Care Bill [HL]

Baroness Wheeler Excerpts

Monday 14th October 2013 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, this large group of amendments reflects issues that we covered extensively in Committee. We largely support the amendments as they address the suitability of the extent to which friends and family should be acknowledged in the process of assessment of the needs of adults, carers and young carers for care and support.

The group includes amendments on young carers’ support and assessment needs in relation to the Care Bill and its interface with the Children and Families Bill, about which I spoke last week. I do not intend to go into this issue again, other than to stress our support and relief that young carers are recognised in a joined-up way in both Bills. In particular, we welcome the safeguard in this group of amendments, which ensures that local authorities are able to combine assessments relating to adults being assessed with assessments relating to young carers only with the consent of both. The new provisions also make it explicit that it will be possible to join up care plans with other types of care plan only with the consent of the relevant parties, and we welcome this too.

We were very concerned that as originally drafted, Clause 9, which sets out the assets-based approach to assessment, could have been misinterpreted and used to push greater responsibility for meeting needs from the local authority to carers, family and friends. It blurred the distinction between an assessment being about what the needs are and the ways of meeting them by looking at how needs are met by other ways through the provision of services before any decision about eligibility has been made.

Thankfully, the Government’s amendments addressing this problem are now more in accord with the Law Commission review of adult social care legislation, which made a clear distinction between consideration of care and support needs and how the needs should be met. On specialist assessments, we are pleased to see the amendments upholding the current practice and guidance, which provide for assessments to be undertaken by people with expertise. It is an issue on which the House expressed itself very strongly, especially the need for specialist assessors in the case of people with complex health or mental health needs. The noble Lord, Lord Low, and the noble Baroness, Lady Meacher, have set out these issues again today very clearly, and I look forward to the Minister’s response to their questions on the outstanding issues.

Finally, I support the intention of my noble friend Lord Dubs in Amendment 60 to ensure that the care and support plan provides contingency planning for an emergency, such as the carer suddenly being ill or unable to provide care. The self-directed assessment model does include discussion on contingency and risk but the extent to which clear provision is covered in the care and support plan is patchy. Indeed, it is not always easy to be specific about what would happen because often the reality is that instant emergency cover is hard to organise when relatives live a considerable distance away or the cared-for person is not able to summon up emergency help. My noble friend is right to reinforce the point about the need for emergency contingency planning, especially where people have fluctuating health conditions, such as MS, rheumatoid arthritis and HIV.

In Amendment 61, my noble friend also underlines the importance of including a review date in the plan. It would be very valuable to require social services departments and providers to be clearer about not just the review date for the plan but what the monitoring and review process is and what kind of client feedback or complaints process there would be, as well as client-carer involvement in assessing quality of care and standards of service. I suspect that very few care plans currently measure up to these requirements and I would be grateful if the Minister could tell me what requirements the Government will place on local authorities and commissioners in this respect.

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[Lord Mackay of Clashfern]

My Lords, I very much welcome government Amendment 57. Of course, I have supported the recommendation of the Joint Committee on this matter, and continue to do so. Subsection (a) of Amendment 137 is important as a way forward. However, the difficulties to which the noble Baroness, Lady Finlay, has referred, are quite important in this connection. Many people in terminal situations would find a hospice one of the best places to go if that choice were open to them. Many people, of course, would prefer to die at home in a family situation. The hospices are normally able to engender a family atmosphere around death. People I have spoken to in the hospices have said, “If you have to die, this is the place to do so”; the “if” is not all that important.

There are practical questions to be taken into account, but it would be quite a step forward if the Government were able to come forward at Third Reading with an amendment which allowed some form of indication of the place of care, as the noble Baroness, Lady Finlay, says, or the place where one would wish to terminate one’s life in a way that was registered, so that those responsible would be able to give effect to it, so far as is possible, having regard to the changes that can take place in the last few months, days and hours.

[Baroness Wheeler]

My Lords, we welcome another opportunity to consider the very important issue of how people are cared for at the end of their life. The Joint Committee on the Bill urged progress on this vital matter and strongly endorsed the case for the introduction at the earliest opportunity of free social care for terminally ill people. In this context, the Government’s amendment is very much work in progress as it makes explicit the local authority’s power to treat end-of-life care as urgent, in a similar way to how fast-tracked access to welfare benefits such as the disabled living allowance is expedited and works in practice under other legislation, which the noble Baroness, Lady Finlay referred to. The amendment makes it clear that local authorities have the ability to consider the needs of terminally ill people as urgent and to meet their needs ahead of conducting assessments.

