Care Bill [HL]

Baroness Hollins Excerpts

Monday 22nd July 2013 Lords Chamber

Moved by

[Baroness Hollins]

92ZZAH: Clause 41, page 35, line 13, after “neglect” insert “in any setting”

[Baroness Hollins]

My Lords, I declare an interest as the family carer of an adult man who has publicly funded care and support.

My noble friend Lord Rix and I have tabled eight amendments in this group which together aim to strengthen the safeguarding section of the Bill, Clause 41 and accompanying Schedule 2.

I know that Mencap and others welcome the focus that the Bill gives to safeguarding. At Second Reading, my noble friend said that he regretted the lack of a duty on providers or relevant partners to inform the local authority when they suspect that an adult is at risk. The Minister replied:

“The local authority duty is to make inquiries to decide what action should be taken. One such form of action is to assess the adult’s needs … where it appears, ‘that an adult may have needs for care and support’”.—[Official Report, 21/5/13; col. 830.]

However, Mencap and others remain concerned about the lack of a duty on all providers and relevant partners to advise the local authority that there is a need to assess.

We need not look too far into the past to find examples of failings. The serious case review looking at the deaths of Francesca Hardwick and her mother Fiona Pilkington found that safeguarding procedures had failed. Likewise, at Winterbourne View hospital, it took a whistleblower with a hidden camera to expose the abuse and get the authorities and police to take action. We need to get this right and, while the Bill improves on what we have, these amendments would create watertight legislation that provided the level of protection that vulnerable people need.

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[Baroness Barker]

My Lords, I support the amendments of the noble Baroness, Lady Greengross. They go straight to a gap that exists for older people who have capacity but are physically dependent upon people who may be abusing them. With all respect to the noble Lord, Lord Patel—whose arguments I listened to very carefully because they were very thoughtful, and I would not want to disregard what Mind has found in its consultation with its members—I point out to him that members of Mind are likely to have protection under either the Mental Health Act or the Mental Capacity Act. The people to whom the amendment tabled by the noble Baroness, Lady Greengross, is addressed do not have that protection. For me, that swings the argument.

Elder abuse has a rather odd standing in the general consciousness. It does not have the same profile as the abuse of children. It goes up and down the public agenda depending upon whether there has been some scandal or an awful case in the papers. People’s reactions to it vary enormously. When people are polled on their views about this, the phrasing of the questions in any consultation can have a profound impact. Were we faced with a question that said: “Would you like social workers to have the power to intrude into your house?”, most of us would say no, but if we were asked, “Do you think that somebody ought to be able to look out for people who are extremely vulnerable and may not be able to get out and tell anybody?”, we would say yes. That goes straight to the consultation that the Government have already held, and the reason for some of its findings. Professionals who have had experience of dealing with people and operating under the law have said that they think there needs to be a greater degree of protection, albeit with brakes and conditions, such as the necessity of getting the agreement of a JP—not just social workers barging in because they feel like it.

Taken together, the amendments tabled by the noble Baroness, Lady Greengross, get the right balance. They are not about empowering bossy professionals to wade in regardless of what people want but they are quite important, not least because of something the noble Baroness, Lady Greengross, said, which was of tremendous importance: the largest percentage of people who abuse vulnerable elderly adults are family members. The consequence of that is that very often people who are being abused are highly reluctant to do anything about it because they fear that there will be repercussions against their family members. That is why it is necessary to have a bit more legal force behind some of this than we would otherwise think we should, and I think that, on balance, the noble Baroness’s amendments are right and proportionate.

Finally, there is a very good case for the Government to accept the amendments or something like them within this legislation. They should do it now when we are not making decisions in the shadow of a scandal and when we can talk about best practice in neutral terms.

[Baroness Hollins]

My Lords, I shall speak briefly in support of my noble friend’s Amendment 92ZFC because it applies to people with learning disabilities—particularly people with mild or moderate learning disabilities who may not meet the eligibility criteria for care and support in a situation where someone has befriended a person with a learning disability, moved in with them and concerns have been raised by neighbours that the person may be being abused. This is not about family carers; it is a mate crime. It is the sort of crime of which Steven Hoskin was a victim. He was subsequently murdered. Somebody moves in, and the local authority is unable to speak to the adult with a learning disability to check whether they are okay because the other person always answers the door and will not let anybody in. This power of access would change that, and I support my noble friend.

[Baroness Wheeler]

My Lords, when the Committee considered the Clause 2 duty on preventing needs for care and support, the noble Lord, Lord Rix—who I am sorry cannot be in his place today—put forward a strong case for ensuring that safeguarding is explicit in the Bill alongside the other duties of prevention relating to adults and carers. We gave strong support to that. The focus on safeguarding vulnerable adults should not just be on protection once abuse or neglect has taken place. Local authorities, and agencies on their behalf, should also be obliged and guided proactively to prevent abuse occurring in the first place.

