Care Bill [HL]

Baroness Barker Excerpts

Wednesday 16th October 2013 Lords Chamber

Moved by

[Baroness Barker]

139: After Clause 76, insert the following new Clause—
“Older Persons’ Commissioner
(1) In the Health and Social Care Act 2008, after section 128 insert—
“Part 2AOlder Persons’ Commissioner128A Establishment of an office of the Older Persons’ Commissioner
(1) There shall be an office of the Older Persons’ Commissioner.
(2) Schedule (The Older Persons’ Commissioner) shall have effect with respect to the Older Persons’ Commissioner.
128B Functions of the office of the Older Persons’ Commissioner
(1) The Older Persons’ Commissioner has the function under this Part of promoting the wellbeing, dignity and respect of older people and safeguarding and promoting their rights and welfare.
(2) In fulfilling their duties under subsection (1), the Older Persons’ Commissioner may review, and monitor the operation of, arrangements falling within subsection (2), (3) or (4) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the wellbeing, dignity and respect, and safeguarding and promoting the rights and welfare of older people.
(3) The arrangements falling within this subsection are the arrangements made by the providers of regulated services in England, or by the Secretary of State, for dealing with complaints or representations in respect of such services made by or on behalf of older people.
(4) The arrangements falling within this subsection are arrangements made by the providers of regulated services in England, or by the Secretary of State, for ensuring that proper action is taken in response to any disclosure of information which may tend to show that, in the course of, or in connection with, the provision of regulated services to older people—
(a) that a criminal offence has been committed;(b) that a person has failed to comply with any legal obligation to which he is subject;(c) that the health and safety of any person has been endangered; or(d) that information tending to show that any matter falling within one of the preceding paragraphs has been deliberately concealed.(5) The arrangements falling within this subsection are arrangements made (whether by providers of regulated services in England, by the Secretary of State or by any other person) for making persons available—
(a) to represent the views and wishes of older people to whom this Part applies; or(b) to ensure the adequate provision to older people of advice and support of any prescribed kind. (6) The Secretary of State may, by regulations confer power on the Older Persons’ Commissioner to require prescribed persons to provide any information which the Older Persons’ Commissioner considers it necessary or expedient to have for the purposes of his functions under this section.
(7) A statutory instrument containing regulations under subsection (5) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
128C Examination of cases by the Older Persons’ Commissioner
(1) The Secretary of State may, by regulations, make provision for the examination by the Older Persons’ Commissioner of the cases of particular older people.
(2) The regulations may include provision about—
(a) the types of case which may be examined;(b) the circumstances in which an examination may be made;(c) the procedure for conducting an examination, including provision about the representation of parties;(d) the publication of reports following an examination.(3) The regulations may, for the purposes of enabling the Older Persons’ Commissioner to examine or determine whether any recommendation made in a report following an examination has been complied with, make provision for—
(a) requiring persons to provide the Older Persons’ Commissioner with information; or(b) requiring persons who hold or are accountable for information to provide the Older Persons’ Commissioner with explanations or other assistance,for the purpose of an examination or for the purposes of determining whether any recommendation made in a report following an examination has been complied with.(4) For the purposes mentioned in subsection (3), the Older Persons’ Commissioner shall have the same powers as the High Court in respect of—
(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad); and(b) the provision of information.(5) No person shall be compelled for the purposes mentioned in subsection (3) to give any evidence or provide information which he could not be compelled to give or provide in civil proceedings before the High Court.
(6) The regulations may make provision for the payment by the Older Persons’ Commissioner of sums in respect of expenses or allowances to persons who attend or provide information for the purposes mentioned in subsection (3).
(7) A statutory instrument containing the first regulations made under subsection (1), (2) or (3) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(8) A statutory instrument that contains regulations made under subsection (6) is subject to annulment in pursuance of a resolution of either House of Parliament.
128D Obstruction
(1) The Older Persons’ Commissioner may certify an offence to the High Court where—
(a) a person, without lawful excuse, obstructs him or any member of his staff in the exercise of any of his functions under regulations made under section 128B(5) or 128C; or(b) a person is guilty of any act or omission in relation to an examination under regulations made by under section 128C which, if that examination were proceedings in the High Court, would constitute contempt of court.(2) Where an offence is so certified the High Court may inquire into the matter; and after hearing—
(a) any witnesses who may be produced against or on behalf of the person charged with the offence; and(b) any statement that may be offered in defence,the High Court may deal with the person charged with the offence in any manner in which it could deal with him if he had committed the same offence in relation to the High Court.128E Further functions
(1) The Older Persons’ Commissioner may, in connection with his functions under this Part give advice and information to any person.
(2) Regulations may confer power on the Older Persons’ Commissioner to assist an older person—
(a) in making a complaint or representation to or in respect of a provider of regulated services in England; or(b) in any prescribed proceedings.(3) For the purposes of subsection (2), assistance includes—
