Care Standards Bill [H.L.]

HL Deb 13 January 2000 vol 608 cc834-66

8.46 p.m.

House again in Committee.

Lord Clement-Jones moved Amendment No. 85: After Clause 21, insert the following new clause—

("Codes of practice

CODES OF PRACTICE

.—(1) The Commission shall prepare and issue codes of practice giving practical guidance on the standards which are to be observed whether in relation to the national minimum standards applicable to establishments or agencies or otherwise.

(2) The Commission shall, when requested to do so by the Secretary of State, prepare a code of practice dealing with the matters specified in the request.

(3) In preparing a code of practice the Commission shall carry out such consultations as it considers appropriate (which shall include the publication for public consultation of proposals relating to the code).

(4) The Commission may not issue a code of practice unless—

1. (a) a draft of it has been submitted to and approved by the Secretary of State and laid by him before both Houses of Parliament; and
2. (b) 40 days (excluding any period when Parliament is dissolved or prorogued or when either House is adjourned for more than 4 days) have elapsed without either House resolving not to approve the draft.

(5) If the Secretary of State does not approve the draft code of practice submitted to him he shall give the Commission a written statement of his reasons.

(6) A code of practice issued by the Commission—

1. (a) shall come into effect on such day as the Secretary of State may by order appoint;
2. (b) may be revised in whole or in part, and re-issued by the Commission; and
3. (c) may be revoked by an order made by the Secretary of State at the request of the Commission.

(7) Where the Commission proposes to revise a code of practice—

1. (a) it shall comply with subsection (3) in relation to the revisions; and
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2. (b) the other provisions of this section apply to the revised code of practice as they apply to a new code of practice.

(8) Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under this Act shall be taken into account in determining that question.

(9) The power to make an order under this section is exercisable by statutory instrument.

(10) Nothing in this section affects the Commission's powers apart from this section to give practical guidance on matters connected with its functions.").

The noble Lord said: I start by giving an apology. This amendment is proposed in my name and that of my noble friend Lady Nicholson, who is also the proposer of a Private Member's Bill on the issue of the regulation of private independent healthcare. The amendment imports what we believe to be one of the key elements of that Private Member's Bill, which we believe to be greatly preferable to Clause 21 in its current form.

During the debate on the previous group of amendments, the Minister spent some time discussing quite usefully what was meant by the words "shall be taken into account". We believe that the codes of practice set out in Amendment No. 85 are much clearer in law in terms of what the duties of the commission would be regarding inspection and enforcement. They are much clearer than simply a set of minimum standards which would be required to be taken into account. For that reason, we propose a set of codes of practice. Clearly, we have added in certain other bells and whistles, which we have already discussed, such as the way in which drafts of the codes of practice are submitted to both Houses of Parliament, the way in which they are laid on the Table, and so on, in terms of affirmative approval.

However, that is not the essence of the amendment. Its essence lies in proposed new subsection (8): Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under this Act shall be taken into account in determining that question". That is of great importance because it sets a legal standard. I do not believe that it imports a lack of flexibility, which is how in a sense the Minister justified the wording of the current Clause 21. Indeed, it also makes it clear that the codes of practice as a whole will inform the way in which the commission carries out its business.

It is not entirely clear how Clauses 20 and 21 interrelate in terms of the Bill. Amendment No. 85 expresses more clearly the way in which minimum standards will operate. Indeed, under a great many pieces of legislation, codes of practice are the norm. Therefore, this is not an unknown practice; indeed, it is very common, and the legal effect of codes of practice is clearly understood. Therefore, I commend Amendment No. 85 to your Lordships. We believe that it will create a much clearer legal regime than the current Clause 21 for the commission and, indeed, for any court or tribunal eventually required to adjudicate on the matter. I beg to move.

Earl Howe

I strongly support the thrust of this amendment. It is important that the commission should not, as it were, simply be the recipient of dicta from on high and implement those instructions. It should have a proactive role in the setting of standards and in relating national minimum standards to what is experienced on the ground and in proposing, up the tree, so to speak, improvements and variations.

The noble Lord has adopted an extremely imaginative and creative approach. Had I drafted the amendment, I might have done one or two things differently. But the essence of it has much merit and I hope that the Minister will take on board the thrust of it.

Lord Hunt of Kings Heath

I am grateful to the noble Lord, Lord Clement-Jones, for explaining the intention behind the amendment. I am not entirely convinced that his approach is better than the approach which we have adopted in the Bill, with a framework of regulations alongside national minimum standards.

The noble Earl, Lord Howe, suggested that there is a need for the commission to have a strong role in setting standards. While it is extremely important that Ministers should make the decisions on the national minimum standards, they will be informed by the views and experience which the commission has gained. One of the great advantages of setting up such a commission at national level is that because of the strong network of regional and local inspectors, it will be able to have a great deal of information and experience to offer the Government when it comes both to looking at national minimum standards and to revising them, as no doubt they will need to be revised, from time to time.

The amendment moved by the noble Lord, Lord Clement-Jones, proposes that there should be codes of practice on the standards which regulated establishments will have to meet. That implies that the national minimum standards require significant interpretation. That will not be the case. They are intended to be free standing. They will also be self-explanatory. The risk is that the code of practice which the noble Lord suggests will add another layer of interpretation and will risk causing confusion as to what is authoritative—the national minimum standards or the code of practice.

If there is a question as to whether the standards will be sufficiently clear, I refer the Committee to the first example that we have published, the document Fit for the Future?. Whatever Members of the Committee may think about some of the points contained in it, the one thing that is clear is that it is not just a broad list of standards. A considerable amount of guidance material has been built into it. That clearly will be a model to follow with other standards as we develop them.

I have already described the relationship between the regulations and the national minimum standards. The commission's role is not simply checking whether the regulations and standards are being met; it is also expected to assist and advise providers on how to meet those standards. So if anyone has any doubt as to what a particular standard means, he will be able to contact the commission and ask for clarification. We want the commission to be able to hold more formal training events, such as seminars and conferences. I tabled an amendment on Monday to enable the commission to do that.

I assure the Committee that the proposals which we are bringing for ward will introduce tough new regulatory requirements. At the same time, the commission will operate sensibly and properly in relation to the development of national minimum standards. Decisions on those standards will be made by Ministers but they will be informed by the experience and work of the commission. The interrelationship between the two will enable us to develop a rigorous approach to regulation, but with flexibility and the ability to ensure that in developing standards, we shall have full consultation with all those concerned.

Lord Clement-Jones

I thank the Minister for that reply. With this amendment and the previous set of amendments, we have managed to tease out very helpfully from the Minister just what is the basis of Clause 21 and how it will interrelate with the rest of the Bill.

There are still same issues regarding the legal basis of Clause 21 which need to be considered. But it will be helpful to fit together the Minister's replies in response to the last two sets of amendments; to look at Hansard very carefully; and then to consider whether the totality of that is satisfactory. In the mean time, I thank the Minister for his reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 86 not moved.]

Clauses 22 to 27 agreed to.

Clause 28 [Inspections by persons authorised by registration authority]:

[Amendment No. 87 not moved.]

Earl Howe moved Amendment No. 88: Page 13, line 33, after ("time") insert ("in the event of an emergency, and (b) during normal business hours in all other circumstances.").

The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 89, 90, 95, 97,109 and 110. These amendments all relate to the ground rules which should apply to the conduct of inspections. Clause 28 is drafted in a way which is rather too accommodating to the inspectors and insufficiently accommodating to those who are to be inspected.

The vast majority of inspections will be carried out in a constructive and friendly spirit. They will provide opportunities for sharing good practice. Above all, they will need to be conducted in a manner which does not lose sight of their overriding objective, indeed the objective of the Bill; namely, to safeguard the well-being of the care home resident, the hospital patient or the child in the children's home, as the case may be

That being so, we need to look carefully at the powers which the Bill confers on inspectors. Of course, some inspections will be far from easy, where inspectors will need to stand on their authority and where the power to insist on access to people and records will need to exercised in a robust way. But that does not give us an excuse to overlook either people's rights or common sensitivities.