We welcome placing safeguarding on a statutory footing in the Bill and the establishment of statutory safeguarding adults boards. This builds on legislation, regulations and advice on principles and frameworks for safeguarding adults and children that Labour established up to 2009 and which the Government are taking forward in the Bill. We were, however, always cautious about bringing adult and children’s safeguarding together under one structure as some councils have done. Adult and children’s safeguarding issues are not the same, and I would be grateful if the Minister will comment on the Government’s approach to this in future.

The amendments tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, include important issues which we support to ensure that safeguarding is properly identified, reported and investigated in all health and social care settings, not just social care, which is particularly important in the light of the appalling neglect and abuse that happened to people with learning difficulties at Winterbourne View. In this vein, the intention behind Amendment 92ZF to place a duty on providers or other relevant partners of the local authority to report when they suspect an adult is at risk of experiencing abuse or neglect is also important, as local authorities will not be able to identify all situations where people are at risk.

We also support the need to ensure that an adult has access to support and advocacy during a safeguarding investigation; the need to specify in the Bill areas of abuse, as set out in the No Secrets guidance, in addition to the reference to financial abuse; and the need for abuse to be recognised as abuse whether it is perpetrated as the result of deliberate intent, negligence or ignorance. These are all strong areas of concern expressed by noble Lords today and by key stakeholders. I also underline the vital need, when so much care is now contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister inform the Committee how the Government intend to ensure this happens?

Amendment 92ZFC, tabled by the noble Baroness, Lady Greengross, puts forward a comprehensive case for the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. As the Government’s recent consultation response on this issue shows, there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions and patients and user organisations on this sensitive and complex issue, although we have to remember that the consultation response was relatively low in terms of local authority and NHS trust participation and that many of the responses appeared not to have fully understood the proposed limitation of the power to situations where the third party is denying access, not the individual.

It is clear that there is a significant gap in the current legislation for dealing with third-party denial of access to some of the most vulnerable adults—women subject to abuse by violent partners or a person with a learning disability being bullied by a friend who has moved into their home—which the Bill needs to take the opportunity to address. The noble Baroness’s amendment is strongly supported by, among others, the Equality and Human Rights Commission, the College of Social Work, Mencap and Age UK, and sets out a tight framework and the limitations and restrictions that would apply. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone is in danger of abuse. The Equality and Human Rights Commission argues, as have noble Lords, that alongside the proposed duty of local authorities to make inquiries set out in Amendment 92ZFD, the power of access will enable more intervention in response to allegations or suspicions of abuse or neglect and get the balance right, as the noble Baroness, Lady Barker, said. The critical point of the power of access is to enable the local authority to access the person and speak to them alone to assess the situation. It is not about entering someone’s house for no good reason. It is a last-resort power and is by no means presented as a solution in itself.

On balance, we support the case for inclusion in the Bill of the power of access by a social worker and the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment tabled by the noble Baroness, Lady Greengross. However, we of course recognise the strong concerns of Mind on this issue and of the Royal College of General Practitioners, which would prefer the use of other options, such as working with the sector to coproduce best-practice guidelines. Will the Minister explain to the Committee how the Government propose to address that denial of access by a third party to a potentially vulnerable adult without dealing with this issue in the Bill?

The issues raised by the noble Lord, Lord Low, in his Amendment 92AA on the need to clarify the application of the Human Rights Act to regulated care services are familiar to the House, as we thoroughly debated and aired similar grounds during the passage of the Health and Social Care Act. There are now concerns that amendments to that Act and the National Assistance Act in the Care Bill have set the clock back on the application of the HRA to private and voluntary sector residential care home providers. The noble Lord, Lord Low, has set out these concerns clearly, this time powerfully supported by the noble Lord, Lord Pannick. I hope that the Minister will respond positively to the pleas from noble Lords to think again on this matter.

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[Baroness Northover]

That is a very interesting point. This is a very serious area. We want to make sure that the Human Rights Act applies in the way that we think it does, and in the way that the noble Lord’s Government brought in and thought that it did apply. I have a feeling that this is an issue that we will revisit. I remember the discussions last year on this between the noble Lord, Lord Low, my noble and learned friend Lord Mackay and others. I would not be at all surprised if there were further discussions.

The important point here is to protect people, to make sure that the law protects them and to do nothing that undermines the effect of the Human Rights Act in other areas. The Government’s position has been that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves to be bound by the duty imposed by Section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the convention rights. The CQC, as the regulator, is subject to the HRA, which may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. As noble Lords will know, the Ministry of Justice is concerned that every time you add a provision, you may inadvertently have an effect on the umbrella application of the Act.

The noble Lord, Lord Low, asked about the repeal of the National Assistance Act. I assure the noble Lord that there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation. He will also be able to set in context that change, in the light of the discussions we had earlier.