We welcome this provision. Many councils already fast track social care in this way, and I hope that this amendment will give those councils that do not the push and impetus that they need to take up this very self-evident and fundamental requirement. The new clause in the Bill is rightly welcomed by the Sue Ryder Foundation, Help the Hospices and Macmillan Cancer Support. However, as Macmillan also points out, the provision is permissive and does not legally require local authorities to meet a terminally ill person’s need for care and support without a needs or financial assessment.

We recognise that there is still much work to be done on this matter. The Government are currently undertaking a review and refocus of the end-of-life strategy and I read in the press over the summer that it was shortly to be published. It is now six years since the strategy was introduced under Labour so I would be grateful if the Minister could update the House on the timetable for that.

As we recognised during the debate in Committee, the results of the seven adult and one children’s palliative care pilots will be crucial to considering the move towards the provision of free end-of-life care as called for by the Joint Committee and as set out in Amendment 137 in the name of my noble friend Lord Warner, supported by the noble Baroness, Lady Greengross, and the noble Lord, Lord Patel. We need to understand current patterns and resource use across health and social care at the end of life, and to have the vital data—from across care provided by the NHS, social care, and the voluntary and private sectors—from which the costs of an integrated end-of-life care system can be properly assessed. The Minister reassured the House that the pilots are on track, despite the handover of responsibility to NHS England and concerns that the work was falling behind. We certainly hope that this is the case as the pilot findings will be so important to how future services can be shaped and delivered.

We acknowledge and share the Government’s concerns about the issues raised in Amendment 137 that the infrastructure may not be in place to support people’s preferences about where they wish to die; commissioners need to be sure that the right services are in place in the community to support people being looked after in their home. My own party is currently working on this as part of our policy review and whole-person care commission, and I know that my noble friend Lord Warner’s contribution to that work will be much appreciated and valued. Enabling NHS patients to have the right to die in the place they regard as home or their normal residence can be achieved only if end-of-life care is fully integrated across the NHS, local councils and hospices, to foster mechanisms to make it achievable and not simply an aspiration.

Once again, the position of carers of people who are terminally ill, as well as those they are caring for, needs to remain to the fore when we are looking at this matter. In Committee my noble friend Lady Pitkeathley cited the Carers UK survey that showed just how much more support is needed for carers to help them think and plan for the end of life of the person they are caring for—something that we can and should be taking action on now. Many carers just do not know how to plan for the death of a loved one and how to try to look ahead when caring ends—returning to or taking up work, social contact and managing financially.

One of our bereaved carers I spoke to recently through our local Carer Support Elmbridge had had a nightmare experience over funding and not being able to ascertain who was paying for what in the transition from social care to NHS continuing care before her husband died. This included two months’ overpayment by social services, which had to be sorted out after the death, at a time of great anxiety about family finances. To add to this, an ambulance turned up two months after her husband’s death to take him to his routine blood test at the local hospital. Your Lordships can imagine how devastating this experience was for the carer. Sadly, this is not an isolated case, and an integrated end-of-life strategy has to make sure that these things do not happen.

Finally, in Committee I raised the issue of access to palliative care and end-of-life care for BME groups following the recent and alarming findings of the Marie Curie Cancer Care and Public Health England survey and the shockingly low use of these services among black, Asian and ethnic minority groups. The report identified major problems involving lack of knowledge about services, misunderstanding, mistrust and a lack of cultural sensitivity on the part of providers. In his August letter to noble Lords, the Minister referred to the work that NHS England is undertaking on this in conjunction with palliative care pilots. Will the Government be responding specifically to the Public Health England report, or is it part of the strategy review and refocus? Will the Minister set out for the House the Government’s outline timetable for the review and publication consultation, the timing of the publication of the pilot’s results, as requested by my noble friend Lord Warner, and the introduction of the new funding system for palliative care as promised for 2015?

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[Baroness O'Loan (CB)]

My Lords, I support my noble friend’s amendments, particularly because of their implication for human rights. Care and support for many older people and for disabled people underpin and enable the enjoyment of those rights. They make possible a decent life of dignity; they make possible the ability to enjoy family life, for example. Ensuring that people can continue to pursue the life that they have and that they want, with no lessening of support when they move, is crucial. I therefore warmly support my noble friend’s amendment on equivalence of outcomes. When considering the process for people moving from one local authority to another, we must consider particularly the right to freedom of movement for older and disabled people. I believe that my noble friend’s amendment on the process for ensuring no gap in services during a move guarantees such freedom on an equal basis with others.

[Baroness Wheeler (Lab)]

My Lords, these are mostly technical amendments, which we support. We are especially pleased that the concerns and proposed improvements to the portability process put forward by the noble Baroness, Lady Campbell, are addressed in the amendments in this group. We need to do as much as possible to reduce the likelihood of the person not having services on the day of the move to the new authority.