In these amendments, I suggest that it is unacceptable, other than in an emergency, for an inspector to demand entry into a care home or other establishment during the night. It is not fair, in normal circumstances, to inflict such a disturbance on, for example, elderly residents. I suggest that inspectors should produce identification as a matter of routine. We should pay proper regard to the conduct of interviews. Most interviews with managers or staff will be non-confrontational but some will be the exact opposite. If I were on the receiving end of such an interview I should want it to be in private; I should want to have somebody independent sitting on my side of the table; and I should want to be sure that whatever I said was correctly noted down. That is precisely the right that I would have in a police station. I see no real difference of principle if what I say to a police inspector carries with it the possibility of criminal charges being laid against somebody.

I believe that Clause 28 should make it absolutely clear that there are some areas into which an inspector should not consider it his automatic right to enter. The point of my amendment to subsection 3(a) is to relay a concern expressed to me by more than one source. All too often inspectors cannot resist making pronouncements on matters which are not within their remit. The examples quoted to me are pharmacy issues, fire regulations and health and safety matters. All of these are important, but they are not strictly the province of an inspector of a residential home, or such like, and should be left to those who are trained and qualified to give the correct advice. I hope that the Minister will be sympathetic to the thrust of these amendments. I beg to move.

9 p.m.

Baroness Barker

I have every sympathy with the sentiment behind Amendment No. 88 standing in the name of the noble Earl, Lord Howe. Of all the amendments at which I looked, this was the one that caused me the greatest problem. The problem is that abuse and malpractice does not happen during normal working hours. The most blatant of abuse occurs at the time when the most intensely personal care is taking place, and that happens to be very early in the morning and very late at night when people are going to bed.

Secondly it is not good enough to talk about "in the event of an emergency". When we talk about good practice, very small things which are not emergencies but add up to the total quality of care in a home can be determined early in the morning. For example, I worked with one group of lay assessors who made very early visits. They looked at how long it took for hot water to come through the taps to fill baths, and so on. We have just been talking about the qualitative standards which are in Fit for the Future? I actually do believe that many of them will be best tested by out-of-hours inspections.

While I understand what has been said about privacy during interviews, I think that the wording of this particular amendment is misplaced. I hope that we can look at some of the spirit to which the noble Earl, Lord Howe, referred, but not use these particular words.

Baroness Pitkeathley

I rise very briefly to support what the noble Baroness, Lady Barker, on the Liberal Democrat Benches said. I understand entirely the spirit of the amendment of the noble Earl, Lord Howe, about invasion of privacy, and such like, but it is at those particular times of vulnerability that we have to be able to prove the standard is still maintained during those occasions. From that point of view, I oppose the amendment.

Lord Laming

Members of the Committee will see that I am not the noble Lord, Lord Rix. I wish to speak to Amendment No. 91 and also Amendments Nos. 92, 93, 94 and 96. I shall start with No. 91. Medically qualified and nurse inspectors have the option, in appropriate cases, of looking at personal medical records and of carrying out physical examinations. This option is, as the Bill stands, subject to the consent of the person concerned: that is, in the case of people who are able to give consent. Therefore, it is eminently reasonable. However, in the case of someone who, because of their disability, is not able to say or indicate either yes or no, there is no power to look at medical records or to examine the person. As a result, those who are most vulnerable have the least protection. If there have been rumours about improper restraint, the more able resident can authorise the doctor to look at their arms for bruises and check their medical records for explanations. With the more severely disabled resident the rumours cannot be followed up and, therefore, run away into the sand.

These amendments would allow the doctor or nurse to do their job properly unless the person refuses consent. In the case of checking medical records, this should not be controversial. In the case of physical examination, it is worth making clear that refusal to consent includes physical and not just verbal refusal; allowing someone without words to refuse examination.

I urge the Minister to take these amendments seriously as an attempt to secure equal protection for those who are the most vulnerable.

I turn to Amendment No. 93. This amendment would allow a third party to be present during examinations or interviews taking place as part of suspected abuse or malpractice cases. Not only may this be of general reassurance to the service user, for example, allowing someone of the same sex to be present while being examined by someone of the opposite sex, but it may actually be crucial to determining the facts of the case. People with learning disabilities may lack the communication skills to make their views known without support. They may need support to help think what they want to say, or more likely, may need encouragement to answer a question. Interviews must be made possible, otherwise the most vulnerable people will be denied an opportunity to speak for themselves in often very distressing situations.

I now turn to Amendment 94. In speaking to this amendment I am not suggesting that there should be a requirement on inspectors to consult service users' wider contacts as a matter of course; but in a small number of cases—perhaps where the service user has communication difficulties—it may be appropriate to seek the use of relatives or advocates who may have been in regular contact with both the service user and the establishment in question. It is designed to be a helpful amendment. Under no circumstances should it be used as a substitute for seeking service users' own views, or placing less credence on them.

Finally, I turn to Amendment No. 96. There is something of a clash of principles when it comes to checking on domiciliary services. On the one hand, people are in control of what happens in their own homes and there is something fundamentally wrong about inspectors snooping around someone's home. The other principle is that people are at their most vulnerable in their own homes and deserve protection—better protection than looking through the files at the offices of the domiciliary services agency can offer.

The bridge between these two principles seems to be the right of the householder to invite the inspector in or keep the inspector out. Given that safeguard, enabling inspectors to visit people at home on occasions seems entirely proper and a valuable extension of their ability to be supportive. We have precedents for such visits in, for example, the role of the Lord Chancellor's Visitors. Even without that, and allowing for the necessarily modest scale of such visits, the question is, "Why not?", not "Why?". I believe that the Minister may be able to assure the Committee that such visits are both possible and intended.

Lord Lucas

I have a question which I think goes along with these various amendments. I wonder whether under Clause 28(3)(b) and (c) there is a right for the person making the inspection to obtain these records even if they are not kept at the premises in question.

Lord Hunt of Kings Heath

Perhaps I may first speak to my amendment, Amendment No. 111, which is part of the group. The amendment ensures that the provisions relating to inspection offences and the requirement for an inspector to be duly authenticated apply to Clause 42 as well as to Clause 41. The clauses deal with the inspection of adoption and fostering services and it is essential that the provisions apply to both Clauses 41 and 42 to allow the inspectors to carry out their duties properly.

I turn to the other amendments in the group. They raise important issues about the nature of inspections and the balance, as the noble Earl, Lord Howe, put it, between the inspector and the inspected. The noble Earl raised a number of questions concerning the potential behaviour of those appointed as inspectors. One of the great advantages of the arrangements we shall put in place is that the commission will be able to ensure that those inspectors are given appropriate training, that there will be consistency and high standards in the way they operate, and that they will well understand the need for sensitivity, particularly to residents, in their approach to the way in which inspections are carried out.

In relation to Amendments Nos. 88 and 109. I should say that the normal business hours of a 24-hour care establishment would not be nine to five. As the noble Baroness, Lady Barker, pointed out, these establishments provide care in the evenings and at weekends, day or night. If inspection visits were to be limited normally to nine to five, many of the key aspects in the routines of care homes and other establishments would not be observed.

It is essential that inspectors are able to observe the arrangements for getting residents out of bed in the morning, their breakfasting, evening meal and how they are put to bed by staff. As the noble Baroness, Lady Barker, said, unfortunate happenings are not infrequently encountered in visits outside normal business hours. It is the experience of many registering authorities that inspectors have visited residential homes at 6 a.m. and found all the residents out of bed and dressed, simply for the convenience of the day staff coming on shift. An important feature of the draft national minimum standards for residential care of older people is that they must have choice. This should extend to whether residents wish to rise early or late and what they would like to eat. They should not be denied choice for the sake of staffing convenience. The same points could be made about the evening routine. It will be equally important to check that night staff are awake and alert. That can only be accomplished with evening visits.

Importantly, the provision for inspectors to carry out inspections at any time is already in the existing Registered Homes Act 1984 and the Children Act 1989. For the reasons I have outlined and the need to ensure that inspections of statutory and private provision are consistent and effective under the commission, I hope that the Committee will agree that it is important that inspectors have the ability to do what is set out in the Bill.

I agree very much with the concern expressed in Amendment No. 89 that the registration authority's inspectors should act only in accordance with the discharge of the registration authority's statutory duties. However, this amendment is not necessary to achieve that. The registration authority will only be able to take actions necessary or expedient to the discharge of its functions. It follows that any person it authorises to work for it will automatically be under the same obligation. If an inspector has been authorised by the commission, he or she cannot do more than discharge its functions.

