Care Bill [HL]

Baroness Masham of Ilton Excerpts

Wednesday 16th October 2013 Lords Chamber

[Lord Patel of Bradford (Lab)]

My Lords, Amendments 136A and 136B seek to ensure that people in prison and those residing in approved premises have equivalence of care when it comes to safeguarding inquiries by local authorities. Noble Lords may remember that I raised this issue in Committee but I was a little concerned by the response I received from the Minister on that occasion. I am grateful to Jenny Talbot and her team at the Prison Reform Trust for all the support and guidance they have provided throughout.

I welcome the Government’s commitment in this Bill to place responsibility for the social care of adult prisoners with the local authority in whose area the prison is located. The Bill outlines the responsibilities of local authorities towards people in prison who have care and support needs and would ensure that people in prisons are able to access care and support on a similar basis to those in the community. However, having made such a significant and welcome commitment to the social care of prisoners, there is an anomaly in the Bill, which states that people in prison and people residing in approved premises are not to receive equivalence of care when it comes to safeguarding inquiries by local authorities. Surely denying people in prison and people residing in approved premises the benefit of an inquiry by the local authority when safeguarding concerns are raised places an already vulnerable group of individuals at even greater risk.

Of course, I understand that prisons have a whole range of safeguarding measures in place. However, 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? Moreover, I cannot understand why people in approved premises—in other words, people who have been released from prison and are living in the community; for example, in a probation hostel—should be excluded from local authority safeguarding inquiries. If the local authority is not responsible for safeguarding vulnerable adults in approved premises in the community, who is?

When I raised this issue in Committee, the noble Baroness, Lady Northover, stated,

“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”.—[Official Report, 29/7/13; col. 1585.]

I have a number of concerns about this response, two in particular. First, with regard to people in prison, the noble Baroness talked about the duplication of effort and lack of clarity. I suggest that this is simply not the case. My amendment would not limit the responsibility that prisons already have. On the contrary, their involvement on safeguarding adults boards would help to ensure shared learning and expertise, including, where necessary, the option for a safeguarding inquiry should safeguarding concerns not be resolved by the individual prison.

In fact, inquiries by local authorities should be viewed as another tool to help ensure our prisons are safe for both vulnerable prisoners and the staff who work with them. I am not suggesting that local authorities need to be directly involved in all interventions in prisons or that local safeguarding teams would need to be called upon to intervene in every safeguarding concern raised. However, directors of adult services need to be confident that their standards are consistent with those set out in the report No Secrets and any exceptions are explicit and jointly agreed. Therefore, I believe that an inquiry by a local authority will not duplicate the excellent work undertaken by Her Majesty’s Inspectorate of Prisons, or by the prison itself. It will complement and enhance it, and could potentially help save lives.

Secondly, the noble Baroness did not provide an answer as to who would be responsible for the safeguarding of people in approved premises, if it is not the local authority. For the sake of clarity, I will ask the question again. As I understand it, approved premises are the responsibility of the probation service and not of the prison service. Any responsibilities that prison governors have for safeguarding adult offenders end once that person is released and physically leaves the premises. As the Bill currently stands, people living in approved premises will not be the responsibility of local authorities as is everybody else who lives in the community. So if someone is living in approved premises, such as a probation hostel, and is part of the community, as is anybody else, and that person has been abused or neglected or is at serious risk, who will have the obligation to carry out a safeguarding inquiry?

In terms of safeguarding inquiries by the local authority, not providing people in prison or who reside in approved premises with the same equivalence of care as for other people in the community makes little sense. The Bill establishes that equivalence of care applies to prisoners, and this should extend to safeguarding and to how safeguarding concerns are dealt with. Local authority adult safeguarding procedures are well established within local communities and the safeguarding of people in prisons and of those residing in approved premises should not be excluded from this body of expertise.

Of course, prisons and approved premises, such as hospitals and care homes, should have their own internal safeguarding arrangements and responses to safeguarding concerns. However, by excluding prisons and approved premises from safeguarding inquiries by the local authority, prisoners and people residing in approved premises will be denied the equivalent protections afforded to other vulnerable adults. Further, the opportunity for constructive dialogue and shared learning, which some prisons and local authorities currently enjoy, may also be lost. As the Bill stands, this is a serious gap which places a very vulnerable group at risk. Therefore, I hope the Minister can provide some clarification, reassurance or, better still, accept my amendments. I beg to move.

[Baroness Masham of Ilton (CB)]

My Lords, I hope that the Minister will take note of the very serious points which the noble Lord, Lord Patel of Bradford, has made to your Lordships tonight.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, these two amendments deal with changes to Clause 72 to impose a duty on local authorities to make safeguarding inquiries in prisons and approved premises. I thank the noble Lord, Lord Patel, for tabling these amendments. We strongly agree that a person with care and support needs should be protected against abuse or neglect wherever they live.

