§ 5.48 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)
My Lords, in moving that the House do now again resolve itself into Committee on this Bill. I should like to apologise to the House for something I said on Monday. The noble Lord, Lord Clement-Jones, moved Amendment No. 5 intended to ensure that private GP call-out services would be regulated under the Bill. In reply, I indicated that all wholly private GPs would be covered by the provisions in the Bill and that we would not be regulating only premises.
I am sorry that my comments were not wholly accurate. The Bill as currently drafted will regulate premises where private GPs provide treatment but not all private GP services. I apologise to the House for the error. I am grateful to the noble Lord, Lord Clement-Jones, for drawing attention to the issue and I recognise fully the concerns which prompted his amendment. We shall look carefully at the options for tackling those concerns, in particular whether we might seek to use this Bill for that purpose or whether there are other more appropriate approaches. I shall, of course, let the noble Lord know the outcome of our thinking. I beg to move.
§ Moved, That the House do now again resolve itself into Committee.—(Lord Hunt of Kings Heath.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.789
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne) in the Chair.]
§ Clause 20 [Regulation of establishments and agencies]:
Lord Clement-Jones moved Amendment No. 46:
Page 10, line 28, leave out ("may-) and insert (-shall").
§ The noble Lord said: Without being out of order, perhaps I may take the opportunity to thank the Minister for his response. He made it as soon as he was aware that his previous statement was incorrect. I look forward to hearing the result of the ruminations within the department.
§ In moving Amendment No. 46, I shall speak also to Amendments Nos. 55, 57, 61 and 62. I am getting too long in the tooth to trade wording with Ministers, particularly as regards "may" and "shall", and I should not like the Minister to believe that I do not accept that for many technical and historic reasons the vast bulk of duties on Ministers exist as "may" rather than "shall". However, in Committee it is important to try to elicit from Ministers the depth of their commitment, hence I propose the use of the word "shall". I give the Minister due warning that I shall not take the proposal through to Report stage.
§ It is important for the Minister to give an assurance. Those from the voluntary organisations who have briefed me are concerned that the wide discretion to make provision in regulations covering many important aspects of the regulation of private healthcare—for instance, complaints procedures—could dilute the effectiveness of the measure. They and we on these Benches want to see a firm commitment from the Government to make provision as regards the essential details of the regulations.
§ Amendment No. 55—and I see that Amendment No. 56, tabled by the noble Earl, Lord Howe, is similar—is designed to tease out more about the meaning of the word "welfare" because it is not clear. The proposal in Clause 20 provides regulation-making powers which will cover the management, staff, premises and conduct of establishments and agencies. Subsection (1) provides for regulations which will be key to the registration of establishments and agencies.
§ Subsections (1)(d) and (1)(e) provide powers to make regulations to ensure that, overall, children's homes, care homes, residential family centres and independent fostering agencies must secure the welfare of the people placed in or through them. The proposal to make establishments responsible for the welfare of persons is warmly supported by ourselves and by others who take a strong interest in the Bill. It is a welcome move from previous legislation, which merely concentrated on premises and facilities. However, we believe that the clause should be strengthened still further by defining the word "welfare". If it is not defined, it leaves open the possibility of the unscrupulous home owner responding in very narrow terms.
§ The incorporation in statute of the promotion of health, the prevention of ill health and the rehabilitation and recuperation of individuals in support of their daily activities places greater emphasis 790 on the quality of care and treatment and leaves little room for ambiguity. I urge the adoption of Amendment No. 55.
§ Finally, we on these Benches strongly support Amendments Nos. 58 and 59, tabled by the noble Earl, Lord Howe. I beg to move.
§ Earl Howe
I rise to speak to Amendments Nos. 49, 51, 52 and 63. I shall speak also to Amendment No. 56 which closely resembles Amendment No. 55. The Delegated Powers and Deregulation Committee of your Lordships' House has observed that the Bill, of its very nature, requires a substantial number of powers to be delegated to secondary legislation. I do not seek to argue with that judgment. It is a framework Bill and it is not appropriate to include everything in it. Ministers must have flexibility to amend regulation in the light of changing circumstances. However, we need to be certain that the scope of such delegated powers is appropriate.
One of the risks in a Bill of this kind, which is almost bursting at the seams with regulatory provisions, is that there is a temptation for a government to regulate just a little too much. That tendency seems to be manifest in Clause 20. I should like to hear from the Minister why, for example, he feels it appropriate to regulate the fitness of premises to be used as an agency as distinct from premises in which there are residents or patients—and I quite understand why they need to be regulated. We need to know why the number of people working in an agency is a matter for government.
The financial position of a business and the way in which it keeps its accounts are of considerable importance for its viability and for all who depend on it. However, are they matters for government to pronounce upon and to regulate? In any case, how are inspectors supposed to make a judgment on what the financial position of an establishment or agency is? Will they be qualified in finance and accounting? I doubt it. I doubt, too, that an inspector even when presented with, say, a business plan and a detailed cash-flow forecast, could be sure that they made sense. Still less could he be sure that a bank manager would continue to place his confidence in the management of a particular business.
I am prepared to accept that clear and accurate record keeping is important for the proper operation of any of the establishments covered by the Bill, but is it necessary to include Clause 20(3)(c) when subsection (1)(f) provides for the management and control of the operations of an agency? If it is, I should like to know why.
In considering Clause 20, the Committee needs to bear one general point in mind. The raison d'être of the Bill, as the Government have repeatedly emphasised, is to minimise the scope for abuse or poor treatment of vulnerable people and generally to raise standards of care. Any power to regulate that appears on the face of the Bill should therefore pass a simple test: do such regulations contribute significantly to those two overriding aims? If the answer is "no", the Bill should 791 not provide for them. I believe that it focuses too much on management and administration and not enough on the quality of care.
§ Lord Rix
Before speaking to Amendment No. 70, which is included in the group, I, too, want to clear up a point which arose in the report of Hansard on Monday this week. In col. 437, it was reported that I said:For that reason, noble Lords may wonder why I have tabled so many soulless amendments".I remember once many years ago, when I was an actor, an unkind critic once accused me of not knowing my farce from my elbow—I hasten to add that the word is spelt: F-A-R-C-E. It is quite clear that, unfortunately, the Hansard reporter last Monday did not know her Middle English from her Latin, soul being Middle English and solus, "alone", being Latin, often in a dramatic context. I believe that the actress Greta Garbo was fond of saying that she wanted to be alone, but she never said that she wanted to be solus, as far as I am aware. I hope that the matter is cleared up and I should like to say that the Hansard department was quick to apologise and printed a correction the following day, but your Lordships might not be aware of that particular correction.
I turn now to Amendment No. 70. Many publicised abusive situations involving adults demonstrate the need for clearer prescription by way of regulations, regarding what is acceptable behaviour management for adults as well as for children. In many circumstances, restraint is nothing more than gross violation, but in a small number of cases it may have a legitimate role in serious risk management. Mencap is currently involved in three pilot projects exploring methods for responding to challenging behaviour in non-aversive ways. I believe that the Government have a legal responsibility to advocate and enforce best practice in behaviour management so that assault is no longer legitimised in the name of restraint.
§ 6 p.m.
§ Lord Laming
Amendments Nos. 46, 47 and 48 deal with a real issue; that of "may" or "shall". Clause 20 places a wide range of responsibilities on the Government to deal with the regulation of establishments and agencies. Although I have a certain sympathy with the point made by the noble Lord, Lord Clement-Jones, I believe that for such a wide range of functions, the use of "may" rather than "shall" is helpful. I regret that I cannot support Amendment No. 63 because the Burgner report, which looked into many of the issues relating to the regulation of establishments, identified the need for establishments to maintain good records.
Such establishments deal with people who not only have a wide range of needs but who often come from many different parts of the country. Bad record-keeping was one of the reasons why abusive situations were allowed to develop in some establishments. The regulations do not need to be intrusive, but together they create a framework which is the foundation for 792 good practice. I greatly hope that it will be accepted that good practice depends on good administration, good management systems and proper systems which are capable of being evaluated by external sources which include inspectors.
§ Baroness Gardner of Parkes
I have been in the House too long to enter into a lengthy argument about "may" or "shall"—I have heard it so many times—but I slightly prefer "may" for the reasons given by the noble Lord, Lord Laming.
I want to comment on the point made by my noble friend Lord Howe about agency premises. It is important that there is not legislation in too many forms covering the same matter. Premises for any kind of office or business, which is what an agency basically is, already come under town-planning law and would certainly come under health and safety legislation also. I wonder whether including this provision in the Bill in that way would make them subject to too many different forms of legislation.