I can quite understand that there may be occasions—the noble Earl gave a particular example—when an inspector is thought to have acted beyond his powers or, in the case quoted by the noble Earl, in what might be considered to be an unreasonable way. In this case, the provider will have every right to complain to the commission about the inspector's behaviour. I make it absolutely clear that we shall issue directions to the commission to ensure that it has a satisfactory procedure in place for dealing with complaints about its staff and the way in which it exercises its functions.

I also take this opportunity to assure your Lordships that if a complainant is not satisfied with the commission's response, he or she will be able to take the complaint to the Parliamentary Commissioner for Administration as the commission will be a non-departmental public body.

As with Amendment No. 89, I thank noble Lords for suggesting Amendment No. 97, but I am not convinced that it would improve the protection of providers from bogus inspectors or could add anything in terms of preventing inspectors acting beyond their remit.

Turning to Amendment No. 90, I am sympathetic to the proposed change to the Bill's provision for interviewing managers of services. Indeed, there may be instances when it would be necessary to interview a manager in private—perhaps if he or she were unwilling to speak in front of the owner. Therefore, I want to take this away and give it further consideration.

On Amendments Nos. 91, 92, 93 and 94, I am sympathetic to the wish to strengthen the opportunities for residents of establishments to express their views to inspectors. Many noble Lords will have seen the recent television documentary, "Macintyre Undercover", which exposed ill-treatment of residents that had gone undetected by inspectors. In future we shall want to ensure that inspection methods are both sensitive, as I have said, and rigorous so that residents are enabled to express their views about their care in private and with the confidence that any concerns will be dealt with.

We have already commissioned work from the voluntary sector to help to improve communication between inspectors and people with learning disabilities, and to enable more service users to take an active role as lay participants in inspection.

We also intend that inspectors should actively involve relatives, friends and advocates of service users in the inspection process. Of course, staff in good homes will be, and have been, keen to enable this active flow of information. Any reluctance to help inspectors to acquire the fullest picture of what a home feels like to live in should, of course, prompt closer inspection. However, I am not convinced that the details of how those aspects of best practice can be built into inspection are best dealt with on the face of the Bill. They can be achieved through directions from the Secretary of State to the commission. I can assure the noble Lord that we shall give directions to the commission on those issues.

In relation to Amendment No. 95, in essence it seeks to formalise the contact between inspectors and persons present during an inspection in a way that would not be conducive to good relations between inspectors and operators of registered services. To my mind, to introduce the idea of independent representation for service users when an inspector is wanting to ask them for their views on the service being received suggests a completely different connotation from that intended. It seems to imply that the service user is making a formal statement, as if in a police interview, and needs representation to safeguard his or her interests.

That is the opposite of what this is all about. We want to enhance the resident's or patient's opportunity to speak openly and frankly. I am concerned that the amendment would have the opposite effect. Inspectors will want to gain an honest view from service users about the quality of care being provided and we cannot, and should not, want them to be inhibited from expressing their views by being prevented from speaking privately.

I return to a point I raised at the beginning. There are many ways in which skilled inspectors can put service users at ease and create informal opportunities for them to talk privately. We do not intend that the general process of gathering information should be carried out as if interviewing anyone for a job, but we want to ensure that inspectors can be firm if they consider that they are being prevented from talking privately by, for example, a manager hovering at someone's shoulder. Nor is it intended that employees, owners or managers should be grilled by inspectors. We want to ensure that staff can feel free to respond honestly to questions, which may include them being asked what induction and training they have had; how well they are supervised; whether or not they have access to the right equipment, and so on, that they need to do the job. Those are the kinds of issues that would be routinely covered on inspections.

In their turn, managers could be inhibited from talking freely about the resources that they have to meet the standards, or they may want to discuss a problem and seek advice from inspectors in private.

One could go further and say that, as it will be necessary for commission staff to inspect without notice, giving the right of representation could allow operators of registered services to hamper or even to obstruct the inspection by refusing to co-operate unless their independent representative were present.

The case is different if something untoward is discovered and an offence is suspected by the commission. In those circumstances—this may be the answer to the noble Earl, Lord Howe—the inspectors would apply a caution under the Police and Criminal Evidence Act and begin a formal interview which would then be recorded and may be used in evidence. But that is a different matter altogether. Of course, under those circumstances, persons cautioned have a right to remain silent, though it might harm their defence, and a right to representation. Again I say to the noble Earl that we intend inspectors to be properly trained to distinguish between those circumstances and act accordingly.

I have some anxieties in relation to Amendment No. 110. It would create a right to independent representation for any local authority employee in an inspector interview. In addition, the interviewee would then have the right to receive a written record of the interview. It is important that inspectors are able to do their job. Part of that job requires them to interview staff working for the local authority. It is important to remember the purpose of the interview. It will not usually be the case that the person being interviewed is the subject of a formal investigation. The interview will usually be part and parcel of the normal information-gathering exercise necessary for the inspector to report on the quality of care being offered. It is not likely that an employee will need independent representation to answer straightforward questions about his or her job. It would be difficult for the commission to do its job if the inspectors could not ask a member of staff of a local authority routine questions without that person being represented.

The concerns in relation to Amendment No. 96 are appreciated. The regulation and the domiciliary care process should not be limited to the head offices of domiciliary care agencies. I can assure the noble Lord that visiting service users and talking to their families and themselves will be a key feature of regulation of domiciliary care. Also, the commission will only ever undertake such visits and interviews with the consent of a service user, so there will be no need for any legal powers on the face of the Bill. The commission will be free to do that without specific enabling powers. But to ensure that the commission involves service users in the inspection of domiciliary care agencies, we intend to issue directions to the commission on that issue. We will make similar directions concerning the inspection of adoption and fostering agencies where it will be equally important to involve service users and recipients. In those cases, the commission will be required to interview a selection of the adult carers and also some of the children, where appropriate.

The answer to the noble Lord, Lord Lucas, is "no". The Bill requires certain records to be kept, but those can be inspected wherever they are. I hope that answers the noble Lord.

Lord Lucas

Perhaps I may ask a couple of supplementary questions. I may have misunderstood but I do not believe the Minister addressed the questions raised on Amendments Nos. 91 and 92. Those amendments reverse the sense of the Bill as at present drafted and I do not see how that can be achieved by secondary legislation. I should like to know why the Government do not feel that that is appropriate.

Lord Hunt of Kings Heath

I am glad the noble Lord intervened. I was remiss in not responding to those specific points. In fact, I am sympathetic to those arguments and would like to take them away and give them further consideration.

Lord Lucas

My second question concerns a technical point—that may be a polite way of putting it. Clause 28(3)(b) gives the inspector power to inspect and take copies of any records. Subsection 3(c) adds, where those records are kept by means of a computer, require the records to be produced in a form in which they can be taken away". Either that subsection is unnecessary because the inspector has the power to take them away and presumably that means that they are in a form which can be taken away, or this is an attempt to address the problem of encryption. It is very likely that these records will be sensitive. On any modern computer system they will probably be encrypted. If we suppose that they are encrypted, then nothing in subsections 3(b) or 3(c) gives the inspector the right to have a translation of those records into a readable form of English. I do not understand what subsection 3(c) is getting at. If it is addressing encryption, should it not be amended?

Lord Hunt of Kings Heath

That is a very interesting point. The noble Lord will not be surprised if I say that I would rather reflect on that question. I shall either write to him or return to the issue on Report.

Earl Howe

Once again, we have had a useful short debate. I am grateful to the Minister for covering the ground so comprehensively. I am particularly grateful to him for saying that he will take away Amendment No. 90 to see whether there is merit in what I say.

I entirely understand that there will be strong arguments for inspectors making inspections of care homes and other establishments outside normal business hours. On reflection, I think that the wording of my amendment is slightly wide of the mark. Indeed, facing the combined fire power of the noble Baronesses, Lady Barker and Lady Pitkeathley, as well as facing the Minister, can only give me cause to reflect very carefully on the merits of that amendment.

