occasionally, things have been known and doubts harboured but there was no opportunity to record these. That is unfair on the registration authority and even more unfair on the service user. I beg to move.

Earl Howe

I rise to speak to Amendments Nos. 42, 43, 44 and 107 tabled in my name. The matters they deal with are straightforward. Amendment No. 42 seeks clarification about the factors that the registration authority can take into account when considering an application for registration. If someone has previously had his registration cancelled for any of the reasons set out in Clause 12, what safeguards are there to prevent that person attempting to set up another establishment and starting again?

Amendment No. 43 picks up a section of paragraph 66 of the Explanatory Notes. I should be grateful if the Minister would confirm that no steps will be taken by the authority to cancel a registration—in normal circumstances—without every attempt being made, perhaps including prosecution, to ensure that an errant establishment or agency comes back into line. Am I right in thinking that cancellation of registration would be a last resort? How will the Government ensure that this is so?

I should like to express my support for Amendment No. 44. It should! he automatic for the registration authority to notify the relevant health authority if an establishment is about to close. The health authority has a direct interest in such information and this is not reflected in the Bill.

Finally, Amendment No. 107 to Clause 35 deals with the service of documents. A friend was recently sent an important letter by recorded delivery. It never arrived. Not only did it not arrive, but the Post Office confirmed that in paying for a recorded delivery service, one is not paying for the guaranteed delivery of the letter. I did not realise this. One pays for delivery to be recorded when and if it occurs. There is no redress against the Post Office for non-delivery. Therefore, I wonder whether it is appropriate to make specific provision in Clause 35 for notices and documents to be sent by recorded delivery. I should be grateful for the Minister's comments on that.

10.30 p.m.

Lord Clement-.Jones

I wish to speak briefly to Amendment No. 44 which the noble Earl, Lord Howe, has already touched upon. Quite simply, it seems rather strange in the circumstances that there is no discretion as to whether the local authority in whose area the establishment or agency is situated is notified by the commission in the event of cancellation of registration but there is a discretion as regards the health authority. Certainly, on these Benches, together with the NHS Confederation, we believe it is important that there should not be that discretion and that the words, if the registration authority thinks appropriate", should be deleted from this subsection of the Bill.

The closure of any establishment may have a significant effect on local service provision. For example, if a care home for the elderly is suddenly closed, many of the residents may, in the short term at least, be placed in hospital facilities. The NHS Confederation and Members on these Benches believe that it would be good practice for the registration authority to notify the health authority at the same time as it notifies the local authority.

Lord Laming

I, too, support Amendment No. 44. I regret that I did not think of this earlier because I should like to go a little further. It seems to me that it is extremely important that relatives are informed when such events take place. Very often relatives need to be involved in placing residents in alternative establishments. It would be terrible if homes were I o be closed and health authorities were not informed and they, in turn, did not inform the relatives. Therefore, I hope that the Government will feel able to strengthen that provision.

Lord Hunt of Kings Heath

I shall respond first to Amendment No. 40. We do not consider it appropriate to require the national care standards commission to publish the applications from all establishments and agencies seeking registration. Where applications, for example, to establish a care home require planning permission from the local authority, those applications are publicly available.

Amendment No. 42 requires the registering authority to take account of the ground for any prior refusals or cancellations of registrations when considering an application. It will clearly be vital that the registration authority takes account of any prior instances of refusals or cancellations of registrations when considering new applications. That will be part of routine operating practice. However, in our view, Clause 11 does not require amendment as proposed by the noble Lord to secure that that happens.

I fully agree with the intent behind Amendment No. 43 that the new commission should aim to ensure that registered services are kept in business through meeting required standards. Perhaps I may say in answer to the noble Earl that inspectors will be directed to use a system of formal written warnings giving proprietors of care homes and other registered services every opportunity to come up to scratch wherever possible and when life and limb are not at stake.

That system will be set out in directions to the commission under Clause 6(2) and is not needed on the face of the Bill. In the event that cancellation procedures are considered necessary by the registration authority, the tribunal will provide independent scrutiny of the steps taken to ensure compliance.

It is right to say that it is the responsibility of registered persons to maintain services at the required level, not that of the registration authority, although I take the points which the noble Earl raised.

I turn now to Amendment No. 44. Members of the Committee have pointed out an inconsistency in the way in which a local authority is treated compared with the treatment of a health authority. I always note the comments of the NHS Confederation and the view it puts forward. On reflection, I prefer to take away the amendment, think about it and perhaps return with an amendment on Report because I believe that a very valid point has been raised.