§ Lord Hunt of Kings Heath
I shall speak first to my Amendments Nos. 68 and 115 to 118. Amendment No. 68 is a minor amendment to ensure existing Children Act powers are fully replicated in the Bill. The regulation-making power is already contained in the Children Act 1989, in Schedule 4, paragraph 4(2)(i). Under that power, the Children (Secure Accommodation) Regulations 1991 have been made, governing specific requirements made of children's homes where children's liberty is restricted.
I should point out that the Bill allows the continuation of the current system, whereby such establishments are not only duly registered as children's homes by the national care standards commission, but will also then be subject to a further approval on behalf of the Secretary of State before they may be used as secure accommodation for children.
The regulatory powers in Schedule 4 of the Children Act are repealed by the Bill's provisions. Any regulations made under those powers would fall with that repeal, unless the powers are re-enacted. The power on secure accommodation was omitted in error in the drafting of the Bill. It is essential to provide proper protection for children in such establishments. Among their other provisions, the existing regulations provide for the important approval of the Secretary of State in respect of such matters as the placement of children in secure accommodation, the appointment of persons to review placements and the requirements for record-keeping. The amendment allows the provisions of the existing regulations to remain in force.
I turn now to Amendments Nos. 115 to 118. The amendments are intended to ensure that Clause 44 properly reflects the provision in Clause 20 which sets out the regulation-making powers for independent fostering agencies. Our intention is to enable, as far as 793 is appropriate, the same requirements to be made of local authority fostering services as are made of independent fostering agencies.
The amendments bring the provisions into line. In practice, they mean that regulations may be made about staff in local authorities who carry out work on the fostering functions covered by that part of the Bill. Rather than applying only to fully employed staff, as currently provided for in the Bill, the amendments would ensure that regulations made under those powers in respect of relevant fostering functions would apply to staff who are locum and self-employed, but who carry out functions for the local authority.
I turn now to the amendments moved by other Members of the Committee. Amendments Nos. 46, 57, 61 and 62 raise the issue which, as the noble Lord, Lord Clement-Jones, suggested to us, is familiar: whether the legislation should say "shall" rather than "may". We discuss that issue on just about every Bill which passes through your Lordships' House and indeed, I have no doubt that the noble Earl, Lord Howe, when he was a Minister, defended the use of "may", as opposed to "shall".
However, I understand that Members want me to specify our commitment in terms of the regulations. The reality is that the regulations will be made. The legislation in front of us simply would not work if the regulations for regulated services to meet were not set out. The intention is quite clear and I doubt if there is any disagreement on the matter.
I turn now to the concerns raised by the noble Earl, Lord Howe, as to whether the sum total of the regulations that will be enacted will place too many burdens on the establishments to be regulated. I understand that concern, but I believe that he will understand also that a careful balance has to be drawn in terms of protection of the public interest and ensuring that we are not over-burdensome on the homes and other establishments that will be regulated under the Bill. I believe that we have the balance right.
I turn first to Amendment No. 49, which would exclude domiciliary care agencies, fostering agencies and voluntary adoption agencies from regulations made under Clause 20(1)(c) to ensure the fitness of premises. I understand why noble Lords have asked why the premises of an agency must be so regulated. In fact, there are a number of very good reasons why that needs to happen. First, agencies will usually hold confidential records about service users. We believe that the registration authority will need to be able to ensure that an agency's premises are secure in order to prevent unauthorised persons gaining access to areas where such records are kept.
Additionally, agencies will often need to have space to meet in private. I t is proposed, for example, that the national minimum standards for domiciliary care will include standards relating to the supervision of staff. That is likely to involve an annual interview between an individual member of staff and his supervisor. That would need to be ir private and, therefore, an agency's premises would need to facilitate that. I understand the point raised by the noble Baroness, Lady Gardner, but 794 I am not at all sure that the provisions which she mentioned in relation to town planning or health and safety will meet the requirements which we believe are needed in relation to those offices.
The effect of Amendment No. 51 will be to exclude registered agencies from the regulatory provisions relating to the numbers and types of persons required to work at an establishment or for the purposes of an agency. We regard the regulation of agencies as being as important and necessary as the regulation of establishments such as care homes. We cannot agree that the regulatory powers for agencies should be weaker than they are for establishments; for example, it is essential that the power exists to ensure that staff who deal with vulnerable children in fostering or adoption agencies hold relevant professional qualifications and have appropriate experience where the position demands it. Such a requirement forms part of the present inspection arrangements for adoption agencies. Certainly, we would not want regulation of those agencies by the commission to be any less comprehensive and rigorous than the current system. I can assure your Lordships that the regulations and standards set on staffing will be reasonable and based on consultation with all interested parties.
I turn to Amendment No. 52, which seeks to remove a critical power of the new commission to protect those who depend on regulated care services. This concerns the issue of financial viability. We believe that it is especially important that organisations which provide care should be financially sound and unlikely to put at risk the vulnerable people who depend on them to meet their everyday needs. That principle has been recognised in a judgment relating to fitness under the Registered Homes Act 1984, and we do not want to weaken the protection which current legislation affords us. By making it clear that the financial position of an establishment or agency will be made the subject of requirements, we are ensuring that would-be providers are thoroughly prepared to demonstrate that they have the means to run their business.
In answer to the point raised by the noble Earl, Lord Howe, the type of information which is sought now and which will be required in future relates to cash flow forecasts, business plans, audited accounts of previous trading, and so on. Of course, I accept that the routine inspection officer should be able to read those accounts. However, I am certain that the commission itself will be able to employ expert people who can advise on those issues.
I turn to Amendment No. 55. I support entirely the noble Lord's concern to ensure that a wide interpretation is taken of the meaning of "welfare". Equally, we must be careful not to define it in a way which might be limiting. However, we are currently considering whether the Bill is drafted in a way which ensures that "welfare" includes promotion of health in particular. If that is not the case, or if there is any doubt, we shall bring forward an amendment at 795 Report stage. I believe that the noble Earl, Lord Howe, will accept the same response in relation to his Amendment No. 56.
I turn to Amendment No. 63, which relates to record-keeping. The principle of regulating record-keeping in nursing homes, private hospitals and residential homes is already well established under the Registered Homes Act 1984. There are extensive requirements on homes to maintain records concerning the conduct of the home, including the care, nutrition and health of residents, the recruitment and training of staff, and the health and safety precautions taken. It is essential to maintain those if a service is to be run effectively and monitored by the regulatory authority. I believe that record-keeping as evidence of the care provided—or not—has featured regularly in tribunal decisions about the fitness of a home.
I turn to Amendment No. 70. I doubt whether any Member of your Lordships' House would ever accuse the noble Lord, Lord Rix, of being "soulless". Those of us who had the pleasure of watching him for many years in the Whitehall farces believe that he has brought great joy to many people and he continues to do so in this House. I agree with the noble Lord's amendment and the sentiments which he expresses that the physical management of users in residential and other settings requires improvement. We know that there have been a number of worrying occurrences over recent years, culminating in the recent television programme "Macintyre Undercover", which have indicated that staff sometimes do not act in an appropriate way when caring for people who need protection from physical harm. Occasionally, techniques are used which are entirely inappropriate to users of care services.
Perhaps I may say to the noble Lord, Lord Rix, that the Department of Health is working with the British Institute of Learning Disabilities to consider the best ways to provide guidance for care providers on the appropriate use of physical intervention with people in their care. In addition, it is certainly our intention to make regulations regarding the appropriate use of physical constraint for adults where it is unavoidable. We had intended to make such regulations under Clause 20(1)(d) —the clause which we have just discussed—for securing the welfare of persons accommodated in homes. However, I can assure the noble Lord that we shall introduce a specific regulation-making power at Report stage if there is any doubt that that power is wide enough to extend to physical management. We shall certainly take away this matter and give it further consideration.
§ 6.15 p.m.
§ Lord Rix
Perhaps I may thank the Minister, first, for his very kind words about my past life and my present occupation and say how grateful I am for the recognition of the need for regulations in regard to restraint. I am happy to accept those assurances and I know that Mencap, too, will be delighted.
§ Earl Howe
I express my thanks to the Minister for that very comprehensive reply. Obviously, I shall read carefully what he has said and reflect on it. I am particularly grateful for what he said about the two amendments regarding the definition of "welfare". That was most helpful. Of course, I understand that in any Bill of this kind a balance must be struck between the amount of regulation that will impose burdens, and considerations of protecting the public. However, at the same time, as the Minister will recognise, quite a lot of the regulation in Clause 20 is new if compared to the 1984 Act. I believe it is right that we should at least explore the rationale for each of the new provisions.