Nevertheless, as the Minister said, there are sensitivities involved and I believe that there is a germ of an idea in that amendment which could perhaps be put into a different form. I should tell the Minister that there are two points of view on the matter. This was not an idea that came out of my own head; indeed, it was strongly suggested to me that there should be some kind of restriction on the rights of inspectors to march into a premises at any time of their choosing.

I am also a little disappointed that Amendment No. 97 did not find favour with the Minister. Its purpose was to ensure that inspectors would be obliged to produce identification under all circumstances. I am instinctively averse to the notion of people turning up at the front door of an establishment, demanding to be let in and not necessarily producing identification, unless someone is quick-witted enough to ask for it, before marching in. That does not seem to me to be the way that we should behave in this country and I am sorry that the Minister dismissed that point.

Amendment No. 95 refers to conduct during interviews. This all depends on what one means by "an interview". My idea of an interview is where someone takes a person aside and says, "I would like to talk to you in private about this matter". It is not a casual conversation where you pick up information, as you may do when you go round a care home and converse with someone. That is not an interview; indeed, an interview is something much more formal. Nevertheless, the information from the Minister about the provisions of the Police and Criminal Evidence Act was very helpful. Those are the sorts of circumstances where the interview becomes, shall we say, difficult and confrontational and which could lead to criminal charges. That was my chief concern in drafting the amendment in this way. I am grateful to all Members of the Committee who contributed to this debate and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 89 to 97 not moved.]

Clause 28 agreed to.

Clause 29 [Inspectors: supplementary]:

[Amendments Nos. 98 to 100 not moved.]

Clause 29 agreed to.

9.30 p.m.

Clause 30 [Arrangements which may only be made with a registered person]

Earl Howe moved Amendment No. 101: Page 15, line 25, at beginning insert ("Subject to subsection (3) below,").

The noble Earl said: In moving Amendment No. 101 I wish to speak also to Amendment No. 105. This is a simple issue. Clause 30 states that local authorities and NHS bodies who wish to delegate the provision of home care to an agency may do so only if the agency is a registered domiciliary care agency. I do not in the least disagree with that as a generality. However, I would not wish it to mean that individuals who leave hospital or a nursing home and then avail themselves of the direct payments system to arrange their own care at home should be prevented from doing so. The direct payments system has been a tremendous success, particularly for younger people requiring care at home. I hope that the Minister will be able to provide some reassurance. I beg to move.

Lord Clement-Jones

I wish to speak to Amendments Nos. 102 and 103. My noble friend Lady Barker will speak to Amendment No. 104. I believe that Clause 30 is one of the measures in the Bill that causes great bafflement. We have been baffled on certain points but the provisions of Clause 30 in particular give rise to the question—as I read the clause—that the only domiciliary care agencies that require to be registered are those which discharge functions on behalf of a local authority or a National Health Service body.

Amendments Nos. 102 and 103 are designed to include private establishments in the measure. It seems rather extraordinary, if, in a sense, they are subcontracting from a body which is not a public body, that domiciliary care establishments are not required to be registered. It seems to me that the boot should be on the other foot. If anything, there seems a greater requirement for registration in those cases than where bodies subcontract from an independent clinic or a private hospital.

I hope that the Minister will consider this issue carefully. I do not know the basis on which the clause has been formulated. I do not know whether some issue of resources has been taken into account, or what the motives are behind it. However, it seems rather peculiar and rather unnecessarily limited. I look forward to the Minister's response.

Baroness Barker

Amendment No. 104 needs to be considered in the context of Amendments Nos. 102 and 103. As my noble friend Lord Clement-Jones said, we support and would wish to see the extension of measures which will guarantee the quality of as many domiciliary care services as possible. The Committee may not need to be reminded that perhaps the greatest uncertainty among older people is experienced by those who arrange their own domiciliary care and who do not go through the route of the NHS or local authority bodies. That constitutes a huge problem.

Having said that, Amendment No. 104 may appear rather strange. The objective is to ask the Minister what will happen to existing, workable arrangements under the direct payments scheme with providers who are not, and will not be, registered. I do not want anyone to misinterpret this matter. Anyone who works with older people will realise that the quality and the safety of domiciliary care providers is perhaps one of the biggest issues of concern to older people who are becoming slightly frail and who live in their own homes. This is a probing amendment in relation to the direct payments scheme as it works at present.

Lord Hunt of Kings Heath

I am glad to have the opportunity to discuss with the Committee how the direct payments scheme fits into these arrangements. I believe that all Members of the Committee support the direct payment concept. The Committee will know that we are extending eligibility for direct payments to a greater range of people, including older people.

Let me begin by reassuring the Committee that Clause 30 applies only to local authorities and NHS bodies; it does not apply to persons purchasing their own domiciliary care, even if they are using direct payments to do so.

I should like to take this opportunity to reinforce what I said on Monday about our attitude towards the regulation of domiciliary care agencies. Let me make it absolutely clear that we intend that all domiciliary care agencies will eventually be required to be registered, but not from day one of the commission's operation. We believe that it is better to take a more gradual approach because we do not want to overburden the commission when it starts its work. So, with regard to the registration of domiciliary care agencies, the question is "when" rather than "if".

I should also take the opportunity to make it clear that the requirement to register will not extend to arrangements between individuals for the provision of domiciliary care. So if people in receipt of direct payments want to use them to pay another individual, for instance, to come to their house, to get them up in the morning and to wash and dress them, that would never be covered by the provisions in the Bill. Clause 4(3) defines a "domiciliary care agency" as, an undertaking which consists of or includes arranging the provision of personal care in their own homes", for the categories of persons listed. I can assure the Committee that the word "undertaking" here could never be construed as applying to an individual.

With regard to the amendment relating to independent healthcare bodies, it is unlikely that independent healthcare providers will be purchasing domiciliary care services on behalf of their patients in the way that local authorities do on a routine basis. Certainly on that ground I see no necessity to extend Clause 30 to cover independent hospitals and clinics.

Lord Clement-Jones

I thank the Minister for his reply. We shall obviously consider very carefully what he said. In a sense, it is a matter of judgment as to whether there is a need to tighten up the clause. I fully accept the commitment he made that eventually all domiciliary care agencies will be registered, but I am worried about the mechanism by which sub-contracting will be carried out in all cases if it was thought to be important at some stage in the future—for instance, if a mixed economy became rather more prevalent in the healthcare sector. It seems to me that there is not the necessary mechanism in the clause—and, under the Bill, I doubt whether it could be done by regulation—to ensure that the relationship with an independent body is made utterly clear in the way that the relationship between the domiciliary care agency and the local authority and the NHS body is made clear.

If it was thought desirable, for instance, to ensure that a domiciliary agency is registered if it sub-contracts from an independent hospital, it is not clear how that will come about and how, under the Bill, it can be enforced. I am not sure whether there is a legal entitlement to do so. That is why consumer bodies which have spoken to me about this matter are keen that the clause should be widened in the way we have suggested. I am not yet convinced by the Minister. Perhaps he can give some further clarification.

Lord Hunt of Kings Heath

I am not sure that I understand the noble Lord. Perhaps he can explain a little more what he means by "sub-contracting".

Lord Clement-Jones

We are talking about the discharge of responsibility for a relevant function. That is what I mean by "sub-contracting". It reflects the terms of the clause, which are wide in respect of an NHS body. But it seems to me that there is a gap; why are there not circumstances in which an independent hospital should not be treated in an identical way? It may be a part of their insurance policy that they are entitled to that form of home care and the domiciliary care agency is undertaking it as a result of that insurance policy. In those circumstances it seems that they need safeguards. While I fully accept that the Minister said that it is intended that domiciliary care agencies should be registered in the future, I am not sure how that will bite if there is a form of sub-contracting along the lines I have described.

Lord Hunt of Kings Heath

It may be that I am being dense here. As regards Clause 30, my understanding is that we are looking at a situation that concerns with whom a local authority or an NHS body may arrange for a relevant function to be discharged. I am afraid that the noble Lord has lost me in relation to where another body to which such a relevant function can be sub-contracted comes into this.

Lord Clement-Jones

The Minister was doubtful about whether there were many circumstances in which independent hospitals could arrange for the discharge of a relevant function. However, assuming that he was prepared to accept that there are circumstances in which they do so and they could do so, why does this clause not also apply to them? I do not believe that the Minister has fully answered that question.

