COMMONS AMENDMENT (Hansard, 18 July 2000)

HL Deb 18 July 2000 vol 615 cc927-33 927

§ 4 Clause 1, page 2, line 8, after ("is") insert ("of a description")

§ Lord Hunt of Kings Heath
My Lords, I beg to move that the house do agree with the Commons in their Amendment No. 4. This is another large group of amendments. They are on the whole changes that were made in order to clarify what was already intended and make no changes of substance. They all deal with the provisions under Part II that set out the detailed processes, systems and requirements operated by the national care standards commission.
Amendments Nos. 4, 12 and 14 respond to concerns raised by Philip Hammond in Committee in another place and seek to clarify the intention that powers to exempt from regulation will not be used to exempt individual establishments or agencies from registration requirements. The amendments use the term "of a description", which is already present in Clause 2(8).
Amendment No. 25 relates to reports following inquiries established by the Secretary of State under Clause 9. We debated this point at some length in the House. In response to the noble Lord, Lord Laming, and in moving an amendment I said that the onus will be on the Government to publish inquiry reports and the clear expectation is that they would normally publish those reports except in exceptional circumstances. However, in response to concerns expressed during Commons Committee stage we made a further amendment to make the position even clearer on the face of the Bill that in all but exceptional circumstances the report would be published.
Amendment No. 26 makes clear that a registered manager of an establishment or agency must be a person. The person carrying on an establishment or agency—essentially the owner—can be an organisation or company, but we wanted to make clear that the role of manager, which is so important to the day-to-day running of the care service, is one that must be undertaken by a named person, although this amendment does not preclude job-sharing arrangements.
Linked to that is Amendment No. 35 which clarifies that regulations can be made requiring managers of specified establishments or agencies to be registered with the general social care council. That will enable the national care standards commission and the general social care council, with their separate but related responsibilities, to be brought together for the greater enhancement of quality to service users.
Amendments Nos. 27 and 29 to 34 all make a minor clarifying change to ensure that conditions on an establishment or agency can be removed as well as varied. That change was made in response to concern expressed by in Committee in another place by Philip Hammond.
928 Amendments Nos. 28 and 46 respond to a problem with the Registered Homes Act 1984 and the Children Act 1989 that has recently come to light as a result of a number of cases before the courts or Registered Homes Tribunal. Essentially, the wording of the legislation allows home owners to avoid the consequences of cancellation if they closed the home before a formal cancellation decision was taken, because in such a case there was no home in respect of which to cancel, and cancellation was invalid.
The effect of that would be that such a person could open another home elsewhere without having the cancellation on their record. Amendment No. 28 ensures that the wording of the Bill avoids that loophole. Amendment No. 46 makes the appropriate change to the Children Act so that in the period before the establishment of the national care standards commission, the loophole is fixed in respect of children's homes.
Amendments Nos. 36, 43, 44, 50 and 51 are also technical clarifying changes that simply make sure that "documents" as well as records can be inspected by inspectors.
Amendment No. 37 is specifically in response to a point raised by the noble Lord, Lord Clement-Jones, in our discussions at Report stage. Clause 21(6)(k) of the Bill allows regulations to be made to ensure that arrangements are in place in independent hospitals and clinics to ensure that any medical or psychiatric treatment they provide is of appropriate quality and meets appropriate standards. The noble Lord's concern was that this power really ought to extend to the nursing provided by care homes. We considered that issue carefully and tabled this amendment in Commons Committee to take account of that point.
Amendments Nos. 38, 52 and 179 are all about consultation. Amendment No. 38 places a requirement on the Secretary of State to consult before making or significantly amending regulations under Clause 21 of the Bill. That was in response to concerns raised during Committee stage in another place.
Amendment No. 52 is an amendment tabled in Committee which the Government were happy to accept in another place. The effect of the amendment is to require consultation on the national minimum standards to apply under Part III to local authority services to match the consultation requirement set out in Clause 22 applying to Part II services. Amendment No. 179 has the same effect in respect of standards for welfare inspections of boarding schools.
Amendments Nos. 39 to 42 relate to offences under Part II of the Bill. Amendment No. 39 ensures that the "holding out" offence properly covers all eventualities. The drafting of the original clause was not sophisticated enough to catch people who, for example, advertise their home as being a nursing home if it is not registered to provide nursing care.
Amendment No. 40 introduces a new offence of knowingly making a false or misleading statement in any application to the national care standards commission. That plugs an important gap in the provisions to ensure that there is no incentive for 929 applicants to falsify details. Amendment No. 41 allows for proceedings for an offence to be brought more than six months after they are committed. For summary offences such as those under Part II, the six-month time limit applies automatically unless otherwise specified. But in many cases, offences only come to light when problems are uncovered following inspection or whistle blowing. The amendment provides for a six-month time limit from when the offence comes to light with an overall time limit of three years from the commission of the offence.
Amendment No. 42 simply places local authorities in the same position as other bodies registered under Part II such as companies or voluntary organisations. It allows for local authority members, as well as officers, to be prosecuted if the offence is proved to have been committed with their consent or connivance, or if it is attributable to neglect on their part.
Finally, Amendments Nos. 47 and 48 extend the provisions of Clause 39, which is the clause under which regulations may be made to extend the provisions of Part II to other services. That would mean the introduction of regulation under the national care standards commission for services not covered on the face of the Bill. The original drafting of the clause did not allow for extension to agencies, only to local authority social services or NHS services. Amendment No. 47 therefore extends it to cover agencies supplying people who provide such services. Amendment No. 48 ensures that local authority services themselves are properly within the scope of the power. We felt that the original wording left that in some doubt.
Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Hunt of Kings Heath.)