On the question of agency premises, I take on board what the Minister has said. Of course, it is important that there should be locked filing cabinets and secure record-keeping. However, there appears to be a provision in Clause 20(1)(f) which fits more neatly the point that he seemed to be making. That provision requires that regulations may,make provision as to the management and control of the operations of an establishment or agency".I should have thought that the security of a set of premises would fit more neatly into that.
§ Lord Hunt of Kings Heath
I am grateful to the noble Earl for giving way. I am advised that he is quite right to point to that subsection. However, I am also advised that that might not necessarily extend to the keeping of records, which is why we have a specific power to make regulations about records.
§ Earl Howe
I am grateful. I must obviously take that very seriously.
As regards record-keeping, I stress that I am not in the least worried about that provision appearing in the Bill. Clearly, records must be kept and kept properly. But Clause 20(1)(f) seems to be a new provision compared with what is in the 1984 Act. It refers to,the management and control of the operations of an establishment or agency".It occurred to me that that would embrace record-keeping and I am all in favour of Occam's Razor applying wherever it can.
§ Lord Clement-Jones
This has been a slightly disparate debate with rather different amendments being brought together in this grouping. However, I know that the Committee will be grateful to the Minister for, in particular, his undertaking to look again at whether a definition of "welfare" is required. I am grateful too for what he said about Amendment No. 70 in the name of the noble Lord, Lord Rix, in terms of whether physical management is brought within the existing wording.
I thank the Minister for his assurance on the lead amendment, Amendment No. 46. I take that to mean that essentially he is saying that the regulation of care 797 and other establishments will not work unless regulations are made in each of those areas covered by Clause 20. I am grateful for that assurance. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 47 to 49 not moved.]
Earl Howe moved Amendment No. 50:
Page 10, line 41, leave out ("numbers of persons, or").
§ The noble Earl said: I kept this amendment separate from those in the previous group because the issues which I wish to raise under its umbrella are rather different from those which we have just been discussing.
§ On Second Reacting, I spoke of my concern that this Bill and, in particular, the statements of minimum standards due to be introduced under Clause 21 for all their merits—and I understand the merits of wishing to have minimum standards—pose an extremely serious difficulty for many residential care homes which currently do not meet one or more or the proposed standards.
§ I shall expand on that issue when we reach Clause 21. But there is one aspect of it which I wish to raise now; namely, staffing ratios. One of the consequences of eliding the definitions of "care home" and "nursing home", as the Bill does, is that any attempt to arrive at a neat formula for staffing ratios runs into difficulties. Until now, residential homes and nursing homes have each had their own formulae to determine appropriate staffing numbers. They are not particularly sophisticated formulae but are based broadly on numbers of beds in use.
§ In so far as a formula can ever be acceptable to everybody, in the case of care homes and nursing homes, it has, in each case, performed a useful role. But with a single legal definition of a "care home" under this Bill, what possible formula will work? How will it be possible to assess the staffing requirement without knowing what are the needs of the individual user? The only way that I can see which would be fair to all would be to have in place some sort of nationally accepted mechanism for assessing such need.
§ Have the Government given any thought to that issue? What conclusions have they reached? Is the Minister aware of a system by the name of Minimum Dataset which is in use in a number of states of America, I understand, mandatorily, as well as in several other coumries, which is designed to generate standardised data on the type and degree of services that are needed to deliver the desired outcome? Is there not a case for looking carefully at such a system in order to avoid what would inevitably become an unlevel playing field around the country and, what is more, an unlevel playing field which is difficult to level out?
§ Some of us were disappointed not to see in the Bill any role for the commission in planning and predicting the need for services in care homes and in assessing unmet need and regional variations in the level of unmet need. Do the Government plan to give the 798 commission such a role, as was proposed by the Royal Commission on Long-Term Care? If they do, how do they believe that that could be done without some sort of accepted national formula such as I have described?
§ We return again to the point that it is not just the quality of management in an establishment which governs the quality of service; it is whether the purchaser of that service is purchasing the right sort of service to meet the needs of the user—in other words, whether the resources devoted to meeting those needs are appropriate. The commission should be assessing that.
§ Leading on from that is the whole question of fees. If the users in care home A have a different level of need from the users in care home B, that would argue for two different rates of fee. I realise that that is very difficult territory but I should be grateful if the Minister will tell me whether my logic is right—I do not mind if he tells me it is wrong—and, if so, how the Government approach that issue. I beg to move.
§ Baroness Gardner of Parkes
My noble friend has raised a number of points and I wish to add more questions to what he has said. He mentioned the question of fees. There were stages in the past when the fees for nurses went up and up until they reached the point at which all local authorities decided they would pay only a maximum amount. That helped to control the prices.
But if certain standards are imposed on the care home—there must be X number of staff—it may be impossible to comply with that and keep within the price which the local authorities and the Department of Health are prepared to reimburse.
I am greatly concerned that much of this care legislation is designed specifically to ensure that all those services are paid for 100 per cent by the people in the homes or, in cases of need, by someone who pays on their behalf, as opposed to being paid for by the National Health Service. Of course, that is free at the point of delivery. We still have no satisfactory clarification on that. There has been clear demarcation in a court case with regard to care which should come under the National Health Service and be totally free to the patient and care which should be paid for by the patient. That issue arises here. We must be quite sure that a major purpose of this Bill is not to push a dividing line between those two aspects in order to ensure that as many people as possible have to pay.
As the Minister knows, I believe that we should look again at the whole of the National Health Service rather than trying to find different ways of dividing up the cake. My noble friend said that the Bill creates a single, legal definition of a "care home". Therefore, it is defining the difference between national health provision and a care home.
§ Lord Hunt of Kings Heath
I am sure that we are all indebted to the noble Earl, Lord Howe. In his short amendment, he has opened up an enormously wide area for debate. I hope that Members of the Committee will forgive me if I duck the opportunity of 799 rising to the challenge in particular of the noble Baroness, Lady Gardner, in terms of the funding of long-term care and so on. The noble Baroness will know that the Government set up a Royal Commission. We are still considering the deliberations of that commission and both the majority and minority reports.
I should say also, in relation to the specific question of the impact of regulation on the costs of running such homes, that we are likely to deal with that issue, as the noble Earl suggested, a little later in our debate this evening. But I recognise that it is a matter of considerable interest and, clearly, it is a matter at which we must look extremely carefully.
This Bill is about maintaining the public interest. It will help to raise standards in those establishments where many vulnerable people are receiving care and support.
I turn to the specific issue raised in relation to staffing and the specification of staffing numbers and ratios, to which the noble Earl has drawn our attention. The first point I wish to make is that current legislation governing nursing homes contains similar powers for specifying numbers of staff. We start from the premise that we would not want to introduce legislation that actually weakened existing law in this area. I should also say that the quality of care provided by social care agencies must now relate closely to the number of staff available and their quality and training. Setting standards as to numbers is an important element of the process of regulation.
Under Section 25 of the Registered Homes Act 1984, health authorities may make it a condition of registration of a nursing home that a specified number of nurses with particular qualifications must be on duty at specific times, the numbers calculated according to the number of patients and their condition. In this way, health authorities can ensure that an adequate standard of nursing care is provided. In the Bill, we wish to take forward this power and extend it to cover the staffing arrangements in other residential establishments or agencies. I should say to the noble Earl, Lord Howe, that we will ensure that the commission takes a reasonable approach and is not too prescriptive.
As noble Lords are aware, Clause 21 gives Ministers the power to set minimum standards. These will have to be followed by the commission. Its decisions as to whether regulations and national minimum standards regarding staffing levels are being met will need to be based on the assessed needs of those receiving the service, including their dependence on others to carry out their activities of daily living as well as their need for nursing care or general support and supervision. The minimum standards, in particular, will flush out the details of that. The staffing requirements will vary according to type of home. I hope that that gives the noble Earl some assurance on the point he raised.
I should also say specifically in relation to ratios that the noble Earl might have pointed to the standards proposed in Fit for the Future? that set a ratio of qualified nurses to unqualified care assistants for residential and nursing homes for older people. I 800 should stress, as I have stressed before, that this is a consultation document. While I think that there are many things in it that are extremely valuable, there are other matters which, as a result of consultation, we would wish to change. We are not convinced that adopting ratios is the only way to approach staffing requirements. I should certainly be happy to look at Minimum Datasets and any other suggestion as one way forward. I do believe that at the end of the day effective regulation does require that a view is taken about issues to do with staffing.