I point out that there are strong regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements which are compatible with the provisions of the European convention. This applies to all providers of regulated care to people who use care and support services, whether publicly or privately funded.

As to Amendment 92ZFE, we agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been committed. This should also be read in the light of the discussion on the Human Rights Act. The Bill does not seek to duplicate existing law. Civil law currently provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought in this amendment. We therefore believe that there are already adequate provisions in place to deal with such cases.

My noble friend Lady Barker spoke of the potential creation of a new offence of abuse and neglect of somebody who has capacity. There is legislation that protects those with capacity, and there are powers that local authorities and the police can use. These include the Anti-social Behaviour Act 2003 and the Crime and Disorder Act 1998, and the police also have wide powers to enter premises for specific purposes with or without a warrant. The inherent jurisdiction of the High Court ensures that there is no gap.

Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult or is authorised to act for the adult under the provisions of the Mental Capacity Act. In our view, this is a case where an offence is justified because of the evidence that such people are highly vulnerable to abuse, neglect and exploitation.

I turn to Amendment 92ZK, in the name of the noble Baroness, Lady Greengross. We all want local authorities to foster an open and honest culture in which employees feel able to express genuine concerns without fear of repercussions. However, we do not feel that this amendment is necessary. As I think we would all agree, the law on its own cannot change organisational culture. We need to work with and through local authorities to consider what barriers exist to the type of open and honest environment that we want to see. This is something that we have debated a great deal and there has been much emphasis on leadership. However, legislation can have an effective role in setting parameters and reinforcing expectations, which in turn impact on culture. In this regard, the Government have already confirmed their intention to introduce an explicit duty of candour on providers of health and care and support. This will be introduced as a CQC registration requirement and will mean that providers will have to ensure that staff and clinicians are open with patients and service users where there are failings in care.

I turn to the need to be able to gain access to a person suspected of experiencing abuse or neglect where that access is denied by a third party. The Government carried out a full consultation on a potential power of entry, very similar to the access order proposed by the noble Baroness, Lady Greengross, in Amendment 92ZFC. We received no compelling evidence to warrant such a power and, indeed, there was and remains considerable opposition to it from members of the public and some third-sector organisations. We have heard some of the concerns expressed by the noble Lord, Lord Patel, and the contrary view expressed by my noble friend Lady Barker and the noble Baroness, Lady Wheeler. We recognise that this is a sensitive and complex area of work, but we believe that understanding what positive work by skilled professionals can achieve and promoting that is a more desirable, effective and sustainable route to take. As with all the new duties and powers in the Bill, we will pay close attention to implementation and address any issues that arise.

Perhaps I may mention to the noble Baroness, Lady Wheeler, that, although the consultation has ended, we have continued to get written correspondence from both members of the public and third-sector organisations petitioning the Government not to introduce a power of entry. They are particularly concerned that such a power would be used as a quick fix that would neither resolve the problem nor improve good professional practice where the intention is to try to build trusting relationships. From what noble Lords have said, it is very clear that trying to get the balance right and focusing on the protection of the individual can be very challenging in such circumstances.

We understand the concerns that lie behind Amendment 92ZF, tabled by the noble Baroness, Lady Hollins. It is of course imperative that anyone—but especially those in the NHS and local authorities—who suspects abuse or neglect knows what action to take. Organisations should make their procedures clear and boards should widely publicise information on this issue.

Amendments 92ZFF and 92ZJ, tabled by the noble Baroness, Lady Greengross, emphasise the need for the involvement of social work-qualified staff in boards and reviews. We understand what the noble Baroness is saying. In Schedule 2, we make it clear that both the chairs and members of boards must have,

“the required skills and experience”.

We will elaborate on that in guidance and ensure that the importance of social work is recognised and supported. Guidance will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.

This has been a very important and wide-ranging group of amendments concerning a new step that we are taking to try to ensure that vulnerable adults are offered the best protection. We welcome noble Lords’ probing of the Government. We are all trying to secure the same outcome, and we need to be challenged on how best to achieve that. I hope that noble Lords will have taken on board our reasoning behind doing things as we are and that they will be reassured that we are indeed delivering through this Bill what they are seeking. I hope that they have been reassured that their concerns have been carefully considered and addressed and, on that basis, I hope that the noble Baroness will withdraw her amendment.

[Baroness Hollins]

My Lords, I thank the noble Baroness for her characteristically thoughtful comments in response to these amendments. I am reassured by many of the points that she has made, although one issue that I felt she did not fully address is the need to clarify thresholds for reporting abuse. I am also disappointed with her response to the amendment proposing a power of access, which I strongly support for its relevance to people with learning disabilities. Going by the feelings that have been expressed in the Committee, I think that a number of people would welcome an opportunity to discuss some of these matters a little further and perhaps to bring them back on Report. However, I beg leave to withdraw the amendment.

Amendment 92ZZAH withdrawn.