Covid-19: Critical Care Capacity

Baroness Northover Excerpts

Monday 23rd March 2020 Lords Chamber

[Lord Bethell]

My noble friend Lord O’Shaughnessy asks entirely reasonable questions, and he is quite right to press me for numbers. The tests we are talking about for this virus are new—some of them are only a few weeks old. It requires the tests to be tested to ensure that they are delivering accurate results, and for that reason it is difficult to commit to the kinds of numbers my noble friend searches for. However, it is very much the Prime Minister’s desire to have testing as a central part in our battle against the virus, and that is why we are putting enormous resources into it.

[Baroness Northover (LD)]

My Lords, I think I was the first in your Lordships’ House to go through this virus, and I wish other noble Lords the best should they face what I did. I would like to flag to the Minister my experience of the lack of capacity in the NHS only a few days ago. It included: paramedics not knowing that breathing difficulties were associated with coronavirus; no proper delineation of red and green zones when we were in the isolation part of the hospital—we were taken through the A&E part to get there; and inadequate protective clothing of those in that isolation unit. Above all, the poor doctor who was looking after me told me that her colleagues could not be tested for coronavirus even though they were getting ill and had treated and given transfusions to known coronavirus cases. That was two or three days after Chris Whitty briefed us here about how testing was vital and would be continued during what was coming down the track—that is, the so-called delay phase. Can the Minister reassure us that such lack of capacity, which was astonishing in a north London hospital, is being actively addressed?

[Lord Bethell]

My Lords, I welcome the testimony of the noble Baroness and cannot help but be moved by the situation she describes. This virus has moved incredibly quickly. Hospitals are doing amazing work to adapt to the conditions that dealing with the virus requires, and everyone is learning how to do it on the job.

Smoking-Related Diseases

Baroness Northover Excerpts

Wednesday 14th September 2016 Lords Chamber

[Baroness Northover (LD)]

My Lords, I too thank the noble Lord, Lord Young, for securing—and whipping —this debate, and the noble Lord, Lord Faulkner, with his outstanding record on this subject, for taking it over. I wish to focus on the international dimension.

We know how challenging it was and still is in the UK, and in the West, to counter the tobacco industry. It was only through the remarkable work of Sir Richard Doll, based on the metadata that he had available to him through the NHS and cancer registries—something not as comprehensively available in the US—that the correlation of smoking with cancer and other diseases was decisively demonstrated. We know what measures the tobacco industry took to undermine that research and its conclusions.

How vulnerable are those in developing countries, where the tobacco industry is now looking to replace its western markets, and where corruption, poverty and lack of transparency undermine good governance? The WHO has sought to address this with the Framework Convention on Tobacco Control, the world’s first treaty on public health. One hundred and seventy-nine countries and the EU are parties to this treaty, but signing up is one thing and implementing is another. I know of so many instances where the industry has run rings around those provisions in developing countries.

Last year, the world signed up to the sustainable development goals. Ending poverty, ending hunger, ensuring healthy lives and so many of the other goals are undermined by smoking and the tobacco industry. The SDGs call specifically to strengthen the implementation of the WHO framework. The United Kingdom is rightly committed to spending 0.7% of GNI on aid. The noble Lord, Lord Crisp, said that, as part of that commitment, in December 2015 Jane Ellison—then Public Health Minister—announced that the DH had been awarded an ODA fund to assist countries to develop their tobacco control policies. She said that she would update Parliament in due course. I seek that update. Given our expertise in the field, it is vital that we play our full part internationally to stem so far as we can the terrible suffering which otherwise the tobacco industry will inflict on those least able to bear it round the world.

Health: Global Health

Baroness Northover Excerpts

Monday 26th October 2015 Lords Chamber

[Baroness Northover (LD)]

My Lords, the life sciences are indeed an area in which the United Kingdom leads, as we have just heard. Will this Government be continuing the previous Government’s work in underpinning that lead through long-term investment? In particular, can the Minister assure me that the Newton Fund, which links research scientists in the United Kingdom with those in developing countries, will not be scaled back?

[Lord Prior of Brampton]

I can assure the noble Baroness that this Government are fully committed to supporting our life sciences industry. I will look into her specific question on the Newton Fund and write to her directly.

Children and Families Bill

Baroness Northover Excerpts

Wednesday 29th January 2014 Lords Chamber

[Baroness Howarth of Breckland]

My Lords, I would like to ask a short question.

[Baroness Northover]

My Lords, I remind noble Lords that we are on Report. Noble Lords have one opportunity to speak. They can intervene to ask a question to seek elucidation from somebody who is speaking. Providing that is what noble Lords do, those interventions are all right. They must seek clarification from, or ask a question of, the person who is speaking.

[Lord Naseby]

I reassure the House that I do not intend to speak for very much longer. I respond to the noble Lord opposite by pointing out that the latest figures for Australia indicate an increase of 13% following the introduction of standardised packaging for counterfeit and illegal cigarettes. Therefore the most current evidence—perhaps he can get up to date—is a little more relevant. To finish on standardised packaging, if 20% of our nation smokes legitimately, and we have a legitimate industry, do people not have a right to choose between one pack which they like the look of as opposed to another pack?

I will finish with Australia. I, too, welcome Sir Cyril Chantler as chairman. I also know him quite well and have known him for a very long time. He will already be able to see two results. One is that standardised packaging has done absolutely nothing to the prevalence of smoking in Australia, and the other, as I have just mentioned as evidence to the noble Lord opposite, is the worrying fact that the illegal market has increased by 13%, up to an all-time high in Australia of 13% of all consumption.

I draw the House’s attention to a book in the Library which refers to the situation in the United Kingdom during the war. It is called Black Market Britain, 1939-55, by Mark Roodhouse, and it features, among other evidence, what happened to the cigarette market during the time of the black market. I refer to that book because if we go down the route of standardised packaging, a black market will undoubtedly emerge.

I wish Sir Cyril well; we await his report with interest, and I am sure that it will be balanced and thorough. However, whatever that report produces, I ask that first, the Government will give adequate time to this House to have a short debate on it, and secondly, and perhaps more importantly, that the industry will have a reasonable amount of time—and by that I mean some weeks and not days—to look at the evidence that is provided by Sir Cyril and to put its view to the Secretary of State on its interpretation.

Finally, I will wind up on a couple of other questions, specifically on proposed subsection (4)(d) of Amendment 57B on,

“reducing the appeal or attractiveness of tobacco products”.

I submit that that has little to do with the packaging. Proposed subsection (8)(d), which refers to,

“the shape of such products”—

as opposed to the package—does not have anything to do with the packaging, and proposed subsection (8)(e) would even more insidiously apply to,

“the flavour of such products”.

Given that by nature all cigarettes are different, as tobacco is a vegetable product and they all taste different, I do not see how on earth the Secretary of State can intervene regarding the flavour of tobacco. I have already mentioned the contrast between the consent of Wales, Scotland and Northern Ireland and our own home Parliament.

Care Bill [HL]

Baroness Northover Excerpts

Monday 29th July 2013 Lords Chamber

[Baroness Northover]

My Lords, we understand and respect the desire of the noble Lord, Lord Patel of Bradford, to achieve the best that he possibly can for people with severe mental disorders and pay tribute to his many achievements in the mental health field over many years. We are indeed, as he said, on the same side. We recognise the special vulnerability of this group, and I listened very carefully to what he said.