Lord Hunt of Kings Heath

As I explained, in relation to domiciliary care agencies, we have decided to take a gradualist approach to their regulation. The gradualist approach requires those agencies under contract with a local authority or health authority to be regulated. We then stated that, over time, we will gradually extend that regulation to all domiciliary care agencies.

Lord Clement-Jones

How would that happen?

Lord Hunt of Kings Heath

It will happen through the provisions contained in the Bill which allow us to do that.

Lord Clement-Jones

We could spend many happy hours playing tennis on this one. I shall reflect on what the Minister said and no doubt he will do the same on my comments. I shall now leave it to the noble Earl, Lord Howe, to finish his amendment.

Earl Howe

No doubt I shall finish with some relief to all noble Lords. As regards my own amendments, I am most grateful to the Minister for his clarification on the issue of direct payments. He has satisfied a great many people who were uncertain and doubtful about the effects of the Bill on the direct payment scheme. I am delighted to discover that there will be no effects whatsoever. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 102 to 105 not moved.]

Clause 30 agreed to.

Clauses 31 to 33 agreed to.

Clause 34 [Provision of copies of registers]:

Lord Laming moved Amendment No. 106: Page 16, line 34, at end insert (", including circumstances in which the interested party is in receipt of or has had an application for a direct payment").

The noble Lord said: Before I move Amendment No. 106, tabled in the name of my noble friend Lord Rix, I should draw the attention of the Committee to a misprint on the Marshalled List. The amendment should read: (", including circumstances in which the interested party is in receipt of or has made an application for a direct payment')". In moving Amendment No. 106, I should like to speak also to Amendments Nos. 126 and 128.

These amendments are designed to ensure that users of direct payments are in a position to furnish themselves with high quality information as regards the registration and inspection history of services without financial cost. It is crucial that people who have been awarded public money to support their community care needs are able to make informed decisions on how best to use those resources. Can the Minister confirm that the power to charge for receipt of information will not apply to individual service users? I beg to move.

9.45 p.m.

Lord Addington

My name is attached to Amendment No. 127. It is very straightforward and a comparatively uncomplicated probing amendment. All it suggests is that in talking about registration we are speaking about information. It suggests that the most up-to-date technology should be used. I shall not use the word "modern" because what is modern today is old-fashioned and out of date tomorrow. That will be quicker and probably cheaper. I suggest that that should be allowed by the Bill. I hope that the Minister will confirm that.

Lord Hunt of Kings Heath

I have great sympathy with all the amendments concerned with ensuring that service users can access information free of charge and in the appropriate form. I shall deal first with Amendment Nos. 106, 126 and 128 concerning recipients of direct payments. Under the current regulatory regime, local and health authorities which carry out regulatory functions are already required to provide copies of entries in their registers on payment of such reasonable fee as they may determine.

With the implementation of this Bill, the national care standards commission, or, in Wales, the National Assembly, will similarly be able to require the payment of a reasonable fee for copies of, or extracts from, its registers. Parallel provision is made for the councils to determine the fee for copies of their codes or registers.

However, the commission, the Assembly and the councils will all provide information free of charge if they consider that appropriate. I can assure Members of the Committee that it would not be normal practice for a fee to be charged for the provision of such information.

Indeed, it is intended that the commission and the councils should supply information from their registers and about any codes freely to all members of the public and not just to recipients of direct payments. In fact, it is only on rare occasions that the commission, or indeed the councils, would want to make a charge for information. If a business asked for a complete copy of the directory giving details of every care home in the country because it wanted to carry out business mailings to them, I believe that it would be reasonable for the commission to make a charge in order to cover the costs. But if the request for information was from an individual who simply wanted to know about care homes in an area, that information should be made available free of charge. Regulations made under Clause 34 will make that clear. Similarly, we intend to give the councils appropriate directions about when charges for their documents may be levied.

Turning to Amendment No. 127, I am rather glad that the noble Lord, Lord Lucas, is not here to ask me more challenging questions about modern information systems. Of course, we want the councils to be able to give as much information as possible. We certainly intend that the registers will be available on the Internet as well as in the form of hard copy. However, the noble Lord's amendment has prompted us to consider whether such a provision is allowed for in the Bill as it stands. I should like to give that matter further consideration.

Lord Laming

I am grateful to the Minister for that very helpful reply. In the light of what he has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 agreed to.

Clause 35 [Service of documents]:

[Amendment No.107 not moved.]

Clause 35 agreed to.

Clauses 36 to 39 agreed to.

[Amendment No.108 not moved.]

Clause 40 agreed to.

Clause 41 [Inspection by registration authority of adoption and fostering services]

[Amendments Nos. 109 and 110 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 111: Page 19, line 2, at end insert ("and section 42").

On Question, amendment agreed to.

Clause 41, as amended, agreed to.

Clause 42 [Inspections: supplementary]:

[Amendments Nos. 112 to 114 not moved.]

Clause 42 agreed to.

Clause 43 agreed to.

Clause 44 [Regulation of the exercise of relevant fostering functions]

Lord Hunt of Kings Heath moved Amendment No. 115: Page 20, line 36, leave out ("be employed by") and insert ("work for").

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 116 to 118: Page 20, line 42. leave out ("and types of staff to be employed by") and insert ("of persons, or persons of any particular type, working for"). Page 21, line 1, leave out ("the staff') and insert ("such persons"). Page 21, line 3, leave out ("the employment of persons by") and insert ("persons from working for").

On Question, amendments agreed to.

Clause 44, as amended, agreed to.

Clauses 45 to 49 agreed to.

Clause 50 [Care Councils]

Lord Laming moved Amendment No. 119: Page 21, line 34, leave out paragraphs (a) and (b) and insert ("a body corporate to be known as the General Social Care Council for the United Kingdom.").

The noble Lord said: In moving Amendment No. 119, I hope the Committee agrees that Clause 50 is a very important provision. The general social care council will have a number of important functions, including the approval of courses and the award of qualifications in the social care field. To a large measure, that will influence the attitudes of social care staff and the quality of their work with vulnerable people. The council will also maintain a register of approved workers, handle issues of professional misconduct and maintain a list of those persons deemed unsuitable to work with vulnerable people.

However, the Bill does not establish a council but two separate bodies, one for England and one for Wales. Each will be organised differently. No mention is made of Scotland or Northern Ireland. We have a United Kingdom Central Council for Nursing and a British Medical Association. This clause gives the impression that for social care staff the United Kingdom does not exist. Already questions are raised as to whether the existing social care qualifications meet European standards. Are we to settle for up to four different councils which are separately and differently organised? Even worse, the Bill provides no machinery by which councils can exchange vitally important information or act in concert.

I well understand the implications of devolution, but surely it is possible for the Government to find a solution whereby, in a matter of such importance and sensitivity, it is possible to have a United Kingdom arrangement for the regulation, registration and deregistration of social care staff. It is no use noble Lords from time to time, understandably, expressing horror when a member of staff who behaves unacceptably in one part of the country leaves his job only to be employed elsewhere and, at the same time, failing to use this opportunity to create one United Kingdom general social care council. I beg to move.

Baroness Pitkeathley

In rising to speak I declare an interest as chair of the General Social Care Council Advisory Group. In that capacity, I agree with the noble Lord that this is a vitally important part of the Bill. I understand entirely the concerns that lie behind the amendment. In a different scenario I might have been disposed to agree with him. The noble Lord is aware that I try to agree with him when I can. However, we must understand that devolution is a reality and that social care is a devolved function. Therefore, it is not possible to agree to the amendment. But I assure the noble Lord that all members of the General Social Care Council Advisory Group feel as strongly as he does about this matter and are determined to ensure that as far as that group is concerned there is a common approach, understanding and set of standards among the councils to be established. The guiding principle is the protection of vulnerable adults and the right of service users to a standard that applies across the United Kingdom. On that, I am sure we can all agree.

Lord Clement-Jones

That was extremely useful clarification from the noble Baroness, Lady Pitkeathley. Like the noble Baroness, I have some sympathy with the intent underlying the noble Lord's amendment. However, clearly it is a devolved matter. Therefore we are referring to maximum co-operation and commonality of' approach. In a sense we need to live with the devolved system and make it work in the best way we possibly can for those affected by the staffing of the establishments and agencies which are the subject matter of the Bill. When the Minister replies, can he give us an outline of the expected composition of the new GSSC? Can he also state the intended composition of the equivalent body in Wales?

