Care Standards Bill [H.L.]

HL Deb 28 March 2000 vol 611 cc643-716

3.9 p.m.

Report received.

Clause 2 [Independent hospitals etc.]:

Earl Howe

moved Amendment No. 1: Page 2, line 23, at end insert— ("( ) An independent hospital includes a hospital sited on property owned by the health service but which is not managed or controlled by the health service."). The noble Earl said: My Lords, in moving this amendment, I shall speak also to a further amendment tabled in my name, Amendment No. 3. Amendment No. 1 is a very simple probing amendment, the purpose of which is to clarify the meaning of "independent hospital" in the context of Clause 2. In Committee, the Minister confirmed that pay beds within NHS hospitals are subject to NHS rules. However, there is an element of ambiguity that relates to hospitals that are sited on NHS property but which are not managed or controlled by the health service. There are examples of hospitals that are owned by the NHS but which are leased to a private operator. Common sense and logic would suggest that these are "independent hospitals" and, therefore, subject to regulation by the national care standards commission. But, as we are all aware, the definitions in this Bill are orientated around physical premises. In the case of hospitals, we need to be absolutely clear that it is the management and control of a hospital, rather than where it is or who owns it, that determines the regulator.

The Minister will doubtless tell me that the meaning of Clause 2(2) is perfectly clear and that a health service hospital is defined in Clause 97 as having the same meaning as in the 1977 Act. I took the trouble to look up the definition in that Act, which reads as follows: 'A health service hospital' means a hospital vested in the Secretary of State [for the purposes of his functions] under this Act", or vested in an NHS trust. I should be grateful for the Minister's confirmation that the potential ambiguity to which I referred—which, I should add, is a concern voiced by the BMA—is easily dealt with.

I turn to Amendment No. 3, which is another probing amendment. Clause 2(4) makes it clear that GP surgeries carrying out NHS work are exempted from the definition of "independent clinic" and will, therefore, fall within the scope of NHS regulation. However, GPs often carry out private practice work from their surgeries; for example, various types of minor surgery, laser treatment and vasectomies. These treatments frequently involve anaesthesia or sedation. There is an issue here about dual registration. On the one hand, primary care premises where private work—and only private work—is carried out will fall within the remit of the new regulatory framework. On the other hand, GP premises where NHS work is carried out are exempt under Clause 2(4). Can the Minister say whether it is correct to assume that GPs providing NHS services from their premises, where some private work is also undertaken, will not need to register with the new national care standards commission?

At present, GPs must register under the nursing homes regulations should they treat patients other than those on their own lists. Some GP practices provide services such as vasectomies to their own patients, as well as to patients of neighbouring GPs. This is a health service contract that can be paid for out of the waiting list initiative money. Can the Minister say whether, under the regime put in place by this Bill, GPs who provide NHS treatment for patients not on their own lists will need to register with the national care standards commission? I beg to move.

Lord Clement-Jones

My Lords, perhaps I may question the Minister as to what procedure he proposes to adopt at this stage. I make that request because he is not only going to reply to the noble Earl, but will also be proposing some amendments tabled in his name. Before the noble Lord replies to the noble Earl, perhaps I may suggest that he, first, proposes his own amendments and then gives us an opportunity to respond to them.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)

My Lords, I should be happy to follow that proposal for the convenience of the House. The noble Lord, Lord Clement-Jones, brought to our attention in Committee reservations about the quality of care provided to private patients by call-out doctors, who were contacted by phoning an advertised number. I said then that I would take the matter away and reconsider it.

I thank the noble Lord for raising these concerns. I agree with him that such doctor call-out services should be regulated. Therefore, we have brought forward Amendment No. 2, which introduces a new category to be regulated—independent medical agencies. This will require call-out doctors to be regulated by the commission. Amendments Nos. 4, 10, 31, 32, 154 and 155 are consequential to the introduction of this new provision.

In proposing Amendment No. 2, perhaps I may also say that I believe it would be wrong to think only about the services that are being provided at present; indeed, as the noble Lord, Lord Clement-Jones, said in Committee, we also need to consider the future, as healthcare provision is developing at such a rapid pace. New technologies, such as telecare and telemedicines, may have a very profound impact on the way that illnesses are diagnosed and services delivered in the future. Those technological developments will, in themselves, have an impact on the role of healthcare practitioners and on decisions about where relevant healthcare services can be delivered most appropriately to patients.

We must ensure that the national care standards commission is in a position to react and keep pace with those changes. We have, therefore, brought forward Amendment N a. 51 to enable the scope of the independent healthcare regulated by the commission to be extended by regulation, if and when necessary in the future. As the noble Lord, Lord Clement-Jones, pointed out in Committee, the provision of healthcare is changing. So Amendment No. 51, which will give the commission this flexibility, is important.

Lord Clement-Jones

My Lords, I should like to thank the Minister briefly for both those amendments, especially for Amendment No. 2. It was most helpful of the Consumers' Association to point out such an important lacuna in the Bill. I am extremely grateful to the Minister not only for responding by way of that amendment but also for taking it a step further and, in a sense, looking beyond that as to what other flexibilities may be required in the Bill.

Lord Peston

My Lords, before my noble friend the Minister replies to the interesting queries raised by the noble Earl, Lord Howe, I have one point to raise. It is possible that I have misread the second paragraph of Amendment No. 2, but it does not seem grammatically correct. I cannot quite make sense of it. It may be because I am no good at reading legislation and, indeed, that any lawyer would make perfectly good sense of it; but there is either an "it" missing, or something similar. In any event, the sentence starts with the word "but", which I believe to be unacceptable.

Lord Hunt of Kings Heath

My Lords, I would never dare to suggest that my noble friend cannot read legislation appropriately. I am not sure about the grammar, but if we are talking about an establishment within which services are provided by medical practitioners in pursuance of the National Health Service Act 1977, it cannot be defined as an "independent clinic". My noble friend's point actually takes us on to the issues raised by the noble Earl, Lord Howe, with which I shall now deal.

The noble Earl is right in both the suggestions that he made. He has proposed that the definition of "independent clinic" in Clause 2 should be amended so that it will exclude establishments in which the majority of services are NHS services. He then posed the probing question in that respect. In response, I can tell the noble Lord that the independent healthcare provisions of the Bill are built on the fundamental principle that it will not be the commission's task to be concerned with NHS services. Providers of NHS services will come under the separate arrangements specifically introduced to provide quality assurance in the NHS. Therefore, clinics that provide any NHS service will come under the NHS arrangements, and not under the national care standards commission.

We believe that it would be unnecessary and, indeed, that it would amount to over-regulation to require doctors who have to comply with NHS arrangements to be regulated also by the commission. Perhaps I may point out that the noble Earl's question relates to the issue of the majority of services. It would be difficult to keep track of doctors' practices in order to monitor the 50/50 split. However, I understand that the noble Earl raised the matter more as a probing amendment than anything else.

On similar lines the noble Earl has tabled an amendment to the definition of "independent hospital" in Clause 2, the effect of which would be to include in the definition a non-NHS hospital situated on land owned by the NHS. We see no need for this amendment. Clause 2, as currently drafted, provides that any non-NHS hospital that satisfies any of the other conditions in Clause 2, regardless as to whether it is situated on land owned by the NHS, comes within the definition of "independent hospital" and will be regulated by the national care standards commission.

Earl Howe

My Lords, first of all I thank the Minister for his clear and full explanation of the government amendments, which I welcome. I take this opportunity to thank him for writing to me so comprehensively and on a number of occasions since the Committee stage to explain the meaning and purport of all the government amendments that we shall consider today. That was helpful and has certainly eased my task considerably.

I turn to the two amendments in the group that I have tabled. As I said earlier, they were intended as probing amendments. However, the replies that the Minister has given are unequivocal. Both I and the BMA will be extremely grateful for that. It is always reassuring to find that there is no ambiguity in legislation. It is as well that we should spot such potential ambiguities as they arise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath

moved Amendment No. 2: Page 2, line 34, leave out from ("provided") to end of line 35 and insert ("by medical practitioners (whether or not any services are also provided for the purposes of the establishment elsewhere). But an establishment in which, or for the purposes of which, services are provided by medical practitioners in pursuance of the National Health Service Act 1977 is not an independent clinic. (4A) "Independent medical agency" means an undertaking (not being an independent clinic) which consists of or includes the provision of services by medical practitioners. But if any of the services are provided for the purposes of an independent clinic, or by medical practitioners in pursuance of the National Health Service Act 1977, it is not an independent medical agency."). On Question, amendment agreed to.

[Amendment No. 3 not moved.]

Lord Hunt of Kings Heath

moved Amendment No. 4: Page 3, line 7, at end insert— ("( ) except any description of undertaking from the definition in subsection (4A);"). On Question, amendment agreed to.

Clause 3 [Care homes]:

Lord Rix

moved Amendment No. 5: Page 3, line 13, leave out ("suffering from illness") and insert ("ill"). The noble Lord said: My Lords, during Committee stage of this Bill I made the case for removing the word "suffering" from its association with the basic definition of terms such as "disability" on the grounds that it is both negative, and in many cases inaccurate. A number of your Lordships supported my suggestion for the same reason and for reasons of linguistic economy.

In the interests of linguistic economy, I shall keep my comments brief. I am delighted that the Government have already indicated that they are minded to accept my Amendments Nos. 5, 6 and 7 in relation to all three definitions in Clause 3. It demonstrates that the law can be modernised and used in more subtle and accurate ways. I beg to move.

Lord Addington

My Lords, I congratulate the noble Lord on having done away with suffering.

Lord Hunt of Kings Heath

My Lords, I am most grateful to the noble Lord, Lord Rix, for proposing these amendments. As he has indicated, I am pleased to accept them.

On Question, amendment agreed to.

Lord Rix

moved Amendments Nos. 6 and 7: Page 3, line 14, leave out ("suffering from disability or infirmity") and insert ("who are disabled or infirm"). Page 3, line 15, leave out ("suffering from dependence") and insert ("dependent"). On Question, amendments agreed to.

Clause 4 [Other basic definitions]:

Lord Rix

moved Amendment No. 8: Page 3, line 41, at end insert— ("( ) "Day Services" means any centres or other facilities for daytime training or occupation, including arrangements for supporting people using facilities generally available to members of the public, funded or provided, directly or indirectly, by a public authority for the use of persons over pension age or persons with a physical or mental disability."). The noble Lord said: My Lords, I am dazed with expressions of gratitude! I speak to Amendment No. 8, which is grouped with Amendments Nos. 9 and 67. Amendment No. 8 will be familiar to noble Lords who braved the Care Standards Bill in purging the excesses of Christmas! As we are now approaching Easter, I am sure that your Lordships will not mind if I recap briefly.

This amendment seeks to include day services within the range of provisions regulated and inspected by the new commission for care standards. It is, quite frankly, absurd to legislate to protect the interests of vulnerable children and adults and then create exceptions based on where that care is provided. This is no minor exception. A substantial number of people with learning disabilities, young and old, spend a significant proportion of their week in the care of day services, and I suspect that the numbers relating to older people generally are also fairly substantial.

In Committee the Minister advised the Chamber that a power exists in the Bill to bring in day services at a later date. He also said that the omission of day services relates to the practical question of what can sensibly be undertaken by the commission. Today I urge the Minister to accept that practical challenge and clearly direct the commission to take responsibility at the earliest opportunity for care standards in day services for children and adults.

I am aware that from the outset staff working in day centres will be covered by the new general social care council provisions, and that is indeed welcome. However, I should be grateful if the Minister would clarify the extent of the coverage in this field. I look forward to the Minister's explanation of his Amendment No. 67, which is grouped with mine. Day care staff rarely remain in one geographical location while discharging their duties. These days, day care can cover a wide range of activities including sports, training, visiting libraries and other community resources. One would expect staff to be covered in all these settings, not just within the four walls of the day centre.

One final concern is whether staff undertaking a supervisory role in wider day service settings will be understood as providing "personal care" as the Bill requires. I should be grateful if the Minister could assure me on the breadth of the term "personal care" as interpreted in the Bill and as mentioned in his amendment. I hope that the Minister will be able to assure the House that he accepts the need to offer greater protection to the users of day services. I believe my amendment to be well within the spirit of this important piece of legislation. I beg to move.

Lord Clement-Jones

My Lords, I wish to second everything that the noble Lord, Lord Rix, has said. These Benches tabled a similar amendment in Committee, but we thought that it was best to join forces on Report, especially as we thought that the Minister might bring forward his own amendment. I am delighted to see that that is the case. It is clearly not only necessary to have a definition of "day services", but also to have the Minister's assurance of when that regulation will come into effect. We very much hope that in addition to putting forward his amendment, which we believe defines in a perfectly satisfactory way what those day services should be, he will also give us the kind of assurance that we sought in Committee; namely, that that regulation will be introduced as soon as practicable.

Lord Renton

My Lords, I apologise if your Lordships cannot hear me but I shall do my best. The Government are to be congratulated on the fact that in this Bill they have set out in the early clauses rather than the late clauses the ways in which it needs to be interpreted. Up to a point they have done that well. However, they have left out one or two things that ought to have been included, including the definition of "day services", for which the noble Lord, Lord Rix, has now put forward a definition and a useful amendment.

In order to save time, perhaps I may say in passing that the starred amendment of the noble Baroness, Lady Masham, seeks to introduce a definition of a "nursing and ca re staff agency". Both definitions will help with the interpretation of the Bill. I hope that the Government will regard the amendment of the noble Lord, Lord Rix, with which we are now dealing, very sympathetically.

3.30 p.m.

Lord Hunt of Kings Heath

My Lords, I am grateful for the contributions that have been made in regard to this very important question. I am particularly grateful to the noble Lord, Lord Rix, for raising this matter both at Second Reading and in Committee.

Let me begin by speaking to my own amendment to Clause 52, Amendment No. 67. Clause 52, which sets out the definition of a social care worker, allows for regulations to provide for staff in day centres to be defined as social care workers. It was pointed out in Committee that the Bill contained no definition of the term "day centre". My amendment provides that. It covers establishments that provide nursing or personal care on a non-residential basis, wholly or mainly for persons who are or have been ill, are disabled or infirm, or who are or have been dependent on alcohol or drugs.

I have given careful thought to the issue of regulating day care in the light of the concerns expressed in our earlier debate. As noble Lords will remember, I said then that we must be careful not to overload the commission as it takes on its considerable and vital responsibilities, and that it would therefore not be practical to regulate day care from the start. But I said that the power existed in Clause 40 of the Bill to introduce regulation for further services, such as day care, at a later date.

From today's discussions it would appear that noble Lords—although they understand the necessary constraints that there must be when getting new arrangements off the ground—wish for greater certainty about our intentions for regulation in this area. I can confirm today that we will use the powers in Clause 40 to introduce regulation by the national care standards commission of day centres which provide nursing or personal care.

For the reasons that I gave at Committee stage, it will not be possible to do this from the start of the commission's life, but we will carry out a review within one year of the commission being established to decide the details of exactly how and when the regulatory regime will come into force.

Amendments Nos. 8 and 9 define "day services" more widely than those services that are provided in day centres. I have discussed with the noble Lord, Lord Rix, his concerns that a lot of activities for people with learning disabilities are arranged by day centres but take place outside the centre and may therefore not be covered by the provisions of the Bill. Regulation of dispersed day services not attached to a particular facility and not specific to those receiving care would present significant difficulties in terms of definition and boundaries. However, regulation of day centres will include inspection of fitness of staff and the appropriateness of activities arranged in and through the centre. An additional safeguard will be, as I have said, that day centre staff, as social care workers, will come within the remit of the general social care council.

The definition of "personal care", on which I was asked to comment, is to be found in Clause 97(3) of the Bill, which states: In this Act, the expression 'personal care' or 'nursing or personal care' extends to advice and encouragement, but does not include any prescribed activity". In essence, the term "personal care" is mainly intended to cover assistance with bodily functions—such as washing, feeding, dressing, toileting—and the words "includes assistance with bodily functions" are used in the Registered Homes Act.

The commitment I have given today means that for the first time there is a clear guarantee that day centres will be subject to a system of regulation and inspection to ensure proper standards of care and protection. In the light of that commitment, I hope that noble Lords will feel able to withdraw their amendments.

Lord Renton

My Lords, before the Minister, sits down, perhaps I may be allowed to mention that, when it comes to the interpretation of the Bill, the undertaking to put something, if necessary, into regulations is nothing like as useful as including the definition in Clause 4, which the noble Lord, Lord Rix, wishes to do. From that rather important point of view, I hope that the Government will accept the amendment after all.

Lord Rix

My Lords, I was waiting for a response from the Minister to the noble Lord, Lord Renton. I, too, have some queries. In regard to the review the Minister has promised—which we obviously welcome—how long will that take? If the review takes place within a year, will its findings be known perhaps three years later? Will there be a time limit on that? And, following on from the point made by the noble Lord, Lord Renton, I should be very grateful to know whether it is possible to place that firm commitment either in regulations now or on the face of the Bill.

The Minister said that day centre staff will be monitored in their activities. I presume that means their activities outside the building.

Baroness Barker

My Lords, on the assumption that the Minister has not sat down—

Lord Burlison

My Lords, it is out of order for the noble Baroness to speak now.

Lord Hunts of Kings Heath

My Lords, I listened with great interest to the noble Lord, Lord Renton. In relation to the term "day centre", my amendment ensures that the general social care council will regulate establishments that provide nursing or personal care on a non-residential basis, wholly or mainly for persons who are or have been ill, are disabled or infirm, or who are or have been dependent on alcohol or drugs. I hope that is helpful to the House.

So far as concerns the question of when the review will take place and how long afterwards would any necessary action be taken, I am not in a position to respond to the noble Lord, Lord Rix, on that matter. But the fact that we have set a date for the review to be undertaken one year after the establishment of the commission is a sign of our commitment to wanting that to happen. We share the views of noble Lords about the importance of this matter.

Lord Rix

My Lords, in view of the Minister's gesture of goodwill towards the review and the suggestion—if not the promise—that the findings of the review will be promulgated not too long after the one year is up, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Masham of Ilton

moved Amendment No. 8A: Page 3, line 41, at end insert— ("( ) "Nursing and care staff agency" means any employment bureau supplying nurses in any part of the Register of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting.") The noble Baroness said: My Lords, in moving Amendment No. 8A and in speaking to Amendments Nos. 10A and 138, I declare an interest as I have to use various nursing agencies to get help for my husband, who has a selection of serious medical conditions. There are not enough nurses available for people needing nursing care in their own homes, in nursing homes and in our hospitals. Because of this it is easy for people who may put patients at risk to get employment. Agencies can be very stretched when such a shortage exists.

A nurse who has been dismissed from a hospital trust for misconduct may be taken on by an agency which may not bother to check the references. Because of being a qualified nurse, such a person might be put in charge of the drugs cupboard and given the keys. By the law of averages, there will be agency nurses who will have serious problems of personality or addiction. Nothing can ever be foolproof. But the registration of nurses' agencies could help to provide safer, better standards for vulnerable patients.

Nurses' agencies supply qualified nurses to many thousands of elderly or disabled people at home, as well as to our National Health Service hospitals, nursing homes and so on. This amendment would give powers for the regulation of nurses' agencies to the national care standards commission which will already be responsible for personal domiciliary care services and for private and voluntary healthcare under this Bill. It will do that by creating a definition of a "nurses' agency" parallel to the definitions of domiciliary agencies and other services to be regulated.

The Care Standards Bill, as currently drafted, repeals the Nurses Agencies Act (NAA) and extends to nurses the Employment Agencies Act (EAA) which would then be the only regulation of the sector. Those proposals are inadequate and betray the policy intention behind the Care Standards Bill to assure minimum standards of care and public protection.