The Government’s view is that our proposed definition of aftercare services meets the objective of providing clarity on the duty to ensure such provision. That will give greater certainty to those needing or providing aftercare so that it can be provided when it is needed. The inclusion of a definition of aftercare services followed a recommendation by the Law Commission that aftercare services should be defined in accordance with a two-limbed definition from the Mwanza case. This case law defined the services to mean services necessary to meet a need arising from the person’s mental disorder and aimed at reducing the likelihood of the person’s readmission to hospital for further treatment of the disorder.

The Government’s definition of aftercare services builds on the definition recommended by the Law Commission. That was the starting point for the definition. We accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. The clause now clarifies that the Section 117 duty requires services to be provided to meet needs arising from or related to the person's mental disorder, as well as reducing the risk that the person’s mental condition could deteriorate, requiring their readmission to hospital.

Following public consultation, the Government expanded the proposed definition to put it in the Bill in what we feel is a much improved form. The noble Lord’s amendment omits the first limb of the Government’s definition while making changes to the second. In particular, his amendment weakens the connection between the services required to be provided under Section 117—I assure the noble Baroness, Lady Wheeler, that we are fully committed to continuing those—and the specific needs linked to a mental disorder, meaning that the scope of the definition would be unclear.

The Government are concerned that this amendment may confuse rather than clarify the circumstances in which aftercare services should be provided. That would run counter to the purpose of introducing a new definition. If there are disputes over the aftercare services to be provided, the wait that some people would have to endure before the aftercare services would be in place to enable them to leave hospital could be prolonged, something which the noble Lord wants to avoid. In our view, given that it omits the criterion that services must have the purpose of,

“meeting a need arising from or related to the mental disorder of the person concerned”—

I can assure the noble Lord that the definite article does not simply mean something singular but encompasses the plural as well, something to which he briefly referred—the amendment is likely to give rise to more disputes and administrative uncertainty than would be the case with the clause as it stands. Examples of disputes arising under the current Section 117, with no definition, highlight why a statutory definition will add clarity. As highlighted by the Law Commission, having no definition means that the interpretation is left to case law, which has provided varying interpretations.

Nothing in Clause 68 will change the guidance in chapter 27 of the code of practice. It covers housing, employment counselling, and cultural and spiritual needs. The professionals involved include mental health professionals, GPs, employment experts, independent advocates and others. The proposed definition sets out the essential elements and requirements for services to fall within Section 117. The Government do not wish to be more prescriptive as aftercare services should be agreed by health and social care professionals as guided by the code. I hope that that reassures the noble Lord. This has to be done, of course, in the light of each patient’s particular needs.

Finally, the current clause introduces a purpose for Section 117 services to reduce the risk of deterioration in a person’s mental condition, which the noble Lord’s amendment leaves out. I found myself looking at his examples as he went through them. I could not see that they would be excluded by the definition in the Bill, so we see no compelling reason to alter the definition of aftercare from what has been proposed, which is based on research and consultation by the Law Commission and the Government. Perhaps I should propose to the noble Lord that we meet between now and the Report stage to discuss his concerns and make sure that they are not well founded. I am very happy to take this forward and see whether we can involve my honourable friend Norman Lamb in those discussions. I hope that, on the basis of this response, the noble Lord will be happy to withdraw his amendment.

[Lord Patel of Bradford]

I suppose the only bit of that I was pleased about was the proposal that we should meet. Unfortunately, I disagree with everything the Minister has said. The Law Society, the Mental Health Lawyers Association, Mind, and the Care and Support Alliance—an alliance of over 70 organisations—agree with me that the Mwanza case is completely unique and off the wall. It concerned someone who was sectioned nine years ago and had nothing to do with Section 117 services, but his lawyers were trying to use that as a basis to get free accommodation.

[Baroness Northover]

Does the noble Lord accept what I have just said: that it was doubt over cases like that which led the Law Commission to come up with a recommendation that there should be a definition as a starting point for where the Government would then take this?

[Lord Patel of Bradford]

I still have a problem because the definition is very clear, as the noble Baroness has said. It is about being related to “the mental disorder”. I know that the Minister said that this is standard legislative language and that it is not intended to be a singular disorder, but I disagree. First, the definition does not give us a sense that aftercare should be holistic and thus in line with the underlying well-being principle. Secondly, the use of the definitive article in “the mental disorder” is completely out of keeping with the Mental Health Act. I can give a couple of examples from some of the trigger sections of the 1983 Act. Section 1 of that Act defines mental disorder but Sections 2 and 3, which refer to mental disorder, have no definite article. The wording is completely separate from that of the Mental Health Act, so officials should go back to the drawing board and look at it a bit more carefully. It is very unclear and it poses huge legal arguments, as people will say that this is about “a mental disorder”.

[Baroness Northover]

Under the Interpretation Act 1978, words in the singular may include the plural.

[Lord Patel of Bradford]

I completely agree that legally that is what it means, but the 1983 Act does not use the word “the” in front of “mental disorder” in any of its important trigger sections. What is important is that it is not in keeping with the 1983 Act at all. Moreover, we have already seen local authorities trying to use this case. We should be dictating what happens. I am not sure whether the judge in that case—I do not know if I should be saying this—was by any stretch a mental health expert. I think he was a family court judge, so it was completely different. The Stennett case, which was appealed to the House of Lords, clearly stated a definition that was very different from this. We should not be dictated to by that; Parliament should dictate. The Bill will dictate what aftercare services are.

I am prepared to look at the definition I have crafted and without doubt there might be something that we can improve on. However, I agree with the noble Baroness, Lady Barker, that this is crucial because it is the only piece of statutory provision we have to make sure that statutory health services, the voluntary sector and social services work together. Time after time over the past 30 years local authorities have used any opportunity they can not to provide Section 117 aftercare services. It goes to legal action and then they back off. Why do it when we can resolve this? We do not need the first bit that says “the mental disorder”. Why introduce that level of doubt? We are on the same side and we can move forward on this, and we do not need to introduce any doubt. I am pleased that we have something to think about and to work together on and I am sure that between us, as we did last time, we will come to an amicable conclusion. In the mean time, I beg leave to withdraw the amendment.

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Moved by

[Baroness Northover]

105A: Clause 69, page 57, line 7, at end insert—
“( ) In its application to an adult who is residing in any other premises because a requirement to do so has been imposed on the adult as a condition of the grant of bail in criminal proceedings, this Part has effect as if references to being ordinarily resident in an area were references to being resident in premises in that area for that reason.”

[Baroness Northover]

My Lords, the Government have tabled a number of amendments in relation to prisons to help clarify the interface between local adult safeguarding boards and prisons. This group of government amendments serves two purposes. Amendments 129 to 136 further clarify the relationship between prisons, approved premises and local safeguarding adults boards. Obviously prisons and approved premises retain a duty of care towards and responsibility for the safety of all their detainees. Mechanisms are already in place to hold them to account if there are concerns about the care or safety of prisoners.

Prisons have their own safeguarding procedures, so we believe that it should be left to local discretion to determine whether it is appropriate for a governor or other prison staff to become members, rather than a statutory duty. This is the intention of the first part of subsection (7), which we believe should remain. As such, local safeguarding boards will not conduct inquiries or serious case reviews in relation to incidents occurring while someone is in prison or approved premises with care and support needs. However, we want there to be open dialogue between prisons and approved premises and local safeguarding adults boards so that the prisons and approved premises receive the information and advice which the board can provide for the benefit of prisoners and residents. This would not be possible with the draft clause as it stands. It is therefore our intention that safeguarding adults boards will be free to invite governors or other prison officers to sit on the board and, whether or not a member, governors, directors or controllers of prisons will be able to approach a safeguarding adults board to ask for advice and guidance in improving their safeguarding arrangements. I hope I have made the Government’s position in relation to prisons and safeguarding clear through these proposed government amendments.

