Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

Lord Hunt of Kings Heath Excerpts

Wednesday 5th November 2014 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

At end insert “but that this House regrets that they undermine the protection of care home residents by removing current requirements in respect of complaints procedures, emergency procedures and choice of food”.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I should say right away that, overall, I welcome the thrust of these regulations. I am going to raise a number of points covered by my amendment to the Motion. I do so on the basis of broadly accepting the point raised by the Minister in relation to the CQC’s role and the way in which it is performing. However, there is particular concern about residents in care homes and the impact of the regulations which I would like to put to the Minister. My real concern is in respect of the three areas mentioned in my amendment in that, far from enhancing quality and public safety, the regulations actually reduce current protections in relation to complaint systems, food and emergency procedures.

I listened with great care to the Minister. He prayed in aid the remarks of Sir Robert Francis, and I will come back to them in a moment, but can the Minister also confirm that, in a sense, the regulations are a victim of the Government’s desire for lighter-touch regulation? The CQC clearly has a critical role in protecting some of the most vulnerable citizens in our country. This is not the moment for lighter-touch regulation. On any count, knowledge of the complaints system is important, particularly in view of concerns about standards of care in the health service and in many care homes. The current regulation states that the registered person must,

“bring the complaints system to the attention of service users and persons acting on their behalf in a suitable manner and format”.

The regulation goes on to require that,

“service users and those acting on their behalf,

are provided,

“with support to bring a complaint or make a comment, where such assistance is necessary”.

My understanding is that the Minister’s department is briefing that the new regulations are more outcome-focused and less specific about processes. However, if being less specific about processes means not telling people about them, it meets that test, I suppose. I also understand that his department is briefing that having an accessible and open culture is the same as having a specific duty to inform people about the complaints procedure.

However, the point I should like to put to your Lordships is that most residents and relatives have little idea of what to expect from a care home. Surely it is a relief to relatives and advocates when they are informed about these rights. It makes it easy for them to raise questions about care, knowing that that the regulations have the force of law and the matter cannot simply be left to local discretion. Few people comparing the two sets of regulations on rigour about complaints could argue that the proposed replacement is an improvement.

If one considers the tragic case of Winterbourne View—which I suspect a number of noble Lords will refer to—and other reports and the reports of the Health Service Commissioner, they continually emphasise that many providers’ stances on complaints are not fit for purpose. We know in relation to NHS complaints that there are continuous problems about people wondering whether they really can use them effectively. Almost all recent major care scandals have had their roots in people not being listened to or not knowing that they can complain. That is the basis of my major concern about these regulations.

Having emergency procedures in place seems pretty important, too. I do not understand the logic of deleting this important regulation. It may be that the Minister will say that it is covered by the new Regulation 17, but that states merely that, as part of good governance, the provider must establish systems or processes which enable the registered person to,

“assess, monitor and mitigate the risks relating to the health, safety and welfare of service users and others who may be at risk which arise from the carrying on of the regulated activity”.

That could easily be interpreted by providers to mean the normal, day-to-day risk assessments that they are required to carry out. I remind the Minister that care homes are pretty fragile organisations, often with very few qualified staff, and a significant proportion are without managers in place. That is why it would be much better to be absolutely explicit that emergency procedures should be in place.

--- Later in debate ---

I hope that I have been able to reassure the noble Lord, Lord Hunt, and all other noble Lords who have spoken sufficiently to make them feel confident that these regulations are the right way forward. I hope that the noble Lord will see fit to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to all noble Lords who have taken part in this short but very interesting debate. I say to the noble Baroness, Lady Barker, that I agree with her on the importance of the duty of candour. We do not really have time to discuss this in detail, but alongside a statutory responsibility on duty of candour there is a need to address culture, particularly within the National Health Service. I am not convinced that the current regulators are helping the duty of candour. I think that we have a blame/risk-averse culture currently operating in the health service which is often driven from the centre. Alongside a duty of candour, we have to look at the need to change the culture to one which is far more collaborative in support of organisations dealing with very difficult issues.

I agree with the noble Baroness, too, on power of entry. Her point on prosecutions being based on breach of regulations was important, which is why the language is so important.

The Minister said that this was not a deregulatory measure. I presume that he is saying that the Department of Health is not chalking it up to the Cabinet Office as an example of deregulatory action. However, we have all had experience of deregulatory approaches taken by Governments and I have to say that some aspects of these regulations seem to have been influenced by a deregulatory approach—I know that the Minister rather chided my noble friend on this point. In the end, some regulations are essential and sometimes advice and guidance alone are simply not sufficient. The noble Baroness, Lady Howarth, acknowledged that there are strengths in the regulations, and I do not disagree with her about that. Sometimes there is a need to use regulations to be absolutely clear to those who are providing services and those receiving them. That is the case when it comes particularly to issues around food choice, emergency procedures and complaints.

The Minister explained why the Government have gone for what they describe as an outcome-based approach—I understand that—and he then quoted to us Regulation 17(2)(e), which states that the providers must,

“seek and act on feedback from relevant persons and other persons on the services provided in the carrying on of the regulated activity, for the purposes of continually evaluating and improving such services”.

That is elegantly written, as one would expect from his department, but it does not say to me that residents are going to be told how to make complaints. Let us think not about the chains but about the individually owned care home. I really doubt whether that would be very clear to the people in charge. It would have been better if it were explicit in the regulations.

I was going to ask the Minister if he would ensure that the CQC read the debate, but I am grateful to him for already giving us that assurance. I hope that when CQC inspectors go into care homes, they are clear that the regulations mean that there should be a proper choice of food, people should have complaints systems signposted to them, and there should be an emergency procedure in place.

This has been a very useful debate. I will withdraw my amendment. I wish the regulations godspeed. I support the CQC in its approach, but, when it comes to care homes, the CQC needs to be explicit both to the homes and the inspectors about the basic standards that need to be provided.

Amendment to the Motion withdrawn.