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.