It will be important to take account of the health aspects of care even though that may not be central to the GSSC's remit. Can the Minister confirm that ensuring a balance—I know that that is one of his favourite words—of members of the council will include medical representation?

Baroness Park of Monmouth

I listened to the debate with great interest. It is highly complicated and specialised and I hesitate to intervene. Can we be sure that there would be an absolute duty on the central council to pass on details of someone who behaves in a thoroughly unprofessional and undesirable way in one part of the devolved kingdom to the other bodies? Unless such a provision is in the Bill, it will be difficult to dislodge such a person when he moves from one place to the next. I recognise that in a sense it condemns an individual twice but it seems of little use to have the co-ordination proposed if such practical detail is not included in the Bill.

Baroness Barker

It is a most helpful debate. It is important to recognise that the problem identified by the noble Lord, Lord Laming, has existed for a considerable time. Social work departments in Scotland already come under a different regime from their counterparts in England.

I speak as someone who has spent considerable time in Scotland. It is of equal concern to the Scottish bodies to know that people registered in England who cause offence do not escape across the border. The noble Baroness's point about the need for co-operation between the different bodies responsible for registration north and south of border is valid and under the new devolution procedures it will not be difficult to discuss the issue with our counterparts in Scotland.

Lord Hunt of Kings Heath

It has been an extremely interesting debate. Having listened to the noble Lord, Lord Laming, I feel that we missed his presence during the many happy days we spent debating the Scotland Bill.

The decisions to have separate councils in England and Wales were announced in Parliament two years ago. It is the intention to have a separate regulatory body in Scotland. Scottish Ministers have recently issued a consultation document, Regulating Care in Social Work Services, which contains their legislative proposals for a Scottish social services council. I also understand that Ministers in Northern Ireland are considering their position on these matters.

That said, I entirely accept the spirit behind the noble Lord's amendment. It would be very unfortunate if, contrary to the interests of service users and the public, the regulation of social care workers were subject to significant and unnecessary differences between the four countries.

The logic of devolution is that all four councils can properly adopt different approaches. However, all the countries are committed to alignment where that is possible. The commitment has already been demonstrated; for example, the four UK countries have already commissioned the initial drafting of the codes of conduct for social workers as a joint exercise. That is an excellent foundation on which to go forward.

In due course, we intend to bring forward an amendment to the Bill which will place a duty on the new English and Welsh councils to collaborate. If possible, we will provide for them similarly to collaborate with any future regulatory bodies which may be created for Scotland and Northern Ireland.

In the consultation document, Regulating Care in Social Work Services, Scottish Ministers have said that the Scottish social services council will have a reciprocal duty placed on it. The extent of this collaboration will be to a degree for the councils themselves to decide, but we would expect them to consider in particular, first, collaboration on the standards of conduct and practice; secondly, consistency in the standards of education and training for occupational groups leading to registration; and, thirdly, knowledge about individual registrants who have been removed or suspended from a register.

In relation to the composition of the membership, the intention would be a lay chair with a balanced membership of service users, carers and the public. There will also be employers, professional associations, trade unions and educational interests with a membership of 15 to 20. I hope I have demonstrated that we are alive to any potential problems. The preliminary discussions between the four countries seem most promising in terms of ensuring the necessary co-operation.

Lord Clement-Jones

Can the Minister say whether there will be medical representation on the council?

Lord Hunt of Kings Heath

I do not want to go further at present. That matter needs to be considered, but from the broad range of interests involved one can see many potential backgrounds. However, I shall take into account the noble Lord's views.

Baroness Pitkeathley

It may be helpful if I report on the recent discussions of the Social Care Council Advisory Group, in which the issue was aired with great interest. There was a strong feeling that the council should not be aiming for representation, since it is impossible to have representation on all the groups. Rather, it should aim for an organisation which would work and in which the interests of all the user groups would be heard rather than represented.

Lord Hunt of Kings Heath

That is most helpful. It was unfortunate if I used the word "representational", particularly in view of my comments in relation to an earlier amendment. Clearly, at the heart one needs people with common sense. This is one of the most exciting parts of the Bill. It will have an enormous influence on helping to raise the status and professionalism of an extremely important group of people in society. Clearly, people of the highest quality are needed on the council. It is equally important that they must come from a broad range of backgrounds, but when they meet as a council they will meet as one corporate body.

Lord Laming

I am extremely grateful to the Minister for that helpful and carefully considered response. It is a source of great comfort to me that the noble Baroness, Lady Pitkeathley, is chairing the advisory group. I had hoped—perhaps rather naïvely—that it might have been possible to work towards a situation where the four countries of the United Kingdom had proper representation on a council or to work towards properly established regulatory machinery. I accept what the Minister said. The noble Baroness, Lady Barker, is quite right in that we have already experienced difficulties in the past because of the separate arrangements in Scotland. The motivation behind the amendment is simply that we do not replicate those difficulties and that we try to avoid exactly the kind of problems to which the noble Baroness, Lady Park, referred.

I still hope that, following the Minister's extremely helpful response, it might be possible to go a touch further, but in the light of what he and the noble Baroness, Lady Pitkeathley, have said, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 120: Page 22, line 14, at end insert— ("who shall ensure, in particular, that each Council has access to information relevant to the discharge of its functions").

The noble Earl said: This is a straightforward amendment, the point of which is to ensure that full and up-to-date information is furnished to each care council. The background to that is, as I understand it, that the CCETSW has experienced a certain amount of difficulty over the past few years and has not felt itself to be—shall we say—as well briefed as it would like to ensure that training is kept up to date. There is a need to ensure, for example, that each council has access to information about the condition of the various services, about new and important developments which may affect those services and about anything that may affect staff numbers. That is the context in which I have tabled the amendment. I hope that the Minister will understand my purpose. I beg to move.

Baroness Pitkeathley

I again declare an interest: I have every sympathy also with the amendment moved by the noble Earl. Essential information is, of course, vital to the functioning of the councils. I believe that the councils are so welcome and have been so long awaited that the spirit is very willing to ensure that that exchange of information and provision of information will take place.

Lord Hunt of Kings Heath

I am not convinced that the amendment is required but I accept the point that the noble Earl has raised. Ministers are responsible for the way in which the councils carry out their functions and are answerable for them to Parliament and to the Welsh Assembly. Therefore, they will want to ensure as a matter of course that the councils will have full access to whatever information is necessary. As I have said before, it is an extremely important part of the Bill. It would be in the interests and desires of Ministers to ensure that the body had all that it required in the way of information to carry out its job effectively.

Earl Howe

I am in part reassured by that response. I should like to believe that that is the way that it will work. I am sure that at the beginning, everyone will start out with the best of intentions. My fear is that, somewhere along the road, the system may not work as it should. I suppose that if mechanisms are put in place at the outset they will continue. But it is something to which we must be alert. I am comforted by the strength of the Minister's assurance on the issue and before I withdraw the amendment, as I intend to do, I see that the Minister would like to add one more comment.

Lord Hunt of Kings Heath

I am sorry to delay the proceedings at such a late hour. However, it is important to remember that this will be a non-departmental public body. It will be subject to review and, therefore, one would expect there to be the closest dialogue between Ministers and the council. It will be possible for problems to be ironed out and for discussions about the future direction of policy to take place. I believe that those will be the circumstances in which Ministers will be able to have confidence in the council and, as a result, will, of course, want the council to have all the information that it requires.

Earl Howe

I am grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 agreed to.

Clause 51 [Interpretation]:

[Amendment No. 121 not moved.]

Lord Laming moved Amendment No. 122: Page 22, line 40, at end insert ("or otherwise in connection with the provision of day services").

