Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

Baroness Howarth of Breckland Excerpts

Wednesday 5th November 2014 Lords Chamber

The removal of a regulatory framework is liable to inflict significant damage on our society. A good example of this, on a practical level, has been provided by the Government’s National Planning Policy Framework. This replaced more than 1,000 pages of guidance and regulations with 50 pages, written simply and clearly, that were aimed, so it was claimed, at allowing people and communities to participate in the business of planning. In reality, a set of sophisticated and carefully crafted documents, which had provided policy guidance in many specific circumstances and which had been developed and refined over the past 25 years, has been tossed into the rubbish bin, to be replaced by 50 pages of vacuous pieties. The same damage is being inflicted on the regulatory framework governing the provisions for our care homes. We believe that it is not too late for the Government to think again.

[Baroness Howarth of Breckland (CB)]

My Lords, I will be brief, as I always am. I do not want to repeat what has been said before, much as I would love to be led down the path of talking abut the problems faced by care homes in the present financial climate. I must first declare an interest as a trustee of Livability, which provides a large number of care homes for disabled people and for other groups. I am therefore, as a trustee, in the role of a provider. I also want to speak very briefly on behalf of families and carers.

First, I say to the Minister that I welcome the regulations. I was interested in his spirited defence of them, and I know his great belief in them. There are aspects of the new regulations that strengthen the potential to hold care providers—such as my organisation—properly to account. That is all positive, but I simply want to address myself to the issues around the amendment on the Order Paper, because there is an issue and I would very much like the noble Earl to think about it.

We have been approached by a number of organisations which said that families and residents are very concerned about these three aspects of the regulations. I have looked at the old wording and at the new wording, and I found that the new wording is more elegant but much more obscure for ordinary people to relate to. It is terribly important that ordinary folk in a care home—both the providers and those receiving the service—understand that they have a right to be told about complaints procedures.

Clearly, that is there already. I disagree with those who say it is not. All of it is to be found within the regulations and the follow-up documents by those who actually dig through them. I believe that the noble Earl hoped—as he listened to all the hours of discussion of these issues—that this would be absolutely crystal clear. If these issues are clear, they also help leadership and management. It is much easier for providers to tell their staff how to take things forward if the words are absolutely clear, and if there is some sense of being given flexibility or whatever the expectation is.

When it comes to proper planning for emergencies, providers have an absolute responsibility to ensure not only that they have those plans, but that in the interests of health and safety everybody understands them throughout. Not only the providers but the residents themselves must understand. It is possible to have a great discussion about these issues among those who are receiving care. It is possible to discuss complaint procedures, choice of food and what happens if there is a fire and people can only be got out of certain areas by particular routes.

What I am saying is much simpler than the rest of the discussion. I would like the Minister to look at the wording, because in my opinion this is about language rather than intent. We have excellent regulations but, if families and users are concerned about these three areas, the Government have a responsibility to listen. I know we have a listening Minister.

[Earl Howe]

My Lords, I am grateful for the questions and comments raised by noble Lords. I will do my best to answer them in the time available. Perhaps I may begin with the issues raised by the noble Lord, Lord Hunt. The noble Lord expressed his regret that certain phrases no longer appear in the regulations, and those concerns were echoed by the noble Viscount and the noble Baroness, Lady Howarth. I should like to reassure the House that, although the regulations do not include express references to the three things highlighted in the amendment tabled by the noble Lord, Lord Hunt—informing service users about complaints procedures, having emergency procedures in place, and offering choice of food—nevertheless providers must still demonstrate to CQC that they are doing those things.

This is possible because the fundamental standards work in a different manner from the current regulations. They set the outcomes about quality and safety that must be met, rather than just the processes that must be in place. They set out the ends, rather than merely the means. Because we describe these outcomes in regulation, we no longer need to spell out a long list of processes in regulation as well. However, all the areas highlighted by the noble Lord nevertheless fall within the scope of the new regulations. For example, planning for emergency procedures is covered by the new safe care regulation, which requires providers to ensure that care is provided in a safe way, and that they do all that is reasonably practicable to mitigate the risks of unsafe care. A provider that had no plans in place to deal with emergencies such as floods or staff shortages could not claim to be meeting the regulation, because they would not be doing all that is practicable to mitigate the risks to the health and safety of service users from emergency situations. In practice, not having a plan in place for emergencies will therefore be a breach of the regulations.

The obligation to offer a choice of food and drink falls within the new person-centred care regulation, and the newly drafted nutrition regulation. We have introduced a new person-centred care regulation which requires that a person’s needs must be met, and that their preferences must be taken into account and, where possible, met. I emphasise that this applies not only to food preferences, but to all other aspects of care as well. This is a significant step towards greater person-centred care, advocated by many over recent years.

In addition, the nutrition regulation states that a person’s nutritional needs must be met, and it will be a criminal offence to fail to meet this regulation in a way that causes avoidable harm or significant risk of such harm. These two regulations work in tandem to require that a person’s individual nutritional needs are met and their individual preferences are reflected wherever possible. This is a stronger position than merely requiring that people be offered a choice. Such a requirement could be met by offering a person a choice of two things that are neither desired nor suitable. On the issue of complaints, the new complaints regulation states:

“The registered person must establish and operate effectively a system for identifying, receiving, recording, handling and responding appropriately to complaints, and requests for action to be taken, by service users and other persons”.

A provider who does not make patients and service users aware of their complaints system could not claim to be making it accessible, or claim they had an effective means of identifying complaints. Therefore, they would be breaching the regulation. CQC’s draft guidance about compliance with the regulations, which is currently subject to consultation, includes more information about all of these areas. It is this guidance that sets out in more detail what CQC will look for when checking whether providers are meeting the regulations. If noble Lords are in any doubt or have anxiety after this debate and after what I have said, I assure them that I would be happy to feed in the concerns which have been raised this evening in the context of the guidance that is now in preparation.

The noble Lord, Lord Hunt, described the regulations as light-touch, and the noble Viscount, Lord Hanworth, suggested that the Government were somehow pursuing a deregulation agenda by introducing these regulations. I must say to the noble Viscount in particular that that is a complete misreading of these regulations. Indeed, his speech indicated to me that he is labouring under a number of serious misapprehensions. Past experience has shown that there are limitations to prescriptive regulation. It is very difficult to make regulation exhaustive. The list might come to be the upper limit of what is provided, rather than the floor below which care should never fall. For example, the old national minimum standards for care homes included very specific requirements that set out the minimum bedroom sizes in square metres. In practice, this minimum became the default normal size for rooms.

The guiding principle behind the fundamental standards is that they set an overall outcome that must be met. The responses to our consultation showed that the vast majority of respondents agreed with this, and thought that the regulations were clearer as a result. I hope that that reassures the noble Baroness, Lady Howarth, in particular. Importantly, this approach allows the CQC to take a more rounded look at quality and safety as it inspects, rather than taking a tick-box approach to inspecting done solely against prescriptive regulations.