I now turn to the remaining government amendments to Clause 69, Amendments 129 and 137 to 141, which clarify other matters. They make clear that a temporary absence from prison or approved premises will lead to someone continuing to be treated as detained in prison or residing in approved premises or other bail addresses for the purposes of this clause. The amendments also ensure that the rule in subsections (1) and (2), regarding which local authority is responsible for an individual’s care and support needs, applies to people bailed to addresses other than approved premises. Finally, the amendments remove the paragraphs which deem that once an individual has been sentenced to prison they are to be treated as detained in prison for the purposes of this clause. On reflection, the Government believe that these deeming provisions are not necessary. That also removes the unintended consequence that those given a suspended sentence would be treated as detained.

I now turn to government Amendments 105V and 105T. These would implement the recommendations set out by the Delegated Powers and Regulatory Reform Committee in its first report of Session 2013-14 in respect of regulations under Clause 22(2)(b), Clause 49(10), Clause 50(1) and (4) and Clause 59(2). The committee recommended that regulations made under Clause 22(2)(b) should require the affirmative procedure and that regulations for the remainder should require the affirmative procedure on the first exercise of the powers. We are happy to accept these recommendations and I beg to move.

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[Baroness Wheeler]

My Lords, this is largely a group of government technical amendments, interspersed with amendments from noble Lords probing important aspects. On Clause 69, my noble friend Lord Patel’s Amendments 105AA and 105CA would ensure that local authority safeguarding inquiries do apply to adults in bail accommodation and, in respect of Safeguarding Adults Boards, would enable prison governors or other prison staff to be members of the board.

Government Amendments 105B and 105D address those issues. On safeguarding inquiries, the Government’s proposal to allow SABs to provide advice and assistance to persons in bail accommodation is a compromise. My noble friend has argued that that is not good enough and we strongly support that view. How can local authorities have premises in their areas where abuse or neglect could occur and not have a duty to conduct a safeguarding inquiry?

On prison governors being members of Safeguarding Adults Boards, my noble friend is exploring ways in which governors and prison staff can best participate in and learn about the board’s role and work. I look forward to the Minister’s response on how she thinks the Government’s amendments best facilitate this.

The remaining Clause 69 government amendments include a number of tidying-up measures which we support to reduce the burden on local authorities, such as clarifying local authority ordinary residence rules in relation to bail accommodation, explicitly exempting prisons and bail accommodation from local authority safeguarding adults reviews, and minor technical amendments to change the general language relating to the clause.

Under Clause 71 and Amendment 105Q from the noble Baroness, Lady Browning, we return again to the Secretary of State’s powers in relation to local authorities and NHS bodies. Both the noble Baroness and my noble friend Lord Touhig make a strong case for statutory guidance previously in place to continue to apply under the new legislation until the Secretary of State declares otherwise. The noble Lord and noble Baroness, as usual, speak strongly on autism and the Autism Act being embedded in the new legislation. However, there is a wider issue of ensuring that the Secretary of State retains ultimate responsibility, arguably more important than ever with the tendency of our current Secretary of State to hover above it all and act as if everybody else is responsible but him.

Amendment 105R of the noble Lord, Lord Low, to Clause 72 seeks to prevent a local authority from being able to delegate functions on its behalf under this part of the Bill. He is right to be cautious about how the local authority powers under this clause are used. I look forward to the Minister’s response to the amendment.

Finally, under government Amendment 105V in this group, I again raise an issue that I spoke of during last week’s safeguarding debate on the provider failure provisions under Clauses 47 to 49, designed to address responsibilities and actions in any future provider collapse, such as we saw most recently with Southern Cross residential care homes. The Lords Delegated Powers Committee expressed concern at the Bill’s failure to define what is meant by both “business failure” and “market failure”. Although I got an answer in passing in the following debate when the noble Earl the Minister responded to a question about provider failure from the noble and learned Lord, Lord Mackay, I would appreciate the Minister explaining today in more detail why the Government have chosen regulations to address these two issues, which are fundamental to the operation of the provider failure provisions of the Bill, rather than include the definitions in the Bill.

[Baroness Northover]

My Lords, I thank noble Lords for tabling the other amendments in this group on these very important issues. On the amendment in the name of the noble Lord, Lord Patel of Bradford, we agree that a person with care and support needs should be protected against abuse or neglect wherever they are. As I have already set out, prison governors and directors have in place procedures to follow in response to allegations of abuse or neglect. Governors and directors will provide assurance to the National Offender Management Service and Her Majesty’s Chief Inspector of Prisons, through their inspection regimes, that those procedures and their implementation provide similar protection to that available in the community. The Prisons and Probation Ombudsman will investigate individual complaints and incidents. I can assure the noble Lord, Lord Ramsbotham, that the Ministry of Justice and the NOMS have acknowledged that there is a need for improved directions to the Prison Service and probation trusts in this area. They will be working with officials from the Department of Health and stakeholders to develop instructions and guidance that will give clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. In addition, prison governors and other prison staff will be able to approach their local Safeguarding Adults Board for advice and assistance in improving their arrangements. The MoJ was, of course, fully consulted on the provisions relating to prisons in the Bill and will be working with the Department of Health and NOMS to develop detailed guidance so that people who are concerned about the safeguarding issue will know exactly how to raise it and get advice on how to approach it. The MoJ is fully involved in the development of all parts of this clause.

The noble Lord, Lord Ramsbotham, also raised the issue of a statutory obligation on the senior management of prisons to take responsibility for the care and support needs of prisoners. The governor or, in the case of contracted prisons, the director, has the primary duty of care for prisoners and is the appropriate first point for reporting concerns. There is an investigations procedure in place for cases in which prisoners suffer significant harm. Prisons are monitored by a range of inspectorates, including the CQC.

[Lord Patel of Bradford]

I just want to get this point on record and then perhaps we can come back to it. I understand that prisons have a whole range of safeguarding measures in place. When there is a real problem that a prison has not resolved, why can a local authority not have an inquiry for a person who is vulnerable and at risk? That is my first question. If somebody is in approved premises, such as a bail hostel, and living in the community like anybody else, and they have been abused or are neglected or at serious risk, why should a local authority not have an obligation to have a safeguarding inquiry? I just cannot fathom why such a person would be excluded.

[Baroness Northover]

The point is that if local authorities must also conduct inquiries in prisons and approved premises, we run the risk of duplicating inquiries. Prison governors and directors have the primary responsibility for preventing abuse or neglect of prisoners with care and support needs. Prison governors already have a duty to care for and safeguard prisoners. If we duplicate this responsibility, we run the risk that the lack of clarity will mean that safeguarding concerns fall between agencies. Noble Lords will be extremely familiar with how this has happened in the past in other sectors. Therefore, a decision has to be made as to where the expertise is and where the primary responsibility is. The decision made in discussions with the MoJ and NOMS is that the primary responsibility is with the prisons. We have to make sure that they carry forward that responsibility. Obviously, they will draw on advice in the way that I described, but we need to make sure that there is one body with ultimate responsibility.