The noble Lord said: I am delighted that day centre workers will be included under the jurisdiction of the general social care council. Undoubtedly that will go some way towards driving up quality within that sector of work. However, the popular image of day care for someone with a learning disability is five days a week from 10 a.m. to 4 p.m. spent in a day centre. Developments over recent years have meant that the reality is quite different. Now there is a wide range of activities for which the day centre is sometimes the base, but often it is not. Those activities might include voluntary work, the use of local cultural or leisure resources, including the local library, environmental projects, such as collecting newspapers for recycling, and writing and publishing newspapers. The amendment seeks to bring staff who work in all those different settings within the scope of the legislation. Therefore, it is the quality of the support staff that is paramount rather than the location of the resource.

We have already touched on the definition of day services. The Minister was apprehensive of the wider definition. For my part, I cannot see the logic of protecting group activities in the day centres but ignoring one-to-one activities by staff outside them.

Incidentally, reference to day centres in Clause 51 seems to argue for a definition of day services at the beginning of the Bill, even if the day services are not to be included initially in the remit of inspection and registration. I beg to move.

Lord Hunt of Kings Heath

I believe that the noble Lord has raised a most important matter in wanting to ensure that we will have the power to bring into the framework people who are not at present under the definition of "social care worker", if we believe that that is necessary. Therefore, we propose to bring forward a government amendment to allow for the definition of "social care worker" to be extended where Ministers see it as an additional safeguard for the public.

Lord Laming

I am most grateful to the Minister for that reply. It gives me enormous pleasure to seek to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 agreed to.

Clause 52 [The register]:

[Amendment No. 123 had been withdrawn from the Marshalled List.]

Baroness Barker moved Amendment No. 123A: Page 23, line 12, at end insert— ("(5) Each council shall publish, monitor and update a timetable for the training and registration of each and all types of social care workers.").

The noble Baroness said: Late as it is, I should like to spend a little time discussing this amendment, which, I believe, is probably one of the most important. We have talked a great deal over the past few days about the length of time that it will take to get the various commissions up and running. We have talked about the amount of time that it will take to set the minimum standards and to implement them.

This particular clause deals with staff. As your Lordships know, in any social care activity staff and the quality of staff are perhaps the critical factors which determine the quality of care. In the documents that we have so far produced, it seems likely that the training and registration of staff will start at the higher levels. However, the amendment seeks to draw attention to the fact that the most important levels of staff are the lowest ones—those in perhaps the most menial and manual jobs. It is in those kinds of jobs and areas where instances of abuse most frequently take place.

This amendment seeks to discover whether it is possible to start the training at that lower level of activity which is crucially important. We accept that the training and registering of 1.3 million staff will take an extremely long time. It will also have a tremendous effect on the whole care economy. For example, many voluntary organisations which are providers of care are extremely worried about the sudden imposition of the need to train staff. As we have said on many occasions previously, the training of staff has significant resource implications.

Therefore, we are asking for timetables to be set. We are seeking to ensure that the implementation of the training requirement does not lead to a dramatic disruption of services. It is entirely possible that the sudden imposition of a need to train vast numbers of staff may threaten the viability not only of care home providers but of all sorts of providers of social care. I am sure that that is not the Government's intention.

It is extremely important that we look at where there is abuse and seek to tackle that as a priority. Action on Elder Abuse runs a telephone helpline and, of the instances of abuse in care homes which are reported to it, the overwhelming majority are perpetrated by lower grade care staff. Interestingly enough, a very high percentage—from recollection, I believe it is about 25 per cent—of the instances of abuse in care homes is perpetrated by male care attendants. When one considers that the number of male care attendants in care homes is very small—because the vast majority are women—that is a significant factor. Organisations such as Action on Elder Abuse are telling us that that is the priority area and we should listen to what they say.

We have all said many times that we agree about the importance of training. We have also mentioned that having fully trained staff as soon as possible is important. But the whole process must be managed and manageable for providers of care. With those views in mind, I beg to move the amendment.

Baroness Pitkeathley

I declare an interest as a member of the General Social Care Council Advisory Group. The noble Baroness articulates very eloquently the anxieties of the whole field in regard to this matter. Indeed, the Social Care Advisory Group is no exception to that.

It seems to me that the anxieties stem from two sources. First, we have waited so long for this council and we are all keen and anxious that it should now move on and do its work. Secondly, we are all very anxious that there should not be a social work registration but a social care registration. And so there is no dispute about the principles of what the noble Baroness said.

However, there are practicalities involved in this. It is rather too early in the process to be thinking about the timetable. Even the shadow social care council does not yet exist. We are at a very early stage. I hope that we shall all take on board the noble Baroness's views about a timetable but I suggest that it is a little early to be thinking about that matter. However, we should take the principles very seriously and think about that a little further down the line.

Lord Hunt of Kings Heath

I thank the noble Baroness, Lady Barker, for raising this matter. While I do not accept that the amendment is the right way forward, I share her sentiments concerning the need for this process to be manageable.

We all wish to see far greater numbers of the social care workforce trained and qualified appropriately and, in due course, registered with the councils. We see that as a crucial driver to the highest standards of conduct, practice and care that we wish to see.

We have said that we expect that professional social workers will be registered probably early in the life of the council, perhaps by April 2002, given that the council will be up and running by April 2001. Almost all social workers hold a professional qualification. With regard to the point raised by my noble friend Lady Pitkeathley, I want to stress that the councils will be responsible for all staff, not just for professional staff, whether they are in the private, voluntary or statutory sector. So we are therefore working towards a registration of residential child care workers as a priority group at the same time as social workers and persons in charge of care homes have been identified as the next priority group for registration. Work to identify the appropriate qualifications for this class of worker is already in hand.

Clearly, we cannot stop there. As a government, we are committed to raising the qualification levels in the wider workforce to much higher levels. That, in turn, will open the way to an extension of registration. To take the words of the noble Baroness, Lady Barker, we need to be realistic. I think it would be difficult for the council to draw up meaningful timetables for training for which it would then be held to account, given the number of other players. In England we have charged the training organisation for personal social services in England with the responsibility for producing a training strategy in consultation with all employment interests in the field. We expect the councils and the wider employment interest to work closely together to discharge their own responsibilities to achieve higher qualification levels.

I say to the noble Baroness, Lady Barker, that I do not think that there is anything between us in wishing not to see sudden imposition, wishing, as she said, to see the process managed and manageable, but overall seeing the process as a crucial way to raise standards in the whole social care field. While I do not wish to accept her amendment, I do very much accept the thrust of her arguments.

Baroness Barker

I wish to thank the noble Baroness, Lady Pitkeathley, for what she said. It is very reassuring to know that there is very little between us in this matter. In withdrawing the amendment, I do so in the knowledge that at this time, with many councils, many providers, looking not only to the national framework but also in the work they are currently implementing—modernising social services—there is a general move towards increasing quality of services. That is beginning to have an effect at local level. In withdrawing the amendment, I accept what the Minister says about needing to identify particular groups and to begin training in their functions. I still reiterate that untrained care staff have to be the next priority group for this kind of measure. I believe it would be one of the single most important ways of stopping abuse. I have been pleased to hear what noble Lords have said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 agreed to.

Clause 53 agreed to.

Clause 54 [Grant or refusal of registration]:

Lord Addington moved Amendment No. 124: Page 23, line 20, leave out paragraph (b).

The noble Lord said: The amendment removes the line from Clause 54 which states: (b) is in good health, both physically and mentally; and". I should think that that line directly contradicts the Disability Discrimination Act. The DDA gives a defence against employing someone who is inappropriate for the job. The defence is reasonableness. I sat on this Bench for more hours than I care to remember going through that Bill and hearing the defence of reasonableness being put forward time and again so that people who were not capable of doing a job did not have to be appointed.

What is in the amendment of the noble Earl, Lord Howe, is much better than the Government's position but I feel that the words may be irrelevant if the DDA is applied. If the rest of Clause 54 is acted on, the training is good and people can acquire the skills, they will, by definition, have proved that they are capable of taking on the job. If we carry on with what the Government propose, we shall end up in the courts very soon. I suggest that the Government have slipped up here. I suggest that we remove paragraph (b) or include an amendment very similar to the amendment standing in the name of the noble Earl, Lord Howe. At the moment, I think that what is proposed breaks existing law.