I confess that the noble Earl lost me when he talked about the differences between recorded delivery and registered delivery. My understanding was that the point that he raised had been met adequately as both registered post and recorded delivery require the signature of the recipient to prove delivery. That was certainly deemed to be sufficient under subsection (1) of Section 54 of the Registered Homes Act 1984. Although the noble Earl raised a particular case, I am not aware that that has caused problems in relation to the operation of the Registered Homes Act 1984. Perhaps he can enlighten me on that.

Earl Howe

I am afraid I cannot produce any examples of where the provisions of the Registered Homes Act have failed in that respect. I had understood that there was a crucial difference between recorded delivery and registered post. Registered post guarantees delivery, whereas recorded delivery does not. It is merely a service that involves the signature of the recipient being provided to the postman or postwoman to acknowledge the fact that the postman or postwoman has done his or her job. If necessary, the sender of the letter can thereby obtain confirmation that the letter has been delivered. There is no comeback and no redress against the Post Office and I do not believe that the system provides as much proof against error as registered post. However, I take note of what the Minister said.

Perhaps the Minister can amplify something else that he helpfully indicated in his earlier reply about the commission and the way in which it will seek to ensure that an establishment that has not fulfilled all the requirements that it ought to can be brought back into line. Clearly, some offences will warrant a harsher response from the commission than others which are relatively trivial. Perhaps it is too early for the Minister to say, although it would be interesting to know, what the commission's policy is likely to be and how proactive it can be in assisting establishments to put their houses in order, so to speak.

Lord Hunt of Kings Heath

That is a helpful intervention by the noble Earl. I am sure that he knows more about the postal services than I do. No doubt, we shall have other opportunities to discuss this crucial matter during the passage of the Bill through the House.

The noble Earl also raised a much more substantive point about the way in which the commission will conduct its business. Perhaps I can reiterate that in situations where the residents of a particular establishment are at risk because the standards in one way or another are so bad, clearly it is right that the commission should be enabled to take action forthwith. In terms of taking action leading to the cancellation of registration, the commission can ask a justice of the peace to issue an emergency order to cancel registration or vary or impose a condition of registration. If the situation has not reached that level of seriousness, the inspectors can be directed to use a system of formal written warnings. In that case, proprietors of care homes and other registered services are given opportunities to sort out the problems that have been so identified.

The word "proportionality" comes to mind in relation to how the commission will deal with those matters in the future. We will talk later about the amendments to Schedule 1, but the quality of leadership within the commission and the members appointed to the board will be crucial in setting within the regulatory framework and any directions given by the Secretary of State the right kind of judgments to enable us to have a tough regulatory regime but, equally, one which is fair to the establishments. There must be a sense of proportionality in dealing with problems ranging from minor ones which can be dealt with quickly to major ones which have to be dealt with through urgent action.

I hope that I answered the points to the noble Earl's satisfaction.

Earl Howe

I can see considerable gratitude from many in the care and nursing home arena for those replies. I am most grateful.

Lord Clement-Jones

And gratitude comes from many in this House for that reply. I thank the Minister also for his reply to Amendment No. 44. I shall take care to ensure that all my amendments are supported by the NHS Confederation in the future.

Lord Rix

My heart is not in this amendment; I am inclined to sympathise with the Government. Planning permission has been posted outside my house three times in the past seven years saying that I was going to make a large extension. My house is numbered eight; the permission was being sought for numbers 10, three and four. I am aware therefore that mistakes can take place.

Also, our local paper is of such a standard that it goes into the recycling bin immediately it comes through the door, along with a lot of other junk mail. I feel therefore that local papers are not perhaps the best medium for disseminating the fact that registration is taking place. There may be other methods and perhaps I can return to this later. However, at this time of night, and with my doubts, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Clause 10 agreed to.

Clause 11 [Grant or refusal of registration]:

[Amendment No. 42 not moved.]

Clause 11 agreed to.

Clause 12 [Cancellation of registration]:

[Amendment No. 43 not moved.]

Clauses 12 agreed to.

Clauses 13 to 17 agreed to.

Clause 18 [Urgent procedure for cancellation etc.]:

[Amendment No. 44 not moved.]

Clause 18 agreed to.

Clause 19 agreed to.

[Amendment No. 45 not moved.]

Lord Burlison

I beg to move that the House be now resumed.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.