Care Bill [HL]

Baroness Byford Excerpts

Monday 22nd July 2013 Lords Chamber

I would like the Bill to extend the PIDA requirements on employers by introducing a duty of candour for employers in health and social care, in keeping with the Francis report’s recommendations. The provisions should ensure the existence of a clear presumption of disclosure where the behaviour of employees gives rise to concerns. All staff must have a professional duty to whistleblow if they identify practice that they believe puts people they are supporting at risk of harm. Organisations must have clear whistleblowing procedures in place for when practice that puts people at risk of harm has been identified. These should stipulate that if a social worker or another care worker identifies abuse, mistreatment or neglect in any care setting, or has questions about treatment affecting anyone, whether they are supporting them directly or encounter them in the course of their work, they have a duty to draw this to the attention of managers, commissioners and managers of any provider organisation, and follow up to see if their concern has been acted upon. This would amount to a duty of candour.

[Baroness Byford]

My Lords, I have two amendments in this group. While the previous amendments have looked particularly at the risk of abuse to individuals, my amendments are to do with finance. I looked carefully through the Bill but did not see where they would fit and I therefore proposed that they be considered at this stage.

Amendment 92ZFA asks that an,

“investigation may be instigated following a complaint from a person with power of attorney for an adult having needs for care and support”.

My second amendment, Amendment 92ZFB, is an accountancy measure to ask that,

“care services shall have a duty to follow specific accounting guidelines”.

As we have heard, increasing numbers of elderly people require care and support, an increasing proportion of whom rely on someone who has power of attorney to act on their behalf, particularly in financial matters.

I am aware that a range of service providers, from banks to shops, from online businesses to public authorities, have difficulty when faced with one of these attorneys. A solicitor acting for the person in need of care sets up the power of attorney and holds all the certification. The person with the power is normally given a number of certified copies of the warrant to use in fulfilling the role. However, there seems to be conflict in the minds of many service suppliers between the need to comply with requests from the holder of power of attorney and the need to protect their original customer under the rules of the Data Protection Act. There was an example of a major chain which acknowledged a request to stop a credit/debit card and then, three years later, billed the customer for a three-year subscription. The warrant holder could not resolve the position because the enterprise would neither contact the solicitor direct nor accept a certified copy of the warrant. A number of letters and a great many telephone calls were used to remedy the situation. Then there was the example of the high street bank that lost two certified copies of a single warrant—to say nothing of the media company, the card protection company and a different bank, all of which have refused to deal with someone with power of attorney.

People in care suffering, for example, from dementia, rely heavily on those who act for them. Difficulties of the kind just outlined take a lot of time and effort to resolve. There is a high cost, too, which is particularly important when the warrant holder is neither being paid nor charging expenses. I am especially concerned about the plight of the spouses of those in care. They are often elderly, physically infirm and hard up. They are often unaccustomed to opposing the will of large organisations, nor do they necessarily know their way around officialdom. Warrant holders who are unrelated to the person in care have severe problems also, in that they may be ignored simply because they are no relation. Alternatively, how does someone with power of attorney cope with demands for family top-up fees from a care home where the managers will not accept that there is no family? Warrant holders have a statutory responsibility and must be scrupulous in their dealings. Businesses will not understand situations that create unnecessary difficulty.

My Amendment 92ZFB refers to care homes and fees. The Bill already concerns itself with the funding of care homes, and the Care Quality Commission has recently been given explicit responsibility to ensure that such homes have adequate funding to carry out their functions. My concern is with residents’ funding, to which I can find no reference in the Bill. Indeed, if I have missed it, the Minister will no doubt point me to it.

I have received complaints about how care home residents and those with power of attorney on behalf of such residents, are billed, bamboozled and in some cases bullied. Examples that I have been told about include over-invoicing which, when challenged, has resulted not in an apology and a credit note but a computer printout, without headings to any of the columns, and no possibility of agreement on the overdue balance. Requests for credit notes are ignored, and the resident or the person acting on their behalf cannot therefore maintain normal books. Mistakes by the local authority are visited upon residents in the form of extra charges that are not cancelled when the original error is corrected. The Care Quality Commission refuses to get involved, I understand, on the grounds that it has no duty to examine residents’ funding. The local authority had come upon similar problems before, but had no power to intervene. Board members of the newly constituted clinical commissioning group advised that the only thing to do was query the figures, ensure the local authority payments were up to date, and never give in.