We agree that prison staff should have access to local safeguarding expertise if, in their particular circumstances, it would be useful, so we agree that the second half of the subsection, from the second “officer” onwards, should be removed. However, because prisons have their own safeguarding procedures, we believe that it should be left to local discretion to determine whether it is appropriate for a governor or other prison staff to become members of safeguarding boards rather than a statutory duty. That is the intention of the first part of subsection (7).

I now turn to Amendment 105Q, in the name of my noble friend Lady Browning and the noble Lord, Lord Touhig. It raises important issues about how future statutory guidance will be issued under the Bill and how it may interact with existing guidance. The noble Baroness, Lady Wheeler, also asked about this. We intend to develop a single, consolidated bank of guidance for local authorities covering all their care and support functions under this part of the Bill. We will replace all existing guidance that covers this territory to remove the potential for future misunderstanding. Current statutory guidance for local authorities is issued under Section 7 of the Local Authority Social Services Act 1970. Future guidance on adult care and support will be issued under Clause 71 of the Bill. The amendment also proposes to require a consistent application of the definition of an “NHS body”. We agree, of course, that definitions must be clear and consistent in guidance and regulations and we will keep this in mind in drafting regulations and guidance to ensure that key terminology and definitions are consistent. I can assure the noble Baroness, Lady Wheeler, that guidance remains in place until it is superseded by new guidance.

My noble friend Lady Browning and the noble Lord, Lord Touhig, referred to guidance for people with autism. As they said, unlike other statutory guidance related to care and support, this is issued under a specific requirement included in the Autism Act 2009. I can assure noble Lords that it is not our intention to repeal these provisions by this Bill. The duty to issue guidance on autism will continue. I hope noble Lords are reassured by that.

I now turn to Amendment 105R, to which the noble Lord, Lord Low, spoke. The Government believe it is right to allow local authorities the flexibility to delegate their care and support functions to third parties. However, when a local authority chooses to delegate any of its care and support functions, this must not be a way of relieving itself of its responsibilities for how those functions are carried out. This clause does not absolve the local authority of its legal obligations with respect to care and support functions. However, we believe it is necessary that, when a local authority arranges with a third party to carry out a public function, the local authority should have contractual recourse against that third party for breach of contract. Subsection (7)(a) ensures that this is the case. It is not a limitation of the local authority’s ultimate responsibility for the performance of its functions.

The noble Lord, Lord Low, asked to be reassured about the application of the Human Rights Act. I can assure him that the Human Rights Act applies to the discharge of public functions, so even when a local authority delegates its public function to a third party, that function must still be carried out in a way that complies with the Human Rights Act. Local authorities retain legal responsibility for anything done or not done by the third party when carrying out the function. It follows that any failure to carry out the function in a way that is compliant with the Human Rights Act will be considered a failure by the local authority. We do not think that this needs to be specified in law as it is covered. The function must be carried out in a way that is compliant with the Act. By specifically referencing the Human Rights Act in legislation there is a risk that this could imply that the Human Rights Act does not apply in relation to various other pieces of legislation where it is not specifically referenced. I hope that the noble Lord is reassured.

[Lord Low of Dalston]

Can I just make sure—does that mean that the third party to whom the care function may be delegated is also liable under such legislation as the Human Rights Act?

[Baroness Northover]

What I have written here is that when the local authority delegates a public function to a third party, the function must be carried out in a way that is consistent with the Human Rights Act. It appears—I will clarify for the noble Lord if it is not the case—that the local authority has to abide by the Human Rights Act, but clearly, if it delegates something to a third party, which does not adhere to it, the third party is not adhering to its obligations to the local authority. By that device, the Human Rights Act would end up having an effect on what those third parties could do, even if they were not themselves directly responsible. However, I will clarify that if I am wrong.

[Lord Low of Dalston]

I am very grateful for that further clarification. It is reassuring to hear that the third party is under an obligation to carry out its functions in a manner that is compliant with the Human Rights Act. However, it would offer further reassurance if we were told that there was a remedy against the third party to which the function was delegated as well as against the local authority. I appreciate what the noble Baroness has said about a remedy against the local authority. However, as appeared when we talked about the application of human rights legislation a week ago, for remedies to have a practical effect so far as third parties carrying out delegated responsibilities are concerned, it is desirable—this was the view of the Joint Committee—that there should be a remedy against the third party to which responsibilities were delegated as well as against the local authority. In this instance that is, if I may put it this way, little more than a backstop. The remedy bites much more effectively if it can be seen to bite on the third party, to whom the responsibilities are delegated, and not just on the local authority. I hope that that further clarification of my point will make it easier for the noble Baroness to come back to me when she has looked into the matter further.

[Baroness Northover]

I will certainly write to the noble Lord and spell it out. Given the local authority’s responsibility for complying with the Human Rights Act, it is very unlikely that it would form a contract with a third party without ensuring that it knows that it will need to carry out whatever responsibility has been passed to that third party in the light of the Human Rights Act, otherwise the local authority will end up in court. I will write to the noble Lord in detail to explain how this operates.

The noble Baroness, Lady Wheeler, asked why the Government have chosen regulations to address the issues relating to provider failures. There is no simple definition of business failure and—we have some very interesting handwriting here; it is worse than a doctor’s. My best bet is to write to the noble Baroness.

To return to summing up on this group of amendments, I hope that I have reassured noble Lords about their amendments in this group, that they will feel able to withdraw their amendments, and that I have persuaded noble Lords that the government amendments I have outlined here should be accepted.

Amendment 105A agreed.

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[Lord Hunt of Kings Heath]

My Lords, that was a pretty persuasive case, to which I hope the noble Baroness will be sympathetic. The noble Lord made the particular point that early intervention will lead to better outcomes. That could be a message that relates to this Bill as a whole. The noble Baroness knows that we were not able to have our debate on services for deaf people last week because of the lateness of the hour. I wonder whether, between now and Report, she would be prepared to write to me about how she thinks this Bill might specifically relate to deaf people. Clearly, some of the issues the noble Lord has raised are apposite to deaf people in terms of early identification and assessment. I would not expect her to answer that point today, but it would be extremely helpful if she were able to write to me on it in advance of us coming back to the QSD in the early autumn.

[Baroness Northover]

My Lords, I thank the noble Lord, Lord Low, for his amendment. It raises some important issues. He emphasises that local authorities need to follow up those who have been newly certified as sight-impaired or severely sight-impaired in a timely manner where they have indicated that they wish to be registered or to have an assessment of their needs for care and support. Indeed, we have great sympathy with his concerns. We accept that people who have acquired a visual impairment should have an early opportunity to have access to information and advice so that they can adapt to their situation as quickly as possible and obtain any aids and support that will help them to manage their lives better.

As we have discussed, Clause 4 requires local authorities to make available universal information and advice on care and support, which will of course be relevant here. But people who lose their sight suddenly can also need more time to come to terms with their loss and engage with the support that might be available to them. If that is the case, it might be more appropriate to have a greater degree of flexibility around the timescales for when that support is offered or re-offered. Individuals differ in the way that they respond. We therefore believe that it would be better if the detail of this was covered in guidance, as it is for deaf-blind people, rather than in the Bill or in the regulations. In response to the noble Lord, Lord Hunt, there may well be a parallel here for deaf people, I am happy to write to him in answer to his questions.