Earl Howe

I support entirely what the noble Lord, Lord Addington, has just said. I was astonished to read the wording of Clause 54(1)(b). It begs all kinds of questions. The most significant point about it is its ostensible conflict with the Disability Discrimination Act. We really must ask what the provision is supposed to mean. What criteria will be used to assess someone's state of health and what will constitute a failure of this test? To me, someone's state of health is of significance in this context only if it is such as to make him or her inherently unsuitable to do the job of social care worker and therefore to be entered on the professional register. But (hat is not what the Bill says. I really do think that the wording should be looked at again if it is not to cause all kinds of difficulty when the council begins to set about the task of processing applications.

Lord Hunt of Kings Heath

I am very sympathetic to the spirit of the amendments and can immediately reassure the Committee that I shall be bringing forward in due course a government amendment designed to clarify the extent of the councils' concerns about the health of applicants for registration. I want to make it clear that it is not our intention that the councils should be involved in making casual or arbitrary judgments about an individual's health or lifestyle when considering him or her for registration. The workforce must reflect the nature of society at large. We will expect the councils to take a balanced and reasonable approach, which would rule out from registration considerations of such issues as ageism, smoking or other unjustified bars.

However, I believe that for the service user the health of a social care worker is as much a quality issue as is the holding of an appropriate qualification. The process of making health checks is a common part of regulatory bodies' registration procedures. We are not breaking new ground by introducing them for the new councils. Perhaps I may again make it clear that it is not our intention to disbar people from registration simply because they are disabled or have mental health problems. But because this is a quality issue, we want the councils to be able to ensure that all applicants for registration, whether they are able bodied or disabled, are safe and competent to practise for the type of social care work for which they are applying to be registered.

The amendments also give me an opportunity to clarify the impact of this approach in the light of the Disability Discrimination Act. The noble Lord, Lord Addington, suggested that the proposed good health condition for registration contravenes that Act. We do not accept that that is so. The DDA applies to discrimination in respect of services and facilities provided to the public. It is possible, but unlikely, that a council's decision as to whether an applicant satisfies the registration conditions could be regarded as such a service or facility. Even if it is, the discrimination will not, in our view, be unlawful if it is necessary for the council to discriminate in order to perform its statutory registration function or to avoid endangering the health or safety of any person.

However, in the light of the amendment and the concerns that have been expressed in this area, we do think that our policy intentions should be more clearly expressed. I reiterate that there is no intention to discriminate against disabled people. Therefore, I shall consider the matter further and propose that we bring forward a government amendment at the earliest possible opportunity.

10.30 p.m.

Lord Addington

I believe that is called back-pedalling under fire with considerable good grace. That is something that I hope the Government will take on board generally. I believe that someone was trying to put on belt and braces and realising that they were putting them on the wrong suit. It went very badly wrong; at least it gave a very bad impression.

There are genuine worries in this area. I cannot help but feel that the Government should take on board at least the fact that, when all these other regulations are brought in, the process of proper training courses and individual job interviews—if you are required to use physical exertion, that will come into the equation—would stop the inappropriate person getting through. If this system has any validity or any teeth at all, those things are already there.

I hope that the Government take this on board. I appreciate what the Minister has said. It is as good an answer as we could reasonably expect. I hope that the Minister will take this back and tell his colleagues in his department and others that this type of approach must not happen again. Apart from anything else, it simply wastes our time.

Lord Hunt of Kings Heath

In response to the noble Lord, he has raised an important issue. As I have said, I am happy to take this amendment back. I can assure him that there is no question that this was intended to discriminate against disabled people. Indeed, it would be reprehensible if there were any such intention.

The more general points that he makes are, of course, matters that ought to be considered within a government-wide approach. I believe that the Disability Discrimination Act has been one of the most positive and progressive pieces of legislation that we have seen brought forward in recent years. I believe that it will have a most positive effect on the lives of many disabled people in this country. When one considers the enormous influence that the social care council can have on the lives of so many people, it is important that the criteria under which it operates are as sensitive to the needs of disabled people as can be. In taking this away and looking at what amendments we shall bring forward, we shall be mindful of the kinds of arguments put forward by the noble Lord.

Lord Addington

It is nice to know that we can produce a position that leads to a break-out of cross-party support. It is nice to know that the Government are capable of realising that even the past government got it right once in a while. True, they did so with a bit of prodding, but they did get it right—at least "righter".

Having heard what the noble Lord has said, this is one of those situations where we must pay attention to what has been said and make sure that we maintain the same degree of consensus. We must ensure that we can carry on this pressure so that we have an equal degree of consensus at all future dates when we deal with this problem. If we set something rolling this fast now, we shall ensure that we do not have any such matter in future debates, as the noble Lord has already said. I invite the noble Earl to get to his feet to show that the Opposition will guarantee that they will give us support.

Baroness Pitkeathley

Before the noble Earl rises, perhaps I may say how delighted I am with the Minister's response to the debate. How we see the Disability Discrimination Act in practice is very interesting. I know that all those who are concerned with how the general social care council will work feel that the way in which people with disabilities fit into it is tremendously important. I am grateful to the noble Lord, Lord Addington, for bringing that to our attention. We have to be constantly aware of how people discharge their jobs, without judging them in a way which is discriminatory. I am sure that we are all happy with the outcome of the discussion thus far this evening.

Baroness Barker

I do not wish to delay my noble friend Lord Addington being able to hear the noble Earl, Lord Howe, but perhaps I can make a serious point to the Minister. We are talking about the physical wellbeing of staff. It is important to remember that in this type of work there are already in existence quite a number of areas of policy and best practice which have a direct bearing on care homes. There are a great many standard procedures for control of infection, for disposal of waste and so forth, and also in relation to the issues of respiratory infections. Most staff are aware of the standards required when around people with vulnerable immune systems, such as not turning up for work when carrying a degree of infection.

Also, in work relating to lifting and handling, there is already a widely established good practice. For example, people have to be physically fit in order to carry out certain types of work; so some of the fears expressed by my noble friend Lord Addington could be dealt with by simply deleting this provision completely. I hope that that is one of the options the Minister will take into account when he considers his response.

Lord Hunt of Kings Heath

Perhaps I can answer the noble Baroness in that regard. I have said that between now and Report stage we will want to consider in full the best approach to this matter. Indeed, if the noble Baroness has examples of good practice that we can consider I shall be happy to meet her and examine them so that we can explore some of these issues.

The noble Baroness raised the issue of lifting. Coming from a background in the health service one of my great concerns over the years has been the number of injuries to nurses and other healthcare workers which has arisen from the lifting of patients. One of my concerns is that we have known for many years what good practice is in relation to how a patient should be lifted and the equipment that should be available. But despite that, many people are still being injured. It represents a major challenge for those in the health field. I am interested in the remarks of the noble Baroness that this is also an issue in the social care field.

We owe a lot to staff working in those fields and we must make sure that we have strong occupational health programmes and give as much training and support as possible, ensuring that they can lift in the most effective and safe way possible.

Earl Howe

Perhaps I may put in one further word. When I read the amendment of the noble Lord, Lord Addington, I took it to be, in essence, a probing amendment. I now wonder whether there is not merit in the suggestion made by the noble Baroness, Lady Barker, that the Government's best course of action would be to omit Clause 54(1)(b) altogether. I am not sure what led the Government to put this subsection into Clause 54 in the first place. I shall re-read what the Minister said, but there is much to be said for considering the omission of that requirement altogether. The arguments we heard from the noble Lord, Lord Addington, were extremely persuasive.

Lord Clement-Jones

Before the Minister replies, perhaps the noble Baroness, Lady Pitkeathley, has a perspective on that point.

Baroness Pitkeaithley

I thank the noble Lord, Lord Clement-Jones, but I think that I have had as much perspective as is needed tonight.

Lord Addington

Having actually achieved that rare thing of going from a point of being prepared to go into battle to discovering that everyone is actually on your side and there is no one left to fight, I should like to thank all those who have supported my argument. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125 not moved.]

Clause 54 agreed to.

Clauses 55 to 57 agreed to.

Clause 58 [Codes of Practice]:

[Amendment No. 126 not moved.]

Clause 58 agreed to.

Clauses 59 to 64 agreed to.

Clause 65 [Publication etc. of register]:

[Amendments Nos. 127 and 128 not moved.]

Clause 65 agreed to.

Clauses 66 and 67 agreed to.

Lord Bach

I beg to move that the House do now resume.

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

House resumed.