§ 6.30 p.m.
§ Earl Howe
I am once again extremely grateful to the Minister. Obviously, the whole question of staffing ratios is an important matter. I do not seek to evade that point for one second. Neither would I suggest that the law should be weakened in any way. My point was simply how do you specify what the correct ratio should be when user needs vary so very widely once one has brought together those two definitions?
The Minister was most helpful in a number of things he said, particularly that assessed needs will govern staffing ratios that are laid down for each type of care home and that minimum standards will vary according to the type of home that is under consideration. I am grateful also for the assurance that the Government's approach to the proposals in Fit for the Future? are being approached with an open mind by Ministers. I think that is good to hear. I know that some of the feedback that the department has received has been positive and some not so positive. Provided that we know that nobody is wedded rigidly to the proposals, I think that does give us some comfort.
§ Lord Hunt of Kings Heath
I hope the noble Earl will allow me to intervene. I think that because a lot of the debate about the consultation paper that we have issued has concerned matters to do with staffing ratios and room sizes, people may perhaps have had the impression that the paper is only concerned with those aspects. I think that a reading of the document will also indicate that it is concerned with other indicators of quality. Clearly, when we come to consider the results of that consultation we shall have to take into account the comments raised by your Lordships about the need to have indicators of outcome of quality and not just issues to do with staffing and size of room. However, I do think that size of room and staffing are also important issues.
§ Earl Howe
Yes, I entirely agree. It is the fact that there are other quality indicators that means that so many care homes out there would fail to meet the standards in one way or another if Fit for the Future? were to be enshrined in regulation or at least in ministerial direction. It is not simply room size and staffing ratios that are proving the problem for a number of places.
I think that this has been a very useful exchange. I will read carefully what the Minister has said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.801
§ [Amendments Nos. 51 to 53 not moved.]
Lord Clement-Jones moved Amendment No. 54:
Page 11, line 5, at end insert—
("( ) All regulations applying to the care of children away from their homes may—
§ The noble Lord said: In moving Amendment No. 54, I wish to speak also to other amendments in the group. Perhaps I may make two apologies in reference to this group of amendments. I intend to speak to each of these amendments in turn. Clearly, there are a large number of points to be made on these amendments and it will take me a little time to go through them.
§ Principally, I wish to apologise on behalf of the noble Baroness, Lady David, who is unable to move these amendments. I was very pleased to attach my name to the amendments. The noble Baroness has been unavoidably detained on other business.
§ First, I shall deal with Amendment No. 54. This is an attempt to give some degree of consistency across the regulations governing the lives of children who are placed away from home. It seeks to list the basic safeguards to which all children should be entitled when living away from home. All except for paragraph (g) on bullying strategies currently apply to children looked after in children's homes but not all other institutions. The duty to take steps against bullying now applies to schools but not residential homes. The obvious merit of listing these safeguards in primary legislation is that they secure consistency across regulations and are much more visible, with the result, it is to be hoped, that all children and all staff are aware of them at all times.
§ It is profoundly unsatisfactory that children in the care of local authorities or otherwise placed away from home are protected only by regulations offering a 802 variety of rights and safeguards. Many such children experience changes in placement. Why should the change in placement mean that their needs or rights change? Why should these rights be embedded in rather obscure regulations about which frequently even the adults in charge do not know?
§ I move to Amendment No. 60, which is designed to secure that local advocacy services and independent complaints procedures may also be regulated. It attempts to introduce regulation-making powers in relation to two crucial local services for children affected by the Bill— independent complaint procedures and independent advocacy services. There are regulations under the Children Act requiring complaint procedures by local authorities and voluntary organisations accommodating children, but Part II services covers a much wider group of children.
§ The Government have confirmed the importance of both these services and yet do not give the Secretary of State powers to regulate them in the Bill. The purpose of this amendment is, therefore, simply to enable the Secretary of State to make regulations without recourse to further primary legislation in the future.
§ Turning to Amendment No. 108, it is well recognised that the Bill has come into being as a result of an appalling series of scandals arising from the treatment of children living in institutions and other placements away from home. One important safeguard against the abuse of such children is to provide them with advocates who are entirely independent of the services the children receive. We have already had some discussion as to that in Committee. Their only function is to listen to the children and promote their interests.
The need for independent advocacy has been confirmed by the official reports in this area. For example, the Warner Report. Residential Care: a positive choice, proposed that children in all forms of residential care should have access to an independent advocate. The Scottish review, Another Kind of Home, recommended that children,
should be able to call on someone to act as their advocate".
The Warner inquiry report, Choosing with Care, said that children in children's homes should,
have the support of their own advocates when pursuing serious complaints against star.
The Utting Report, People Like Us, commended the use of independent representative services such as that provided by A Voice for the Child in Care.
§ The safeguard of independent advocacy has been recognised by the Government in their Quality Protects programme, under which authorities are encouraged to provide independent advocacy services, but until such services are a statutory requirement children will be dependent on the goodwill and energy of individuals in the statutory and private sector. 'This amendment is designed to ensure that the current patchy service of locally based children's rights advocates and national advocacy services is transformed into comprehensive provision for all children who are living away from home.803
§ I turn to Amendment No. 167. It is necessary to describe the powers and duties of the children's rights director in primary legislation—that is what the amendment attempts to do—so that this position can develop as the strongest possible defender and protector of children's rights. We had our earlier discussion about the possibility of a children's commission, but that does not at present form part of the Government's thinking.
§ Much of the thinking behind the Care Standards Bill as it relates to children is built upon the knowledge that thousands of children living away from home have been so badly neglected or abused in the past. We cannot waste this opportunity to develop a substantial national figure in the form of the children's rights director. who will ensure that children are never again failed in such a comprehensive way.
§ Finally, it is important in the composition of the commission that there is a member who has special responsibility for children's rights issues and also a member who has special expertise in disability and special educational needs as they relate to children. That is what Amendments Nos. 152 and 153 are designed to achieve. I beg to move.
§ The Earl of Listowel
I should like to comment on Amendment No. 108, which deals with the right to an independent advocate. I completely endorse what the noble Lord, Lord Clement-Jones, said. I would simply add that recently the Minister was kind enough to assure me that he had considered carefully with his advisers my questions to him and that my questions had affected his thinking. That is exactly the assurance that looked-after young people need. They need to know that their concerns are properly considered and play a part in decisions made about them. The right to an independent advocate would provide them with that assurance. I hope that the Minister will give the amendment sympathetic consideration.
§ Lord Laming
I very much hope that the Minister will look favourably on Amendment No. 54. I say "look favourably" because I have a reservation about paragraph (e). From time to time—sometimes more often than that—any good parent has to restrict the liberty of a child. The way in which paragraph(e) is worded undermines, in a way with which I do not feel comfortable, the authority of staff to control children and young people. However, I hope that the Minister will look favourably on the general thrust of Amendment No. 54.1 hope also that the Minister will support Amendment No. 108. We have referred on a number of occasions to the need for these vulnerable young people in care to have access to an independent advocate. The noble Lord, Lord Clement-Jones, referred to a number of authoritative documents that recommended access to independent advocates for children and young people in care. This is an opportunity for the Government to enact legislation to make that a reality for these young people. If the Government are able to accept Amendment No. 108, which I hope will be the case, Amendment No. 60, 804 dealing with the need to have regulations to inform that piece of legislation, follows on from that. I very much hope that Amendments Nos. 54, 108 and 60 will find favour with the Government.
§ 6.45 p.m.
§ Lord Hunt of Kings Heath
We had earlier discussions about the Bill as it affects the rights and welfare of children. The group of amendments is also about that important subject. The protection of children and the promotion of their best interests are among the strongest driving forces behind the reforms that the Bill will put in place.
I hope to be able to assure the Committee as to the strength and comprehensiveness of the provisions for safeguarding children and protecting their interests that the Bill will put in place. We are all aware of the cases where the current systems have failed, and where children have been harmed. Many Members of the Committee have of course been intimately involved in the inquiries into such cases. We are mindful of the forthcoming report of the Waterhouse inquiry.
Perhaps I may begin with Amendment No. 54. I welcome the opportunity to confirm the Government's commitment to ensuring the safety of children living away from home. A large part of that will be delivered by the regulatory system requiring children's homes and other places to meet strict standards for children's welfare. The Government have carefully considered Amendment No. 54. We fully support the motives behind the amendment, but believe that it is mostly unnecessary. By and large, the powers which it seeks to introduce already exist within the Bill or existing legislation. However, the amendment has brought to our attention the fact that the Bill probably does not give us all the powers we need to make regulations to protect children and promote their welfare in establishments and agencies covered by the commission. That is, in particular, the case in relation to children in hospices and private healthcare establishments. We will look at this point further and bring forward a government amendment in due course.