Covering this in guidance would allow greater flexibility to update and adapt the arrangements. I can assure the noble Lord, Lord Low, that officials intend to work closely with the RNIB and other stakeholders to ensure that the guidance is as comprehensive as possible. He is absolutely right that the person needs to be at the heart of that guidance. In the light of what I have said to both noble Lords, I hope that the noble Lord, Lord Low, will be happy to withdraw his amendment.

[Lord Low of Dalston]

I am very grateful to the noble Baroness for her response, and also to the noble Lord, Lord Hunt of Kings Heath, for his support. On what the noble Baroness had to say, I am very glad to hear that the Government propose to work with RNIB on refreshing the guidance. That will be very welcome. On that basis, I shall certainly want to withdraw the amendment. However, I would like to make a couple of points. The noble Baroness drew a parallel between the guidance on visual impairment and that for deaf-blind people. The Law Commission was in favour of upgrading the guidance for deaf-blind people to regulation status. Perhaps when the Government look at that question in respect of deaf-blindness and vision impairment, they may like to revisit it and consider whether guidance or regulations are the best vehicle.

I agree about flexibility, but the fact that somebody may need longer to adapt to sight loss or may need help for longer simply argues, to me, that they need help longer, not that they do not need prompt intervention. Even if you are going to need longer, or take longer to adapt to sight loss, you probably still require prompt intervention and early contact from the local authority to determine as quickly as possible what your needs are to put in place as quickly as possible what is appropriate to be put in place quickly, and to put in place what is needed over a longer time period as and when required.

With those observations, I beg leave to withdraw the amendment.

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[Baroness Barker]

My Lords, I return to this subject yet again, having discussed it every time it has come before your Lordships’ House. I take a very different view of this proposal not because I wish in any way to denigrate people who care, but because a fundamental flaw and a serious danger lurk within it. Let us remember that it originally came from organisations such as the Christian Institute, as part of its continuing campaign against civil partnerships and same-sex marriage. It is not a proposal which emanated from the carers’ movement. I have spent 15 years in this House discussing various pieces of legislation which apply to carers. This did not arise. This has never arisen from the carers. It is very much part of a different campaign.

The proposal equates two fundamentally different sorts of relationship: those entered into freely and voluntarily as adults, and consanguine, family relationships. Those two types of relationship have always been treated differently in law, for very good reason. You cannot choose your family, you are born into it. You have relationships with people in that family which are wholly different, and your obligations to those people are wholly different, from those in the families which you create. That is why you do it. Also, you cannot leave a family into which you are born in the same way that you can divorce a partner to whom you are married.

That is important because behind this lie two key questions. First, if there are several siblings, how do you choose which two people enter into the relationship and benefit? Secondly and more importantly—the question which the noble Baroness, Lady Deech, has not answered although the noble Baroness, Lady Howarth, and I have put it every time this issue has arisen—how do you stop weaker members of the family being put under duress and compelled to protect the family property by stronger ones? Within that lies the potential for gross and horrible abuse.

I understand that the noble Baroness, Lady Deech, has weakened her proposal this time by asking for no more than a review. If there is a review and report which does not address that issue, it will have done the citizens of this country a disservice. I hope that at that stage, if not now, we can put an end to this campaign.

Carers already have recognition in ways that matter. We have carer’s allowance. We have attendance allowance. We have all sorts of things which recognise the particular status of carers without tying them into relationships around property which are very difficult to disentangle. If this is a way of dealing with the inequities of inheritance tax, so be it, but it is one containing dangers which should be appreciated before we go ahead with it.

[Baroness Northover]

My Lords, I thank the noble Baroness, Lady Deech, for tabling this amendment. This would place a duty on the Secretary of State to arrange a review of legal and financial rights and obligations of adult carers, adults they care for and codependent adult family members who share a house, with a view to considering the establishment of a specific legal status for such people that would include rights and obligations arising at death of one of the adults concerned.

The noble Baroness, Lady Deech, and my noble friend Lady Hooper emphasised the human side of this challenge, and of course one sympathises with the cases that they mention. Noble Lords will remember that we had an extensive debate recently on these issues both for the Marriage (Same Sex Couples) Bill, and in 2004 for the Civil Partnership Bill, as my noble friend Lady Barker has set out. In the recent debate, the noble Baroness, Lady Deech, sought to include carers and cohabitees in the proposed review of civil partnerships. We had some debate then about the Government’s support for carers. The point was also made that this was in essence a tax point.

I note that during the debate we recently had, the noble Baroness, Lady Deech, said that, having studied the Care Bill, she had not seen in it a hook on which to hang such a review. We believe that interpretation was correct. Such a review would be enormously complex and range much further than the provision of care and support.

As the noble Baroness, Lady Hollis, stated in Committee on the Marriage (Same Sex Couples) Bill, inheritance advantages on death would need to be balanced by responsibilities and financial dependencies during lifetime. There would need to be a fundamental root and branch review of social security and pensions policy and the provision of means-tested benefits, as well as a review of rights and obligations on death. Such questions about legal rights and responsibilities, arising from specific family relationships and friendships, are not related to the subject matter of the Care Bill. Nor do they fall within the responsibilities of the Secretary of State for Health. Indeed, Carers UK has said that forming some kind of formal legal relationship between a carer and the person they care for is not the right way to solve the challenges that carers currently face, a point that my noble friend Lady Barker has emphasised.

Parents, children and siblings already have a legally recognised relationship to each other that affords certain rights—for example, in the laws of intestacy. The Government, of course, value the contribution of carers in supporting family members and friends, recognising that they may often be caring for many years. That is why the Care Bill provides for significant improvements for carers in terms of offering them support in their caring role and in having a life of their own alongside caring. The noble Baroness, Lady Pitkeathley, in Committee on 3 July, said of the attention given to carers in the Bill:

“In the history of the carers’ movement, with which I have been associated for nearly 30 years, it is truly the most significant development that we have seen”.—[Official Report, 3/7/13; col. 1311.]

She said today that it is all she could have dreamed of in terms of the rights of carers. The noble Baroness, Lady Greengross, said that it is one of the best Bills we have seen in a long time. New and simplified assessment procedures will focus on the impact of caring on individual carers and families, on how to support carers to look after their own health and well-being and on the outcomes carers wish to achieve in their day-to-day life, including employment.

We also intend to provide carers with similar rights to support as those for whom they care. This new duty has been warmly welcomed as providing parity of esteem with those who need care and support. They will, of course, benefit from other provisions within the Bill, including the provisions that a local authority must promote an individual’s well-being in all decisions made with and about them and the requirements on what local authority information and advice services should include so that people understand how the care and support system works, what services are available locally, and how to access those services. The cap on eligible care costs will help to reassure everyone that they have a level of protection if they or members of their family have the most serious needs and incur very high care costs. I hope that I have reassured the noble Baroness of our support for carers.

Care Bill [HL]

Baroness Northover Excerpts

Monday 22nd July 2013 Lords Chamber

[Baroness Northover]

My Lords, adults with care and support needs may want to move home, just like anyone else, but co-ordination between local authorities can sometimes be variable and, as a result, we often hear that people are worried that they will face gaps in the care that they need. The Bill sets out to change that. Clauses 36 and 37 set out a new process to support people moving between areas in England with a guarantee that their needs will not go unmet during the transition.

I turn, first, to the amendments tabled by the noble Baroness, Lady Campbell, who has a long-standing interest in this issue. As the noble Baroness, Lady Wilkins, and the noble Lord, Lord Hunt, emphasised, the noble Baroness has fought on this issue for years and I thank her for her gratitude to the Government for taking action in this area, even if she has some residual concerns. I hope that I can reassure her and, should she wish to move, that she will be able to contemplate a move as feasible in a way that she never felt it was before.