Continuity of care is critical to portability, and the requirement placed on the first authority to keep in touch with the second in the period leading up to the move to ensure that services are in place and ready, and that the person is kept informed and up to date, is very important for a safe and risk-free move. They are also required actively to ensure continuity of care until the new assessment is in place. That is absolutely right, as is the second authority being required to have regard to the outcomes that the person wishes to achieve in the care and support plan that they had before the transfer.

I congratulate the noble Baroness on having finally achieved most of what she set out to in her own Private Member’s Bill. As she said earlier, workable continuity of care is within sight. Her tenacity and determination will mean that many people will now be able to make the move to different parts of the country, to be closer to their families or to care and support that they have not previously been able even to contemplate.

We support the government amendments dealing with cross-border issues with Wales. They follow extensive discussion and agreement with the Welsh Government. The Minister’s detailed correspondence to noble Lords explaining the purpose of the amendments in relation to such key issues as arbitration on cross-border disputes, responsibility for mental health aftercare and sorting out direct payments for this care and residential care to reflect recent change of practice in England was very helpful to the House in getting the full picture of the proposed changes.

In respect of the amendments on ordinary residence, NHS accommodation placements, cross-border hospital stays and the need to ensure that the Care Bill provides for accommodation provided under the Welsh, Scottish and Northern Ireland legislation, the Minister’s note of last week emphasises that all changes have been agreed with each of the devolved Administrations, and obviously that is as it should be. Are the provisions for four-way reciprocity on cross-border placement in England, Wales, Scotland and Northern Ireland now fully in place with these amendments to the Bill, or does more work need to be undertaken as the detail is worked through further?

Specifically on government Amendment 64, I understand that the LGA and ADASS are looking to model the impact of a person’s place of residence on the cost pressures within the social care system. To assist this work, which will be very valuable to the whole House, will the Government now publish the information that they have on the impact of cost pressures on extending the territorial reach of the Bill into Wales?

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I say to the noble Baroness, Lady Meacher, who opposes Amendment 79, that the first time anybody talked to me about elder abuse—I was sitting in a hall with a bunch of colleagues—they impressed on us above all that there is carers’ stress and there is elder abuse, and that they are two completely different things. We are not talking about penalising carers who are stressed; we are talking about taking proper action against people who are perpetrating criminal abuse on vulnerable people. That is a wholly different thing. That is why the noble Baroness, Lady Greengross, is right.

[Baroness Wheeler]

My Lords, in addressing these amendments I once again emphasise that we very much welcome the placing of safeguarding on a statutory footing in the Bill, and the establishing of statutory safeguarding adults boards. This builds on the legislation, regulations and advice on principles and frameworks for safeguarding for both adults and children that we established up to 2009, which are now being taken forward in the Bill.

The noble Baroness, Lady Greengross, and other noble Lords, again made a comprehensive case for granting the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. The noble Lord, Lord Rix, spoke of “mate” relationships among people with learning difficulties. It was a powerful example of what we need to address.

We know that there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions, and patients and user organisations on this sensitive and complex issue. However, we have to remember that the Government's consultation had a relatively low response, particularly in terms of local council and NHS trust participation. On top of that, many of the consultation responses appeared not to have fully understood the limited nature of the change that was being proposed: namely, that the new power would apply only to situations where it is the third party who is denying access, not the individual.

The noble Baroness’s amendment sets out tough limitations and restrictions that would apply to such a power. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone was in danger of abuse. The power of access would be to enable the local authority to access the person and speak to them alone to assess the situation. It is clear that it is intended as a last-resort power to address third-party denial of access to a vulnerable adult, for use after all other efforts and mechanisms have failed.

Getting the balance right between proactively intervening in the lives of individuals in this way and limiting the extent to which this interferes with their rights to freedom and family life is the challenge that we face. Certainly there is widespread acceptance that the existing powers to intervene under government legislation are not being fully utilised and are not addressing the issues, and that the training of specialist staff needs urgently to address this. Will the Minister explain to the House how the Government intend to deal with this?

As we said in Committee, on balance we support the case for inclusion in the Bill of the power of access by a social worker or the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment of the noble Baroness, Lady Greengross. We recognise that safety should be paramount in this instance. However, we recognise the strong concerns of Mind on this issue, and of the Royal College of General Practitioners, which would prefer to use other powers, such as working with the sector to co-produce best-practice guidelines. Will the Minister explain how the Government propose that denial of access by a third party to a potentially vulnerable adult will be addressed if the issue is not dealt with in the Bill?