The noble Lord, Lord Clement-Jones, raised an important point about the need to bring the regulation-making powers together so that there is clear understanding of the protection available for children living away from home. We will consider, when drafting the national minimum standards, how that can be achieved.
Perhaps I may turn to Amendments Nos. 60 and 108, which deal with advocacy for children. Advocacy is about effectively articulating the child's view, right or wrong. It is not about what the advocate thinks is best or in the child's welfare. Advocacy is grounded in Article 12 of the UN Convention on the Rights of the Child, which assures to children capable of forming their own views the right to express those views freely in all matters affecting them. Although Members of the Committee have suggested that current provision is patchy, it would be right to acknowledge much of the good work undertaken by advocacy services provided 805 directly by local authorities or contracted by them to voluntary organisations. In addition, we are fortunate to have a number of national advocacy organisations which undertake important work with a wide range of children. The Department of Health has funded these organisations to prepare national standards for children's advocacy services. These were made the subject of extensive consultation last year and are due to be published in the spring.
Listening to children is a major theme of the safeguards review and the Quality Protects programme. Children's participation is a priority area for special grant under Quality Protects. This is a major initiative to improve service to children. It has at its heart children's participation and children's rights. A comprehensive programme of work with local authorities was launched last year.
We issued guidance to local authorities in October 1999 which stressed the importance of local authorities securing independent advocacy services for looked-after children. Local authority plans to develop these and related services are due to be returned to the department by 31st January 2000 and regional development workers are available to work closely with authorities on these issues.
Indeed, in taking forward children's participation as a basic principle underlining most of the Quality Protects programme, the Quality Protects project team within the Department of Health has focused on issuing good practice guidance to local authorities; commissioning a training pack for front-line social services staff to improve practice; arranging regional seminars for child-en; and working with representative agencies from the area of advocacy as well as national agencies to address, as far as is practical, their main concerns.
I have spoken at length because I believe that already we are making good progress in that area. However, to seek to regulate the provision of independent advocacy services is unnecessary. As I said, we have issued guidance on those services, consulted widely on national standards and are actively promoting that area through the Quality Protects initiative. Against that background we do not consider it necessary to regulate in this area.
The second part of Amendment No. 60 significantly duplicates current provisions available in the Children Act 1989 as to complaints as well as the powers in this Bill at Clause 20(3)(j) to make regulations requiring all registered providers to establish complaints procedures.
I turn briefly to Amendment No. 108. I am advised that using the terminology,all children … who are living away from home",would cover a wide range of children. Not only would that cover all "looked-after" children, wherever placed. It would also extend to other children where currently local authorities do not have a role; for example, where a child, following separation or divorce, moves from one parent to another.
806 I turn to Amendments Nos. 152 and 167 which, in their different ways, are concerned with how the national care standards commission will, as a body, reflect the rights and interests of children in its management and governance. The proposal in Amendment No. 152 for a specific member on the commission's board with responsibility for children's rights, would, I feel, go against our intention as to how the commission will be managed and governed.
The commission must have the right balance of members to ensure that it undertakes its work effectively. It must be able to command the confidence and respect of the users of the services and their representatives as well as those who deliver them. Appointments will be made on the overriding principle of merit so as to achieve a board with the right balance of skills and background. We are not persuaded that there should be specific seats set aside for those from any specific interest or group. We shall, of course, ensure that some members of the commission have significant experience of children's social services and related issues.
If one were to make children's rights and welfare the responsibility of a particular member there would be the risk of marginalisation of this issue. It is important—this applies to many, if not all, public bodies—that all members of such a body should have the interests of all the registered services and their users at heart.
Amendment No. 167 seeks to pre-determine the role of the children's rights director by specifying responsibilities and functions on the face of the Bill. The Government's approach has been not to specify such responsibilities in primary legislation because of the risk that we may not get it quite right. The responsibilities to be carried out by the children's rights director will require further consideration and consultation and the role will no doubt develop and change according to how the commission settles into its important responsibilities.
Perhaps I can repeat a point I made in Committee only three days ago: this is an extremely important post. It will ensure, we believe, that the issue of children's rights and safeguards are given the highest priority by the commission. It strengthens the Government's commitment to improve children's safeguards. For that reason, we have said that the children's rights director's functions should be specified in regulations. We shall not leave the commission to decide what the responsibilities should be, but we expect that the role of the children's rights director will include a number of functions listed in the amendment. From what I have said I hope that the noble Lord will understand our determination to view this as an important appointment and one consistent with the whole thrust of the Bill.
§ Lord Clement-Jones
I thank the Minister for that comprehensive reply. I appreciate the care taken in considering each of the amendments in turn. I appreciate also his individual replies. As he will understand, the amendments were put together by a consortium of a number of voluntary organisations; in 807 fact, the key voluntary organisations concerned with children. Clearly, there are strong feelings that further safeguards are needed, particularly in the area of independent advocacy. I notice that the Minister referred to Article 12 of the UN convention. He recognised the work of the advocacy services and described excellently the way in which the Quality Protects programme is proceeding.
At the end of the day, the key point is whether such children have the right to advocacy. We can try to ensure that local authorities do things by circular; we can try to establish standards, programmes and so on, but in the end the UN convention requires the child to have the right to independent advocacy. I appreciate the Minister's attempt, within his parameters, to answer the matter in the most helpful way possible. But this is a major campaign that needs to be brought to fruition. That is strongly felt by the voluntary organisations, on these Benches, and elsewhere. We may want to return to the matter on Report.
I appreciate the Minister's reply on other matters. We have a great deal of food for thought, particularly in terms of Amendment No. 54. I appreciate his undertaking to look at the clause to see whether all the necessary powers are given to the commission in relation to children in hospices or private healthcare establishments and the undertaking to look at how all the standards applicable to children should be brought together in future. We shall read Hansard carefully in respect of that reply.
On Amendments Nos. 152 and 153, we had debates on the Health Act about the composition of various matters, such as PCGs, and so on. Of course, I appreciate the need to have a balance of expertise. Clearly, the Minister understands that it is important to have people who understand the issues. There is no question of trying to put a straitjacket on appointments to the commission. I believe that the answer lies in the way in which the department consults. The Minister commented, particularly in relation to Amendment No. 167, on the consultation regarding the powers and duties of the children's rights director. I see no reason why the department should not also consult, in relation to the members of the commission, with the same bodies as those with which it would consult on the way in which the children's rights director's duties will be exercised. I believe that that would be the sensible way forward. We look forward to that taking place. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 55 to 57 not moved.]
Earl Howe moved Amendment No. 58:
Page 11, line 9. after first ("or) insert ("either—(a)").
§ The noble Earl said: In moving Amendment No. 58, I shall speak also to Amendment No. 59. The principle of subsection (2) of Clause 20 is difficult to argue against. Clearly, it is right, in the interests of public protection, that those who look after vulnerable 808 people in a care home or other establishment are properly qualified for the purpose. Part of that qualification is that they should have proved themselves to be fit and proper persons to the appropriate registration authority.
§ Under Part IV of the Bill social care workers will need to register with either the English or Welsh council before they can call themselves by that name. In Clause 20 we find that a condition of being allowed to work in certain capacities at a care home or agency will be that an individual is registered with one or other of the councils.
§ The question posed by the amendment asks whether it will be necessary for a qualified nurse, who works in a care home and is registered with the UKCC, to take out a further registration with either the English or the Welsh council. I do not believe that it should be a requirement for that person to do so and I hope that the Minister will be able to give me some sort of reassurance on that.
§ The question branches out into wider territory when we consider the role of healthcare assistants. The Minister knows my views on healthcare assistants, which are that they should be regulated and that if and when they are so regulated, the registration authority should be the same authority that governs nurses. There are all manner of arguments to support that, on which, for the sake of brevity, I do not propose to expound. But one thing is clear. If somebody registers with the UKCC, or whatever body it is that succeeds it, the consequences of doing so will be a distinct kind of professional training and development. The training and development that will ensue from registering with the GSCC or the CCW will be of a different kind.
§ If my argument is sound that healthcare assistants should be able eventually to register on the nurses' register, because that is where their professional skills and disciplines most naturally lead them, then the Bill ought to allow for that rather than oblige them, as it appears to do now, to register with one or other of the councils. I beg to move.