Amendment 92ZZAB seeks to ensure that the adult remains informed during the process. It is important, as the noble Baroness, Lady Campbell, has made clear, that this is the case so that the adult can plan for their move. Clause 36(6) requires the second authority to carry out an assessment as soon as it has established the adult’s intention to move. This requires interaction with the adult from an early stage and thus provides the opportunity to inform them of progress. We intend to clarify this area in statutory guidance and I am sure that the noble Baroness will wish to feed into this.

Amendment 92ZZAC would require the second authority to have due regard to the care and support plan provided by the previous area and Amendments 92ZZAD and 92ZZAE seek to ensure that the focus is on securing equivalent outcomes as in that plan. I fully understand that the noble Baroness is not seeking equivalent services and that this is different from outcomes, a point emphasised also by the noble Lord, Lord Hunt. Of course, when a person moves it is possible that their needs for care and support may change; for example, if they move closer to their family. The noble Baroness is right to focus on outcomes and we recognise that in the Bill. For example, Clause 25(1)(d) would include all the matters identified by the person, including the outcomes they want to achieve. We very much sympathise with these points and indeed have already revised the provisions following consultation on the draft Bill. Clause 36(7) requires the second authority to have regard to the plan or plans provided.

A further change following consultation is the introduction of Clause 25(5), which requires that when preparing to meet an adult’s needs,

“the local authority must take all reasonable steps”,

to agree with the adult how it will do so. Together, these provisions allow adequate scope for the existing plan to be reflected, so far as is agreed and appropriate, in the way in which the second authority meets the person’s needs to achieve the outcomes that the noble Baroness speaks of. I hope that the noble Baroness, Lady Campbell, agrees that the changes we have introduced will ensure that the person will be fully involved in the development of their care and support plan, and as such, can ensure that this continues to meet the outcomes they want to achieve.

Amendment 92ZZADA, in the name of the noble Lord, Lord Hunt, proposes that we replicate Clause 36(10) for carers. I will explain why this is not required. Clause 36(10) has been inserted as a result of our proposals for funding reform, which we discussed earlier in Committee. It requires the second local authority to inform the person receiving care and support if the cost of their eligible needs is different from that provided by the first authority. This relates to the individual’s care account and it is right that the authority informs the person if the amount that counts towards their cap on care costs has changed. However, carers will not have a care account as they are not eligible for a cap on costs and there is therefore no need to require the second authority to inform them of any change in the cost of meeting their eligible needs.

Where a service user is moving to a new local authority in England and the carer is also intending to move with them, the continuity of care provisions will apply to the carer in the same way as they do to the service user. I hope that this reassures the noble Lord. Where the service user is not moving but the carer is moving home to another authority, these provisions will not apply. The carer is still providing care in the original authority and it will continue to be responsible for meeting their care needs.

Amendment 92ZZAF, in the name of the noble Baroness, Lady Campbell, would require the first authority to continue to meet any needs until it has satisfied itself that the second authority has met its duty in Clause 37(1). The noble Baroness explained why she felt this was important. The continuity duty in Clause 37(1) applies from the day of arrival in the new area. From that point, it is the new authority’s responsibility to meet the adult’s needs, and the first authority’s previous duties are discharged. There should not be a gap in these arrangements. In particular, the requirement on the second authority to assess the adult before they move is intended to ensure that the necessary preparation has been undertaken so that there is no delay. Therefore, this amendment should not be necessary. Moreover, there is a risk that such a provision could act as a disincentive on the second authority to meet its obligations in a timely manner, although I heard what the noble Baroness said in regard to that. We will develop statutory guidance to support local authorities in exercising these new duties. That guidance offers a further opportunity to clarify expectations and ensure that no gap occurs.

Amendments 92ZZAG and 107, in the name of the noble Lord, Lord Wigley, concern Schedule 1, which makes provision for cross-border residential placements. I thank the noble Lord for giving us the benefit of his knowledge of Wales and note his praiseworthy restraint with regard to English provisions, although I note that the noble Lord, Lord Hunt, did not share my view. Clearly, the noble Lord, Lord Wigley, has resolved the West Lothian question but I appreciate his offer to liaise with Welsh colleagues to ensure the greatest clarity. I will give him some further information that may be of assistance to him.

The Care Bill will make provision for cross-border residential care placements so that people can be placed in care homes in other parts of the United Kingdom. This will mean that if a local authority in England places someone in residential care in Northern Ireland, Scotland or Wales, that person will remain the responsibility of the English local authority. They will not acquire ordinary residence in their new location and will continue to benefit from the protection provided by the cap. For example, if people receiving domiciliary care move from England to Wales, or people in a care home move without being placed by their local authority, they will usually become ordinarily resident in the new area and the appropriate contribution they should make to the costs of their care will be determined by the arrangements in Wales. A person moving to another Administration and requiring domiciliary care will be reassessed under the system into which they are moving. The processes being proposed in England and Wales are different and we will work with colleagues in Wales to produce guidance to look at how continuity of care can work across borders.

Schedule 1 will end the untenable situation local authorities currently find themselves in when a person in their area who wishes to receive residential care in Wales, Scotland or Northern Ireland is unable to do so. The noble Lord’s amendments seek to delay commencement of Schedule 1 until a report is laid before Parliament outlining the issues connected with cross-border placements arising with the devolved Administrations. We believe that this would cause an unnecessary delay to enacting provisions that are long overdue.

However, we recognise the concerns about the practical challenges of cross-border working. I hope the noble Lord will be reassured that we are working with the devolved Administrations to create bespoke regulations to meet the diverse legislative and operational requirements of each Administration. The regulations will be subject to consultation and laid before Parliament. I expect the noble Lord to participate in those debates.

[Lord Wigley]

I do not want to delay proceedings. This is just a way of bringing focus on the issue. Can the Minister give any indication to the Committee as to whether the discussions and deliberations that have already taken place between her department and the National Assembly in Cardiff have gone well and that there is so far a meeting of minds, or are there issues over which there will be some clash? If there is a clash, how will it be resolved?

[Baroness Northover]

If need be, I will come back to the noble Lord with all the details because it is indeed a very complex area. There are a number of government amendments, as the noble Lord, Lord Hunt, pointed out, and these seek to address some of the issues that have arisen in trying to make sure that everything works as smoothly as possible. It would probably be most appropriate to write in detail to the noble Lord and for him to see and stress-test what is happening. I remind the noble Lord that these regulations will be subject to consultation and laid before Parliament.

I now move on to the government amendments that the noble Lord, Lord Hunt, referred to. Obviously, this is a complex area. Amendment 92ZZAFB is required to clarify the ordinary residence situation of a person who has an independent personal budget. The local authority where the person is ordinarily resident is responsible for preparing the person’s independent personal budget and keeping the care account. This amendment makes clear that if such a person is in residential care and moves to the area of a different local authority, they will be able to become ordinarily resident in that new area.

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Finally, Amendment 92ZK in the name of the noble Baroness, Lady Greengross, would introduce a new clause on the duty of candour on local authorities to foster a culture that enables staff to report reasonable suspicions of abuse and neglect of adults under the authority’s care. As we have repeatedly argued, a statutory duty of candour, in line with the recommendations of the Francis report, should be included as a key principle in the Bill. We on these Benches fully support ensuring its explicit reference to the vital issue of adult safeguarding.