(a) financial assistance; and(b) arranging for representation, or the giving of advice or assistance, by any person.(4) Regulations under subsection (2) may also provide for assistance to be given on conditions, including (in the case of financial assistance) conditions requiring repayment in specified circumstances.
(5) Regulations may, in connection with the Older Persons’ Commissioner’s functions under this Part, confer further functions on the Commissioner.
(6) Regulations may, in particular, include provision about the making of reports on any matter connected with any of his functions.
(7) Apart from identifying any person investigated, a report by the Older Persons’ Commissioner shall not—
(a) mention the name of any person, or(b) include any particulars which, in the opinion of the Older Persons’ Commissioner, are likely to identify any person and can be omitted without impairing the effectiveness of the report,unless, after taking account of the public interest (as well as the interests of any person who made a complaint and other persons), the Older Persons’ Commissioner considers it necessary for the report to mention his name or include such particulars.(8) For the purposes of the law of defamation, the publication of any matter by the Older Persons’ Commissioner in a report is absolutely privileged.
(9) In subsection (1) of this section “proceedings” includes a procedure of any kind and any prospective proceedings.
(10) A statutory instrument containing the regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
128F Restrictions
(1) This Part does not authorise the Older Persons’ Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by, a court or tribunal.
(2) This Part does not authorise the Commissioner to exercise any function which by virtue of an enactment is also exercisable by the prescribed person.
128G Interpretation
(1) For the purposes of this Part “regulated services” has the same definition as “regulated activity” in section 8 of this Act as they relate to older people.
(2) This Part applies to any older person normally domiciled in England.”
(2) After Schedule 5, insert the following new Schedule—
Schedule 5AThe Older Persons’ CommissionerStatus1 (1) The Older Persons’ Commissioner is to be a corporation sole.
(2) The Older Persons’ Commissioner is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Older Persons’ Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.
Appointment and tenure of office2 Regulations may make provision—
(a) as to the appointment of the Older Persons’ Commissioner (including any conditions to be fulfilled for appointment);(b) as to the filling of vacancies in the office of Commissioner;(c) as to the tenure of office of the Older Persons’ Commissioner (including the circumstances in which he ceases to hold office or may be removed or suspended from office).Remuneration3 The Secretary of State shall—
(a) pay the Commissioner such remuneration and allowances; and(b) pay, or make provision for the payment of, such pension or gratuities to or in respect of him, as may be provided for under the terms of his appointment.Staff4 (1) The Commissioner may appoint any staff he considers necessary for assisting him in the exercise of his functions, one of whom shall be appointed as deputy Commissioner.
(2) During any vacancy in the office of Commissioner or at any time when the Commissioner is for any reason unable to act, the deputy Commissioner shall exercise his functions (and any property or rights vested in the Commissioner may accordingly be dealt with by the deputy as if vested in him).
(3) Without prejudice to sub-paragraph (2), any member of the Commissioner’s staff may, so far as authorised by him, exercise any of his functions.
General powers5 (1) Subject to any directions given by the Secretary of State, the Commissioner may do anything which appears to him to be necessary or expedient for the purpose of, or in connection with, the exercise of his functions.
(2) That includes, in particular—
(a) co-operating with other public authorities in the United Kingdom;(b) acquiring and disposing of land and other property; and(c) entering into contracts.Reports6 Regulations may provide for the Commissioner to make periodic or other reports to the Secretary of State relating to the exercise of his functions and may require the reports to be published in the manner required by the regulations.
Accounts7 (1) The Older Persons’ Commissioner must keep accounts in such form as the Secretary of State may determine.
(2) The Older Persons’ Commissioner must prepare annual accounts in respect of each financial year in such form as the Secretary of State may determine.
(3) The Older Persons’ Commissioner must send copies of the annual accounts to the Secretary of State and the Comptroller and Auditor General within such period after the end of the financial year to which the accounts relate as the Secretary of State may determine.
(4) The Comptroller and Auditor General must examine, certify and report on the annual accounts and must lay copies of the accounts and of his report before Parliament.
(5) In this paragraph “financial year”, in relation to the Older Persons’ Commissioner, means—
(a) the period beginning with the date on which the Older Persons’ Commissioner is established and ending with the next 31st March following that date; and(b) each successive period of twelve months ending with 31st March.Payments8 The Secretary of State may make payments to the Older Persons’ Commissioner of such amounts, at such times and on such conditions (if any) as he considers appropriate.
General9 In the House of Commons Disqualification Act 1975, in Part III of Schedule 1 (certain disqualifying offices), the following entries are inserted at the appropriate places—
“Older Persons’ Commissioner.”“Member of the staff of the Older Persons’ Commissioner.”10 In the Northern Ireland Assembly Disqualification Act 1975, the same entries as are set out in paragraph 9 are inserted at the appropriate places in Part III of Schedule 1.
11 (1) Regulations may provide that the office of Older Persons’ Commissioner shall be added to the list of “Offices” in Schedule 1 to the Superannuation Act 1972 (offices etc. to which section 1 of that Act applies).
(2) The Secretary of State shall pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of any increase attributable to provision made under sub-paragraph (1) in the sums payable out of money provided by Parliament under the Superannuation Act 1972.””