Damage to health for vulnerable people at home or in hospital cannot be set right by reactive enforcement. Not all types of temporary worker present these risks. The difference is that nobody dies from accountancy. This amendment is related to the amendment of the noble Earl, Lord Howe, to Clause 91. I believe that active regulation of nurses' agencies is essential. The existing regulation for nurses' agencies is not ideal, but if this amendment to Clause 4 is not passed, I shall support the amendment of the noble Earl, Lord Howe, to remove Clause 91 and retain the Nurses Agencies Act 1957. However, if this amendment is accepted, Clause 91 could stay.

A key purpose of the national care standards commission is to reassure members of the public that care services are of requisite standard; for example, people will be advised to purchase personal care only through a registered domiciliary agency. It is illogical to deny this safeguard and reassurance to people seeking higher dependency care at home. Many people already think that nursing agencies are fully registered. All other major types of care service will be subject to actively enforced minimum standards. The proposed new regime will leave nurses' agencies as the only exception. That would mean a missed opportunity which could have dangerous consequences. Services should be required to register with an appropriate authority so that operators can be traced, controlled and excluded where practice falls below standard.

The Employment Agencies Act operates no register. Services should be routinely inspected so that standards are assured in advance of failure or scandal. The Employment Agencies Act is enforced only in response to complaints to the Department of Trade and Industry. Services should be run only by "fit persons" judged against clear criteria of qualifications and conduct.

As regards nurses' agencies, the recruitment and placement of registered nurses should always be carried out under the supervision of a registered nurse who is professionally accountable for his or her own actions. For people buying home nursing, professional assessment and care planning are essential. Daily judgements must be made based on clinical knowledge. That will include infection control, access to drugs, and medical confidentiality.

Nurses are also entitled to professional support from the agencies supplying them. For the national care standards commission to inspect nurses' agencies would be a low-cost measure because most of the businesses concerned also supply domiciliary care. Therefore, inspections can be carried out at the same time.

This amendment is supported by Age Concern, the British Federation of Care Home Proprietors, Care Forum Wales, the Hampshire Care Association, Help the Aged, the Independent Healthcare Association, Mencap, the National Care Homes Association, the UK Central Council for Nursing, Midwifery and Health Visiting, and the United Kingdom Home Care Association. Nurses are not all angels—many are—but all people needing their care are vulnerable and in need of protection before and not after disaster happens. I hope that that will be avoided. I hope that your Lordships, and especially the Minister, will accept this necessary amendment. I beg to move.

3.45 p.m.

Lord Rix

My Lords, I support my noble friend's amendments. If they are accepted, I believe that there will no longer be any necessity to move Amendment No. 138 to Clause 91 in the name of the noble Earl, Lord Howe.

I have no strong views on the legislation under which the supply of agency nurses should be regulated. I wish the Government well in their endeavours to reduce hospital dependency on agency nurses. However, I seek an assurance that regulation will be specific to nursing and at least in line with the regulations for the provision of personal carers by domiciliary agencies.

Given that objective, there seems to be a great deal of sense in placing nurse agency activity under the care standards commission alongside domiciliary care agency activities, not least when it may well be, as the noble Baroness has already said, the same agency carrying out the same functions.

The Employment Agencies Act could then bite in an appropriate way and not on the rather dangerous assumption that one commercial activity is much like another. I could just about put up with an agency gardener doing undesirable things to my rose bushes, but I could not put up with an agency nurse doing undesirable things to a member of my family. We should not wave goodbye to the Nurses Agencies Act without an assurance of specific and effective regulation under the care standards commission being there in its place.

I am aware of professional nursing sensitivities at a time when nurses are becoming more like doctors and domiciliary work carers more like nurses. I trust that my noble friend's amendments will tread gently on all sensitivities, protect patients, and commend themselves to the Minister.

Baroness Park of Monmouth

My Lords, I wish to support the amendment of the noble Baroness, for two practical reasons: first, it can do no harm and nothing but good for the good nurses; secondly, I think it might ensure that anyone who is dismissed or disappears from a previous job for having fallen ill will not escape, as so many people do, because they have been given a reference which does not say how bad they are. For all kinds of reasons—for example, being sued in the courts—people often prefer to give very anodyne, if not misleading, references. If there was an official agency to whom they had to give such a reference, they would think more carefully. Incidentally, they would feel much safer.

For both those reasons, among the other much mere important ones, I hope that the House will look upon this amendment with favour.

Lord Renton

My Lords, the noble Baroness, Lady Masham, the noble Lord, Lord Rix, and the noble Baroness, Lady Park, have put forward such strong reasons in favour of the amendment moved by the noble Baroness that it would, in my opinion, be most unwise and unfortunate if the Government were on this occasion, as on the previous occasion regarding the amendment of the noble Lord, Lord Rix, to say that they would like to hold another inquiry and then have a regulation to deal with the matter. That would be most unsuitable and unfortunate. Therefore, on this occasion I hope that the Government will accept the amendment.

Earl Howe

My Lords, I rise to speak to Amendment No. 138 standing in my name, which I had intended as a vehicle for raising exactly the same issues as those raised by the noble Baroness, Lady Masham. I do not believe that there is much disagreement in the profession that the Nurses Agencies Act is out of date and merits abolition. The extent to which the Act provides protection is, in practice, extremely limited, but if it is patient protection that we are looking for, as we clearly must, then, as has been said very succinctly already, the Employment Agencies Act, which effectively takes the place of the Nurses Agencies Act under Clause 91, has even less to recommend it. Even with the special requirements proposed for care agencies in the latest draft regulations, the Employment Agencies Act is, in my view, wholly inadequate to ensure the standards of public safety that we should now be insisting upon, and which the Bill seeks to promote.

First, under the Employment Agencies Act, there is no register of agencies, so there is no knowledge of which businesses exist to provide a service. Secondly, as the noble Baroness emphasised, inspection and enforcement under the Act occurs only when the DTI receives complaints. When the health and well-being of sick and vulnerable people are at stake I do question whether a reactive as opposed to a proactive enforcement system is appropriate.

Thirdly, the Employment Agencies Act regulations contain no requirement at all for a nurse to supervise recruitment and placement, which means that agencies can operate with an inadequate understanding of health issues and with no professional accountability in any meaningful sense. There are no rules on fit persons. The answer, I respectfully suggest, is for the national care standards commission to have delegated powers to register and inspect nurses agencies and for the repeal of the Nurses Agencies Act not to occur until adequate replacement measures are in force.

Perhaps I may just emphasise to the Minister that the issues that I and other noble Lords have just highlighted are far from being theoretical; they are very real. There are some nurses agencies that are not operated as well or as scrupulously as they should be. From a practical standpoint, the additional regulatory role that I have suggested for the commission should not involve it in a great deal of additional work because, as I think the noble Baroness said, most nurses agencies are also domiciliary care agencies in any case. Therefore, it would be a cost-effective and efficient way of doing the job.

The point I would stress to the Minister is that it is not enough to argue, as he did earlier, that proper registration and inspection of nurses agencies are unnecessary because nurses are professional people. Nor do I believe that codes of practice can take the place of an inspection regime that is automatic. It really is not appropriate to treat agencies that deal with people's health in the same way as one treats agencies that supply secretaries. The implications for the user are of a wholly different order.

It is interesting that the Government have tabled amendments which seek to regulate doctors agencies under the national care standards commission. I have no inherent objection to those amendments, but it does seem inconsistent for the commission to regulate doctors agencies and not nurses agencies. There are very few doctors agencies compared to the number that place nurses. Furthermore, a small number of doctors, I am advised, are placed through agencies, compared to the huge volume of nurses placed each year.

I look forward to hearing what the Minister has to say, and hope that he can provide some reassurance in relation to the very real concerns that have been expressed from all sides of the House.

Perhaps I may conclude with two specific questions. Can the Minister confirm that one effect of the repeal of the Nurses Agencies Act 1957 will be to classify as agencies nursing banks run by NHS trusts? If so, does he think this desirable, bearing in mind that the nurses employed by the bank system are NHS employees? Secondly, can he confirm that the change will result in additional costs for NHS trusts, which will no longer be able to claim back an element of VAT from the agencies which supply them?

Lord Rea

My Lords, having listened to the noble Baroness and other noble Lords who have spoken to this amendment, I feel this is a necessary and important amendment. I was particularly impressed with the long list of extremely reputable national agencies that she read out which support the amendment, including the UKCC. I did not hear the Royal College of Nursing mentioned among that group. I should be interested to know why. My noble friend may not be able to accept the amendment as it stands, but I feel that he will be sympathetic to its spirit, and I should be grateful to hear how the Government intend to deal with this important issue.

Lord Jenkin of Roding

My Lords, I, too, support the amendment. I totally support the arguments advanced by my noble friend Lord Howe from the Opposition Front Bench. I would add only one other point. Looking around the House I think I am the only noble Lord who has held the position both of Secretary of State for Health and Social Services and Secretary of State for Industry. What struck me, as I moved from one department to the other, was how totally different they are: different in tradition; different in culture; different in attitude; and with a very considerable difference in experience and skills.

I shall not weary the House now with some of my experiences. However, in dealing with the pharmaceutical industry when I was at the Department of Industry, it was perfectly clear that it knew nothing about the pharmaceutical industry because it was sponsored in fact by the Department of Health. I find bizarre this proposal that nurses agencies should be handed to the tender care of the DTI. There is nobody in that department who can deal with them. I say that on the basis of past experience. They may have recruited all kinds of experts in nurses agencies in the past few years, but somehow I doubt it. It is such a totally different field from anything that the Department of Trade and Industry will have dealt with hitherto. Presumably, that department will be the one that will need to make the regulations and to supervise the administration of the sections of the Act. I find that incredible.

It may well be—and I have no particular expertise in the field—that, as my noble friend has said from the Front Bench, the Nurses Agencies Act 1957 is now substantially in need of modernisation. It needs to be brought up to crate to deal with the profession and its activities and with agency activities as they are today and will be over the next few years.

I cannot believe it is right to put these matters under the control of the same department as controls the supply of secretaries, accountants, consultants and so on to industry a rid commerce. I say to the Minister that he cannot accept that position. The amendment may or may not be right—there are further stages of the Bill—but what the Government propose is not the right answer. The amendment at least raises the issue and would be one way forward. I hope that the Minister will be able to give us some comfort on this issue because I honestly do not believe that the Government's present proposals are viable.

4 p.m.

Baroness Emerton

My Lords, I rise to support the amendment of the noble Baroness, Lady Masham, and to agree with of her noble Lords who have supported the amendment. The Royal College of Nursing supports the amendment. It has 1,000 managers represented on its care agencies forum. They would like the Minister to take account of these proposals. It is recognised that the Nurses Agencies Act 1957 is not very thorough. However, the RCN would be concerned if responsibility transferred to the DTI. The Royal College of Nursing, and certainly I as a nurse, would wish the Minister to take account of what has been said and accept the amendment.

Lord Swinfen

My Lords, I can think of no good reason, except possibly its drafting, why the Government should refuse to accept the amendment. Nurses have a wide range of skills. As my noble friend Lord Howe said, it is essential that they should be properly recruited to a nursing agency by someone who understands nurses and is qualified as a nurse. When sending a nurse to a private house it is essential that that nurse has the skills and experience necessary to deal with the patient that she or he is going to look after.

Nurse training today is not as general in scope as it used to be. Very often, nurses are trained in one specific field rather than as general nurses, as they were in the past. It would be disastrous to send a nurse who had been trained to look after geriatrics to look after a very young person or a child in their own home, as might happen. That would be chaotic. I strongly support the amendment.

Lord Clement-Jones

My Lords, I wish briefly to offer the strong support of these Benches to the amendrnents— particularly Amendments Nos. 8A and 10A. It is common ground between all speakers that the current system is not perfect. I do not think that anyone is making that claim. I was extremely interested to hear what the noble Lord, Lord Jenkin, had to say. I can think of few government departments less suitable for this role than the DTI. Perhaps the Treasury would be the best depository. It is extraordinary that the DTI should he suggested as the department to be responsible for governing the nursing agencies in these circumstances.

It is clear that we should bring the provisions of the Nurses Agencies Act into line with those for doctors agencies. After all, the Minister has made concessions in that area only today. We should seize the opportunity of this Bill to bring nurses agencies under the national care standards commission. Noble Lords on these Benches, in line with all other noble Lords who have spoken, strongly urge the Minister to do just that.

Baroness Gardner of Parkes

My Lords, I rise to add my comments on the amendment. I would have added my name to it, but by the time I came off the Woolsack last night and telephoned to do so, it had already gone to print. But I strongly support the amendment.

I have received a briefing from the Royal College of Nursing. Yesterday afternoon it attended a meeting with us and set out the points made by the noble Baroness, Lady Emerton. The RCN is quite aware that something needs to be done about the Nurses Agencies Act 1957 but it is clear that moving responsibility over to the DTI is no answer.

I have no interest to declare, but many years ago I ran an employment agency. When at that time one applied for an employment agency licence, one had to sign an undertaking that one would not attempt to deal with nursing staff of any kind. It was always clearly recognised that nurses required a type of procedure and regulation different from those applicable to other employment agencies. To put the two together now, all these many years later, would be a retrograde step.

At present, local authorities carry out inspection. Where that works well, it works very well. But in some areas it does not work at all well. Inspection is patchy over the whole country. The care standards agency could still use local authorities to carry out much of the day-to-day inspection. That would not throw a great deal of additional work on to the care standards agency, but it would mean that control was with the body that properly understood the situation. This is a very good amendment and I support it.

Lord Hunt of Kings Heath

My Lords, I certainly recognise the strength of feeling on this issue in your Lordships' House. I also recollect that due to the lateness of the hour in Committee we were not able to debate this matter thoroughly.

Noble Lords are agreed that the current system is not operating very effectively. In practice, it offers little protection for those receiving care from nurses supplied by agencies and little protection for the nurses themselves. The evidence seems to be that the Act is inconsistently applied throughout the country and is open to wide interpretation. The aim of the Government's proposals was intended to create a level playing field for nurses agencies. Bringing them under the Employment Agencies Act would therefore mean that they would be regulated under the same system as all other employment agencies.

Noble Lords have expressed concern about the repeal of the Nurses Agencies Act. It has been said that we are removing a system of inspection and licensing. Under the proposals before the House, nurses agencies would, like all other employment agencies, come under the remit of the Employment Agencies Standards Inspectorate. The inspectorate responds to concerns and complaints about agencies. That enables it to target its efforts where problems have been identified. The inspectorate also has the powers to carry out spot checks on agencies. It has strong enforcement powers and can prosecute agencies that do not comply with regulations. Prosecution can also result in fines being imposed. The DTI, which has not come in for universal approval in this area, can also seek to prohibit agencies from operating for up to 10 years.

The Employment Agencies Act provides a much tougher framework of protection for agency nurses and those they care for than in practice we have at the moment. Although the noble Earl, Lord Howe, described that framework of protection as being wholly inadequate, I remind him that it was the previous government who introduced that legislation. I believe that the framework is sufficient to provide the safeguards that people rightly require.

I turn to the specific amendment moved by the noble Baroness, Lady Masham.

Lord Jenkin of Roding

My Lords, the noble Lord has certainly succeeded in confusing me. We are all agreed that the Nurses Agencies Act is not working very well. However, if, when he referred to legislation introduced by another government—of which I might well have been member—he intended to refer to the Employment Agencies Act, that was not entirely clear from what he said.

Lord Hunt of Kings Heath

My Lords, I apologise to noble Lords. It was my intention to refer to the Employment Agencies Act.

Baroness Gardner of Parkes

My Lords, can the Minister also make it clear that currently the Employment Agencies Act does not cover nurses agencies?

Lord Hunt of Kings Heath

My Lords, I can. I referred to the inadequacies of the legislation that now applies to nurses agencies. All noble Lords agree that that is unsatisfactory. I refer to the potential of the Employment Agencies Act, if it applied to nurses agencies, compared with the current situation which all noble Lords agree is unsatisfactory.

I turn to the specific amendment moved by the noble Baroness, Lady Masham, and spoken to by the noble Lord, Lord Rix. We have carefully considered the option of requiring nurses agencies to be regulated by the commission, but there is a genuine issue as to whether nurses agencies should be treated differently from agencies that supply other healthcare professionals. We must also take into account the very strong regulatory framework within which nurses are regulated through the UKCC, which itself provides the public with a great deal of comfort and safeguards.

Baroness Gardner of Parkes

My Lords, the UKCC attended the meeting yesterday and made clear its understanding that at the moment the whole system was in the melting pot. Can the Minister confirm that? Is the noble Lord aware that the UKCC also supports this amendment?

Lord Hunt of Kings Heath

My Lords, various changes are proposed to the regulation of nurses alongside the regulation of other professional staff within the National Health Service. As to the successor body to the UKCC, I can assure noble Lords that the regulation of that profession will be no less robust than at present.

I make two other points in relation to how the Employment Agencies Act would operate if it embraced agency nurses. First, I assure noble Lords that we would closely monitor and keep under review the new arrangements so that if problems arose we could take further action. For example, under the Employment Agencies Act we would have power to make regulations directed specifically at nurses agencies if the need arose.

None the less, having intimated to noble Lords the reasons why the Government consider that to embrace nurses agencies within the Employment Agencies Act would be a better option than the present situation, we recognise the strength of feeling expressed this afternoon. With the leave of the House, I shall reflect on the matter between now and Third Reading. On that basis I ask the noble Baroness, Lady Masham, to withdraw her amendment. I do not disagree with the concerns expressed today by noble Lords. It is important to ensure that, whatever route is adopted, nurses agencies are regulated effectively. I believe that what we propose is satisfactory, but none the less I should like to consider the matter again.

4.15 p.m.

Earl Howe

My Lords, before the noble Lord sits down, is he able to answer the specific queries that I raised about nurses banks and VAT reclaims for NHS trusts?

Lord Hunt of Kings Heath

My Lords, that is a matter that I should like to consider. My understanding is that VAT would have minimal effect. If NHS nurse banks were to be embraced within the Employment Agencies Act, we would look at ways in which they could be exempted from it.

Baroness Masham of Ilton

My Lords, I thank all those who have supported the amendment. I do not want fragmentation; I am a supporter of joined-up government. I believe that to leave the largest group of employees—nurses—out of the Care Standards Bill is wrong. However, I am encouraged by the Minister's response. The noble Lord has assured the House that he will look at rite matter again. The amendment has received a good deal of support, and I hope that the Minister will take note of it. I shall stay on the noble Lord's back. It would be better if the Government tabled their own amendment. We do not want nurses to be left out of the Bill because that would cause fragmentation. If the noble Lord does not table an amendment at Third Reading, I shall do so. On that basis, I beg lease to withdraw Amendment No. 8A.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

Lord Hunt of Kings Heath

moved Amendment No. 10: Page 4, line 22, after second ("to") insert ("an independent medical agency,"). On Question, amendment agreed to.

[Amendment No. 10A not moved.]

Clause 6 [National Care Standards Commission]:

Baroness David

moved Amendment No. 11: Page 4, line 40, at end insert— ("( )In the exercise of its functions the Commission shall give due consideration to the views of children affected by the provisions of this Act."). The noble Baroness said: My Lords, Amendment No. 11 is designed to ensure that the national care standards commission considers the wishes and feelings of children. I moved exactly the same amendment at Committee stage. I table the same amendment today because I am not entirely satisfied with the Minister's response. I hope that I shall receive a better reply today. The Children Act requires both the courts in private family cases and local authorities in regard to looked-after children to give due consideration to the wishes and feelings of children affected by their decision-making. It is, therefore, consistent under domestic law that the national care standards commission should be placed under a similar duty.

The consideration of the views of children is also a requirement of Article 12 of the UN Convention on the Rights of the Child, which was ratified by the UK after the Children Act was enacted. The Government are due to report to the UN-based Committee on the Rights of the Child and would gain some credit if they had made some effort to implement Article 12 since they last reported. By this amendment the commission is not bound to follow the views of children but simply to give them due consideration. The purpose of the amendment is simply to ensure that the commission keeps in touch with the view of those it tries to help. The Government have continually urged local authorities to do that under the Quality Protects programme, and it is very difficult to see how they should not apply the same principles to the national care standards commission.