[Baroness Northover]

My Lords, I am very grateful to noble Lords for tabling amendments on such important issues. I am sure that noble Lords will agree that if we are to claim to be a civilised society, it is critical that we safeguard those people who are most vulnerable to abuse and neglect. In particular, the Bill places local authorities under a duty to make inquiries or cause inquiries to be made in suspected cases of abuse or neglect of adults with care and support needs who are unable to protect themselves because of those needs.

This is a very important moment—the first time any Government have placed adult safeguarding in primary legislation. I thank the noble Baroness, Lady Greengross, the noble Lord, Lord Touhig, and the noble Baroness, Lady Wheeler, for recognising this. It is in line with the recommendations of the Law Commission’s report on adult social care. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. It also requires local authorities to establish safeguarding adult boards, which will include key representatives of the NHS and police and any other persons considered appropriate.

Such boards will have three statutory duties. A board must publish strategic plans each financial year, following local consultation, which set out how it is to help and protect adults with care and support needs in its area who may be at risk of abuse or neglect. At the end of each financial year it must publish an annual report that sets out what it and its individual members have done to achieve and implement this objective. It must arrange for any safeguarding adult reviews of serious cases of abuse or neglect where there is a concern about how persons relevant to safeguarding worked together to protect the adult in question, so as to identify and apply any lessons learnt to future cases and prevent such incidents arising again.

Noble Lords have tabled a number of amendments that rightly press the Government on the robustness of the clauses. We believe that the points they make are covered by our proposals and I will try to outline why. I take this opportunity to say that although these clauses are the result of significant experience and consultation, we accept that we need to be flexible and adapt to experience of implementation. Our approach of covering much of the detail in statutory guidance allows this flexibility.

I turn to the first of the amendments that we are considering. Amendment 92ZZAH in the names of the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, seeks reassurance that adult safeguarding applies regardless of location. I am happy to confirm that this is the case. Clause 41 will require a local authority to make inquiries or cause them to be made where abuse and neglect are suspected in respect of an adult with care and support needs, regardless of the particular setting where the abuse or neglect is suspected to have occurred.

Amendments 92ZB and 92ZD are also tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. The first aims to ensure that the voice of the individual is heard in any safeguarding inquiry and that the individual is properly supported. We agree that these factors are of utmost importance, which is why those principles are enshrined in the Bill, beginning with Clause 1, on promoting individual well-being. If a person does not have capacity to take part in a safeguarding inquiry concerning them, the local authority should involve any person appointed to act on their behalf, or, where there is no such person, the local authority must itself act in the person’s best interests. We believe that statutory guidance is the best place to cover this in more detail, with practical examples to illustrate the point. As regards the second amendment, on defining abuse, we have taken the approach of relying on the natural meaning of “abuse” to keep the scope of the duty to make inquiries as wide and flexible as possible. The joint pre-legislative scrutiny committee itself stated:

“Abuse is an ordinary English word, capable of being understood without being defined. It might not however normally be thought of as including financial abuse, and it is right that”,

the clause,

“should put this beyond doubt. But to attempt an exhaustive definition always has the danger of omitting something which, as subsequent events make clear, should have been included”.

However, turning to Amendment 92ZA, I agree with the noble Baroness, Lady Barker, who tabled that amendment and who seeks assurance that a person should not be considered as suffering abuse or neglect if they have refused medical treatment. We agree with that, and there is no intention of doing so. That is an important principle of law and ethics.

In Amendment 92ZC, the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, are concerned with ensuring a more consistent, timely and transparent process for adult safeguarding. This is one of our central aims, which we will address this in statutory guidance. We want to pre-empt the risks arising from the overly bureaucratic safeguarding process that Professor Munro discovered in her review of children’s safeguarding. It is vital to focus on the outcomes that people want and how best to achieve them rather than overprescribing and focusing on processes.

I have a note that says that I wanted to add something at this point, but I cannot find the notes in question so I will turn to Amendment 92ZE, in the name of the noble Baroness, Lady Hollins. We agree that it is extremely important to ensure that inquiries are made into cases of suspected abuse or neglect regardless of the motivation behind the action, and that is what the Bill as drafted achieves. This important point links to Amendment 92ZFA, in the name of my noble friend Lady Byford. Her first amendment is about who can report abuse; in this case it focuses on financial abuse. The local authority must make inquiries in respect of safeguarding concerns, no matter how they come to its attention—whether it is from someone with power of attorney or anyone else. For the first time, local authorities will have such an express duty in statute.

My noble friend Lady Byford spoke about the problems that those with power of attorney may encounter. This is a very familiar concern. We know that the provisions of the Mental Capacity Act are implemented variably. This House currently has a committee undertaking post-legislative scrutiny of the Act. It will have views about the implementation of the Act, and the Office of the Public Guardian, which is in charge of registering and supervising powers of attorney, is establishing improvements in the training and oversight of those with power of attorney and of their deputies. The Court of Protection also has a critical role in protecting the affairs of those who lack capacity. I am sure that this matter will get further post-legislative scrutiny.

My noble friend Lord Hodgson supported my noble friend Lady Byford on the way in which people are charged for care. We agree that services vary and that the charges that are applied reflect the varying cost of providing care. It is important that people know what they will pay before agreeing to purchase a service, and what the charges do and do not cover. Clause 4 requires local authorities to make available information and advice relating to care and support services. Clause 5 requires local authorities to shape a diverse, high-quality and sustainable market that meets people’s needs.

The second amendment in the name of my noble friend Lady Byford, Amendment 92ZFB, raises the critical issue of protecting people from having to overpay for the care and support services they need. My noble friend is absolutely right that people should know in advance, and in writing, what will be included in the fees they pay, and what, if any, elements will be covered by others, including the council or NHS. That is why it is in the registration requirements of the Care Quality Commission. We can also include this, if necessary, in the guidance we produce.

I turn to other amendments tabled by the noble Baroness, Lady Hollins, and the noble Lord, Lord Rix. Amendments 92ZG and 92ZH are about ensuring that organisations take action and report it when they are found to be wanting in their adult safeguarding arrangements. We recognise this gap and have placed adult safeguarding reviews on a statutory footing for the first time. Paragraph 4 of Schedule 2 sets out detailed requirements for the annual reports of boards. In particular, the report must include the findings of all reviews and must set out what the board has done to achieve its objective. This would include implementation of those findings. The Bill places a duty on safeguarding adult boards to publish their annual reports. The report will be publicly available, and this will ensure transparency in the way that they work. I am sure that not drawing conclusions from those reports would face a challenge, given the train of events that I laid out. I hope that these points will reassure the noble Baroness.

Amendment 92A is very timely, given the appalling failures of care that we heard about recently. We absolutely agree with the noble Lord, Lord Touhig, and the noble Baroness, Lady Greengross, that providers that allow abuse and neglect to go unchecked should face serious consequences, including potential prosecution. This has not been the case to date. We agree that this is a problem. The Government believe that the best way to take this forward is through the introduction of fundamental standards in a revised set of requirements for registration with the Care Quality Commission. It was appalling to hear what the noble Lord, Lord Touhig, said. The Care Quality Commission has started consulting on those fundamental standards. The noble Lord asked about the timescale. We expect to consult on draft regulations in the autumn. The standards will ensure that the CQC will be able to take action against providers for unacceptable standards of care, including abuse and neglect.