[Baroness Barker (LD)]

My Lords, given the hour I do not intend to detain the House for long, but I want to return to the subject of an older person’s commissioner, an issue raised so eloquently by the noble Baroness, Lady Bakewell, at an earlier stage in our deliberations. I do so for the same reason that many noble Lords have raised issues in connection with this Bill. The issues remain the same, but the legislative landscape is changing quite considerably, and the practical nature of services for people who will be affected by the Bill is also changing radically. Given these immense changes, coupled with the demographic developments that we know about, it is important to remind ourselves that there are still some gaps in the representation and protection of vulnerable groups in our society that need to be addressed.

I have not been involved in the Children and Families Bill, which I regret somewhat, and particularly today because the Grand Committee has been talking about the establishment of a children’s commissioner for England. Earlier on I looked at the proposal in some detail. It seeks the establishment of a person who is not a Crown employee and whose job will be to promote and protect the rights of children, and to have regard to the UN Convention on the Rights of the Child. Their primary job is to involve children who are living away from home or are in social care and to make known their views about their care. They do that by taking a systematic and thematic view of what is happening, and their job is to speak to government with the overall aim of improvement.

There is nothing there which is not needed by older people. I am going to talk about the fact that there is a raft of other bodies which have statutory duties in relation to older people, but there is a raft of bodies which have responsibilities in relation to care of children—not least of which is Ofsted. Despite children’s rights being perhaps more strongly enshrined in law, as they have been since the Children Act, we still need a Children’s Commissioner. The fact remains that we need an older person’s commissioner, too. We need somebody to be an advocate, to include older people and to talk to government. I do not want to pre-empt anything that might happen in your Lordships’ House tomorrow, but the report of the noble Lord, Lord Filkin, is being debated. It sets out in fairly stark terms how ill prepared government is for the implications of an ageing society.

Had another group of amendments before us on Report been dealt with in a different way, I might have rowed back. Your Lordships’ House decided the other day not to give powers of entry in cases where there is good reason to suspect that older people are being abused. I believe as firmly and as strongly as the noble Baroness, Lady Greengross, that that is absolutely wrong. If we are not going to give powers of entry in cases of abuse, then there is a case for there being an older person’s commissioner to raise those issues and gather evidence. Let us be in no doubt there will be further, tragic cases of elder abuse, and in the wake of them there will be calls for something to be done. Well, I think that something can be done now in the form of this proposal.

When we next convene to discuss this Bill on Report, we will turn our attention to some amendments tabled by the noble Earl, Lord Howe, on behalf of the Government about the appointment of the chief inspectors. The appointment of chief inspectors as officers within the CQC is welcome. It is welcome that there is going to be a Chief Inspector of Hospitals; it is a good thing that there is going to be Chief Inspector of Adult Social Care—I imagine that we have begun to receive information from the Chief Inspector of Adult Social Care, who took up her position this week. But let us be in no doubt that, however independent, experienced and formidable are the individuals, their role is limited. The CQC investigates merely licensed providers; it does not even investigate pathways of care. We know that the majority of care and help in the future will take place in the community—that is where the bulk of older people will be. Those chief inspectors will have but a very limited role, however welcome is their appointment.

If I were in the Minister’s shoes, I imagine that I would question whether the cost of setting up a commissioner makes it a valid thing to do. I sincerely hope that we will very soon be able to gather evidence from the commissioners, particularly the Older People’s Commissioner, in Wales. I know it has not been set up with this particularly in mind but I hope that somebody, somewhere, begins to research the economic benefit of having an older persons’ commissioner. We are going to have to look at the whole economics of ageing in a completely different way. The post of a commissioner could be very important and it would help if we started to move Government along to seeing older people as potentially economic assets in our country as well as people who need services. With that in mind, I beg to move.