At Committee stage the Minister appeared possibly to misunderstand the point of the amendment. I pointed out to the Minister, that in dealing with the convention, he had referred to Article 4 and not Article 12 to which I had referred. He said: I assure the Committee that children's views will be at the forefront of the regulatory process, including inspection. Ensuring that children are listened to will be a crucial function of the children's rights director who will be a key senior appointment in the commission".—[Official Report, 10/1/00; col. 460.] This possibly implies that the children's rights director will check that local authorities have listened to children, as is their statutory duty under the Children Act. However, the point of the amendment is that the work of the commission itself should be informed by the views of children, not just local authorities. So, for example, if the children's rights director were to develop standards relating to foster care or care in private health establishments, he or she would be obliged to ensure that the views of children in those placements were taken into account.

Clearly, the Government should practise what they preach under their Quality Protects programme which stresses the importance of children's participation. If local authorities under law and guidance are required to listen to children, so should inspection and regulatory bodies, in particular a body establishing a post called "children's rights director". Every children's organisation that I know of is keen that the views of children should be heard. I shall be very surprised if the Government cannot give a more favourable response than they did last time. I beg to move.

Lord Clement-Jones

My Lords, the noble Baroness has put the case eloquently for the amendment to which I have added my name. I wish to support strongly what she said. It is a question of consistency. If central government impose on local government duties through the Quality Protects programme then, through the commission, the Government should ensure that they adopt the same standard of consultation, and that they should have direct consultation. I do not think that it is too much to ask that the commission has that explicit duty. I ask the Minister to consider the amendment favourably.

Lord Jenkin of Roding

My Lords, I add my support to the noble Baroness's amendment for one reason. Over the years, it has been borne in on me that in homes and foster families one is dealing with some extremely disturbed and difficult children. One has the utmost admiration for the people who undertake the job of bringing them up and trying to turn them into responsible adults. One of the things one has learned is that if one treats people as responsible beings, listen to them and treat their views with respect, and make clear that that is one's attitude, one is likely to have a better response than if they are treated in what has been in some circles the rather more traditional way, saying, "Yes, we look after them, but the adults will decide what happens".

Having a specific obligation to give due consideration to the views of children, as the amendment provides, means that the people concerned will have to talk to the children. I have reread the speech that the Minister made in Committee. I recognise entirely the difficulty that the noble Baroness had with it. Of course all the things that we say, and the Minister said, are supposed to happen. But why cannot there be a specific requirement in the Bill—something to which people can point and say, "This is what Parliament has asked you to do. Please will you now do it"? I am sure that for those inspecting and those who have the responsibilities of the care of children it will make the task easier rather than more difficult.

Lord Hunt of Kings Heath

My Lords, there can be no doubt that listening to children helps to protect them from harm and low expectations. If children can speak up and be heard, abuse is less likely to happen. That is the lesson from so many inquiry reports that we have learned over the past few years. Children and young people demand and need to have a voice in all decisions taken about them—not just on the big issues such as education, health and their placement, but on the day-to-day issues for them such as pocket money, bedtimes, meals and so on.

The Government are committed to listening to children and to learning the lessons of past inquiries which have identified many of these concerns. Listening to children was a priority area for expenditure under year one of the Quality Protects children's special grant. We have also been organising a series of regional events at which Ministers, senior members of the Department of Health and other interested parties will be listening directly and talking to looked-after children. We are working with the Department for Culture, Media and Sport, the Association of Directors of Social Services and a small project team of young people to plan these events, both now and in the future.

Perhaps I may say to my noble friend Lady David, that I am, of course, mindful of Article 12 of the UN Convention on the Rights of the Child. I have no disagreement with her that listening to children will be a crucial part of the national care standards commission's role. Ensuring that children's views are heard will be a key function of the children's rights director as a senior appointment within the commission. In the White Paper, Modernising Social Services, where the role of the children's rights director was set out, it was envisaged that the children's rights director would help the commission to give full and effective coverage of children's services and children's rights in its statutory regulatory responsibilities and in the reports it makes on the discharge of those responsibilities, ensuring that the views of children placed in the facilities and services regulated by the national care standards commission are given proper weight in the regulatory task, and report directly to the chief inspector of the Social Services Inspectorate any significant evidence relevant to the rights and safety of children gained from the commission's regulation and assessment of services for children which might help local authorities or other providers improve the services and support to children.

Building on that, there is no doubt that the commission will need to give due consideration to the views of all users of regulated services if it is to fulfil its role properly. But I am not convinced that we need the proposed amendment on the face of the Bill to achieve that. However, I assure my noble friend that we shall issue directions to the commission as soon as we can requiring it to give due consideration to the views of all users of regulated services, including children.

I hope that on that basis my noble friend will agree to withdraw her amendment.

Baroness David

My Lords, I thank the noble Lords, Lord Clement-Jones, and Lord Jenkin, for their extremely helpful support. Everything seemed to be going my way at the start of the Minister's speech. He seemed to recognise the need. I was hopeful for a really favourable response. I have received a half-favourable response, I think. He is not willing to put these simple two lines on the face of the Bill, but there will be directions. I am not entirely happy with that, but I shall be willing to read again what he said and see what comfort I can gain from it. I do not guarantee not to come back to this issue at the final stage of the Bill. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones

moved Amendment No. 12: Page 4, line 41, at end insert— ("(4) Regulations under this section shall correspond to section 23(2) and section 23(3) of the Health Act 1999 with respect to the disclosure of confidential information that relates to and identifies a living individual."). The noble Lord said: The amendment seeks to ensure that the national care standards commission, while carrying out its functions, provides the same standard of safeguard as regards identification for patients in the independent healthcare sector as those provided by the Commission for Health Improvement which are contained in the Health Act 1999. I make no bones about it. We felt that the Minister's response to a similar amendment tabled in Committee was unsatisfactory.

Health information about patients should not be disclosed without proper justification. Personal health information is collected for the provision of care to individual patients, and generally should not be used for other purposes without patients' permission. Information may be used without consent only in exceptional circumstances; for example, where disclosure is essential to avoid a risk of death or serious harm to people and it is not possible to obtain consent. The grounds for disclosure must be of sufficient severity to justify a breach of the duty of confidentiality.

When this amendment was previously moved and withdrawn in Committee, the Minister suggested that it was unnecessary, given that the national care standards commission would be subject to the Data Protection Act. However, the amendment seeks to place the national care standards commission on a par with the Commission for Health Improvement, which is, after all, also subject to the data protection legislation and thereby would provide the public with the same safeguards from identification, regardless of whether they are NHS or independent healthcare patients. I believe that the principle of parity of treatment for confidential information purposes is of great importance.

In closing, I ask the Minister whether the Government consider that the Data Protection Act is sufficient to safeguard from identification patients in the independent healthcare sector, and what additional protection will be provided for patients of NHS and primary care trusts by regulations under Section 23 of the Health Act 1999. What is sauce for the goose must be sauce for the gander. Can the Minister advise whether the remit for the recently established National Confidentiality and Security Advisory Board, which was announced on 15th March this year, will include promoting best practice on the confidentiality of patient information in the independent sector? If not, why will NHS patients receive the benefit of regulations and the advisory hoard, while patients in the independent sector must hope purely and simply that the Data Protection Act is adhered to? I look forward to the Minister's reply. I beg to move.

4.30 p.m.

Earl Howe

My Lords, I believe that the noble Lord, Lord Clement-Jones, has made the case for this amendment most succinctly. I simply do not understand why the national care standards commission should not be subject to exactly the same legal duties with regard to patient confidentiality as apply to the Commission for Health Improvement. I support every thing that he said.

Lord Hunt of Kings Heath

My Lords, of course, I accept the noble Lord's concerns and recognise that we had an interesting debate on this matter in Committee. We believe that the amendment is not necessary. It is our view that the commission's right of access to confidential information is already more restricted than that of the Commission for Health Improvement. I say immediately that I believe that all noble Lords will share concerns about the confidentiality of medical records. I am sorry that I was not able to reassure noble Lords on that point in Committee.

I deal, first, with that part of the amendment which relates to Section 23(2) of the Health Act. As the noble Lord explained today, the purpose of that section is to safeguard the confidentiality of personal health information and to ensure that the Commission for Health Improvement can access such information only in limited circumstances: first, where the information is disclosed to the Commission for Health Improvement in a form in which the identity of the individual concerned cannot be ascertained; secondly, where the individual has given his consent; thirdly, where the individual cannot be traced; and, fourthly, where the Commission for Health Improvement is carrying out an investigation and considers that there is a serious risk to the health and safety of patients.

If one compares those with the powers of the national care standards commission, one will see that they are much more limited. Clause 29(4) and (5) of the Bill provide that medical records can be inspected only by a medical practitioner or a registered nurse and, even then, only with the consent of the person concerned.

Perhaps I may clarify one further point: Clause 29(1) allows the commission to require any information relating to the establishment or agency which it considers necessary or expedient for the exercise of its functions. However, I assure noble Lords that the powers in subsection (1) could certainly not be used to override the provisions in subsections (4) and (5) regarding the need to obtain consent in relation to medical records.

I hope that I have managed to reassure noble Lords that in relation to the Commission for Health Improvement access to medical records is more restricted under this Bill than it is under the Health Act. I should add that the amendment would also prevent the Government making regulations which would allow the commission to obtain information where disclosure of that information is prohibited by other legislation. This Bill contains no power which would allow the Government to make such regulations.

Therefore, I believe that the amendment is unnecessary. Clause 6 allows the Secretary of State to issue directions to the commission only in relation to the exercise of its functions. Therefore, I assure the House that the Government could not legitimately use that direction-making power to direct the commission to access information which is protected from disclosure by other legislation.

Lord Clement-Jones

My Lords, I thank the Minister for that reply. It seems to veer between "would not be used" (that is, a matter of practice) versus "could not be used" (that is, a matter of law). I am not entirely clear from the Minister's response whether he is saying that Clause 29(1) would not be used—that is, would be governed by subsections (4) and (5)—or whether he is saying that in law it would be unlawful for the commission to access that confidential information.

Lord Hunt of Kings Heath

My Lords, that is the advice that I have received. It is my understanding that in law it could not be used in that way.

Lord Clement-Jones

My Lords, that clarification is helpful. However, I believe that we should look at the Minister's words in Hansard and consider them. This is an important issue and the legal technicalities involved in Clause 29 clearly are of great importance. If the Minister is advised correctly that that confidential information cannot be used except in circumstances as set out in subsections (4) and (5), I believe that that would be a satisfactory situation. However, if there is an element of discretion and it is a case of trusting to practice, I believe that that would not be satisfactory. It may well be that if that is so, we shall want to return to the matter at a later stage. In the mean time, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones

moved Amendment No. 13: After Clause 6, insert the following new clause— WELSH CARE STANDARDS COMMISSION (" . There shall be a body corporate, to be known as the Welsh Care Standards Commission, which shall exercise in relation to Wales functions conferred on it by the Assembly in relation to services provided by persons registered under Part II of this Act."). The noble Lord said: My Lords, I feel somewhat like someone at the front of a juggernaut. Faced with all the amendments which relate to Wales, Amendment No. 13 is small beer indeed compared with what I know that the Minister is due to put forward.

As a convinced devolutionist, far be it from me to expect the Minister to determine what will happen in Wales. However, I believe that a number of parties involved in this matter are seeking some reassurance from the Minister regarding whether or not a separate standards commission is to be set up in Wales and, if so, what its form will be.

I understand clearly that in his own amendment the Minister is attempting to place the powers of the National Assembly for Wales on the same footing as those for the Department of Health. I believe that in Amendment No. 13 the points at issue are: will there be a care standards commission for Wales and what does the Minister believe the practice will be? I believe that a statement from the Minister about his understanding of this point would give some reassurance, particularly to professional bodies which would be involved in implementing the commission. I beg to move.

Lord Roberts of Conwy

My Lords, I have some sympathy with the case put forward by the noble Lord, Lord Clement-Jones, for this new clause which seeks to establish a Welsh care standards commission. As the Bill stands, the registration authority in Wales is to be the National Assembly, which is, of course, a corporate body. Presumably, the Assembly has considered whether it needs a care standards commission and has decided that it does not. Therefore, the question arises as to how Part II of the Bill will be implemented.

I know from conversations with the Minister, the noble Lord, Lord Hunt, that further provisions are to be added to the Bill at a later stage relating to the establishment of a children's commissioner for Wales. I quite understand why those amendments will not be available to your Lordships; namely, that they are the outcome of, or the follow-up to, the publication of the Waterhouse report.

I hope that we shall have a proper account of the Assembly's deliberations on this particular issue of the care standards commission and that the Minister does not wash his hands of it, as some of his colleagues have been inclined to do as regards other Bills in so far as they relate to Wales. After all, this Parliament is still the primary legislative power and we have a responsibility to ensure that the Assembly, which is not a year old, has the necessary powers to act in the legislation that we provide.

As I understand it, the Assembly must implement Schedule 1, but apart from a reference in paragraph 1 of that schedule to the Welsh council to be established under Clause 51 to deal with social care workers, I can find no cross-reference to Part I, apart from in Clause 8, which refers specifically to charging and training. Therefore, I believe that the noble Lord, Lord Clement-Jones, has done us a service in proposing this new clause.

I press the Minister to tell us whether all this means that the care council for Wales or the Assembly is to take on the responsibilities associated with registration. It is not at all clear. I should be extremely concerned if the Assembly had not yet decided that particular issue. There is certainly a visible vacuum in the Bill in relation to Wales.

4.45 p.m.

Lord Hunt of Kings Heath

My Lords, it is very interesting to have a debate on the situation in Wales. My understanding from the noble Lord, Lord Clement-Jones, is that his amendment is tabled as a probing amendment rather than seeking to constrain the powers of the Welsh Assembly, which I should find to be somewhat at odds with the Liberal Democrat position.

Primary legislation affecting Wales is, of course, the responsibility of the Westminster Parliament; and so the Bill makes specific provision for Wales as well as for England. Indeed, as my forthcoming amendments on Welsh matters will demonstrate, it is taking all of us a little time to work through all the implications of how that operates. The amendments which I shall move are intended to give Wales the tailored provision necessary to those new devolved circumstances.

First, in specific answer to the questions which have been raised, I should say that as a result of the devolution settlement and under the terms of the Government of Wales Act 1998, it is for the National Assembly for Wales to decide how it should organise and fulfil duties such as those to be conferred on it by this Bill.

The National Assembly made the decision that in relation to regulating Part II services, it wishes to undertake those functions itself rather than through a separate care standards commission. It made that decision following a wide-ranging consultation exercise carried out last summer in which two main options were canvassed. The first option was that proposed in the amendment moved by the noble Lord, Lord Clement-Jones; namely, that there should be an independent statutory body to take on the regulatory task, similar to the proposal adopted already for England. The second option was for the Assembly to take on those functions itself.

The responses to that consultation gave a two to one majority in favour of the proposal that the Assembly itself should take on the regulatory functions. The National Assembly's all-party Health and Social Services Committee strongly recommended a single all-Wales regulatory body to be set up as part of the Assembly rather than as an independent body.

Following the consultation process and the committee's recommendation, the proposal was agreed by the then First Secretary and it was as a result of that decision that the provisions in the Bill were drafted as they were.

The approach that the Assembly wishes to take provides a different approach for Wales in terms of structures and operational matters but it is entirely consistent with England in terms of the principle, scope and robustness of the regulation. It will be for the National Assembly to make regulations under the terms of the Government of Wales Act to define the detailed arrangements for fulfilling the new regulatory duties. That may involve establishing an executive agency of the Assembly; or the Assembly may prefer to have the regulatory responsibilities carried out within the existing departmental structure. Those decisions are for the Assembly to take.

The current Position is that the National Assembly has taken a decision on its preferred approach in that area. The Bill sets out the overall framework for the new regulatory system and the approach in Wales, therefore, is wholly consistent with that of England. But it must be left to the Welsh Assembly to make the decisions in relation to detailed matters and how the functions are to be delivered.

Lord Roberts of Conwy

My Lords, is the Minister in a position to give us an assurance that the provisions in Clauses 5 and 8 are adequate for the Assembly to perform and carry out its functions as the Minister has stated?

Lord Hunt of Kings Heath

My Lords, it is certainly my understanding that the construction of the Bill, subject to further amendments which I am shortly to move, will allow the Welsh Assembly to carry out its responsibilities but in the way it so decides.

I refer also to the noble Lord's remarks in relation to the discussions within the Welsh Assembly about the establishment of a children's commissioner. My understanding is that the Assembly's Health and Social Services Committee will be exploring the details of these proposals. They are to be discussed further on 5th April. Following those discussions, an amendment may be tabled to the Bill in another place.

I turn now to the other amendments in the group which all relate to changes to provide for the National Assembly for Wales to have parallel powers to those provided in the Bill for England.

Perhaps I may make one further comment about the reasons for amendments being made at this time. It is worth reflecting that the Assembly was established only in July and that, clearly, a great deal of consideration has had to be given to how it would wish to operate the arrangements set out in the Bill. That has delayed the drafting of amendments. I regret that they are being brought before the House at this fairly late stage.

I deal first with the amendments to Clause 9. These are to give the National Assembly the same powers in relation to inquiries as the clause gives to the Secretary of State for England.

Amendment No. 58 in Clause 51 confers both an English and Welsh name on the care council for Wales, an approach taken also in the Government of Wales Act.

Lord Jenkin of Roding

My Lords, perhaps the noble Lord the Minister might be able to pronounce that for us: Amendment No. 58.

Lord Hunt of Kings Heath

Yes, my Lords: I should have known that was coming! I will try: Cyngor Gofal Cymru. I do not think my pronunciation is very good, but that is the best I can do and I stand to be corrected.

Lord Roberts of Conwy

My Lords, the Minister is quite right in saying that it is Cyngor Gofal Cymru.

Lord Hunt of Kings Heath

My Lords, the noble Lord is very kind to me there. Turning to Amendment No. 107, Clause 69 concerns inspection powers for the Assembly for daycare and childminding services. They will ensure that the Assembly has equivalent inspection powers to those of Ofsted in England, but necessarily modified to the circumstances of direct administration by the Assembly. In relation to the protection of vulnerable adults list, it has already been agreed between the Department of Health and the National Assembly for Wales that the list should operate as a single scheme covering both England and Wales. Part VI therefore confers powers on the Secretary of State on an England and Wales basis.

Amendment No. 110 in Clause 70 provides that regulations under Clauses 70 and 78 shall he made by the Secretary of State but that the National Assembly shall be consulted before any regulations are made. There are a number of amendments to Clause 97. As a result of the devolution settlement, the Government of Wales Act provides for receipts to the Assembly to be paid into its own budgets rather than into the Treasury's Consolidated Fund, where this has been specified by primary legislation.

Amendment No. 152 puts these procedures into effect in respect of fees collected under the provisions of the Bill. Amendment No. 153 is needed to deal with pre-devolution legislation being amended after devolution, and ensures that the references to the statute are always up to date. Amendment No. 156 splits Clause 97 into two clauses to create a separate clause to deal specifically with these Welsh details.

Finally, I turn to amendments to the schedules. Most are very minor and simply ensure that the provisions apply equally to Wales and to England. However, one or two are worthy of specific comment. Amendments Nos. 159 and 210 make changes to reflect the position following devolution in respect of Welsh public records and the Welsh Administration Ombudsman. Amendment No. 205 to Schedule 3 concerns the tribunal established under the Protection of Children Act 1999. As your Lordships will be aware, this is a tribunal which will hear all appeals against decisions made under this Bill. It will be established on an England and Wales basis. The Secretary alone will have regulation-making powers in respect of the tribunal. Very importantly, the amendment ensures that the Assembly should be consulted before such amendments are made. I hope that those explanations have been helpful to the House.