§ 7 P.m.
§ Lord Clement-Jones
The Minister was kind enough to write clarifying certain questions that I raised at Second Reading. One of those was that there would be no problems and that we knew what the status of healthcare workers would be—as to whether or not they would be able to register in the future under the nursing regime as opposed to the regime established by this Bill.
The Minister's letter said that the review concerning the need and scope of regulation of healthcare support workers is now under way and is due to report in April. He said that the GSCC and any new regulatory body that might emerge from the review would be complementary; that there would be no overlap as each body will be regulated as a separate workforce.
809 We on these Benches are extremely keen to ensure that the Bill does not pre-empt the outcome of the above-mentioned review; that the possibility is retained of enabling the two registration systems to be designed so that healthcare assistants can register with the same body that regulates nursing. As I understand it, the RCN and others are having discussions with the Government on this issue, but we on these Benches seek the Minster's assurance that there will be the option of healthcare assistants being regulated by the body that regulates nursing, and that that option will not be closed off as a result of the Bill. We strongly support the amendments.
§ Lord Hunt of Kings Heath
I am grateful to the noble Earl for allowing me to clarify the position of nurses, and also to debate a matter that is close to my heart; that is, the potential regulation of healthcare assistants.
There is no intention that qualified nurses should have to register with the general social care council. The definition of social care work in Clause 51 as it stands will extend to nurses working in care homes and domiciliary care agencies; but Clause 51 also allows us to make regulations exempting persons from the requirement to be registered with the GSCC. I can assure the Committee that we will make regulations exempting nurses who are on a statutory authorised register of nurses.
I turn to healthcare workers more generally. I confirm the point made by the noble Lord, Lord Clement-Jones, that in December the Government announced that they had commissioned a review of the roles and responsibilities of support workers in healthcare settings. That review includes a wide-ranging consultation process. It will make recommendations on whether or not there should be some form of regulation of those staff to ensure public safety. It will take into account the Government's decisions about the regulation of unqualified staff in the social care sector. The outcome of that exercise is due in April.
My understanding is that there is no view yet on the outcome of the review. However, there is a clear consensus that healthcare workers should be regulated, though a great diversity on how it ought to be done. The review team is investigating the form that registration might take—registration, other models and costs. Of course, it is aware of the provisions contained in this Bill.
I fully understand the point made by noble Lords, that at the end of the day the last thing we want, as with nurses, is that if we regulate healthcare assistants in the future they will have to be registered under two regulatory bodies. We will, of course, ensure that if proposals are brought forward that will not happen.
§ Lord Clement-Jones
Does that mean that the Minister can confirm that nothing in this Bill pre-empts a decision that may be made in future?
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 59 to 66 not moved.]
Lord Rix moved Amendment No. 67:
Page 11, line 50, at end insert ("and other residential provision for children living away from home").
§ The noble Lord said: In rising to move Amendment No. 67 I fear that some Members of your Lordships' Committee may have a sense of déjà vu, for this amendment runs on naturally from the penultimate amendments moved by the noble Lord, Lord Clement-Jones; but I press on.
§ Disabled children are three times more likely than other children to live away from home. Where children are living away from home, whether on a longer or a shorter term basis, we want to ensure that there are consistent and safe child care practices, not only in children's homes but also in residential schools, family placements, respite units, NHS respite or longer-term units.
§ Those who work with "looked-after" children (if I may coin a phrase) should be afforded the best possible guidance and practice frameworks regardless of the location in which they are caring for the child. In view of the Minister's response to the amendments of the noble Lord, Lord Clement-Jones, I cannot believe that he will not accept my belt and braces addition to Clause 20, page 11, line 50. I beg to move.
§ Lord Hunt of Kings Heath
I cannot go quite that far. However, I can say to the noble Lord that we intend the power to make regulations in respect of the control and discipline of children to cover all settings regulated by the commission. The Bill was drafted with the intention that regulations under Clause 20(1)(d) in relation to securing people's welfare should he sufficiently wide to allow provision in relation to the control and discipline of children. That would therefore give us all the necessary powers to ensure that such tight regulations are set in relation to such matters in any of the settings regulated by the national care standards commission where children are accommodated.
However, the noble Lord's amendment raises doubts about whether the Bill, as currently drafted, achieves that purpose. I am, therefore, very grateful to the noble Lord for raising this matter. We are currently considering this issue and intend to return with a government amendment in due course. We are particularly concerned that, as drafted, the Bill does not appear to give us the appropriate regulation-making powers in relation to hospices and other private healthcare facilities for children. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
§ Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath moved Amendment No. 68:
Page 12, line 3, at end insert—
("(ba) imposing other requirements (in addition to those imposed by section 25 of the 1989 Act (use of accommodation for restricting liberty)) as to the placing of a child in accommodation provided for the purpose mentioned in paragraph (b), including a requirement to obtain the permission of any local authority who are looking after the child;").
§ On Question, amendment agreed to.
§ [Amendments Nos. 69 to 72 not moved.]
§ Clause 20, as amended, agreed to.
§ Clause 21 [National minimum standards]:
Lord Clement-Jones moved Amendment No. 73:
Page 12, line 10, leave out ("appropriate Minister") and insert ("Commission").
§ The noble Lord said: This is a very straightforward amendment, which is designed simply to ensure that the commission is able to set minimum standards. In addition, it is also designed to elicit an assurance from the Minister that moves are already under way to prepare the "minimum standards" referred to in Clause 21.
§ As we discussed earlier in Committee, the commission does not have the right at present to create those minimum standards. The appropriate Minister currently has the right to do so. When we deal with a later amendment, we shall discuss what legal status the standards in Clause 21 have. If one looks carefully at the wording of the clause, one realises that the position seems to be rather shaky. However, be that as it may, the commission is the closest to the actual establishments and agencies that are being regulated. As such, it is extremely important that it should have the right to set out what those minimum standards should be. In Amendment No. 85 we set out in a more comprehensive way various other matters which apply to the setting out of minimum standards.
§ Such amendments are really designed to give the commission a much more proactive role, which is something that many noble Lords have sought to achieve during the passage of this Bill. They are also designed to ensure that the Minister will give us the assurance that those minimum standards are actually being put together currently and that they will be set in place. I beg to move.
§ 7.15 p.m.
§ Lord Hunt of Kings Heath
I must confess that I was somewhat puzzled by the remarks made by the noble Lord, Lord Clement-Jones, because he did not seem to refer to the issue of whether the Minister or the commission should be responsible. Perhaps the noble Lord would care to say a few further words in that respect.
§ Lord Clement-Jones
In terms of the amendment, I thought I said that the commission should be responsible simply because it is closer than the Minister to the regulation of the establishments and agencies involved. Therefore, it is entirely appropriate for the commission to be the regulator.
§ Lord Hunt of Kings Heath
I am most grateful to the noble Lord for that clarification. However, I fear that I must resist this set of amendments. The commission will, of course, be a powerful national body. It will have extensive responsibilities for regulating care services, maintaining standards, ensuring the protection of vulnerable children and adults, and encouraging improvements in the quality of provision. But it is not a policy-making body.
We believe that setting the national minimum standards involves key policy issues and that the responsibility should rest with Ministers. In developing the standards, for example, it will be essential, as already mentioned this evening, to consider most carefully the resource implications and the potential impact of those standards on providers. I believe that it is the Government who should take such questions into account.
Apart from those standards with a resource impact, there will be others that will cover very sensitive areas. We have already discussed the need for regulations covering the appropriate physical management of adults in care homes, where necessary. These are very difficult and sensitive issues and ones which, I believe, should be dealt with by Ministers rather than the commission.
I should point out to the noble Lord, Lord Clement-Jones, that the commission will have an important role to play in assisting in the formulation of those standards. It can, of course, advise the Government on any changes that it believes might be necessary and the Government will always listen most carefully to such representations. I rest my case.
§ Lord Clement-Jones
I thank the Minister for that reply. There is a good deal in what he says which we shall certainly consider. In the mean time, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 74 to 79 not moved.]
Earl Howe moved Amendment No. 80:
Page 12, line 14, at end insert—
("( ) In preparing or amending the standards set out in the statements, the appropriate minister shall consult any persons whom he considers it appropriate to consult.").
§ The noble Earl said: In moving the above amendment, I shall speak also to Amendments Nos. 81 and 82. I start with some warm words for the Government's aims. No one can be against the idea of raising standards. It is a self-evidently desirable objective to which the Bill rightly devotes a great deal of attention. A perfectly natural extension of that aim is the thought that there should be standards of care below which no establishment should be allowed to 813 fall. That, in turn, begs two questions: first, what should those standards be; and, secondly, how are they best measured?