[Baroness Bakewell (Lab)]

I rise to support this amendment as I think the House would expect me to because I put forward a similar amendment during the passage of the Health and Social Care Bill.

So here we are again. Time rolls on. I want to refer to the annual report I wrote in 2008-09 about the job I had as the Voice of Older People. I wrote that the job had proved a bombshell. Within hours of the announcement being made responses began. Letters, encounters, meetings and seminars showed me the range of cares particular to older people. At that time equality was my agenda and the issues were about the promotion of things such as equality in retirement, pensions and equal pay. However, concerns rapidly expanded. In no time at all I was being inundated with dilemmas about care homes, housing, rent levels and public loos. Expatriates were writing to me about claiming their pensions. End-of-life treatment was on the agenda again.

This agenda has not gone away. It is growing and it will go on doing so. We will hear tomorrow about the implications of the demographic and right now we are awaiting the ramifications of the Dilnot report. There is a campaign to get older people online, led by the noble Baroness, Lady Lane-Fox. There are concerns about fuel prices. I have recently read that E.ON, with which I have a special deal for a limited price because I am old, is withdrawing that favour from older people. Why? Breast cancer is very much on the agenda for older people. The risk improves the older you get but it does not reduce after 70 or 75. It goes on being a killer and becomes more seriously so.

Which Bill that will come before the House can encompass this vast agenda of the entire population that is growing old? This is a very difficult problem for the matter of law. We need a commissioner who can embrace housing, pensions, health, welfare and money. We need someone who can listen. The main thing about a commissioner is that they are not the spokesman for the established government—they are about us. They speak to government about what it is we want, what it is we would like, and on what we need guidance. The agenda is huge.

I am well aware that there is a multitude of charitable organisations that deal with all sorts of this fragmented agenda. I pay particular tribute to Age UK which is very, very strong in dealing with these issues, but what we need is for our complaints to be funnelled through an individual who belongs on the side of the old, who addresses the rest of the community about all these issues. I know that the Minister knows that the agenda is a wide one. What we need to know is where we can place this need—on which Bill and in which House? I support the amendment.

--- Later in debate ---

[Earl Howe]

My Lords, I am grateful for the opportunity to discuss this extremely well crafted amendment, which proposes the establishment of an older persons’ commissioner. Our ambition is to make this country one of the best places to grow old in and I begin by saying that I have some sympathy with the intention behind the amendment; to ensure that older people receive the high-quality care they need and also to support them to use the complaints system effectively when things go wrong. However, disappointingly for the noble Baronesses, I cannot subscribe to the solution that is proposed in the amendment. The main reason for this is that the provisions contained in the amendment are, by and large, covered by work already being undertaken elsewhere. The interests of service users are already protected through a number of routes.

I begin by citing the role of the CQC. The Care Quality Commission’s role is to ensure providers of regulated activities in England provide people with safe, effective, compassionate and high-quality care. The new chief inspectors for hospitals, adult social care and general practice will champion the views of patients and service users and judge the quality of care. Then, separate from the CQC, the new chief social worker will ensure that social work practice is directly inputting into policy development and we now have Healthwatch, whose function it is to represent service users’ views. If noble Lords look at what we are doing in the Bill, new statutory obligations are being introduced, such as the duties to establish safeguarding adults boards and to undertake safeguarding inquiries and/or reviews. We also have the government amendment to require independent advocacy in certain cases.

Looking beyond the Bill, the vulnerable older people’s plan is working towards having an accountable clinician to ensure proactive care planning for older people and those with the most complex needs. Furthermore, we want older people to have a major voice in issues that affect them. The Minister for Care and Support and the Pensions Minister take part in the UK Advisory Forum on Ageing. This group gives Ministers the opportunity to engage with and hear directly from older people on the key issues affecting them. I suggest that all these steps, taken together, go a considerable way towards addressing the concerns at which the amendment is aimed, but I need to be clear that, to minimise the impact on the public purse, we would not envisage setting up a new public authority alongside those functions.

My noble friend Lady Barker asked why we should not have an older persons’ commissioner since there is a children’s commissioner? If an older persons’ commissioner were established, the supporting structure would potentially be very large and would cost significantly more than the children’s commissioner. This is not only because of the comparatively larger number of older people who receive services compared to children, but also because the amendment confers a wider range of functions on the older persons’ commissioner than the children’s commissioner.

Michelle Mitchell, former director-general of Age UK said last year:

“For us it’s not just about having a commissioner; it’s about ensuring that older people’s issues are central to the mainstream – not only the government agenda, but business and the public sector as a whole”.