Lord Clement-Jones

My Lords, I should like to thank the Minister not only for his explanation of government amendments but also for his reply to Amendment No. 13. I put it forward in a spirit of inquiry, rather than seeking to impose on the Welsh Assembly what might be considered to be an English imposition. I am grateful for his explanation of where the Assembly has got to in its deliberations and how he envisages the Assembly governing care standards in Wales. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [General duties of the Commission]:

Lord Clement-Jones

moved Amendment No. 14: Page 5, line 3, at end insert ("including standards of clinical care provided in those services"). The noble Lord said: My Lords, this amendment provides for account to be taken of the clinical care provided in care homes as well as the nursing and personal care. It must be recognised that clinical care is being delivered increasingly in care homes. The commission's remit appears through the course of the Bill to address the structure of personal care provision rather than standards and health care. Surely one of the main objectives of the care standards legislation must be to establish the standards of clinical care in all settings. Certainly a number of professional bodies are unsure about whether the Bill's provisions, in their current state, will actually achieve this. It is essential that this duty of quality extends to clinical as well as nursing and personal care.

There is an increasing trend for nursing homes to be used to treat NHS patients. For example, when a hip is replaced in an NHS hospital as part of the treatment episode, the patient may well be discharged from an NHS hospital to a private nursing home for rehabilitation. Certainly "winter pressure moneys" around the country are being used to purchase space in care facilities in order to release beds in the acute sector.

Certainly one of the recommendations from the national beds enquiry is that at least two out of every 10 days spent by people aged over 65 in acute hospitals could be better provided for in alternative facilities such as intermediate care beds. A number of issues arise from the debate about the balance between acute and intermediate beds. For example, will those intermediate beds be sited in nursing homes? Will they be covered by the Care Standards Bill's regulatory procedures and how will the provision of clinical care in those homes be inspected?

It may be that when the Minister speaks on Amendment No. 28, which provides for regulations on the "promotion and protection of the health of persons" in various establishments he will be able to satisfy the points that I have raised on this amendment. There are concerns that there should be an emphasis on healthcare provision in care homes and other settings. Perhaps the Minister could explain whether his Amendment No. 28, for instance, means that regulations will be introduced to ensure that standards of clinical care will be inspected where appropriate. Perhaps he will also explain at the same time what procedures will be in place to assess the clinical care delivered to individuals transferred to care homes from hospitals as part of their treatment episode. There are a number of issues regarding clinical care in those social care settings, and I look forward to the Minister's reply. I beg to move.

Earl Howe

My Lords, I support the noble Lord, Lord Clement-Jones, in all that he has said. It may be that the Minister will tell us that standards of clinical care are to be understood as falling within the general definitions contained in Clause 7. I hope that he does. At the very least, though, there must be ambiguity on this issue in the light of the exclusions to Part II services set out in Clause 7(2).

As the noble Lord said, increasingly both residential homes and nursing homes find themselves looking after high-dependency patients, many of whom require clinical treatment. It cannot make sense to draw a distinction between clinical treatment on the one hand and personal and nursing care on the other. Both aspects of care have equal importance. Indeed, if clinical care were somehow left out of the assessment it would be very difficult to see how the promotion and protection of health of people in care homes—which I am delighted to see included in the Government's Amendment No. 28—could be judged in a meaningful way by the inspecting body. If standards of clinical care are to form part of the assessment, then I think we need to seek an assurance from the Minister that the inspection teams will be as multi-disciplinary as clearly they need to be to ensure that all relevant standards are being met.

Lord Hunt of Kings Heath

My Lords, this is a very important debate. We believe that the regulation-making powers in Clause 21 are sufficiently wide to enable the quality of clinical care to be regulated in relation to those homes where it is appropriate for that to be done.

I think we need to reflect that the definition of a care home embraces residential homes and nursing homes. We also need to consider each of those separately in relation to this amendment, because although clinical care may be delivered in residential homes this would be carried out by general practitioners and the local NHS community nut sing services. In those circumstances it would not be appropriate to make the residential home responsible for the quality of this care.

It is different with regard to nursing homes, because they themselves deliver clinical care. I entirely agree with the noble Lord, Lord Clement-Jones, that arrangements must be in place to supervise and monitor clinical practice in nursing homes in order to ensure that the clinical care provided is of an appropriate quality. I have no doubt whatever that arrangements for overseeing the quality of clinical care should apply in nursing homes as well as in private hospitals. I take the point raised by the noble Earl, Lord Howe, regarding the need for multi-disciplinary teams. That is extremely important.

As I said, we believe that the powers in Clause 21 are already sufficiently wide to ensure that such procedures are put in place in nursing homes. However, I assure noble Lords that I shall take away the issue and consider it further to ascertain whether there is any doubt about our powers being strong enough to cover concerns in that regard. If so, we should look to table an amendment in another place.

5 p.m.

Lord Jenkin of Roding

My Lords, will the Minister include consideration of the position of community psychiatric nurses and psychiatrists, whose work increasingly takes place in community settings; perhaps in nursing homes as well as in people's own domiciliary accommodation? Will he see whether the line about which he has just told the House can be drawn to cover such work and not leave a gap or have an untidy overlap? That area is changing extremely quickly.

Lord Hunt of Kings Heath

My Lords, I shall of course consider that matter. I do not see any reason why there should be any difference in terms of the line that I tried to draw.

Lord Clement-Jones

My Lords, I thank the Minister for his reply. It is not simply a question of the powers in the Bill; it is clearly a matter of the practice intended by the commission. The Minister's reply has been extremely helpful. I take the distinction—which the noble Lord. Lord Jenkin, teased out somewhat further—between nursing homes and residential homes. We simply want to ensure that there is a seamless inspection of quality and regulation of quality as between acute and intermediate care. Intermediate care is coming increasingly under the spotlight as a result of the long-awaited, and now delivered, national beds inquiry. I shall consider the Minister's reply carefully. We look forward to his deliberations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones

moved Amendment No. 15: Page 5, line 25, at end insert— ("(8) "Excepted services" means the provision of services referred to in subsections (7)(a) and (b). (9) The Commission shall have the general duty of securing improvements in the quality of excepted services in independent hospitals (as defined in section 2) and shall carry out this duty through the contracting of inspections with the Commission for Health Improvement ("CHI") established by the Health Act 1999. (10) For the purposes of subsection (9) above the Commission shall ensure that the relevant independent hospital pays the full economic costs of any inspection. (11) The standards applied by CHI on any such inspection shall be those which it applies in any comparable inspection of a health service hospital."). The noble Lord said: My Lords, the question of standards of regulation and of inspection in the independent healthcare sector is a long-running issue. We debated the issue not only in Committee but also on the Health Bill last year. It is rather like the Peninsular War: we fight a regular spring campaign after being behind the lines for winter. I hope that it will not take quite as long as that to achieve victory in this case.

The history of the issue is quite simple. After the Health Bill went through, the Government consulted on the regulation of the independent acute healthcare sector. The outcome of that consultation, however unsatisfactory, is now reflected in the Care Standards Bill. The Bill itself gives no assurance that a duty of quality identical to or even similar to that required for the NHS is required for the independent healthcare sector; nor is there any provision for regulation by the same body—the Commission for Health Improvement—responsible for healthcare inspections in the NHS.

The pattern of provision of private or independent healthcare is complex. It is provided in three main ways: first, healthcare is provided in NHS private beds and paid for privately; secondly, healthcare is provided in independent acute hospitals and paid for by the NHS; thirdly, healthcare is provided in independent acute hospitals and paid for privately.

In Committee, the Minister confirmed—as does the document Developing the Way Forward recently published by the Government—that inspections in the first two cases will be the responsibility of CHI: the Commission for Health Improvement. Yet in the last case it seems that a wholly different set of standards and methods of inspection will apply. Certainly, the Commission for Health Improvement will not be directly involved. It is as important for patients to know how well doctors are performing in their private practice as anywhere else and to know that the highest possible standards are being followed in private hospitals. If one asked ordinary people in the street whether they believed that there should be separate and different standards in private healthcare and in the NHS, they would be horrified. I am sure that most people believe that it is the Government's duty to ensure that standards are common across the board.

At Committee stage, a similar amendment commanded widespread support both in and outside the House. On the Health Bill, the House convincingly passed a similar amendment. Regrettably, both the present Secretary of State and his predecessor set their faces against it. After our debates last year, the Secretary of State decided, despite the consultation process, to set up a completely separate method of registration and inspection to regulate the independent sector. There may well indeed have been some differences between Ministers. On 17th June last year, when we debated the then Health Bill, the noble Baroness, Lady Hayman, said in relation to the consultation document entitled Regulating Private and Voluntary Health Care, that, the consultation document does, however, acknowledge that a regulator might wish to contract with another body, such as the commission for health improvement … in order to help carry out local inspections. That is an issue on which we explicitly invite views".—[Official Report, 17/6/99; col. 459.] Yet it now appears that the Government have firmly made up their minds against any form of contracting to CHI on purely ideological grounds.

As I emphasised in our debates last year, on these Benches we have no particular axe to grind for private health. However, we believe that every patient should have the right to common minimum standards of quality care and safety, irrespective of the sector in which they are treated. My noble friend Lady Nicholson has particular reason to believe strongly in the absolute need for that. In Committee, the Minister recited as a mantra the difference between the regulation of the independent sector and the management of the NHS. The amendment does not cut across that. Registration remains with the care standards commission. It is inspection which will be carried out by the Commission for Health Improvement. The purpose of the amendment is to ensure that the care standards commission contracts the carrying out of inspections in independent hospitals to the Commission for Health Improvement.

In Committee, the Minister made some helpful comments on the issue. He recognised that in the inspection of the independent sector there were skills and expertise possessed by the Commission for Health Improvement which would be of importance to the commission in running its own inspection system. Yet he did not go so far as to acknowledge the benefits of a single inspection system. Developing the Way Forward similarly nods in the direction of CHI but fails to go the last mile. The amendment would enable CHI to monitor and ensure the quality of the services provided in both healthcare sectors and to identify and promote best practice wherever it may be found. Common standards between the NHS and the independent healthcare sector could then be ensured. CHI would be in a position to use the expertise gained from inspecting NHS services and facilities and the same limited pool of expertise could be used in the independent healthcare sector.

The amendment makes it quite clear that the relevant independent hospital will pay the full economic cost of any such inspection. No one is suggesting that the taxpayer should pay for CHI to inspect private healthcare. We have made no bones that the Bill as a whole is extremely welcome. It will provide common consistent regulation across the social care sector, irrespective of whether it is publicly or privately provided. But no such provision is being made for the healthcare sector. Ministers proclaim the virtues of a mixed economy in social care but somehow they will not admit the fact that we have also, albeit on a limited scale, a mixed economy in healthcare. After all, it was only recently that the Prime Minister acknowledged the contribution made by the independent sector.

There are over 200 hospitals in the private sector, comprising approximately 10,000 beds. It makes no sense at all to exclude some 800,000 treatments per year carried out in private hospitals and work carried out by more than 17,000 doctors, most of whom work also in the NHS. Very few consultants practise only in the private sector. The NHS itself spent some £450 million in the independent sector last year, mainly on elective surgery. Independent healthcare sectors should be regulated overall by the national institution best suited to do the job and to do it well. That institution is the Commission for Health Improvement and that is what the amendment is designed to achieve. I beg to move.

Lord Jenkin of Roding

My Lords, I left the debate in Committee in a state of bewilderment. I simply could not understand why the Government had set their face against what the noble Lord, Lord Clement-Jones, has so clearly described. I hope that two recent events may convince Ministers that the amendment should be accepted and that the independent sector of hospitals should be subject to the inspection regime of CHI.

The two events to which I refer seem to have happened more or less together, but are unconnected. The first was a conversion on the road to Damascus over the river. The Prime Minister was confronted by a group of consultants who said that they would be able to do much more to get their waiting times down if they were free to treat more of their patients in beds in independent hospitals. I gather the Prime Minister said, "Whoever told you that you can't?", to which the reply was, "Your Secretary of State, Prime Minister". Indeed, successive Secretaries of State have tried to make it clear that for obviously ideological reasons that was not acceptable. The Prime Minister, to his credit, said, "That's barmy"; I paraphrase. As the noble Lord, Lord Clement-Jones, pointed out, many NHS patients are treated in private hospitals and a great many more could be, particularly at a time when NHS beds are under acute pressure, as they were in January and February.

The second event to which I refer is that in the Budget the Chancellor gave us these wonderful figures of the proportion of the national product to be devoted to healthcare, matched by considerable additional finance. What he did not say, but which subsequently transpired, is that the figures he gave include what is spent in the private sector. One now recognises what has long been apparent to a great many people. We have a variety of healthcare systems. The suggestion that somehow the National Health Service lives in an isolated cocoon and that somewhere there is a completely different system treating different people bears no relation to the truth.

There is bound to be more interaction and a higher and higher proportion of healthcare which will be paid for and delivered under the independent sector. One will find more and more people comparing standards and making their choices on the basis of looking and seeing what they can obtain in the different sectors. For the sectors to be subject to an entirely different inspection procedure seems in these circumstances—I use the word which I used in Committee—bizarre. I cannot help feeling that the Government have got themselves hooked in an ideological time warp of saying, "It has to be different because it's the NHS".

Before the last election, when I was chairman of a trust, we made no bones about it; we regularly had patients treated in private hospitals. That was the most effective way to deploy our resources, particularly at times of peak demand. That is now happening more and more. Now that the Prime Minister has discovered that many people thought they were not able to do that, it will happen more.

We need to recognise that we have moved on, even from the date of Committee stage, and are now in a new world. It is now accepted that the figures of total spending on health cover both the private and public sectors. There will be more and more movement between the sectors and we really must have a common inspection system.

I understand the point made by the Minister about inspecting an independent hospital and the management of a health service. However, when talking about standards of care, clinical standards and standards of management, and so forth, there is everything to be said for having a common standard enforced by a single regulatory agency.

Baroness Pitkeathley

My Lords, there will be no argument in your Lordships' House that what is needed is a tough and effective system for regulating private hospitals The setting up by the Government of a national care standards commission will, for the first time, ensure that that is what we shall have.

I cannot see how the aim of a tough, simple and effective system would be met by the proposal to contract out inspections to CHI. It seems to me that confusion would result, when what is needed, as everybody agrees, is a simple and effective system; leave alone the question of whether CHI—there are a variety of pronunciations for the Commission for Health Improvement in your Lordships' House—has the requisite skills and powers. It seems to me that patients and their families who use the private healthcare system are united in wanting regulation of private hospitals. However, they are also united in wanting the simplest possible system.

5.15 p.m.

Earl Howe

My Lords, there is little for me to say on the amendment which has not already been said most persuasively by the noble Lord, Lord Clement-Jones, and my noble friend Lord Jenkin. This may have been a mantra rehearsed many times in your Lordships' House over the past year or more but it bears repeating. What we want to see, and what patients nowadays expect, is consistency in clinical standards across the public and private healthcare sectors and consistency in enforcement.

The distinction which the Government seek to draw between the NHS and the private sector is that the NHS is a managed service and the private sector a regulated service, and the two must therefore be subject to different regimes. In one sense I understand the point made by the Minister. The Government do not manage the private sector in the way that the NT-IS is managed. However, inspection and enforcement are regulatory activities. The Commission for Health Improvement is a regulator. For evidence of that we need look no further than the advertisement for senior staff posts in CHI which appeared in the Health Service Journal on 20th January. The heading states: We will be a developmental, facilitative and regulatory independent body". Why should it not be CHI that spreads good practice across both healthcare sectors? It is perfectly placed as a regulator so to do.

The practicalities of any other course need to be borne in mind. We know that CHI will, in any event, have responsibility for regulating the care of NHS patients in private hospitals. Are we to suppose that CHI inspectors will be told, when they arrive in a certain ward, "You are responsible for beds 1, 3, 5 and 7 but not beds 2, 4, 6 and 8"? The idea is laughable. In those circumstances, CHI will assess the clinical and care standards in the ward as a whole and, indeed, in the entire hospital. This is a matter in which the Government's position to date has defied reason and common sense; the implied subtext being that if it is not done within the NHS, it is not proper healthcare. I hope that we shall hear something from the Minister today to indicate that a change of heart is possible.

Baroness Gardner of Parkes

My Lords, I rise briefly to support the amendment and ask for clarification. I did not understand the argument put forward by the noble Baroness, Lady Pitkeathley. She stated that she did not believe CHI to be the appropriate body to carry out inspections in the independent sector. Is she saying that inspections should be carried out by one body in both the private and national health sectors; or is she saying that neither sector should be regulated, or both? The argument put forward by my noble friends and in the amendment is based not so much on who carries out the inspection, although that is the wording of the amendment, as on the uniformity of using one regulatory body for both private and NHS hospitals. That is the essence of what we want. The detail of which body that would be is of secondary importance. It is the principle of a single regulator that is important.

Baroness Nicholson of Winterbourne

My Lords, I rise to speak to Amendment No. 15, to which I have added my name. I also support all that has been said by my noble friend Lord Clement-Jones and the noble Earl, Lord Howe. Furthermore, I concur fully with the words of the noble Lord, Lord Jenkin of Roding.

This amendment is very important. If passed, it will ensure that the standards of private clinical care match up to those of the National Health Service. Furthermore, it will provide that acceptable levels of professional training and practice will be tested and proved by the same mechanism as that put in place by the Government for the National Health Service. This would enable patients at last to see, assess, monitor and report back, so that actual improvements can be achieved and published against known and agreed standards. The standards would be the same as those established for the National Health Service. In that way, the National Health Service would effectively provide the benchmark—the hallmark—and quality stamp, and the private sector would need to follow suit.

That will be very different from the situation as it is now. Private hospitals today are seriously outclassed by the NHS. Only in waiting times does private healthcare win. In virtually every other health activity measurable by known indicators, the private sector rarely does better than the NHS and frequently offers lower value service at far higher costs—sometimes at rip-off costs, imposed under the name of "charity".

When one looks at the private sector, the problems are obvious: the lack of anaesthetists; insufficient trained staff at all levels; the lack of basic drugs required to be made available for classic procedures and the size of IT units. Often those are far too small and the anaesthetists may be elsewhere. Has the Minister asked why private hospitals are built close to NHS hospitals? That is done so that National Health Service IT units can be used when private IT units fail. Further, NHS units are used and are not reimbursed, so that private patients bump NHS patients off the critical list.

Of course, surgeons working in the private sector are NHS surgeons operating after hours, or retired surgeons, who may rapidly become out of date with the advances in medical care. Furthermore, there is a lack of aftercare. Private rooms can mean that blood pressure checks are not made sufficiently often, with fatal consequences. I have a folder full of reports about miserable incidents of this kind. However, perhaps the extremely high turnover of theatre nurses and IT staff in many private hospitals says it all.

As regards complaints, it is very difficult to complain. Private hospitals may themselves have set up their own complaints procedures, but they do not need to be initiated unless private hospitals wish that to happen. I have been told of instances where patients have been treated with fatal consequences, whose relatives have sought to instigate known complaints procedures within private hospitals, but the private hospitals have refused. It is an unhappy situation.

Not all private hospitals are like this. There is, for example, an outstanding hospital in Scotland with perhaps the best facilities of all; BUPA hospitals are not-for-profit institutions and have an enviable track record. However, the standards are so erratic that patients and families simply cannot tell, when they enter a private hospital, what kind of treatment they will receive. On websites one can find promotions for private hospitals offering trained staff throughout their wards and in all their facilities. But when one arrives, that proves not to be so. Alas, in healthcare, when one finds out, it is frequently too late.

Patients are vulnerable. When we are sick, we are dependent on good professionals. In good faith, we buy or receive a certain standard and quality of service from others. In the private sector, we cannot be sure that we will receive it.