§ I do not believe that we can answer either of those two questions properly without acknowledging two facts. The first is that we are where we are. If we take the case of care homes, we may feel that some measurable features of some care homes fall short of what we should like to see. But these are homes where people already live; which have been approved by the relevant local authority for sometimes many years; and where, most importantly, in many—if not most—instances the residents are happy and well cared for.
§ Secondly, we need to acknowledge that changes to the physical fabric of an establishment or to staffing ratios carry with them a cost. If such changes are so important as to warrant being enforced by law, they need to be justified by arguments that everyone can accept as being robust. We also need to be quite clear who is going to pay.
§ I do not doubt that the array of minimum standards, such as is set out on the document Fit for the Future? should play an important role in identifying the kinds of matters on which we should be focusing in terms of easily measurable features. But it would be absolute folly—and morally quite wrong—if we were to treat such a document as a formal check-list that required 100 per cent observance. Not only is such a thing impossible if half of the elderly population in care are not to be deprived of their homes, but it would also serve, if I may so put it, to lose the plot. Standards of care in a care home are to be judged by more than simply physical features. We should therefore be extremely cautious in laying down mandatory, prescriptive rules unless there is no argument that they are essential and readily achievable.
§ What is it, more than anything else, that has prompted this Bill? It is surely the desire to stamp out abuse of vulnerable people. It is not abuse of anyone to ask them to sleep in a room measuring 9.9 square metres. It is not abuse if there happen not to be three double sockets in the room, or if the home does not possess a sluice. Any changes of this kind that are enforced, at any rate on existing care homes, have to be justified in terms of what is demonstrably harmful.
§ If we exclude for a moment measures to prevent what is demonstrably harmful, what is at stake here is people's personal choice. Some of us may find it odd that there are elderly people in Lancashire who enjoy being looked after in an environment that more closely resembles a boarding-house than a hotel. But there are hundreds of rooms in that part of the world licensed at 80 square feet. Are we now to say that that is unacceptable? Are we to say that there is no place for flexibility of judgment that recognises local practices and preferences? I hope not.
§ The cost of Fit for the Future?, were it all to be implemented, is, I. fear, a sum that we would find horrifying, if we knew it. We do not know it because Fit far the Future? is currently only a set of proposals and the regulatory impact assessment of the Bill cannot take account of it. However, I can tell the 814 Committee that the banks are taking account of it. As we sit here, there are care homes going into receivership as a result of what the banks perceive to be a tidal wave of regulation about to engulf the sector. In Brighton and Hove and in Hertfordshire, there is now an under-provision of nursing home beds, which was not the case a year ago.
§ There are many who think that the contraction of the sector—unless the Government take action to halt it—will be evident on two fronts: the closure or small, independent homes, for whom an all-purpose set of minimum standards will make no allowance; and the closure of local authority homes, because local authorities, as first-time registrants, will have an even bigger mountain to climb in terms of room sizes. The net effect will be to drive care provision into the hands of large, independent providers. Is that really what the Government want? If they do not want it, they should say now that minimum standards will be non-binding on the commission and that there will be room for flexibility and discretion where good reason exists. They should say also that they are not oblivious to the issue of costs. An earnest of such a statement would be to undertake that fees to care homes will be increased to reflect the cost of upgrading. That has to be a natural and fair consequence of what the Government now propose. Can the Minister provide such an undertaking today?
§ I return to Fit for the Future? and the many sets of draft minimum standards that are to appear over the next few months. We need reassurance that there will be full consultation on all such proposals with those who are professionally involved in each case. We need to be reassured that those people will be respected and listened to. I believe that it is wholly reasonable, as an additional safeguard, for there to be automatic parliamentary scrutiny of any minimum standards that receive ministerial approval, with the possibility left open for debate under the negative resolution procedure.
§ Clause 21 allows the Minister carte blanche to publish statements and amended statements whenever-he considers it appropriate to do so. That cannot be right. It cannot be sensible to let Ministers in this, or indeed any government, move the goalposts for a sector of the care industry without full debate on any adverse implications. I hope that the Committee will accept that I am not negative on the concept of national minimum standards, but I am a realist. I beg to move.
§ Lord Clement-Jones
I wish to speak to Amendments Nos. 83 and 84 which are grouped with Amendment No. 80. They are similar. Both are designed to ensure that where national minimum standards are imposed by the department—in the way that compliance cost assessments are required in certain instances—the Minister and the department are required to,publish guidance as to the necessary level of resources which on the best available information are required by such establishments or agencies to achieve such standards".815 I speak to these amendments from the basis of strong support for a regime of national minimum standards and indeed for the standards proposed in Fit for the Future? I am sure that the Minister has seen the responses to the consultation. There is obviously strong support in many quarters for those standards. I do not want to detract from our support either for the detail of the standards or from the principle that they should be imposed. However, the amendment is designed to prevent the arbitrary setting of standards which are in a sense responsibility free. It would be perfectly possible for the department simply to take the view that it was rather removed from the process of regulation and that in any event most of the homes were not run by local authorities, which may need to be funded, but by the private sector which needs to contract to local authorities. The department could take a rather lofty view as regards what the cost of achieving such standards should be.
We are concerned to ensure that when minimum standards are set, careful thought is given to the costs involved. As the Minister knows, different financial issues have arisen in regard to the provision of care. There has been much debate as regards whether adequate resources are available in the system. Certainly, the independent sector believes that in many instances it is not being fairly treated by local authorities who, in turn, complain of lack of resources themselves. We therefore believe that it is not good enough simply to set national minimum standards. There should be an overview as to whether there are adequate resources in the system. That should be an essential part of the process—akin to a compliance cost assessment, as I mentioned.
Amendment No. 84, although similar, is not quite the same. One of the concerns that I expressed at Second Reading is that there will simply not be a sufficient level of resources in the inspection system to ensure that minimum standards will be achieved. On Second Reading I mentioned the Almost Half report of 1992 which made the point that there were not enough resources in the inspection system to ensure that standards were met. It seems pretty fruitless to have a clause that allows minimum standards to be set only to find that there are not sufficient resources in the system to ensure that those standards are achieved. We believe that when minimum standards are set it is important that the department should ensure that the inspection resources will be available to ensure that they are put into effect.
§ 7.30 p.m.
§ Lord Hunt of Kings Heath
This debate has gone to the heart of most of the concerns expressed about how the regulatory system will work in practice and the impact that it may have on the financial viability of some of the establishments to be regulated. I hope that I can assure the Committee that these matters have been considered and that we intend—as ever—to keep the right balance between understanding the situation which providers will face and the necessary desire to ensure that vulnerable people are properly protected.
816 We have made clear our intention to consult on all national minimum standards, as we set out in the White Paper Modernising Social Services. As noble Lords will be aware, we have already produced Fit for the Future?—National Required Standards for Residential and Nursing Homes for Older People, and, as I have made clear on a number of occasions, we are considering responses, the closing date for which is in a couple of weeks' time. We shall give the responses careful consideration. I have indicated the flexibility of approach that we shall take when considering the responses to the consultation.
It is our intention to follow the same practice of consultation for each set of national standards and to seek views from all interested bodies and from people likely to be affected. However, we do not want to prevent the possibility of making minor amendments to standards or, perhaps, of responding rapidly with changes should circumstances warrant. We do not want our responses to be slowed down by a lengthy consultation process. It is here that we need some degree of flexibility. Standards on the use of measures to restrain and control, for example, may need to be amended quickly if they do not cover a particular type of unsafe or harmful practice identified in a particular home.
To summarise, we would expect to consult fully whenever developing national minimum standards, but I would be uncomfortable accepting amendments which would rule out any circumstances where a consultation might not be appropriate.
Amendment No. 81 concerns the discretion with which the registration authority may apply the national standards. I said, both at Second Reading and during our previous deliberations in Committee, that an element of discretion needs to be used when the national care standards commission is exercising its powers to make decisions. We think we have achieved that by the current wording "take into account", which we think is sufficiently flexible for those purposes.
It is worth recalling that the independent sector has, for a long time, been calling for national standards. That is because of the inconsistency of approach among many of the current registration authorities. We are determined to bring fairness and consistency to care services, but we accept that consistency has to be balanced with discretion.
The regulations will, as it were, form the bones on which the standards will form the flesh. So, for example, the regulations may require an establishment to provide adequate and suitable staffing, to take a point we have already discussed. These may be further defined in the standards to require, say, a minimum of 50 per cent of care staff to be qualified at NVQ level 2; they may bring in the ratios we have discussed; and they may bring in the national minimum data that the noble Earl has suggested we consider.