Of course, we understand the concerns expressed by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low, in Amendment 92AA, about protecting and promoting the human rights of those requiring care and support services, many of whom are very vulnerable to abuse and exploitation. We discussed this in detail recently in your Lordships’ House, on 13 March 2012, during the passage of the Health and Social Care Act 2012. The matter was debated extensively and voted on, and the Government won the vote with a substantial majority. We are not aware of anything having changed in the past nine months that would cause us to change our position.

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[Lord Warner]

Perhaps I could suggest that the Minister should have another conversation with the noble and learned Lord, Lord Mackay. After the quotation to which she referred, the noble and learned Lord signed and agreed the Joint Committee’s report that made the recommendation. The Minister might like to have a discussion with him about whether he has changed his position.

[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.

Care Quality Commission: Morecambe Bay Hospitals

Baroness Northover Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Patel of Bradford]

I am coming to the question.

As the former chairman of the Mental Health Act Commission, I was assured when those organisations merged that the CQC would keep the focus of those commissioners, those skills and that methodology, and that specialist focus and attention would be given. That is legally required under the Mental Health Act, but it has not happened. Over the last few years the expertise of Mental Health Act commissioners has been eroded. Can the Minister assure me that this focus will be renewed, and the focus of Mental Health Act commissioners returned? Will the Government consider having a chief inspector of mental health? That was one of the original ideas when it was formed.

[Baroness Northover]

I remind noble Lords that brief questions are allowed. As the Companion states, this is not the occasion for an immediate debate. I note that many noble Lords want to speak, so the briefer the better, please.

[Earl Howe]

My Lords, I recall the noble Lord, Lord Patel of Bradford, making those points very powerfully some years ago when we debated the Bill that created the CQC. He makes an extremely important point. I think that we can take it from the statements of David Prior yesterday that the decision taken in 2009 to take a generalist approach to inspection was a mistake. The CQC’s inspectors are in one sense specialist inspectors who are trained and supported to carry out their role, which they do to the best of their ability. However, requiring inspectors to have oversight of a wide range of service types from slimming clinics to acute hospitals, and indeed mental health establishments, has spread expertise too thinly.

We are clear that we must now work with the CQC to create a much more specialist approach to inspection, including on mental health. I think that the three new chief inspectors we are appointing will help to do that. It is not the whole answer, because they need to be supported by clinical expertise and by the people who are experts by virtue of their experience in care services. However, I will take away the noble Lord’s idea of a chief inspector of mental health. I must be honest with him that we have not discussed this, but I am sure that we now should.

--- Later in debate ---

[Lord Campbell-Savours]

My Lords—

[Baroness Northover]

I am afraid we are out of time.

Health: Children's Heart Services

Baroness Northover Excerpts

Wednesday 12th June 2013 Lords Chamber

[Lord Walton of Detchant]

My Lords—

[Baroness Northover]

My Lords, I remind noble Lords that these should be brief interventions. We have only had two thus far and we are seven minutes in. I suggest we hear the Bishop, then from these Benches and we try to get around.

[The Lord Bishop of Ripon and Leeds]

My Lords, I am grateful to the Minister and I am also grateful to the Leeds group Save our Surgery for persisting with criticisms, at least some of which seem to have been justified, as they pursued this. I am particularly grateful for the affirmation that children and their families must always come first. Will the Minister also accept that nothing about us should be done without us? Therefore, will he ensure that families, local communities and, indeed, the case for keeping cardiac and other children’s services in our hospitals are heard, in addition to the clinical professionals?

Mid Staffordshire Foundation Trust Inquiry

Baroness Northover Excerpts

Tuesday 26th March 2013 Lords Chamber

[Baroness Emerton]

My Lords, I would like to mention nurse education. The suggestion of having some front-line experience before entering university is, philosophically and practically, very good if it can be worked, but it raises all sorts of questions. I spoke to a healthcare support worker a few weeks ago who said that all the students who come on to her ward tell her, “I wish we had had this experience that you are getting before going into training”, so there is evidence that many of them would like to have that kind of experience. However, this raises the question of their supervision during that time. Will there be adequate numbers of trained staff to supervise the continuing support workers as well as those who are pre-nursing apprentices, or whatever?

The logistics of this are going to be important to work on. We need to know whether the Government will look at minimum staffing levels. Where there are enough registered nurses and the minimum is stated, there should be means whereby registered nurses will be available whenever demands on patient care escalate, such as during a time of winter problems, rather than abusing and misusing the support workers. There is a tremendous amount of work to be done on that.

There is also the role of the Nursing and Midwifery Council, which has responsibility for regulating the pre-nursing standards. I hope the Government will ensure that the council takes an active part in this pre-nursing experience, because that will be important. I urge Ministers to have this minimum staffing looked at, if that is possible. I am extremely disappointed that the Government are not prepared to take on the regulation of these support workers because I fear that we may find ourselves having similar problems as in the past, unless we have some regulatory system.

[Baroness Northover]

My Lords, I remind noble Lords that brief questions only are called for after Statements, and that the briefer they are, the more colleagues will be able to get in.

[Earl Howe]

I reassure the noble Baroness that all the concerns that she rightly raised are very much in our sights, not least the need for proper supervision of nurse trainees and the practical aspects of having the right level of support on the ward. This is why we believe that this idea should be piloted first, so that lessons can be learnt. Yes, we will involve the NMC, and indeed the Royal College of Nursing, in these plans. As regards ratios, having the right staffing in terms of numbers and skills is clearly vital for good care, but minimum staffing numbers and ratios, if laid down in a rigid way, risk leading to a lack of flexibility or organisations seeking to achieve staffing levels only at the minimum level. Neither of those is good for patients. However, I do not dismiss the general concept. It is ultimately up to local organisations to have the freedom to decide the skill mix of their workforce, based on the health needs of those on the wards.

Social Care Funding

Baroness Northover Excerpts

Monday 11th February 2013 Lords Chamber

[Baroness Oppenheim-Barnes]

My Lords, my noble friend may recall that when we previously discussed this problem on the Floor of your Lordships’ House, I voiced the very strong concerns that I have held for a long time. That is because when I was in another place, I faced a number of constituents in my surgery saying, “We’ve worked hard all our lives, we’ve done everything that we can do and we’ve paid for everything, and now they’re going to sell my house, whereas someone who has done nothing and saved nothing is going to get their treatment for free”. In his opening remarks, my noble friend has answered all those points, so they are extremely welcome.

On the other hand, when I raised these points with previous Governments, their reply was, “Well, the British taxpayer should not be asked to subsidise the inheritance of their future children”. I felt that that was a very harsh view to be taken, and my noble friend has put that right. This is an important step in the right direction. It may not be possible for the Minister to answer this, but if a person who has entered a care home, and made whatever provision they had to with regard to resources, unfortunately dies within a very short period, will any sort of rebate be given?

[Baroness Northover]

My Lords, I interrupt briefly to say that if noble Lords make brief contributions more of their colleagues will be able to get in this critical debate.

[Earl Howe]

My Lords, I am grateful to my noble friend for her remarks. She is of course quite right; many of us have heard for years the concerns of members of the public, friends and family about what might be the catastrophic burden of care costs in old age. If there is one thing that everyone should welcome, it is that aspect of this announcement. With regard to a rebate, no, that is not in our sights at the moment. If someone were to die in the circumstances posited by my noble friend, the arrangement would have to remain as set out to that person at the outset. We would not expect to move the goalposts after that person had died.