Prison governors and directors, and the probation trust in the case of approved premises, are responsible for safeguarding prisoners and for protecting them from abuse and neglect. They have in place procedures to follow in response to allegations of abuse or neglect, and they must provide assurance on this to the National Offender Management Service. The UK operates a comprehensive level of monitoring and scrutiny within prisons to ensure that prisoners are kept safe and secure and that governors and directors are accountable for taking steps to improve matters if necessary.

We have in place a fully independent prison inspectorate that carries out a rigorous programme of scrutiny; more than 1,700 volunteers on prison independent monitoring boards who monitor the treatment of adult prisoners; and a Prisons and Probation Ombudsman who investigates both the complaints of those in prison and all deaths that occur among prisoners. Her Majesty’s Chief Inspector of Prisons and the Prison and Probation Ombudsman require assurance that safeguarding procedures are in place and their implementation provides equivalent protection to that available in the community. Investigations by the Ombudsman will provide learning to improve effectiveness. The important thing is not to impose a duty on another body to conduct inquiries in prisons and approved premises, but to ensure that the procedures within the prisons and approved premises are informed by best practice and local expertise.

The Ministry of Justice and the National Offender Management Service have acknowledged that there is a need for improved directions on safeguarding to the Prison Service and probation trusts. They will be working with officials from my department and stakeholders to develop instructions and guidance that will give improved clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. The Ministry of Justice encourages prison staff to be involved with local safeguarding adults boards, but the nature of that involvement is best determined at local level.

The Ministry of Justice and the National Offender Management Service will be producing guidance for prison staff on safeguarding in conjunction with their partners. This will be consistent with the broader advice and guidance on safeguarding adults in the community and will ensure that the importance of active engagements with SABs is routinely reiterated to prison staff. Any particular safeguarding considerations for older prisoners and those with dementia will be part of this operational policy. The guidance will set out clear instructions on the need for structured relationships with local safeguarding boards; for example, the model being employed by Surrey, where a memorandum of understanding sets out how prison staff will benefit from the expertise of social services and local authority safeguarding teams. It will also set out how and in what instances referrals to SABs will be made.

I hope that I have reassured the noble Lord, Lord Patel of Bradford, that the existing position makes clear the responsibility and accountability for the safeguarding and protection of prisoners, and that further guidance to prisons and approved premises will bring about the improvement and joint working that we all want to see. The proposed amendments to Clause 72 are therefore not necessary and I would respectfully ask him to withdraw this amendment.

--- Later in debate ---

[Earl Howe]

My Lords, this amendment concerns the new statutory duty of candour. This will place a requirement on registered providers of health and adult social care to be open with patients and service users about failings in care. The Francis report made a clear recommendation that there should be a statutory obligation to observe a duty of candour on providers of healthcare who believe that treatment or care provided by them to a patient has caused death or serious injury. This would require the provider to inform the patient of that fact. This amendment is a major step towards implementing that key recommendation of the Francis report.

The Government’s approach is to introduce this duty as a requirement for registration with the CQC. In Committee, noble Lords tabled amendments that sought to place the duty of candour in the Bill. The amendment that I am presenting today seeks to strike a balance; I make no apology for that, since it allows us to have the best of both worlds. The amendment tabled in my name makes it clear that the Government must introduce such a regulation. It does not present the Government with a choice; rather, it imposes a crystal clear obligation on the Government to put such a regulation in place. I hope that it will be welcome to noble Lords for those reasons. I beg to move.

[Baroness Masham of Ilton (CB)]

My Lords, the duty of candour means honesty and straightforwardness. We desperately need an open, honest, transparent and compassionate health service, and I hope that Amendments 140 and 152 will help to achieve that.

Something has gone desperately wrong with the care in some hospitals and care homes. We now live in a litigious society, and I feel that that has been increased by cover-ups when something has gone wrong and gagging people who try to speak out. People will go to any lengths to find out what happened to their loved ones if they are not told and given an apology. Good medical personnel will explain and apologise if something adverse happens. So often, that is all that is needed.

Patients know that there are risks, if they are explained when they sign a consent form. When they go wrong, lessons should be learnt so that they do not happen again. That is one of the reasons why openness is so important. Have lessons been learnt after the horrific situation of the Mid Staffordshire hospital? Recently I heard of a former police superintendent who had had a brain injury due to an accident, and was a patient in a well known central London hospital. When his wife and young son went to visit him, they smelt him before they saw him. They found him facing the wall in bed, unable to move and lying in soiled sheets and wearing a filthy gown. His wife was so upset that she told a nurse, who just said that they were overworked. The next time the wife visited she found him sitting alone, facing a curtain, looking miserable and wearing a pad that had not been changed. She said to her children, “We are taking Daddy home”, and smuggled him out of the hospital.