Nevertheless, the National Health Service needs the private sector. On 1st March the Prime Minister declared that he was going to use the private sector extensively. He declared that over the past three years, some 20,000 operations had been carried out on NHS patients in private institutions. It is possible that another 200,000 operations could be carried out in this way. That would represent one operation in every 30.

The Bill before us offers only a fragile reliance on hard-pressed NHS staff to check out standards in the private health sector. The Government's paper states that NHS patients will be protected because the National Health Service will check out the private sector. However, unless the same regulatory body—a body that is well accustomed to checking on the NHS—is used for the private sector, who is going to undertake that chore? It does not even happen now when NHS patients go into the private sector. Of course, contracts are drawn up with the private hospitals, but the NHS simply does not have the time to monitor them. So staff in the private sector, whether good, bad or indifferent, are not quality checked in the same way as those working in the NHS. I believe that that checking task rightly belongs to the Commission for Health Improvement.

Why does the Minister choose not to go down this path? This amendment offers the Government another chance to do so. The original Green Paper at least proposed a separate private health commissioner. Alas, the Bill has discarded that excellent opportunity in favour of regulations—still to be discussed, and to be discussed within the private sector. All that is left is a promise to consult. Although the Government promise further consultation "with the private and voluntary healthcare sector" over the next 12 months, it is clear that the resultant regulations will be for the Government to impose, and not for Parliament.

Nor is the Government offering to consult with patient groups, community health councils, Action for Victims of Medical Accidents, the Consumers' Association, APROP and the Patients Association. All of those should be included in such consultation because the regulations will be of critical importance.

Perhaps the final straw for me and for others is that the Government's paper also acknowledges that it will, not be feasible for NSSC inspectors to be involved in all aspects of clinical detail of all the services that need to be regulated". Surely these are the very areas that cry out for regulation so that private hospitals can offer the same quality as is ensured by the NHS clinical audit. That is fundamental to the success of any regulatory system. The present Government have a laissez faire attitude towards the private sector". I have quoted from a statement made by a King's Fund Fellow in an article headed, Private Healthcare: Modernisation Stops Here". This sits ill with the Prime Minister's inclusion of funds spent in the private sector when making Budget health forecast claims. It does not match up the promise made by the Prime Minister to use the private sector to fulfil his intention to shorten waiting lists for NHS treatment. Of what use to a patient is a bed in luxury surroundings if early death is the result?

This amendment will offer greater patient safety by ensuring that the same standards of protection apply in the private sector as in the National Health Service. I beg the Minister to think again.

5.30 p.m.

Lord Hunt of kings Heath

My Lords, perhaps I may say at the beginning of my response that I have reflected carefully on the comments made both today and in Committee. I should like to assure all noble Lords that I take neither an ideological nor a bizarre approach to this matter. There are genuine reasons why it is sensible to provide that the regulation of the private healthcare sector should be undertaken using different arrangements from those that provide the effective management of the National Health Service which faces enormous challenges in the modernisation of its services—something that we all want to see. I believe that it is wrong to insist that the national care standards commission must use the Commission for Health Improvement to undertake work on its behalf in the regulation of the private health sector.

However, I equally accept the need for close collaboration between those two bodies. We want to see them working in a sensible and collaborative way and I very much take the point that has been made on the need for consistency of approach by both organisations.

I start by responding to the noble Baroness, Lady Nicholson, who raised a number of important issues concerning the current regulation of the private healthcare sector. There is no doubt that, while arrangements are in place for the regulation of that sector in the Registered Homes Act, there has been an inconsistency of approach and in some parts of the country a lack of sufficient expertise.

I want to assure the noble Baroness and the House that we take the regulation of private and voluntary healthcare seriously. We estimate that over 1,500 providers of independent healthcare will be regulated by the national care standards commission across a wide area of services and providers. They will include private acute hospitals, private doctors, abortion clinics, hospices, and clinics where powerful lasers are being used. Of course our fundamental concern is to see that appropriate safeguards and quality assurance systems are in place for the patients who receive services from those kinds of healthcare provider.

In ensuring those safeguards and that quality of care, we do not intend to reinvent the wheel; we aim to have regard to existing good practice. We will take account of the standards that the NHS currently applies. We will have regard to quality assurance programmes that already exist and to which many private and voluntary healthcare providers already subscribe.

The regulations and standards will be developed through consultation, including with the independent healthcare sector, but also with the kind of organisations that the noble Baroness mentioned. We want to see the widest possible consultation in developing the standards and regulations necessary. It will be a thorough process which we envisage will take place from this spring for a 12-month period. Subject to the outcome of that consultation process, we envisage that there will be a number of general standards across the broad range of private and voluntary healthcare and then specific standards for specific areas of service to be regulated. In doing that, we intend to produce regulations and standards that are appropriate, clear and the implementation of which can be effectively monitored.

The relationship between the Commission for Health Improvement and the national care standards commission has been debated in this House on a number of occasions. As I have already intimated, the proposal in the amendment is that CHI should be involved in the regulation of independent healthcare and those are familiar arguments. But the Government remain of the view that CHI's principal role has to be about helping to modernise and improve the quality of NHS services. It was brought into existence solely with that important task in mind. It does not have responsibility for the regulation of private healthcare.

Having said that, we recognise that there is a need for CHI and the national care standards commission to liaise and co-ordinate on common areas of interest; for example, as noble Lords have already mentioned, where NHS patients are receiving treatment in private hospitals. The scoping paper that we produced recently on the voluntary and private healthcare aspects of the Care Standards Bill made that point. However, it may be helpful for me to say a little more about our thinking in this area.

CHI is a key part of our agenda for modernising the NHS. It is independent of the NHS. It was established to strengthen external oversight of NHS activity, to improve quality and to provide reassurance to the public that the NHS is fulfilling its responsibilities for quality. It has a key role in providing robust external scrutiny of clinical governance arrangements put in place by NHS bodies to assure and develop high quality services.

CHI will look at services provided to NHS patients. Where an NHS organisation has subcontracted with the independent sector to provide care, the NHS organisation will retain responsibility for the quality of care provided to those patients. It therefore follows that CHI will assess how arrangements to assure quality in the NHS organisation are carried through where care is provided in the independent sector. That will usually be through the contract between the two organisations concerned—the NHS organisation and the private sector organisation.

CHI also has powers to require persons to provide information it needs in conducting its reviews and investigations, subject, of course, to the restrictions under the Act to protect personal, confidential information which we have already discussed. Where an NHS trust has pay-bed facilities, it will retain the overall responsibility to put in place robust systems to assure the quality of care.

CHI's interest is in clinical governance systems in NHS bodies; in the impact and implementation of guidance from the National Institute for Clinical Excellence; and in the NHS national strategic frameworks. I am sure that your Lordships can see that, although in some respects it will have common interests with the care standards commission, there are many more differences than similarities in the roles and responsibilities of the two organisations.

In contrast with CHI, the national care standards commission will be purpose built to include in its responsibilities the regulation and inspection of non-NHS healthcare providers. It will regulate those services by reference to regulations and standards which will be drawn up in consultation with the independent healthcare sector and other organisations. It will undertake inspections of each regulated body at least once a year. It may apply sanctions if the regulations and standards are not complied with. It will not be concerned with the NHS. It will have a completely different role and focus from the Commission for Health Improvement.

It is fair to say, therefore, that CHI and the national care standards commission have separate and distinct roles designed to fulfil their separate and distinct responsibilities. But—here I come to the reassurances I should like to give to the House tonight—they should not and will not operate in isolation from each other. For example, I would expect them to liase on their respective activities which involve private and voluntary healthcare when CHI is planning a review of clinical governance arrangements in an NHS trust that has a significant contract with an independent healthcare provider; for example, a mental health hospital. In those circumstances, the national care standards commission should be informed of that review because of its responsibilities as a regulator of the mental health hospital. Such liaison will be necessary not least to ensure that the timetable of CHI reviews and the national care standards commission are co-ordinated in so far as they concern independent healthcare—a point raised by the noble Earl, Lord Howe.

The second important way in which CHI and the national care standards commission will collaborate is of particular relevance to the amendments. There will be a sharing of expertise between CHI and the national care standards commission. CHI will draw on a pool of around 500 experts to assist in its reviews, many of whom will be seconded from the NHS for short periods. The national care standards commission will be able to have access to that same expertise in order to obtain specialist advice as and when appropriate in its inspections. As noble Lords may recall from Committee stage, the Bill provides for staff to be seconded from CHI to the commission and vice versa.

To complete the picture of collaboration between the two bodies, a third key area concerns information sharing. It is important that information about the independent healthcare aspects of CHI reviews and the care standards commission inspections are exchanged and, subject to the duty of confidence and/or statutory disclosure, we expect the two commissions to share as much relevant information as possible.

I hope that that demonstrates that the Government are keen for the commission and CHI to co-operate effectively. To help facilitate that further, and in answer to the specific point made tonight in relation to the contracting of services, we shall introduce in the Commons an amendment which enables the two bodies to sub-contract work to one another in respect of their interest in independent healthcare. I hope that that will go some considerable way to reassuring noble Lords that, while we consider that it is absolutely right that there are separate functions for both CHI and the national care standards commission, we will expect them to collaborate; to be informed by their respective work; and to enable there to be a consistency of approach. On that basis I invite the noble Lord to withdraw his amendment.

Lord Clement-Jones

My Lords, I thank the Minister for that reply. However, with the greatest respect to the noble Lord, the more he spoke, the more I felt the virtue of the amendment. It seems to me that there is a great deal of circular thinking in what the Government have to say. I do not deny that the Minister went to great pains and took a good deal of trouble over his response to the amendment. But the more he spoke about secondment, collaboration and information sharing—indeed, he even offered to bring forward an amendment about enabling subcontracting—the more I thought, "Let's make it simple; let the Commission for Health Improvement inspect both sectors".

Moreover, with the greatest respect to the noble Baroness, Lady Pitkeathley, the entire purpose of the amendment is to simplify the system. The noble Earl, Lord Howe, put it extremely well when he asked, "What happens in beds 2, 4 and 8, while beds 1, 3, 5, 7 and 9 get a different regime?" That seems to me to highlight the absurdity of the current situation, whether you play it with secondment, collaboration or joint training. Quite honestly, the word of the day, "bizarre", which was uttered by the noble Lord, Lord Jenkin, sums up the position that the Government have reached. They have given further and further ground in terms of being willing to accept some of the arguments, but the argument that they are not accepting is that the Commission for Health Improvement is the body to regulate both sectors.

Last night, I looked at the website for the Commission for Health Improvement. It is full of the very great and the very good. Indeed, looking at its objectives on that website, it seems to me that CHI would be entirely able to carry out—and, indeed, would do so extremely competently— the duties that we seek to impose on it. I have every confidence in that respect—and that seems to be a great deal more than the Government are expressing. I could go on at greater length, but I shall not do so. We believe this to be a most important matter. It is one that affects the lives and the health of those in independent healthcare. It is an extraordinary element of illogicality that the Government propose to take forward. Therefore, in those circumstances, I propose to seek the opinion of the House.

5.41 p.m.

On Question, Whether the said amendment (No. 15) shall be agreed to?

Their Lordships divided: Contents, 162; Not-Contents, 132.

Division No. 1
CONTENTS
Addington, L.	Denham, L.
Alton of Liverpool, L.	Dholakia, L.
Anelay of St. Johns, B.	Dixon-Smith, L.
Arran, E.	Dundee, E.
Astor, V.	Eccles of Moulton, B.
Astor of Hever, L.	Eden of Winton, L.
Avebury, L.	Elliott of Morpeth, L.
Barker, B.	Elton, L.
Beaumont of Whitley, L.	Emerton, B.
Bellwin, L.	Ezra, L.
Belstead, L.	Falkland, V.
Bledisloe, V.	Feldman, L.
Boardman, L.	Ferrers, E.
Brabazon of Tara, L.	Flather, B.
Bradshaw, L.	Fookes, B.
Brougham and Vaux, L.	Forsyth of Drumlean, L.
Burnham, L.	Gardner of Parkes, B.
Butterworth, L.	Geddes, L.
Byford, B.	Geraint, L.
Campbell of Alloway, L.	Glentoran, L.
Campbell of Croy, L.	Goodhart, L.
Carlile of Berriew, L.	Gray of Contin, L.
Carnarvon, E.	Greenway, L.
Carnegy of Lour, B.	Hamwee, B.
Cavendish of Furness, L.	Hanham, B
Chalker of Wallasey, B.	Harris of Greenwich, L.
Clark of Kempston, L.	Harris of Richmond, B.
Clement-Jones, L. [Teller]	Hayhoe, L.
Cope of Berkeley, L.	Henley, L. [Teller]
Courtown, E.	Higgins, L.
Cox, B.	Hogg, B.
Crathorne, L.	Holderness, L.
Dacre of Glanton, L.	Holme of Cheltenham, L.
Dahrendorf, L.	Hooper, B.
Darcy de Knayth, B.	Howe, E.
Dean of Harptree, L.	Howe of Aberavon, L.
Deedes, L.	Hunt of Wirral, L.

Jenkin of Roding, L.	Razzall, L.
Jenkins of Hillhead, L.	Reay, L.
Jopling, L.	Rees-Mogg, L.
Kimball, L.	Rennard, L
Knight of Collingtree, B.	Renton, L.
Lane of Horsell, L.	Roberts of Conwy, L.
Lang of Monkton, L.	Rodgers of Quarry Bank, L
Lester of Herne Hill, L.	Rotherwick, L.
Linklater of Butterstone, B.	Russell, E.
Ludford, B.	Ryder of Wensum, L.
Luke, L.	St. John of Fawsley, L.
McColl of Dulwich, L.	Saltoun of Abernethy, Ly.
McConnell, L.	Sandberg, L.
Mackay of Ardbrecknish, L.	Seccombe, B.
Mackie of Benshie, L.	Sharman, L.
McNally, L.	Sharp of Guildford, B.
Maddock, B.	Sharples, B.
Marlesford, L.	Shaw of Northstead, L.
Masham of Ilton, B.	Simon of Glaisdale, L.
Mayhew of Twysden, L.	Skelmersdalc, L.
Methuen, L.	Smith of Clifton, L.
Miller of Chilthorne Domer, B.	Stewartby, L.
Miller of Hendon, B.	Strathclyde, L
Monro of Langholm, L.	Swinfen, L.
Montrose, D.	Taylor of Warwick, L.
Mowbray and Stourton, L.	Tebbit, L.
Murton of Lindisfarne, L.	Thomas of Gwydir, L.
Newby, L.	Thomas of Swynnerton, L.
Nicholson of Winterbourne, B.	Thomas of Walliswood, B.
Northbrook, L.	Tope, L.
Northesk, E.	Tordoff, L.
Norton of Louth, L.	Trefgarne, L.
O'Cathain, B.	Trumpington, B.
Onslow, E.	Tugendhat, L.
Oppenheim-Barnes, B.	Vinson, L.
Park of Monmouth, B.	Vivian, L.
Patten, L.	Walker of Worcester, L.
Pearson of Rannoch, L.	Walpole, L.
Perry of Walton, L.	Watson of Richmond, L.
Peyton of Yeovil, L.	Weatherill, L.
Phillips of Sudbury, L.	Wigoder, L.
Prior, L.	Williams of Crosby, B.
Quinton, L.	Wright of Richmond, L.
Rawlinson of Ewell, L.	Young, B.

NOT-CONTENTS
Ahmed, L.	Dormand of Easington, L.
Amos, B.	Dubs, L.
Archer of Sandwell, L.	Eatwell, L.
Ashley of Stoke, L.	Elder, L.
Ashton of Upholland, B.	Evans of Parkside, L.
Bach, L.	Evans of Watford, L.
Barnett, L.	Falconer of Thoroton, L.
Bassam of Brighton, L.	Farrington of Ribbleton, B.
Blackstone, B.	Faulkner of Worcester, L.
Borrie, L.	Gale, B.
Bragg, L.	Gavron, L.
Brooke of Alverthorpe, L.	Gilbert, L.
Brookman, L.	Gladwin of Clee, L.
Brooks of Tremorfa, L.	Gordon of Strathblane, L.
Burlison, L.	Goudie, B.
Carter, L. [Teller]	Gould of Potternewton, B.
Castle of Blackburn, B.	Graham of Edmonton, L.
Christopher, L.	Gregson, L.
Clarke of Hampstead, L.	Hardy of Wath, L.
Cocks of Hartcliffe, L.	Harris of Haringey, L.
Crawley, B.	Harrison, L.
Currie of Marylebone, L.	Haskel, L.
David, B.	Hayman, B.
Davies of Coity, L.	Hilton of Eggardon, B.
Davies of Oldham, L.	Hogg of Cumbernauld, L.
Dean of Thornton-le-Fylde, B.	Hollis of Heigham, B.
Desai, L.	Howie of Troon, L.
Dixon, L.	Hoyle, L.
Donoughue, L.	Hughes of Woodside, L.

Hunt of Kings Heath, L.	Peston, L.
Irvine of Lairg, L. (Lord Chancellor)	Pitkeathley, B.
	Plant of Highfield, L.
Islwyn, L.	Prys-Davies, L.
Janner of Braunstone, L.	Puttnam, L.
Jay of Paddington, B. (Lord Privy Seal)	Ramsay of Cartvale, B.
	Rea,L.
Jeger, B.	Rendell of Babergh, B.
Jenkins of Putney, L	Richard, L.
Judd, L.	Rogers of Riverside, L.
Kennedy of The Shaws, B.	Sainsbury of Turville, L.
King of West Bromwich, L.	Sawyer, L.
Kirkhill, L.	Scotland of Asthal, B.
Lea of Crondall, L.	Serota, B.
Levy, L.	Sewel, L.
Lipsey, L.	Shepherd, L.
Lockwood, B.	Shore of Stepney, L.
Lofthouse of Pontefract, L.	Simon, V.
Longford, E.	Smith of Leigh, L.
Lovell-Davis, L.	Stoddart of Swindon, L.
McCarthy, L.	Stone of Blackheath, L.
McIntosh of Haringey, L. [Teller]	Strabolgi, L.
	Symons of Vemham Dean, B
McIntosh of Hudnall, B.	Thornton, B.
MacKenzie of Culkein, L.	Tomlinson, L.
Mackenzie of Framwellgate, L.	Turner of Camden, B.
Mallalieu, B.	Uddin, B.
Mason of Barnsley, L.	Varley, L.
Massey of Darwen, B.	Walker of Doncaster, L.
Merlyn-Rees, L.	Warner, L.
Milner of Leeds, L.	Warwick of Undercliffe, B.
Molyneaux of Killead, L.	Wedderburn of Charlton, L.
Morris of Castle Morris, L.
Morris of Manchester, L.	Whitaker, B.
Murray of Epping Forest, L.	Whitty, L.
Nicol, B.	Wilkins, B.
Orme, L.	Williams of Elvel, L.
Patel of Blackburn, L.	Woolmer of Leeds, L.
Paul, L.	Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

5.52 p.m.

Baroness David

moved Amendment No. 16: After Clause 7, insert the following new clause— MONITORING AND PROMOTION OF FOSTERING ARRANGEMENTS (" . The Commission shall have the general duty of monitoring and promoting local authorities' duties under Part IX of the Children Act 1989 (private arrangements for fostering children)."). The noble Baroness said: My Lords, in moving Amendment No. 16 I wish to speak also to Amendment No. 22, with which it is grouped. Amendment No. 22 is the more important amendment and I shall speak to it first. It concerns regulating private foster care.

I moved this amendment in Committee and I received support from all sides of the Chamber. I believe that the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, supported it on the previous occasion. The noble Lord, Lord Clement-Jones, has attached his name to Amendment No. 22. I am sorry that the noble Lord, Lord Laming, is not present. As an ex-inspector of social services his support was extremely valuable. However, owing to his other commitments, he cannot be present.