§ Lord Clement-Jones
My Lords, as this is the first amendment to which I wish to speak, I too take this opportunity to thank the Minister for his courtesy in writing to me in advance of the debate setting out the Government's rationale to the amendments that were moved in the other place. However, I should like to place on record the fact that I join the noble Earl, Lord Howe, in regretting the lateness of the hour at which we are debating these amendments—all 289 of them—tonight.
This Bill has had an extraordinary passage. We started in December. We had Third Reading in April and now, in July, we are faced with the Commons amendments at quarter past nine in the evening. That puts us all in a difficult position in terms of our wanting to consider the amendments in the same way as they were made; that is, over a long period of months. After all, the Minister will recall that there were 18 or 19 Committee sessions and Report stage was also pretty lengthy.
On the other hand, it is always difficult to find a balance between wishing to be helpful as the Bill moves through the House; to respond to criticisms made by opposition parties, but not to overload Members of 930 either House with too many government amendments. So I recognise that there is an issue here. But I acknowledge that the Bill is much improved as a result of the government amendments being brought forward.
In Part II, which deals with establishments and agencies, can the Minister say whether or not my analysis is correct? That is to say, between the Bill leaving this House and coming back, we have introduced a separate system of registration as to ownership—that is, carrying on the business of a care home or other establishment—and that of a manager in a personal capacity. So, effectively, we have in fact got a dual registration system. I do not complain about that. It puts an added burden on those establishments. But there is a big difference in the way the registration will now be administered. That is of considerable significance and has been largely underplayed by Ministers both in the other place and by the Minister tonight in his exposition, clear though that was.
I welcome Amendment No. 37—I would say that, wouldn't I? It was originally suggested to me by the BMA and I felt it was the right avenue to take. But I am curious as to why the suggestion we made that it should relate to clinical care and not just to nursing care was not followed and the more narrow route was taken by the Government.
I also generally welcome from these Benches Amendments Nos. 38 and 52, one of which emanated from the official Opposition and one of which emanated from one of my honourable friends in the other place. Consultation is clearly vital, both with the private sector and with local authorities. That relates to Clause 21.
I am curious—perhaps this should have struck us earlier, certainly on listening to the commentaries now being made on the Bill by law firms and others—about Clause 22. In a sense it is the counterpart to Clause 21, which sets out the national minimum standards. It is not quite equivalent. Although it relates to national minimum standards, it seems that regulations will not be made. They are simply standards and it is not obvious what is the legal status of those national minimum standards under Clause 22. Perhaps I can be rather unfair to the Minister and ask whether he is able to comment on that.
Finally, I welcome Amendment No. 25. I leave it to the noble Lord, Lord Laming, to comment on whether or not his original intentions have been fulfilled. However, the way the Government have put it in terms of publishing in all but exceptional circumstances seems to be the right way forward. I am pleased that they chose that course.

§ 9.45 p.m.

§ Lord Laming
My Lords, I take a lead from the noble Lord, Lord Clement-Jones, and say how grateful I am for Amendment No. 25 which relates to 931 the publication of inquiry reports. However, I add the hope that exceptional circumstances will apply only very exceptionally.