I support the intention of Amendment 79A, tabled by the noble Lord, Lord Rix, to include in the Bill a definition of abuse that reflects other types of abuse besides the financial abuse currently included in the Bill. The noble Lord has the very real concern that this would encourage hard-pressed local authorities to narrow their focus to financial abuse alone. The Confidential Inquiry into Premature Deaths of People with Learning Disabilities published its findings in March 2013. It looked at the deaths of 233 adults and 14 children with a learning disability in the south-west and found that 20% of the people concerned had experienced safeguarding concerns. While some of these may have been due to financial abuse, it is more likely that they concerned other forms of abuse: in particular, neglect. The study showed that 37% of deaths would have been potentially avoidable if good-quality healthcare had been provided. Neglect is undoubtedly one of the reasons, and thus the definition in the Bill should be broadened. I ask the Minister to look again at this and come back with a more balanced clause reflecting other types of neglect and abuse. It is important, for example, that hospital safeguarding leads should be clear that the definition is broad, and should take appropriate action.

The noble Lord’s Amendment 81A would also be a welcome alteration to the Bill. It is a small but important matter, because sending SAB annual reports to the Secretary of State will ensure that safeguarding is given the high level of oversight needed, particularly over areas that might be failing.

We also support the amendments to Schedule 2 contained in Amendment 81 from the Government, and Amendments 80 and 82 from the noble Baroness, Lady Greengross. The SABs would benefit from professional social worker representation, as would safeguarding adult review teams from having a qualified social worker supervising the review.

The two final amendments of the noble Baroness, Lady Greengross—Amendments 78 and 79—raise the important issue of establishing a new duty of care on a local authority or its relevant partner to report to the authority if they suspect that there is a failure of care, and to set out the terms of conviction for any person guilty of neglecting or ill treating an adult at risk of abuse. We share some of the concerns of the LGA, for example, on these amendments: namely, that there would need to be clarification of exactly what the care quality, professional practice and safeguarding concerns would be under the new duty, and how the duty would relate to other partners involved in service delivery. We also share concerns that while the criminal conviction provision may present the way forward in cases of neglect, it might unintentionally create a lower order of offence and tariff for older and disabled victims of crime.

Finally, I underline the vital need, when so much care now is contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister tell the House how the Government intend to ensure that this will happen?

[Earl Howe]

My Lords, for the first time the Government will, through this Bill, place adult safeguarding in primary legislation. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. This sends a clear message that safeguarding is not the sole responsibility of one agency but requires the very best of partnership working and information sharing. Amendment 77, which would introduce a power of access to a person for a confidential interview, runs counter to that message. Having said that, I am well aware of the strength of feeling in relation to this matter, both inside your Lordships’ House and elsewhere. Whether there ought to be a power of access or entry is a sensitive question. That is precisely why the Government launched a three-month consultation in 2012 to gauge the opinions of professionals and the public. The consultation revealed no clear consensus. Of 212 respondents, 50% backed a new power, with 40% opposed. However, among individuals, 77% disapproved. The majority of respondents in favour of a new power of access were health and care professionals, yet it was very noticeable that their responses revealed the painstaking weighing of potential benefits against unforeseen consequences.

The mental health charity Mind said:

“A power of entry risks being seen as a quick solution, in place of greater focus on community engagement, co-operation and a preventative approach that can be truly empowering to the people involved”.

This was a theme found in many responses. I stumble over the consequences of what the noble Baroness seeks to do. Here I respectfully but fundamentally disagree with my noble friend Lady Barker who said that there was no real comparison with the situation in mental health. A power such as this might well ensure access but the central issue will remain—how will the professionals then work with the situation to achieve the best outcomes? Trust will have been compromised and, short of a power of removal, which we certainly would not want to see, the options for action seem pretty limited.

Our consultation revealed no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unforeseen consequences. Proposed new Subsection 4(c) of the amendment states that an access order should be granted only if doing so,

“will not result in the person being at greater risk of abuse or neglect”.

I have to ask how a court could ever reliably make such a judgment in these circumstances.

The other key point which I would like to believe may sway the House is the following. There exists no legislative vacuum preventing care or other professionals accessing those in urgent need of assistance. Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises if harm has occurred or, indeed, is likely to occur. The Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005, provide a wealth of powers for use at the front line, and the inherent jurisdiction of the courts to intervene provides a secure safety net. Therefore, it is not the lack of legislation; rather, as safeguarding lead directors at ADASS have put it, it is a question of a “lack of legal literacy” within the social care and other professions. What is needed is greater knowledge of existing legislative options. If they have that, professionals will be fully equipped to support people to be safe. The core role of an adult social worker is to support people. Further legislation for a new power of access risks undermining this approach, sending the message that legal intervention takes primacy over negotiations and consensus. I stress that legal intervention, on those rare occasions when it is needed, is already possible under the law. For those reasons, I cannot accept this amendment.