Children who are privately fostered deserve the same kinds of protection as other children who live away from home. They are just as vulnerable, and their numbers significantly exceed the number of children living in community homes. A large proportion of privately fostered children are from minority ethnic communities: a failure to safeguard these children could be construed as "institutional racism".

The Children Act 1989 requires persons who intend to foster a child privately under the age of 16 for more than 28 days to notify their local authority. Local authorities are required to safeguard the welfare of privately fostered children but they do not have to approve or register private foster carers. That is what the amendment seeks to address. This is an anomaly. Local authorities have a duty to approve and register childminders and other day care providers, yet these children return to their families each day.

The current system is not working. Local authorities have not consistently advertised the duty of private foster carers to notify them. A 1993 Social Services Inspectorate report concluded, potentially vulnerable children were being placed in the care of strangers, without any checks being undertaken as to their suitability to care for children". Even if local authorities were being notified of all private fostering arrangements, their current responsibilities towards such children would still be lacking.

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

This amendment would require prospective private foster carers to register with the national care commission. They would undergo an assessment of their suitability to look after children, and the care they offer would be periodically monitored. The national commission would liaise with local authorities, notifying them of all children in their area who are privately fostered and sending them copies of their assessment reports. These reports would highlight whether additional safeguards needed to be put in place for individual children.

These children would not be "looked after"; that is, in care, and this provision would still allow parents to make their own arrangements. However, if passed, these amendments will ensure that all private foster carers are assessed in relation to their suitability to care for children, and it will set in place a system for local authorities to receive formal notifications of any concerns in relation to individual children.

In Committee the Minister said in reply to this amendment, we consider that the current regulations concerning private fostering are adeguate to as long as they are enforced. I believe that concentration and focus should be placed on the terms of enforcement … Therefore, we are planning a publicity campaign … targeted to affect the most vulnerable groups of children".—[Official Report, 10/1/2000; col. 516.] I said that I was extremely disappointed with that response and that at I would probably return to the matter on Report, as I am doing. However, as a result of what the Minister said about enforcement, I have tabled Amendment No. 16, which I hope will strengthen the enforcement. Amendment No. 16 states: The Commission shall have the general duty of monitoring and promoting local authorities' duties under Part IX of the Children Act 1989 (private arrangements for fostering children)". It seems to me that if the Government are concerned about enforcement, it makes sense to place the national commission under a duty to encourage this; otherwise, private fostering is left entirely outside the remit of the commission, with the likely consequence that it will become an even lower priority for local authorities.

This is an important amendment. After all the child abuse and other such scandals that have occurred, it seems to me that we are leaving a great gap in the provision for looking after children if we do not include the amendment on the face of the Bill. I hope that the Minister has had second thoughts about the matter since the Committee stage. I beg to move.

Lord Clement-Jones

My Lords, I continue where the noble Baroness, Lady David, left off. I certainly hope that the Minister will have second thoughts about the matter. The noble Baroness made an extremely persuasive case. One does not have to pray in aid just the 1993 Social Services Inspectorate report, or indeed that of Sir William Utting, which were utterly clear, but simply the practice as it exists at the moment. Even the Minister in a sense admitted that the current situation was not satisfactory. Therefore I urge him to take on board the wise words of the noble Baroness and have second thoughts about the matter.

Earl Howe

My Lords, I, too, support everything that the noble Baroness has said. I believe that her approach to priliate fostering is absolutely sound. We have a curious situation with a Bill that includes childminding where a child returns to his own home each day, but omits placements of children made privately by parents or guardians.

As the noble Baroness said, many of the children placed privately may be from the ethnic minorities. Their parents may have come to this country to study and they may net visit them frequently. The situation of those children is less safeguarded than that of children in the care of local authorities or being looked after by local authorities. Indeed, their placement may not have been as carefully planned as that of children in care. The noble Baroness has an extremely powerful case and I support her.

6 p.m.

Lord Hunt of Kings Heath

My Lords, I have taken the opportunity to look again at this matter. I remain convinced that the current legislative framework is rigorous enough to ensure that the position of children privately fostered under the circumstances contained in the Children Act would be adequately safeguarded if local authorities carried out their duties effectively. The issue before us is how to ensure that local authorities carry out their responsibilities.

Turning first to Amendment No. 22, I can confirm that we do not intend that the national care standards commission should be responsible for registering private foster carers. That would suggest that they were in the same category as care homes or other services regulated by the commission. It is worth reflecting that private fostering is very much a domestic, family-based activity. It would not be appropriate for it to be regulated by a national commission, whose main concern lies with larger organisations and businesses.

I understand my noble friend's reference to the scant oversight of private fostering and the need for much closer scrutiny of it. I agree with her. I agree that greater action is needed to safeguard children who are in private foster families.

As I intimated, Part IX of the Children Act sets out stringent requirements for local authorities to satisfy themselves of the safety and adequacy of individual private foster care arrangements. The law requires private foster carers to notify local authorities when they foster a child privately. The local authorities are then under a duty to visit the child in the private foster home and to check on his or her welfare. These visits should then take place every six weeks. That is a great deal more frequently than, for instance, an inspection of a children's home. It is not the law that is the weakness but the question of making sure that happens.

This brings me to my noble friend's other amendment, the spirit of which I sympathise with rather more. Amendment No. 16 would require the national care standards commission to monitor the performance of local authorities and to check on how well they comply with their duties under the Children Act with regard to private fostering. This is the rig ht approach. However, I believe that the task of overseeing local authorities and ensuring that they carry out their statutory duties is one for the Social Services Inspectorate rather than the national care standards commission. The Social Services Inspectorate is the Government's inspectorate dedicated to assessing how well local authorities are delivering their social services responsibilities, including how well they are carrying out their responsibilities for safeguarding children, wherever they are.

In the light of the concerns raised by my noble friend, I can confirm that we intend to carry out a range of actions. First, as I have said, we are concerned that the regulation of private fostering is little known; it is a much neglected and little understood issue. I make no apology for saying that we plan a national publicity campaign to promote awareness of the regulations and, particularly, to make private foster carers aware that they are obliged by law to notify all private fostering arrangements to local authorities. Secondly, we will build on that by issuing revised guidance to local authorities to remind them of their responsibilities for regulating private fostering and to ensure that they all adequately enforce the regulatory regime to which I have referred.

We will follow up that by ensuring that the Social Services Inspectorate checks that action is being taken. There will be a Social Services Inspectorate inspection of local authorities' enforcement of the private fostering regulations to make sure that we know what is happening. Depending on the outcome, we will take further action as necessary. I do not need to remind the House that the Government have extensive powers over local authorities, particularly following last year's Local Government Act which introduced the best value regime. Where Ministers are advised by the Social Services Inspectorate that any particular authority is failing in its duties, they have a range of levers and sanctions at their disposal. In extreme cases, that could include removing responsibility from the authority in question and asking another authority to carry out that particular function instead.

I hope that I have reassured my noble friend that we take the point of the need to ensure that private fostering arrangements are appropriately regulated. We believe that the current legislation allows that. The challenge is to ensure that local authorities carry out their responsibilities effectively. Through the mechanisms I have suggested—including publicity, including guidance and including the follow-up inspections by the Social Services Inspectorate—we will be able to do that.

Baroness David

My Lords, do I understand that the Minister will not put anything on the face of the Bill to ensure that local authorities do their duty?

Lord Hunt of Kings Heath

Yes, my Lords. I believe that the Children Act 1989 contains sufficient powers for local authorities to undertake the task. I want to ensure that local authorities carry out their responsibilities.

Baroness David

My Lords, I confess I am disappointed by the Minister's response. It seems to me to be slightly complacent. However, he obviously intends to do a bit more about getting local authorities to do their duty. So, rather reluctantly, I will read again what he said and consider whether I can accept it, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones

moved Amendment No. 17: After Clause 7, insert the following new clause— COMPLAINTS IN RESPECT OF INDEPENDENT HOSPITALS (" .—(1) The Commission shall institute procedures by which dissatisfaction with the dealing of complaints by independent hospitals may be expressed. (2) In the event that the Commission is satisfied that a complaint is upheld it shall be entitled to take account of such complaint in exercising any of its duties under this Act. (3) In the event that the Commission is satisfied that a complaint has not been properly dealt with by an agency or establishment it shall refer the matter to the Health Ombudsman."). The noble Lord said: My Lords, it is with some disappointment that I speak to this group of amendments. As the Minister will have noticed, they are identical to the amendments tabled at Committee stage. They are a mixed bag of various ways in which an independent complaints system could be assured for patients in independent healthcare.

There is considerable concern among both management bodies, such as the NHS Confederation, and professional bodies, such as the BMA, that there is no proposal currently before the House for the setting-up of an independent body to hear complaints, or to compel independent healthcare establishments to arrange for an independent system of hearing complaints. Discussions are going forward with a wide range of interested parties to secure that there should be such a body agreed between all the players in private healthcare.

I had anticipated that at this stage the Minister would bring forward an amendment designed to provide such an independent element. Indeed, his colleague, the Minister responsible for this area, Gisela Stuart, said: Under the new arrangements, all private hospitals must have proper complaints procedures in place. They must make it clear to patients what to do if something goes wrong. And we will introduce arrangements for independent investigations where patients are not satisfied with how their complaint was handled". So I look forward to what the Minister has to say on this subject, while holding any fire that we may wish to pour on him, so to speak. I beg to move.

Lord Hunt of Kings Heath

My Lords, I am sorry that the noble Lord is disappointed. I hope to reassure him that we take complaints very seriously and that within the framework of the Bill we can deal with them to his satisfaction.

I begin by confirming that it is definitely the Government's intention to make regulations under Clause 21(3)(j) requiring all registered providers to put in place an internal procedure for dealing with complaints about their services. The regulations will include key elements of how that procedure should operate; for example, that all complaints must be logged, investigated within a certain timescale, and that the outcome of the complaint should be recorded. The commission will ensure, through inspection, that these procedures are operating effectively and to the satisfaction of complainants. Service users will be asked whether they are aware of the procedure; whether they have made use of it and, if so, whether they were satisfied with the outcome. We hope the majority of complaints will be satisfactorily dealt with in that way.

In answer to the noble Lord, Lord Clement-Jones, I recognise that there will be cases where the complainant remains dissatisfied. Indeed, there may be occasions where the service user does not want to use the internal complaints procedure, perhaps because there is no member of staff whom it is felt could be entrusted to report the circumstances of the complaint. In those cases we intend that the complainant be able to take their complaint to the commission itself.

The commission will have power to investigate complaints as an integral part of its regulatory functions and we will ensure that it is properly resourced to do so. In investigating complaints, the commission will be able to use its powers of entry and inspection as set out in Clauses 29 and 30. If it finds the complaint is justified it will be able to use its enforcement powers to ensure that remedial action is taken by the providers. As noble Lords will know, ultimately that could lead to prosecution or to the initiation of cancellation procedures against the provider. Where it has concerns about the professional competence of an individual, the commission can refer that person to the appropriate professional body; for example, the UKCC or the General Medical Council.

We envisage that these procedures will also be available to patients who receive independent healthcare regulated by the commission. It will have powers to investigate any matter relating to a breach of the regulatior or standard applying to the service. That means that the commission will be able to deal with all complaints including looking at whether there has been a failure in the clinical assurance systems that independent hostels have in place under Clause 21(3)(k). Where the issue is of an individual's clinical competence, as I have said, the commission will be able to refer such cases, as appropriate, to the relevant professional regulatory body. In our view that will provide complainants about independent healthcare with the assurance that remedial action will be taken to resolve matters with which they are concerned.

Amendments Nos. 17 and 40 propose that the health service commissioner should be involved in this procedure. As I believe I explained at Committee, we believe that the commission is the appropriate body to investigate complaints where a person is unhappy with how a registered establishment handled their complaint. I do not see a role there for the health service commissioner. The national care standards commission itself is independent of the providers and the commissioners of service. It has the enforcement powers to make sure that matters are put right where it finds that the complaint is justified. On that basis I hope that I have satisfied noble Lords in that respect.

Baroness Masham of Ilton

My Lords, before the Minister sits down, and with the leave of the House, perhaps I may ask him a question. Recently a Question was asked in your Lordships' House as regards the problem of female circumcision. Can the Minister say how the complaints procedure will take place should the matter occur in a private hospital? It might concern a member of staff who is the only person, apart from the interested parties, who knew that the procedure was taking place. Would they go to the police or through the procedure which the Minister has just explained?

Lord Hunt of Kings Heath

I would strongly recommend that the member of staff goes to the police.

Lord Clement-Jones

My Lords, I remain slightly confused by the Minister's response. I find it very helpful that he described the width of the powers that the national care standards commission will have. Indeed, he has developed quite helpfully some of the points set out in paragraph 24 of the paper Developing the Way Forward. Clearly, in a sense he has given an assurance that the commission will have overarching power and will not be limited in a sense by any doctrine of the exhaustion of remedies or whatever it may be. An individual can go straight to the commission which will have quite strong powers except as regards individual clinical competence. It is entirely appropriate that that matter should be dealt with by the professional bodies.

However, I am unclear as regards the situation where homes applying for registration have a particular form of internal complaints system, but no element of independence associated with it. I wonder whether a home will be registered in those circumstances and whether there will be any criteria by which the commission will judge the complaints system. I am particularly concerned because of the efforts being made by professional management bodies and others to construct a genuinely independent complaints system that will be available for the benefit of those care homes. It seems to me that we need some pushing from the Minister in order to secure a common system.

Lord Hunt of Kings Heath

My Lords, as I believe I have said already, the point here is that we shall make regulations under Clause 21(3)(j) requiring providers to put in place an internal procedure for dealing with complaints. Clearly, the regulations that we lay will be subject to consultation. As regards the terms of the procedures that we expect an establishment to operate, they will be very clearly set out. When the commission visits and undertakes its regulation, it will then be able to monitor whether individual establishments are operating the procedures effectively. What I cannot do at this stage is to go into the detail of what may be contained in the regulations.

Lord Clement-Jones

My Lords, I fully understand what the Minister is saying in this respect. However, he did not utter the magic word "independent". He talked about an internal system of investigation. The nub of the point is that there is being constructed a very helpful system for independent complaints by doctors, managers, patients groups and insurers which could be rolled out across the whole independent sector if the regulations required that they did so. But if they require that there should simply be an internal complaints system and not an independent one, there will be a different situation. I believe that consultation should take place over what kind of independent system is being adopted and not simply what kind of internal system. If the Minister does not wish to say anything further at this stage, I shall withdraw the amendment. Clearly, further discussion should take place between now and Third Reading because further assurances are required.

Lord Hunt of Kings Heath

My Lords, I am very happy to take part in further discussion. I am at one with the noble Lord in wanting a rigorous complaints procedure which can be monitored effectively by the national care standards commission. There is no disagreement there at all. My reluctance is to go into the actual details of what may be contained in such a regulation.

Lord Clement-Jones

My Lords, I thank the Minister for that reply. Some lowering of the veil is required before Third Reading in order to prevent any further amendments being brought forward. Clearly, this is a matter of considerable importance. I suspect that there is a difference in concept lurking behind the consultation intention. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Earl Howe

moved Amendment No. 18: After Clause 7, insert the following new clause— STANDARD ASSESSMENT PROCEDURES FOR CARE HOMES ("—(1) The Commission shall have the duty to define a standard assessment procedure and a standard set of criteria to be employed by local authorities in assessing the care needs of any person being considered for admission to a care home. (2) The Secretary of State may by regulations require local authorities to implement the procedure and criteria referred to in subsection (1)."). The noble Earl said: My Lords, we come now to an issue that I raised with the Minister in Committee but which, as the weeks go by, is becoming ever more significant for the care homes sector as a whole. It is important for noble Lords to understand what is going on at the moment. Very large parts of the care homes sector are in crisis for broadly two reasons. The first is that unless one has a business with no borrowing or a very low ratio of debt to equity, one's business is likely to be unviable at current local authority fee rates.

The second reason is the Bill and all that ensues from it, including Fit for the Future. The prospect of minimum standards is casting a pall of uncertainty across the industry. The net result of both these phenomena is that the flow of capital into the market has, for all practical purposes, dried up. That means that any attempt by a care home to borrow money to carry out necessary improvements, perhaps to meet some of the anticipated minimum standards, is likely to be doomed to failure. The banks are simply not lending. In fact, they are trying to withdraw from the sector altogether. That in turn means that many care home owners are trapped. They cannot borrow against their main asset, the home; nor can they sell the home because it is no longer possible to value it as a going concern when there is uncertainty over whether it will meet the forthcoming minimum standards. Therefore, many care home owners find themselves with negative equity, which creates the trap to which I have referred. The only alternative to carrying on is bankruptcy.

Once the minimum standards have been set, we shall at least be able to say that an important element of the uncertainty has been lifted. But we shall still be left with the seemingly intractable problem of inadequate remuneration from local authorities. For those noble Lords who may imagine that this is simply the usual gripe from people who feel vaguely hard done by, let me make it clear what we are talking about. Many local authorities in the face of a very tight financial climate consciously attempt to restrict the flow into care homes of patients for whose costs they will be held responsible. The policy of keeping people in their own homes for as long as possible—a worthy aim in itself—is being stretched far beyond reasonable bounds, with the result that when individuals eventually reach a care home, their degree of need—or "acuity" as it is known—is such as to make them, all too often, high dependency cases.

Many of those entering care homes today would, a few years ago, have been sent straight to a nursing home. If we seek evidence of this, beyond that which we hear anecdotally from care home owners, we need only look as far as the statistics which show the average length of stay in residential homes. The average residential stay is no longer measured in years, it is down to about nine months.

Care homes are being asked to look after people with a high level of need for personal care and often nursing care, but are not being remunerated by local authorities for the cost of that care. They are not being paid for it because the assessment process—the process by which social services assesses an individual's level of need—is being fudged. A fee is set which bears no relation to the cost of providing the care. Whereas in normal circumstances a care home would be able to absorb some of the overhead by averaging out staff costs over all its residents, some of whom might need less care than others, they cannot do this if the only clients they are getting from local authorities are the high dependency ones, and not a mix of clients.

At the moment, the system lacks a transparent way of linking fee rates with the inputs needed to serve the needs of residents and of defining those inputs, preferably in advance, in a manner that is fair to all. I am sorry to say that many local authorities out there are abusing their dominant position by threatening care home owners with sanctions unless they agree to accept clients at the rates they are told will be paid.

That is, of course, tantamount to blackmail. The care home owner knows that unless he goes along with it, referrals to the home will cease overnight. That is the climate of fear in which many home owners around the country find themselves living. It is not acceptable and something has to be done to stop it.

What can be done? Broadly, there are two avenues that the Government should pursue. First, they should increase substantially the funding streams available from NHS trusts to recognise the cost of nursing care for high dependency residents in care homes. I am not going to draw the Minister on this point today, important though the issue is, because I know that he will not be able to anticipate the response of the Government to the Sutherland report and the Coughlan case, which we understand may be forthcoming this summer.

There is something else that can be done now. A standardised assessment procedure should be put in place which local authorities are obliged to follow, together with a standard set of criteria, so that throughout the country there is a means of ensuring that persons in equal need will be assessed similarly, regardless of the local authority that is doing the assessing. The degree of care need will be transparently defined, preferably not just by a committee of social workers, but by doctors as well. That in turn should ensure that there can be no fudge over the cost of care required for care home residents.

I am sorry to have spoken at some length. But I hope that the Minister will recognise the critical importance of the issues I have raised, and that my amendment reflects a genuine wish to see a level playing field operating throughout the country for the good of elderly people. I beg to move.

Baroness Masham of Ilton

My Lords, perhaps I may ask a question. It is probably a stupid question. If the needs are assessed as nursing needs, should the people go to a nursing home? Should not the care homes refuse to take them?