An inspector could find on a visit to an establishment which had hitherto met the standard that a turnover of staff had occurred which meant that the standard was no longer being adhered to at the 817 time of the visit We consider that it would be reasonable for the inspector to negotiate with the owner a time-scale within which the new staff should obtain the qualification. However, if it then happened that the establishment continually ran below the standard—perhaps because not enough money was allocated for training staff—the commission would want to issue a formal warning to the owner. If no improvement resulted, the commission would make a judgment as to whether to proceed to a proposal of cancellation of registration or to instigate a prosecution. The persistent failure to meet the standard would, in this case, be relied on as evidence of a breach of the relevant regulation or as evidence of a lack of fitness on the part of the registered person and the service provided. However, I hope that the Committee will see that there is an element of discretion in the way that that would be applied.
The noble Earl also mentioned the question of room sizes. We know that this issue causes concern. We shall consider responses to the consultation in this area; no final decisions have been made. However, to go back to the point I made at Second Reading, the 10 square metres standard, for instance, was contained in a building note issued by the Department of Health in 1973; and the National Association of Health Authorities, in its guidelines published in 1985, also used the same size area. So the issues concerning room size have been with us for many years.
Perhaps I may now turn to the question of whether there is a need for We national minimum standards to be laid before Parliament prior to them being published. As we know, there will be statements of national minimum standards for each type of registered service; each will be a detailed document building on the principles of the regulations to be made under Clause 20, as I have described. The aim of the standards is to give a more detailed indication of what will be required of registered services in those regulations.
We do not believe it is necessary for the national minimum standards to be laid before Parliament when it is already the case that the regulations on which they are based will have been laid before Parliament and subjected to its scrutiny. When one considers the amount of consultation which will take place in the development of each national minimum standard, I am certain that any person who wants to bring a point of view to bear will be heard.
Amendments Nos. 83 and 84 concern the resources needed by the providers and the regulators to implement and en force the national standards. We have already discussed the question of resources to providers. I fully accept the intention of the amendments that all new standards should be based on a realistic estimate of the resources needed to meet them. That is why I have argued previously that the national minimum standards should be decided by Ministers in order that they can take those factors into account. That is why, as a matter of policy, the Government are committed to publishing a regulatory impact assessment alongside any new standards.
818 As regards the costs to the providers, much of our discussion relates to Fit for the Future? and the Committee will have seen that that contains such an assessment. We recognise that some homes will have difficulties meeting some of the standards proposed. I can assure the Committee that we intend to give reasonable time-scales within which those standards can be finally agreed and met.
However, we have to recognise that many homes already meet—or even exceed—those standards, in both the private and voluntary sectors. As the noble Earl hinted, one of the sectors which will have most difficulty with the sizes suggested will be the public local authority sector. It is also worth making the point that the trend towards single rooms has risen quite dramatically, from around 40 per cent to more than 70 per cent in the past 10 years. So the market itself has, in a sense, recognised the need to raise standards and many providers are doing just that. One has to ask whether we would be wrong to inhibit that rise in standards.
I can assure the Committee that as the standards are drafted for each service to be regulated, they will be published with similar assessments as to their likely impact. In carrying out this assessment, the Government will pay close attention to any pressures on public expenditure which might arise from a set of standards and will consider these in the Comprehensive Spending Review. I hope that I have gone some way towards meeting concerns on those matters. The noble Lord, Lord Clement-Jones, raised the issue of whether the registration authority itself would have enough resources to carry out its important responsibilities. Of course, the cost implications of any new standard will be considered by the Department of Health and by the Welsh Assembly in their annual determination of the registration authorities' budgets However, I can give a general assurance to the noble Lord that, of course, we want the new regulatory system to work and that means that we accept that the commission must be funded accordingly in order to carry out its work effectively. I hope that I have assured noble Lords on those matters.
§ Lord Clement-Jones
I thank the noble Lord for his remarks on Amendments Nos. 83 and 84. I shall look carefully at the assurances he has given when considering any further amendments.
§ Earl Howe
I thank the Minister for covering the ground so comprehensively. I wish to respond only briefly. I am reassured by the intention of the Government to consult widely on each set of draft minimum standards. That will be a good thing. However, the reason why I wanted to put the amendment on the face of the Bill is that, while it is acceptable for the Minister to express what is undoubtedly a sincere intention on the part of this Government, he cannot bind future governments and parliaments. For that reason, there is a case for including a provision as regards consultation arid I shall need to reflect on that.
819 I am reassured by his comments on the meaning of "taking into account". Clearly, while that was largely a probing amendment, that form of words did not, so far as I was aware, have a defined meaning in law. The Minister has been most helpful in putting some flesh on the bones. If it does allow for flexibility, then that is a good thing.
As regards the matter of the regulation of room sizes, technically, what the Minister said was correct; namely, that for a number of years room sizes have been laid down to the measurements he mentioned. However, what is also true is that local authorities have been able to exercise discretion. This has been very much a local matter, so that in different parts of the country rooms can vary in size. As I mentioned, in Lancashire the pattern has been to license residential and care homes with much smaller sizes of room. The same is true in areas of the south coast. My concern is that, at a stroke, such care homes, where people are living happily and are well looked after, would be consigned to oblivion. I do not believe that this has been sufficiently thought through and I hope that Ministers will take on board those concerns.
I am very unhappy that the Minister does not agree that there should be parliamentary scrutiny of the minimum standards. While it is true that the regulations will already have been laid—the Minister rightly pointed that out when he gave the example of staffing ratios—they will be phrased in general terms. All noble Lords would approve of regulations covering staff numbers, but, as I said at Second Reading, the devil is in the detail. I am not pressing for the affirmative resolution or making any other such pie-in-the-sky request, but if there are concerns, then Parliament should be given the opportunity to discuss them. I shall have to return to that matter.
The question of resources was addressed by myself and by the noble Lord, Lord Clement-Jones. Resources lie at the heart of this matter and I am sorry that the Minister did not feel able to comment in any way on how the cost of upgrading might impact on the level of fees the Government would be prepared to see in place.
§ Lord Hunt of Kings Heath
I thank the noble Earl. I thought that I had made clear that the Government will look at the potential cost of the introduction of higher standards. Furthermore, they will take those costs into account in any discussions on public expenditure decisions in the future.
§ 7.45 p.m.
§ Earl Howe
At that point I must have been paying insufficient attention when the Minister was speaking and I apologise for that. I am most grateful to him.
I should like to point out that the two significant items of expenditure required under Fit for the Future? are, I believe, to enlarge the width of doors to 0.8 metres and to provide three double sockets in each bedroom. 820 I have been advised that those are two very costly items. If those requirements are imposed, please can we receive an assurance that they have not been merely plucked from the air, especially in the case of door widths. From what the Minister has already said, I am sure that he will examine that point carefully.
I am aware of the time, but can the Minister answer two specific questions on national minimum standards? First, how does he envisage such standards interacting with national service frameworks and, secondly, how will those standards be reflected in planning regulations?
§ Lord Hunt of Kings Heath
I presume that the noble Earl is referring to the issue of private healthcare establishments as regards national service frameworks. When we debated this matter I referred to a number of policy developments and institutions concerned with the management of the National Health Service which might inform the standards that would be set for the private healthcare sector. That is the position, I believe. Clearly, when setting out the basis for a framework for the development of consistently high quality services throughout the National Health Service, elements will be contained in that framework that will be relevant to any national minimum standards set in relation to the Bill. However, it is a little difficult to say more than that until we have begun to develop further the national service frameworks.
I suspect that the noble Earl may be suggesting that national service frameworks should automatically be applied to the national minimum standards. However, I would not accept that because I must return to the distinction I drew in our previous debate; namely, that the regulatory function of the commission will be very different from the Government's responsibility to manage the NHS effectively. National service frameworks are concerned with effective management and the delivery of high quality services. However, of course they can inform the development of national minimum standards.
§ Earl Howe
I am grateful to the Minister for that response. I am not sure whether the Government have reached the point of thinking about how, and to what extent, the setting of national minimum standards will be reflected in planning regulations, which I do appreciate falls outside the remit of the noble Lord. Nevertheless, if national minimum standards are laid down, in however discretionary a way, it is a factor to be taken into account, and I should have thought that planning regulations will also need to take them into account.
As I said, I am aware of the time and at this juncture I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 81 to 84 not moved.]
§ Clause 21 agreed to.821
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.