I support that view. What matters, surely, is what is actually happening and whether the system is pulling together to make it happen. We want to ensure, quite simply, that issues affecting older people are at the heart of government business. I am happy to explore ways to further enhance the voice of older people, although without creating additional costly bureaucracies. On that basis, I hope that the noble Baronesses will feel somewhat comforted that there is a lot going on to protect the interests of older people and that my noble friend will therefore feel able to withdraw the amendment.

[Baroness Barker]

My Lords, I thank the Minister for his characteristically comprehensive response and I am in complete agreement with him: there is a great deal going on, much of which is valuable and effective. I return to the central issue: I am not convinced that there is coherence, either within government, across government or in government interactions with the private and voluntary sectors and with local government. That is the issue to which I will return, and it is a point that the noble Baroness, Lady Bakewell, has made so eloquently.

I accept that this amendment is not perfect; it was crafted in order to bring the older persons’ commissioner within the scope of the Bill but it is not ideal. I thank the Minister for his response. We will continue to work away at this issue, I have no doubt. I beg leave to withdraw the amendment.

Amendment 139 withdrawn.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, the Opposition strongly support the thrust of the Francis report in its determination that the NHS be honest with patients who have been harmed. I very much echo the comments made by the noble Baroness, Lady Masham, in describing why we need an open culture. I welcome government Amendment 140. It is very important; we welcome the duty of candour being placed in the Bill. The amendment is less detailed than my own and will rely on regulations, as the noble Earl, Lord Howe, has said. The important thing is to get this in the Bill.

I have a couple of questions for the noble Earl. First, can he confirm that the regulations will be affirmative? Secondly, in considering the regulations, will he look at the issue of the threshold? For instance, the regulations might restrict the statutory duty of candour to cases that could be described as of severe harm or fatal; or it might go wider. In his report, Robert Francis used the word “serious”. Clearly, there is a distinction between severe harm and seriousness, but most patients and their relatives, or anyone involved in anything that could be described as a serious case, would wish the organisation in the health service to be as open as possible about what had happened.

These are not easy issues; but it is noticeable that the being open guidance is clear that cases of moderate harm and above must be disclosed. The NHS constitution does not put any limit on the level of harm that would be disclosed. I do not expect the noble Earl to respond to the detail of those questions tonight, but in drafting the regulations it would be reassuring to know, first, that consultation will take place with patient groups on the contents of those regulations before they are published and, secondly, that the question of the threshold by which the seriousness of the case would come within the regulations will be given very great consideration.

I should—at the end of the day rather than the start—declare my interest. I remind noble Lords of the interest I declared two days ago.

[Baroness Barker]

I have a quick follow-up to the question of the noble Lord, Lord Hunt of Kings Heath. Sir Robert Francis’s recommendations were clear that the duty of candour should apply where death or serious harm “may have been caused” or were believed or suspected to have been caused. That is an important distinction; it is not merely playing with words. When the Minister comes to respond, perhaps in writing, will he say whether that point will be covered in regulations?

[Earl Howe]

My Lords, I am sure that we are all aiming for the same effect and that there is little difference in the approach that we are taking. The amendment of the noble Lord, Lord Hunt, is drafted as a stand-alone duty: it would place a duty of candour on providers, but it would operate outside of the CQC registration system. As such, it is not clear who would enforce the duty of candour or what would be the consequences for a provider who did not observe the duty.

Introducing the duty as a requirement for registration with the CQC comes with a ready-made enforcement vehicle, including the power to prosecute providers who do not meet the duty. In Committee, we explained why this is our preferred approach. It would give the flexibility to develop the duty in consultation with service users and carers. I can indeed confirm that patient groups will be included. The duty itself will have the same legal power in secondary legislation as it would in primary legislation.

We are making real progress in taking this forward. In the summer, the CQC consulted on plans to introduce a duty of candour set through its registration requirements. The CQC is due to publish the findings from the consultation shortly. The department plans to consult on a draft regulation later in the autumn. I assure noble Lords that both I and my officials would be pleased to discuss the content of the draft duty of candour regulation with them in detail as we develop the final regulation. I confirm to the noble Lord, Lord Hunt, that these will be affirmative regulations.

On the threshold, both the Francis and the Berwick reports recommended that the statutory duty of candour for CQC-registered providers should apply in instances of death or serious injury/incident. There is a balance to be struck. We accept the Berwick report finding that an automatic duty of candour covering every single error could lead to defensive documentation and large bureaucratic overheads that would distract from care.

I hope that my amendment reassures noble Lords of our strong commitment to introducing a duty of candour and that they will feel able—