§ Baroness Barker
My Lords, I refer to just two of the amendments in the group. I understand from the Minister's helpful briefing that Amendment No. 26 sets out the role of a manager. It requires a manager of an establishment to be named. I understand that; it is rather like the licensee of a licensed premises being named. However, I want to make sure that the Bill is consistent with the tenets of charity law. If an agency was run by a voluntary organisation or a charity, ultimately the trustees would be responsible for it in law. Does the Bill make it clear that although the actions of individuals—which are proven to be the actions of individual managers—may be subject to criminal prosecution, the responsibility for policies which affect the operation of an agency, which may be or have been approved by a board of trustees, are the responsibility of that board in law? I seek an assurance from the Minister that the amendment clarifies rather than confuses that issue.
I turn to Amendment No. 41. I understand from the Minister's helpful briefing that it is entirely reasonable that actions should be commenced within six months of notification of the commission of the offence. However, I am concerned at the limitation of three years since an offence was committed. In the presence of the noble Lord, Lord Laming, I hesitate to make my next point. However, many inquiries which are now taking place are examining events that took place decades ago but have only just come to light. I do not believe that it was ever the intention behind the Bill that wrongs from the past could not be put right. I hope that the Minister can prove me wrong.

§ Lord Hunt of Kings Heath
My Lords, I thank noble Lords for the interesting points that they have raised.
I say to the noble Lord, Lord Clement-Jones, that I accept that it is not ideal to debate so many amendments at this hour of the night. I do not think that he would want me to repeat what I said to the noble Earl, Lord Howe. However, I believe that we have had a most constructive series of discussions and debates. I am convinced that the Bill is improved as a result and, what is more to the point, that the new regulatory regime that will be introduced and the new arrangements for the regulation of social workers and other social care workers will be much enhanced. I am sure that is how we would want our work to be judged.
The noble Lord, Lord Clement-Jones, asked me about the distinction between the person who carries on an establishment and the person who manages it. I do not accept that there has been movement on that during the passage of the Bill. The distinction has always existed as between the owner and the manager. I understand that that approach was adopted in the Registered Homes Act, which the Bill succeeds.
The noble Baroness, Lady Barker, asked me whether the trustees of a voluntary organisation who provide and equip a community home could be prosecuted for offences under the Bill. The answer is 932 "possibly". I am happy to write to the noble Baroness in more detail. In general terms, the Bill provides for penalties against persons carrying on a children's home. This would of course include a community home.
Amendment No. 199 seeks to establish that, for the purposes of the Bill, a community home provided by a voluntary organisation is taken to be carried on by the person who equips and maintains it and, if the Minister so designates, the body of managers provided for in the home's instrument of management.
I should add that some community homes are equipped by local authorities; others by voluntary organisations. A voluntary organisation may be an incorporated body and, as I have said, the Bill makes provision in Clause 28 for offences by bodies corporate. I am not sure whether that is entirely clear to the noble Baroness and I shall be happy to write to her with fuller details.
The noble Lord, Lord Clement-Jones, raised the issue of national minimum standards and how they relate to the regulations. We have, of course, debated this question at length. The important point is this: the national minimum standards stand or fall by the regulations. In terms of what the commission will do with those national minimum standards, it will have to take into account the degree of compliance or otherwise with the standards when making decisions about how a particular establishment is complying with the regulations. They are not free-standing; they stand within the context of the regulations in the preceding clause.
The noble Baroness, Lady Barker, referred to the three-year period. We consider that to be a reasonable period. There are various precedents in other legislation in that regard. When we were debating the order for the GMC, a three-year term was also considered appropriate. I am sorry. I think it was perhaps in the Health Service Commissioners Bill where a three-year period came into play. But there are plenty of precedents and we think that it is a reasonable length of time to embrace.

§ Lord Clement-Jones
My Lords, the Minister probably will not have noticed but under the Vaccine Damage Payments Act the time period has been extended to 21 years. It very much depends on the legislation involved.

§ Lord Hunt of Kings Heath
My Lords, I do not think there is a scientific law which states exactly how long the period should be. The Government have taken the view that three years is a reasonable period. Perhaps after that time it may be very difficult to establish the facts. It is simply a reasonable length of time.
933 So far as concerns the point raised by the noble Lord, Lord Laming, in relation to the publication of reports following inquiries, we believe that it would be only in very exceptional circumstances that the reports would not be published.

§ Lord Clement-Jones
My Lords, before the Minister sits down, does he have an answer to the point about nursing care versus clinical care?

§ Lord Hunt of Kings Heath
My Lords, the point is that clinical care was very much seen as a core issue in relation to private hospitals. The amendment that was brought forward in another place relates to nursing homes. Clearly in that context nursing care is crucial to the overall quality of the service being provided.
On Question, Motion agreed to.