It appears that the financial side of the care home business can be totally removed, physically and organisationally, from the home itself. No one has a duty to examine, audit or report on it. I feel that the Bill should carry that responsibility, and have a simple outline of the procedures to be followed to ensure accurate billing for services rendered, so that residents and their carers may be certain of their financial situation. At the moment it is unclear. I hope that the Minister’s response will clarify these situations, because in some cases those holding power of attorney are really at a loss to know how to resolve the situation.

[Lord Touhig]

My Lords, I speak in support of Amendment 92A, which stands in my name and that of the noble Baroness, Lady Greengross. The amendment concerns corporate responsibility for neglect. In speaking to this amendment, I acknowledge that the Bill introduces England’s first primary legislation to protect adults at risk of abuse and neglect. Similar legislation is in place in Scotland, and is in the process of being enacted in Wales.

The Bill as it stands places a duty on local authorities to investigate abuse or neglect, and introduces statutory requirements around safeguarding adults boards and safeguarding adults reviews. Substantive regulations on assessment and eligibility, published as secondary legislation, should also make provision to consider whether the person is at risk of abuse or neglect, and if this risk is sufficient to provide support.

I welcome the Government’s decision and the publication of a consultation on how to ensure that the directors of organisations are personally held to account. This may provide some redress, which our amendment seeks to secure. Given that this consultation closes in September, when the Minister responds to the amendment perhaps she could give some indication of when, in the latter stages of the Bill, the Government might decide whether they will enact some of these changes. The Government’s own consultation document acknowledges that there is a loophole in the system, allowing providers responsible for appalling failures in care to escape prosecution. This is what our amendment seeks to address. I am grateful to the noble Earl, Lord Howe, for writing to me about the Government’s consultation.

In south Wales, Operation Jasmine uncovered appalling treatment of older people in residential care. The police investigation into neglect of old people in care homes lasted more than seven years, and cost more than £11 million. Over 100 potential elderly victims were indentified; 75 police officers were involved in the inquiry, and more than 4,000 statements were taken. Yet the nursing home owner, a local GP, suffered brain damage during a violent burglary at his home in September 2012, and in March the court case against him, his company’s chief executive and their company collapsed. I understand that the company is still operating some care homes.

When I served in the other place, I saw for myself some terrible photographs of elderly people who had been neglected, and who had what I can only describe as holes in their bodies where bedsores had been left untreated. A number of people died, and the Commissioner for Older People in Wales, Sarah Rochira, said:

“I don't really know any other way of describing it other than a catalogue of failure”.

Detectives were unable to bring prosecutions for serious offences such as manslaughter and wilful neglect. The then-deputy chief constable of Gwent, Jeff Farrar, said:

“Where you are seeing people who have got pressure sores which are corroded down to the bone; people vomiting faeces they are so constipated; or so dehydrated, it is a significant cause of their death”.

Those responsible for this terrible degree of neglect should be brought to justice. At the moment they cannot be, and that is why we need an amendment of this sort. The Care Quality Commission’s report on Winterbourne View care home and the Equality and Human Rights Commission’s inquiry into home care also uncovered serious, systematic threats to the basic human rights of those receiving care services.

Amendment 92A seeks to strengthen protection by ensuring that registered providers of health and social care have duties, similar to those placed on local authorities, to report suspected abuse and to inform the safeguarding adults boards. Then, crucially, if abuse is found to have an element of corporate responsibility, where the systems or approaches taken by the care provider were a contributory factor in the abuse or neglect, a new offence is created, allowing prosecution of a registered care provider. This does not undermine the individual responsibility of staff members or the registered care provider, but would add corporate responsibility where a culture of neglect or abuse has been allowed to flourish.