Earl Howe

My Lords, under the rules of the House I do not believe that I am able to respond, so I shall not test the patience of the House. I think that my remarks covered that point.

Lord Hunt of Kings Heath

My Lords, clearly it depends on the actual wording of the certification in relation to the specific home which has been registered. That will specify whether it has been registered for nursing care.

Perhaps I may say that I recognise the issues raised by the noble Earl, Lord Howe. As someone who used to speak at conferences of the Registered Nursing Homes Association, I understand some of the pressures which that sector has been under. Equally, I do not entirely recognise the gloomy picture which the noble Earl put forward. Department of Health statistics show that there is a steady rate of turnover in homes of around 4 to 5 per cent per annum, which suggests that people are able in circumstances to sell those homes. While some homes are closing, I understand that new ones are opening, and that there is some evidence that banks are lending for new developments. I do not seek to underestimate the challenges that some homes will undoubtedly face in relation to the new regulatory requirements where improvements will have to be made. But in the medium to long term we shall see a sector in which quality and standards will rise and members of the public will ultimately receive a better service. Just as we must be concerned about the health of the sector as it is at the moment, we also have to bear in mind that the ultimate outcome will be a better service for the public.

I accept the point raised by the noble Earl that people who enter either residential care or nursing homes do so only when it is essential, and that there needs to be an assessment of needs. Those needs may be complex, as he has described in terms of high dependency, or more straight forward. Assessment is very important in terms of ensuring that members of the public who enter such homes receive the appropriate care, as the noble Baroness, Lady Masham, has pointed out.

Current guidance on assessment, issued by the Department of Health as practice guidance in 1991, has clearly not led to as much consistency in assessment and service provision as is desirable. Indeed, people with similar needs living in different parts of the country, or sometimes even in the same authority, may get a very different assessment or service response. To a degree, variation in service is acceptable as local authorities should, within reason, determine their own priorities with due reference to local needs, traditions, service patterns and resources, but I have no hesitation in agreeing with the noble Earl that current levels of variation between authorities go beyond what we might reasonably expect.

In response to this problem, the Government announced their fair access to care services initiative in the White Paper Modernising Social Services. That will provide a detailed framework for assessment, including an appreciation of the risks associated with identified need. The fair access guidance will be issued for consultation in the spring and a final version for implementation is planned for the autumn. Unlike the 1991 practice guidance, it is intended to issue the fair access to care services guidance as policy guidance, which means that local authorities should, by and large, follow what it says.

The implementation of fair access to care will lead to greater consistency in the way in which needs are assessed and services determined. The Department of Health, through its performance assessment framework and the work of the Social Services Inspectorate regional offices, will monitor the implementation and impact of the fair access guidance to ensure that it has the desired effect.

While the national care standards commission might play a part in helping to monitor and comment on the impact of the guidance, it would not be for the commission to develop that guidance. It is set up for regulation and it is not appropriate to require it to take on additional tasks such as this. However, through the fair access to care services and the regulation and minimum standards to be set, I believe that we will achieve a much greater uniformity of approach. I hope that that will reassure the noble Earl as to how this will operate in the future.

6.30 p.m.

Earl Howe

My Lords, I am grateful to the Minister for that reply. I look forward greatly to having sight of the guidance to which he referred. This is extremely good news. I am glad that the Government share my perception that at the moment people with equal levels of need are being assessed differently and are being subject to different staffing ratios in care homes depending on the local authority they are in. That cannot be satisfactory.

If I am not misrepresenting them, the Government's view of the care homes sector is that there is currently an oversupply of places and, in particular, an oversupply of sub-standard places. Although the noble Lord did not say this in terms, I believe that their view is also that market forces will take care of this matter within a reasonable period of time. Market forces are fine provided that the market is allowed to operate. At the moment, the market cannot operate because fee rates are rigged, as I explained, eligibility criteria are fudged and local authorities ignore best value principles by favouring their own homes even though those are more expensive than private homes. On the other side of the equation, unviable care homes remain open for business as a consequence of the owners being trapped by negative equity. It is not as simple as saying that the market will contract in the face of oversupply, leaving only the sound operators at the end. Even those better operators, who have upgraded and spent a great deal of money on doing so, are under severe pressure at the moment.

I do not intend to go on. I believe that the Minister's reply was a helpful one. I look forward to seeing more of his department's thinking over the next few months. In thanking the Minister again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Inquiries]:

Lord Hunt of Kings Heath

moved Amendment No. 19: Page 5, line 37, leave out from ("begun,") to ("may") in line 38 and insert ("the person causing the inquiry to be held"). On Question, amendment agreed to.

Lord Hunt of Kings Heath

moved Amendment No. 20: Page 6, line 2, at end insert— ("( ) Subsections (3) and (4) apply in relation to an inquiry under section 35 of the Government of Wales Act 1998 into any matter relevant to the exercise of the Assembly's registration functions as they apply in relation to an inquiry under this section. ( ) In this section "registration functions" means functions under this Act in connection with the registration of persons in respect of establishments and agencies."). On Question, amendment agreed to.

Lord Hunt of Kings Heath

moved Amendment No. 21: Page 6, line 2, at end insert— ("( ) The report of the person who held the inquiry shall, unless the Minister who caused the inquiry to be held considers that it would be inappropriate to publish it, be published in a manner which that Minister considers appropriate."). The noble Lord said: My Lords, during Committee stage, the noble Lord, Lord Laming, put down an amendment that would require the Secretary of State to publish the reports of inquiries held under Clause 9 of the Bill. He said that the findings of inquiries should be public documents as a matter of good practice. I have considered these arguments carefully and I believe that there is merit in them.

The Government are committed to the principles of public accountability and freedom of information. We accept that it is good practice for reports commissioned by Ministers to be published. We believe that the public have a right to be kept informed about the services that are provided or purchased through public funds. I am therefore pleased to bring this amendment before your Lordships today. It will require the Government to publish the reports of inquiries held into any of the regulated services, or into the way the commission has carried out its functions, unless there is a good reason not do so. In other words, 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. The kind of exceptional circumstances that we envisage are, for example, where the publication of the report might prejudice ongoing criminal investigations or proceedings. I beg to move.

On Question, amendment agreed to.

Clause 10 [Requirement to register]:

[Amendment No. 22 not moved.]

Clause 12 [Grant or refusal of registration]:

Lord Rix

moved Amendment No. 23: Page 6, line 42, leave out ("12)") and insert ("(1A)"). The noble Lord said: My Lords, my recollection of Latin unseens in long-distant school days is that the second attempt was sometimes further from acceptability than the first. Certainly, it was with me. However, nil desperandum. My amendment is a variant on the one I tried a little half-heartedly at Committee stage, and owes something to a conversation with the Minister—although I have no promise of acceptance.

It seems to me natural logic that the body charged with granting or withholding registration should equip itself with all the accessible information before making up its mind. That information includes what interested parties have to say; and they will of course say nothing unless they are offered the opportunity to comment. Sometimes that information will encourage the registration authority to make further inquiries, or to refuse a registration. Sometimes it will prompt more careful monitoring after registration has been granted. Whatever the outcome, consultation on a selective basis offers better protection for vulnerable service users; and that is what I seek with my Amendments Nos. 23 and 24, which I believe avoid the NIMBY-type reactions feared by the Minister or, again recalling my Latin, if your Lordships prefer a classical substitute for NIMBY, and remembering my rusty Ovid of long ago: Procul Omen Abesto!—"far from us the omen"—does sound a little more dignified than "not in my back yard". I beg to move.

Lord Jenkin of Roding

My Lords, I wonder whether the noble Lord might prefer another line of Ovid: Odi profanum vulgus et arceo—I hate the vulgar crowd and I keep them at a distance!

Earl Howe

My Lords, with the leave of the House, that was Horace and not Ovid.

Lord Addington

My Lords, the amendment moved by the noble Lord, Lord Rix, appears to adopt the very reasonable concept that those who are concerned with these services should be consulted. I shall not follow the classical quotations—I have zero knowledge of them—which is perhaps just as well seeing how easy it is to fall into a trap. The basic concept of the noble Lord, Lord Rix, appears to be sound, and I shall listen with interest to the response of the Minister.

Lord Hunt of Kings Heath

My Lords, I was made to give up Latin after one year. Like the noble Lord, Lord Addington, I was rather lost by the previous exchange.

Essentially, these amendments would require the commission to consult relevant local bodies before granting an application for registration. I have difficulty in accepting the amendments. First, there is a practical problem. It may be easy enough to find out about local branches of well-known national bodies, such as Mencap, Age Concern or Scope, but there are plenty of small local self-help groups and action groups which would not be affiliated to a national body. The commission could not be expected to know about all of them. If we accepted the amendment, a local group might well seek to mount a challenge against a decision by the commission on the basis that it had not been consulted; nor is it clear what "local" means in these circumstances.

I understand that one of the main concerns of the noble Lord in moving the amendment is the requirement that the applicant must be a fit person, which is very important. However, in arriving at that decision the commission will be able to take account only of hard evidence, such as a criminal record or a listing under the Protection of Children Act. A local body may have concerns about a person; for example, it may be aware of rumours and unsubstantiated allegations. However, I do not believe that in those circumstances it would be appropriate for the commission to refuse registration on the strength of such unsubstantiated allegations. The commission would have to proceed on the basis of proper evidence. Although I am sympathetic to the amendments, I do not believe that it is right to accept them.

Lord Rix

My Lords, obviously I am disappointed, but the response is not unexpected. I am aware that the Minister has doubts about the practicality of the amendment. On the other hand, perhaps he will take the matter away and think about it between now and next Tuesday when the Bill receives its Third Reading. It may be possible to find wording which at least allows further filtering for the purposes of a person's suitability before registration is granted. I recognise that rumour, bad-mouthing and all manner of unpleasant things may be said about people in local communities. However, often there is no smoke without fire. I have in mind a number of people whom I would not consider to be suitable persons although I cannot pin anything on them, whether it be a criminal record or whatever. One just knows that they are not suitable persons to receive registration. If the Minister is prepared to give further consideration to the amendment and to deal with the matter either on the face of the Bill or in regulations, I shall be happy to withdraw the amendment.

Lord Hunt of Kings Heath

My Lords, I accept the invitation to look at it again. However, I cannot hold out much hope. While we shall make regulations in relation to determining the fitness of a person to work at an establishment, or for the purposes of carrying on or managing such an establishment, there are real difficulties in dealing with matters such as criminal records, listings under the Protection of Children Act, and the protection of vulnerable adults.

Lord Rix

My Lords, knowing that the Minister will look at this again, and no doubt write to me with his conclusions, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

Clause 19 [Urgent procedure for cancellation etc.]:

Lord Hunt of Kings Heath

moved Amendment No. 25: Page 10, line 27, leave Out ("if the registration authority thinks appropriate,"). The noble Lord said: My Lords, Amendment No. 25 was tabled at Committee stage. I confess that when I was asked to justify the qualification, if the registration authority thinks appropriate", in relation to a health authority, I was hard put to find any. Therefore, I am happy to table this amendment today. I beg to move.

Lord Clement-Jones

My Lords, I simply register my thanks to the Minister for tabling this amendment which clearly meets the point made in Committee. I am sure that the NHS Confederation and others will be duly grateful to the Minister.

Earl Howe

My Lords, I too thank the Minister for the obvious thought that he has devoted to this matter.

On Question, amendment agreed to.

6.45 p.m.

Clause 21 [Regulation of establishments and agencies]:

Lord Hunt of Kings Heath

moved Amendment No. 26: Page 11, line 9, at beginning insert— ("(A1) Regulations may impose in relation to establishments and agencies any requirements which the appropriate Minister thinks fit for the purposes of this Part and may in particular make any provision such as is mentioned in subsection (1), (3) or (4)."). The noble Lord said: My Lords, in Committee there was a lengthy debate about the regulation-making powers under Clause 20 (now Clause 21) of the Bill. Noble Lords then raised a number of valuable points, and I am pleased to table this group of amendments today in response to them. The noble Lord, Lord Clement-Jones, welcomed the power to make regulations to secure the welfare of persons cared for, but he urged the Government to define more clearly what they meant by "welfare". He was concerned that the clause might not extend to the promotion of health and the protection of health. We have taken that on board and included a specific reference to those aspects of welfare in Amendment No. 28.

The noble Lord, Lord Rix, argued that there was a need for clearer prescription by way of regulations regarding acceptable behaviour management for adults as well as children, so that assault is no longer legitimised in the name of restraint".—[Official Report, 13/1/00; col. 791.] I believe that that is absolutely right. There is a need for such regulations, and Amendment No. 28 will allow us to make them. I hope that in due course the noble Lord, Lord Rix, will be willing to work with us on the detail of the regulations.

Having been prompted by your Lordships to consider these issues further, we believe that it is important to ensure that the powers to make regulations to secure welfare should extend to persons cared for by all the various establishments and agencies regulated under Part II, not just care homes, children's homes and residential family centres, as at present. Accordingly, we have amended Clause 21(1)(e) and hope that it commends itself to noble Lords.

We believe that these amendments demonstrate the necessity to ensure that the regulation-making powers are sufficiently comprehensive. The effect of Amendment No. 26 is, therefore, to broaden the scope of the powers in Clause 21(1) to make it clear that the list of possible regulations is not intended to be exhaustive. Similar introductory words are already included at the beginning of subsection (3). Amendments Nos. 56 and 57 make similar provision in relation to Clause 45, which provides the power to make regulations about the way in which local authorities carry out their fostering functions. Finally, Amendments Nos. 30 and 35 to 39 are all consequential amendments. I beg to move.

Baroness David

My Lords, my name is added to Amendment No. 28 which is in this group. I do not believe that the noble Lord, Lord Rix, has spoken to it. I apologise for arriving a little late. I thought that Amendment No. 25 was being debated. I feel very strongly about Amendment No. 28. I am glad that the noble Lords, Lord Clement-Jones and Lord Rix, have also added their names to the amendment. I tabled the amendment as a result of a letter that I received from a Mrs Wright who lives in Cambridge. I hope that the Minister is listening; he is now.

Lord Hunt of Kings Heath

My Lords, I was confused. My noble friend refers to Amendment No. 28, but I believe that she is speaking to Amendment No. 29.

Baroness David

My Lords, I apologise to the Minister: I speak to Amendment No. 29. I received a moving letter from a Mrs Wright who lives in Cambridge. She had a child who suffered from meningitis at the age of 18 months. As a result the child was disabled and doubly incontinent and required total care, which her mother gave her for 10 years or more. She was then put into a home which proved totally unsuitable. The mother writes: It was clear that there was a fundamental problem from the outset. The senior social worker who selected the four children for the newly opened facility, had placed together an incompatible group. Two young people were wheelchair bound and unable to communicate, one other was ambulant and a little unpredictable, while the fourth had autistic-type problems, was hyperactive and prone to sudden violent and destructive behaviour. Both I and the parents of the other wheelchair bound child tried by every means available to have the situation sorted out. We failed, Eventually my daughter was bitten by the autistic child twice, even though staff were present in the room at the time. Neither they, nor the child himself should, in my view be held liable. There appears to be no clear reference to this problem in the Bill. I have discovered that client to client abuse is endemic in all systems where the most vulnerable are cared for unless they are in one to one (or more) care. I was a parent governor of a local special school where it also occurred. It affects all age groups. It affects day centres, sadly again, not covered by this Bill". I understand that from today day centres will be covered eventually.

I want an amendment to the Bill which shows that there is some concern about peer to peer abuse, not only for children but also elderly people who can be very nasty to each other. The lady who wrote the letter suggests an amendment which I have altered slightly. It would help and give comfort to all those people who have suffered, as she did, from feeling so frustrated and in despair. I hope that the Minister can do something about the situation.

Lord Rix

My Lords, I should like to support the amendment in the name of the noble Baroness. Lady David, having also received correspondence from Mrs Wright outlining her direct family experience of poor care standards. It was, indeed, a horrifying and saddening letter.

One cannot fairly implicate people with emotional and behavioural difficulties for their attitudes and actions towards their peers, and one cannot guard against every eventuality. But one can expect establishments to put in place clear strategies to minimise client to client abuse, and one can expect establishments to follow clear and professional procedures should abusive situations arise. I hope that the Minister will be able to address this matter through regulations and guidance.

Perhaps I may take the opportunity to thank the Minister for Amendment No. 28 and for tidying up the regulation-making powers in relation to the control and restraint of adults, and the control, restraint and discipline of children. We have what we asked for, and that is always —nearly always—a pleasant experience. But I am old-fashioned enough to acknowledge the word "discipline" in relation to children, and experienced enough of the horrors which result when adults are treated like children to welcome the fact that discipline is not mentioned in relation to adults.

Mencap and I will be delighted to co-operate with the Minister in the drafting of the regulations.

Lord Clement-Jones

My Lords, I support Amendment No. 29 in the name of the noble Baroness, Lady David. With their great experience in these matters, the noble Baroness, Lady David, and the noble Lord, Lori Rix, have made an important case for an addition to the powers under this section. At the same time, I wish also to thank the Minister for the extensions he has made in terms of the definition of welfare and other aspects, in particular meeting the aims of the amendments tabled by the noble Lord, Lord Rix, in Committee. That is helpful.

I realise that it is easy to keep extending the provisions of the subsection. However, practical experience as demonstrated by the noble Baroness, Lady David, and the noble Lord, Lord Rix, indicates that we should consider seriously some measure such as that provided in the amendment.

Baroness Masham of Ilton

My Lords, having listened to the story told by the noble Baroness, Lady David, perhaps I may ask a question. Should not the wishes of parents be taken into consideration; and should social workers play God? It is a serious situation. The wishes of the parents should be considered. I should be grateful if the Minister will respond. Social workers have made so many mistakes lately, as reported in the press this week.

Earl Howe

My Lords, I express support from these Benches for Amendment No. 29. It highlights an issue of deep concern. I am sure that the situation of the lady, Mrs Wright, to whom the noble Baroness referred is one of many. I hope that something can be done to address these issues and that the Minister will be sympathetic.

Lord Hunt of Kings Heath

My Lords, first, perhaps I may answer the noble Baroness, Lady Masham. Yes, where appropriate the views of parents must be listened to. On her general point about social workers, yes, social workers do make mistakes, but before we rush to condemn the whole social work profession we should also acknowledge that many do a very good job under very difficult, trying circumstances. It is important to acknowledge that. Of course we want to drive up quality in the profession. That is why the Bill is so important. The general social care council will be crucial in ensuring a more rigorous professional approach to the profession, and will improve public confidence in the profession.

I am glad to acknowledge all the points made by noble Lords about a less publicised aspect of abuse but none the less a disturbing one. The phenomenon which I understand is called peer abuse is, I am afraid, not uncommon. Nor is it confined to establishments where people with a history of violent behaviour are cared for, although the risks may be greater in such settings. Both my noble friend and the noble Lord, Lord Rix, have drawn attention to specific cases raised with them.

All of us would have to sympathise very much with the concerns of that mother as to how her child could have been mistreated by another child in the home without something being done to prevent it or deal with it. I assure my noble friend that we are very much aware of the issue and are committed to ensuring that the regulatory system recognises and is able to tackle this aspect of abuse. We intend to address the issue through regulations. We shall require care homes, children's homes and residential family centres to have proper procedures in place to guard against peer abuse. It will be necessary for them to ensure that all staff are made aware of individuals with physically or verbally abusive behaviour. It will be important that staff take all appropriate steps to prevent harm to other service users, ensuring that service users are not put at risk of harm for whatever reason. That will be a central tenet of the commission's regulatory activity.

We have not yet started work on the content of the regulations. We shall want to draw on good practice where it already exists. For example, I am aware that some schools have already produced excellent protocols for dealing with bullying and that in the education field enormous advances in containing bullying have taken place in the past few years. We may well be able to draw on that progress. But, of course, as with all our regulations we shall consult widely with service users and we should welcome contributions to the debate from noble Lords.

On my noble friend's proposed amendment, the Bill as drafted already allows for such regulations to be made. Clause 21(1)(d) provides powers to make regulations to secure the welfare of service users. It is the Government's intention that this power will be used to safeguard service users from abuse, whether it is perpetrated by staff or by other service users.

I am most grateful to my noble friend for raising this issue. I hope that the assurance that I have given will allow her to withdraw the amendment.

Baroness David

My Lords, before the Minister sits down, perhaps I may ask whether any kind of complaints procedure will be available for parents if they cannot get their complaints acknowledged or anything done about them.

Lord Hunt of Kings Heath

Yes, my Lords. I believe that that is covered by wider work within the whole social care field. We are strongly committed to having a robust complaints procedure.

On Question, amendment agreed to.

7 p.m.

Lord Hunt of Kings Heath

moved Amendments Nos. 27 and 28: Page 11, line 16, leave out from ("in") to end of line 17 and insert ("an establishment or provided with services by an establishment, an independent medical agency or a domiciliary care agency;"). Page 11, line 34, at end insert— ("( ) Regulations under paragraph (d) of subsection (1) may, in particular, make provision—

1. (a) as to the promotion and protection of the health of persons such as are mentioned in that paragraph;
2. (b) as to the control and restraint of adults accommodated in, or provided with services by, an establishment;
3. (c) as to the control, restraint and discipline of children accommodated in, or provided with services by, an establishment.

( ) Regulations under paragraph (e) of subsection (1) may, in particular, make provision—

1. (a) as to the promotion and protection of the health of children such as are mentioned in that paragraph;
2. (b) as to the control, restraint and discipline of such children.").

On Question, amendments agreed to.

[Amendment No. 29 not moved.]

Lord Hunt of Kings Heath

moved Amendments Nos. 30 to 32: Page 11, line 35, leave out ("also"). Page 12, line 21, leave out ("or independent clinic") and insert (", independent clinic or independent medical agency"). Page 12, line 23, leave out ("the establishment") and insert ("or for the purposes of the establishment or (as the case may be) for the purposes of the agency"). On Question, amendments agreed to.

Baroness Barker

moved Amendment No. 33: Page 12, line 24, at end insert— ("(1) make provision requiring the person who carries on, or manages, an independent hospital or independent clinic to ensure procedures, agreed with the medical practitioners working in that establishment, are in place to implement clinical governance in respect of that establishment"). The noble Baroness said: My Lords, the purpose behind this amendment is to return to the question that we raised in relation to Amendment No. 14; that is, to establish that clinical governance is observed in the independent healthcare sector. We talked earlier about the fact that the lines between residential and social care are becoming increasingly blurred. We have spoken previously on these Benches about the growing incidence of clinical care that occurs in non-clinical settings. We return to that matter here.

There is one particular reason why I rise to move the amendment at this stage. Increasing numbers of elderly people who are mentally frail are living either at home or in residential homes. Increasingly, they require clinical care which is not given in a clinical setting. The purpose of this amendment, which is promoted by the BMA, is to ensure that a responsibility exists for maintaining standards of clinical governance in those settings.

One effect of Modernising Social Services is that a great many more independent care providers supply services to people who are highly dependent and who need clinical services to be delivered to them in those settings rather than in hospitals. Therefore, we are making yet another attempt to ensure that equality of clinical governance exists in the different settings in which people receive care. Having given a favourable response to Amendment No. 14, I hope that the Minister will be able to do so on this occasion. I bee to move.

Lord Hunt of Kings Heath

My Lords, there is no doubt that this is an important matter. I believe that if one evaluated the current regulatory system, one would come to the conclusion that one of its main weaknesses is that the Registered Homes Act 1984 concentrated too much on facilities and equipment and never really got to grips with issues relating to healthcare quality. I believe that officers who attempted to inspect and operate the regulatory system did their best to ensure that they covered clinical areas. However, it was never satisfactory because of the way that that Act was written.

I believe that Clause 21(3)(k) is very important in that respect. It provides for regulations to be made requiring independent healthcare providers to have arrangements in place to ensure that the services they provide are of appropriate quality and meet appropriate standards. In developing those regulations and standards, regard will be had to various quality assurance programmes and initiatives which are in place or are planned. Those include the implementation of clinical governance in the NHS, the Supporting Doctors, Protecting Patients White Paper, the GMC's work on revalidation of doctors, and the work of NICE and of CHI.

Much of that work is to be developed over the next 12 months through consultation. However, we envisage that the type of clinical accountability system that healthcare providers must have in place will need to comply with quality assurance requirements, which include arrangements for the audit and review of clinical practice, the identification and management of clinical risk, and the keeping of clinical records. It is our intention that those measures will help to ensure that appropriate safeguards and quality of care are provided for patients.

I turn to Amendment No. 33, which proposes that regulations are made to put in place clinical governance through the regulatory system. I have no arguments at all with the sentiment of that. Indeed, as I have said before, and as one sees if one looks at the recent scoping paper, the most serious criticism of the current regulatory system is its lack of scrutiny of clinical quality. This Bill will change that.

The regulations and standards that I have mentioned will yet out clear requirements for private and voluntary healthcare providers to have in place systems for ensuring full accountability for clinical services and qualities. That is very important. We shall require the registered persons to have satisfactory procedures in place for auditing the quality of healthcare delivered in their hospital or clinic and for spotting potential problems and dealing with them appropriately. I believe that a past problem has been that a person who runs a private hospital has, in effect, been able to say, "You can't talk to me about the quality of care. Your contract was with the consultant. All I do is rent out the facilities". Clearly, that is unacceptable. I can assure noble Lords that we shall require full and proper accountability for the services provided.

My own thought regarding the noble Baroness's amendment is that it is unnecessary because essentially it is a reworking of the current Clause 21(3)(k). The reason why we have not used the term "clinical governance", as the noble Baroness has done, is simply that we did not want to create unhelpful confusion regarding the clinical governance system in the NHS. However, I hope that the noble Baroness will be assured that we want to ensure, as much as she does, that clinical standards are of the highest order.

Lord Jenkin of Boding

My Lords, before the Minister sits down, perhaps I may ask him a question. He said something that I found very strange: that one of the weaknesses of the Registered Homes Act was that it concentrated on physical facilities and not on the quality of care. Does he recognise that precisely the same criticism can be addressed at the consultation paper Fit for the Future? under the heading "Modernising social services", and does he recollect that I pointed out in Committee that exactly the same fault existed there? That was drawn to my attention by the Registered Nursing Home Association, which rather liked what I said.

Lord Hunt of Kings Heath

Yes, my Lords, I certainly recollect that. I believe that at the time I said that we had taken very careful note of the comments that came back to us in relation to the consultation. As we come to prepare further drafts of the regulations and the national minimum standards, we shall be very careful to take on board those points. I believe that it is important that, while some of the debate about Fit for the Future? concerned room sizes—room sizes are one factor in all this—it is clearly important that the overall outcome relates to the quality of care.

Lord Jenkin of Boding

My Lords, the Registered Nursing Home Association wrote: Our Vice President, Derek Whittaker, was a member of the Steering Group set up by the CPA. With some 20 years involvement as an owner of a nursing home he had a lot of experience to offer as a practitioner, but repeatedly found himself frustrated by the failure of the group to he prepared to listen to any alternative view". He had been constantly trying to say that it was the quality of care that mattered, not the number of plugs in the wall, and he was not listened to.

Lord Hunt of Kings Heath

My Lords, I know Mr Whittaker and I have great respect for his views. All I was saying was that the Government have taken very careful note of the comments that have come back as a result of the Fit for the Future? consultation. While physical standards are important—and it is worth making the point that previous governments have also required standards in relation to room sizes —I very much accept the point that, at the end of the day, it is quality which counts. Our endeavour, through the regulations and the national minimum standards, will be to ensure that that comes through in the regulatory process.

Baroness Barker

My Lords, I take a great deal of heart from the Minister's response. I believe that he shares our concern about the emphasis being on quality of care rather than physical standards.

However, I return to a point made by the noble Earl, Lord Howe, in relation to one of his earlier amendments. People who are now being cared for in residential and nursing homes are of a greater degree of frailty than ever before. Care providers realise that for many older people, particularly those who are mentally frail, moving them from the establishment in which they live is seriously disadvantageous to their health. Therefore, increasingly, clinical treatment will be given in those establishments.

However, I take heart from what the Minister said. I shall not press the amendment at this stage. However, I suggest to the Minister that as clinical governance becomes, perhaps, the guiding force in the provision of local services, we may well find that work on the ground is ahead of the Government and that clinical governance will be applied more widely. However, I take on board the points that the Minister made and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

Lord Hunt of Kings Heath

moved Amendments Nos. 35 to 39: Page 12, line 25, leave out ("also"). Page 12, line 26, leave out paragraph (a). Page 12, line 30, leave out ("such") and insert ("children's"). Page 12, line 38, leave out ("such") and insert ("children's"). Page 12, line 39, leave out ("subsections (1) and (3)") and insert ("this section"). On Question, amendments agreed to.

[Amendment No. 40 not moved.]

7.15 p.m.

Clause 22 [National minimum standards]:

Earl Howe

moved Amendment No. 41: Page 12, line 47, at end insert— ("( ) In preparing or amending the standards set out in the statements, the appropriate minister shall consult any person whom he considers it appropriate to consult."). The noble Earl said: My Lords, we move to a pair of issues which I raised in Committee and about which I feel increasingly exercised relating to the setting of minimum standards; namely, the case for consultation and for parliamentary scrutiny.

In moving Amendment No. 41, I shall speak also to Amendment No. 42. Since our debates in Committee, a lot of water has flowed under the bridge in the sense that the consultation exercise on Fit for the Future?has now been concluded and the Government have had a considerable further period in which to reflect on their approach to minimum standards for care homes.

I do not wish to confine my remarks purely to care homes because the ramifications of the amendments run much wider. But care homes are a good place to start.

When speaking to an earlier amendment, I mentioned the huge pall of uncertainty that has descended on the care homes sector in the wake of Fit for the Future?. In a sense, some of that uncertainty was an inevitable price to pay for any honest attempt—and I accept that this is an honest attempt by the Government—to raise standards in care homes. What has been unfortunate with this particular exercise, with the greatest respect to those responsible for the CPA proposals, is that what emerged from it, taken as a whole, was neither practicable nor balanced. As I said previously, the suggested CPA standards were too numerous and, in some cases, were over-prescriptive. Others, such as the staffing ratios, were ill thought through.

The signals emanating from the Department of Health in recent weeks have suggested that those concerns have been fully taken on board and that what will emerge—it is hoped, quite soon—will be something a good deal more manageable and considered. Perhaps the Minister will enlighten us on that if he is in a position to do so.

But, at the end of the day, there are lessons to be learnt. One is that the whole process of setting minimum standards may have a profoundly destabilising effect on an industry. The Government's view appears to be that given a transition period of a few years, most care homes willing to upgrade will be able to do so. A transition period of five years has been talked about, albeit unofficially.

But it is no good talking of a five-year period of grace when the reality is that lending institutions and providers of capital will not contemplate lending further money to the bulk of the sector, at least until existing debt—typically long-term money of 10 to 20 years' duration—has been repaid.

Furthermore, lending institutions need good security. While some flexibility in enforcing minimum standards may be good in certain circumstances, there is another side to that coin. How is a bank supposed to know whether a care home represents good security if there is continuing uncertainty over whether or not it meets the standards? The way Clause 22 is framed means that such uncertainty is bound to occur. What kind of a standard is it that is neither a regulation nor mandatory but which, in some as yet undefined way, must be taken into account? Will the Minister comment on that?

All the minimum standards which issue from this Bill, not only those that relate to care homes but those for boarding schools, independent hospitals, agencies and so on, will be of the most profound significance for those sectors of the care and healthcare industries. The biggest single question that arises from them will be the question of who pays. So far, we have not had much reassurance on that question from the Government.

I am concerned about the ethics of a Bill which imposes new requirements on individuals and businesses, requirements which have the potential to put those people out of business, a Bill which contains no provision to contribute to the costs of meeting those requirements and which allows for the requirements to be imposed by a Minister at the stroke of a pen without any reference to Parliament.

To a layman, there would seem to be human rights implications here but we are assured by the Government that that is not the case. However, at the very least, Parliament should be afforded the opportunity, if it so chooses, to debate each set of minimum standards. It is simply not adequate for the Minister to say, as he did in Committee, that parliamentary scrutiny of the minimum standards is unnecessary when the regulations on which they are based will already have been laid before Parliament.

In my respectful submission, that is no substitute for Parliament being able to sanction the detail and to ratify measures which, as I have explained, will be of the deepest significance for the registered services in question.

The Bill makes no provision for consultation. I do not regard that as acceptable. If the Government intend to consult anyway, as any reasonable government would, why do they not put that on the face of the Bill? The amendment is framed in such a way as to give the Secretary of State discretion to consult only a limited circle of organisations in the event of changes of a very minor nature being proposed. I hope that the Minister will take on board the concerns that I have expressed. I beg to move.

Lord Clement-Jones

My Lords, I want to indicate agreement with the spirit of these amendments particularly since, unlike similar amendments in Committee, they go to the process rather than to the content of the regulations. The process is the key here.

In relation to the Fit for the Future? draft standards, which I support, I do not believe that it is at all subversive to believe that the process by which they are put into practice should be absolutely clear and put forward in the way that the noble Earl, Lord Howe, suggested.

There are major implications, and certainly I have had a degree of correspondence since Committee stage. They concern access to care homes, availability, costs incurred by such homes, and indeed the local employment which is provided by such care homes. All these matters are raised by the nature of the standards themselves. It is therefore absolutely key that there should be a proper consultation process. It seems to me that a process such as that described by the noble Earl is certainly one way forward. I hope that the Minister, even if he cannot accept this particular modus operandi, will consider something rather stronger than the provisions in the Bill at present.

Lord Jenkin of Roding

My Lords, perhaps I may put a question to the Minister. In an earlier amendment, my noble friend on the Front Bench spelt out what is clearly a very serious situation facing the owners of many of these care homes. I shall not weary the House by repeating what he said, because he has referred to the subject again on this amendment.

On the earlier amendment, the Minister said that he did not think that the picture was as black as it had been painted. I think that he owes it to the House to give us some evidence of that. The question I want to ask is: is he satisfied that those who are making this complaint—I am sure that complaints are being addressed to his department and not only to the Conservative and Liberal Democrat Front Benches— are giving accurate figures of the financial position which they face? I ask that question because some years ago, as a constituency MP, I found myself caught up in a dispute over the amounts that the local authorities were paying for residents in private care homes and what the care home owners were saying that it cost them to provide those services.

The complaint rather fell to the ground when, one after another, the home owners said, "We are not disclosing our figures" and I said to them, "Well, it is no good coming to weep on my shoulder. Unless I have the figures I carrot pursue the claim either with the local authority or with the Secretary of State". I came away with the impression that I was not being told the whole story and that in fact they were doing rather better than they were prepared to admit. They may have found that their margins were under pressure, and that was why they were complaining.

So the question I ask is: given the seriousness of today's situation, which seems to me to be of a completely different order of magnitude, is the Minister now satisfied that the correct figures are being disclosed and, if they are not, should not the department be actively pursuing the matter so that the Government can be satisfied that their rather more optimistic noises—more optimistic than have come from this side of the House—may well be justified?

When the Minister responded earlier, he quoted figures of the number of homes that are being bought and sold. 'With the greatest respect, I am not sure that that meets the case. If people are having to sell in substantial numbers, they may find somebody, some new person, who says, "I can make a go of this and I will take it on" whereas the truth of the matter may be that at the end of the transaction he may be in exactly the same position as his predecessor. The Minister did not laugh this off, but one can underestimate the seriousness of what appears to be affecting this sector at the moment. The real worry is that if the number of beds decline at a time when the population is ageing and its needs are growing, that has very serious implications indeed.

Lord Hunt of Kings Heath

My Lords, I certainly did not intend to underestimate the challenges and problems, financial or otherwise, that are faced by a number of care homes; indeed not. I know the problems that they face and I accept that, in addition, they will have to prepare to meet new requirements under this Bill. Clearly that presents some major problems, but I was trying to give a balanced picture of the market in care homes.

We might argue about whether turnover is a sign of people being forced to sell up or a sign of some buoyancy in some parts of the market. However, I understand that banks have been lending to companies to develop new homes. Part of what we are seeing at the moment is a restructuring of the care home market, with some of the smaller individually-owned homes finding themselves in great difficulties, whereas some of the companies which are developing chains of homes, so to speak, seem to be able to survive, prosper and cope with the regulatory conditions. However, I will dig further into this situation to see whether I can provide the noble Lord with some more information as to our own understanding of how the market stands at the moment.

It is relevant to that issue that the noble Earl, Lord Howe, has raised this afternoon the issue of the impact of the regulatory system (in terms of cost) to the care homes. I repeat the assurance that I gave in Committee: that, as the noble Earl suggested, the implications of those increased costs would be taken into account during the Comprehensive Spending Review.

Perhaps at this stage I might also respond to the points made about Fit for the Future? My honourable friend Mr John Hutton has already indicated that the staffing ratios set out in Fit for the Future? will not be adopted. He has also given reassurances that reasonable time-scales will be set for homes to meet the final standards that will be required through the new regulatory pattern. I hope that this indicates that we understand the challenges that care homes will face under this new regulatory regime, but again I have to emphasise that we are engaged in driving up quality for many thousands of people in such homes. We need to take a balanced approach.

I turn now to the specific intent of the amendments. A set of national minimum standards will be needed for every type of service to be regulated or inspected by the national care standards commission. Work is already proceeding on developing those standards, as your Lordships will be well aware. I said in Committee that the Government are committed to consulting on all these sets of standards, and consultation will take place at ordered stages during the development of those standards. There will be consultations with key stakeholders, including the service users themselves, on the formulation of the standards. Once the draft is completed, we shall publish it and carry out a comprehensive consultation exercise, as we have done in relation to Fit for the Future? It is inconceivable that we would publish a set of national minimum standards without consulting about them first. I do not believe that the amendment is necessary, but I appreciate that it might be important for a visible indication to be made in this area. I am prepared to look again at this matter with the aim of tabling an amendment at Third Reading.

The noble Earl has also tabled an amendment that would require the national minimum standards to be laid before Parliament before they are published and to be subject to the negative resolution procedure. I have again listened carefully to the noble Earl's arguments, but I cannot agree that they are necessary, as I explained in Committee. The standards are based on the regulations made under Clause 21. They illustrate and amplify those regulations, but it is the regulations themselves which set the framework and which will be subject to parliamentary scrutiny. I hope that the noble Earl will be prepared to withdraw this amendment.

7.30 p.m.

Earl Howe

My Lords, I am grateful to all the noble Lords who have spoken in this debate and I should like to thank the Minister for what he has said on my amendment relating to consultation. I fully accept that it is inconceivable for this Government and, indeed, any future government that I can imagine, not to consult on such a matter. On the other hand, as the Minister will know, the undertaking of any one government is not binding on future governments and it does no harm to put such a provision on the face of the Bill. I am grateful to the Minister for offering to consider the matter.

I am afraid that I have more difficulty with his comments on my other amendment relating to parliamentary scrutiny. As I understand it, the regulations that will receive parliamentary scrutiny will be extremely broad brush. They will not contain anything like the kind of detail proposed in Fit for the Future? When those regulations are laid, no one will object to the concept of minimum standards. The principle of minimum standards is one on which all of us here are keen. It is what lies within; it is the devil in the detail. I am not convinced by the Minister's remarks. I should like to consider the matter further between now and Third Reading. Perhaps the Minister would be kind enough to see me privately on the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved.]

Lord Burlison

My Lords, I beg to move that further consideration on Report be now adjourned. In doing so, I suggest that the Report stage begin again not before 8.32 p.m.

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