Care Bill [Lords]

John Bercow Excerpts

Monday 10th March 2014 Commons Chamber

[Paul Burstow (Sutton and Cheam) (LD)]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 2—Review of the case for establishing a commissioner for older people in England

‘(1) The Secretary of State shall establish an independent review of the case for establishing a statutory office of Commissioner for Older People in England.

(2) The review will consider the—

(a) increasing diversity of the older population in England;

(b) UN Principles for Older Persons in 1991 (UN 1991) and other relevant developments in international policy on ageing;

(c) lessons from the establishment of such offices in Wales and Northern Ireland;

(d) balance of advocacy, investigatory and enforcement duties and powers to be granted to the office in statute;

(e) jurisdiction of the office in relation to other public bodies;

(f) relationship of the office to Ministers;

(g) accountability of the office to Parliament;

(h) appointment of the office holder;

(i) human and financial resources necessary to support the office; and

(j) any other matters the Secretary of State sets out in the terms of reference of the review.

(3) The review will report and make recommendations to the Prime Minister, Deputy Prime Minister, Chancellor of the Exchequer and the Secretary of State by December 2014.’.

New clause 3—Duty to identify carers

‘Each NHS body in a local authority’s area, as defined in section 6(8), shall co-operate with the local authority to ensure that effective procedures exist to identify patients who are or are about to become carers and make arrangements for carers to receive appropriate information and advice.’.

New clause 4—Local authority duty to make reasonable charges

‘Where a local authority that meets an individual’s needs under sections 18 to 20 of Part 1 of this Act is satisfied that the individual’s means are insufficient for it to be reasonably practicable for the individual to pay the amount which would otherwise be charged, the authority shall not require the individual to pay more for it than it appears to them that it is reasonably practicable to be paid.’.

New clause 5—Portability of care

‘(1) The Secretary of State must prepare a report containing an assessment of what primary or secondary legislation would be required to ensure people in receipt of care and support in the community in the UK receive continuity of such care and support if they change their place of residence, with particular reference to moves between countries of the United Kingdom.

(2) The report under subsection (1) must be laid before each House of Parliament six months after this Bill receives Royal Assent.’.

New clause 7—Independent review of future demand for social care and healthcare

‘(1) The Secretary of State shall make arrangements for an independent review of, and report on, the likely demand for adult social care, public health and healthcare services in England over the next twenty years.

(2) The objective of the review mentioned in subsection (1) shall be to identify the key factors determining the financial and other resources required to ensure that social care and health functions as a cost effective, high quality, equitable, integrated and sustainable single system which—

(a) promotes individual well-being (as defined in Part 1 of this Act),

(b) enables access to be determined on the basis of need, and

(c) can meet forecast demand.

(3) The arrangements for the conduct of review shall include provision for a fully integrated modeling and analysis of health and social care including examination of—

(a) the technological, demographic and health status trends over the next two decades that may inform or affect demand for adult social care and health services;

(b) the inter-dependencies between adult social care, public health and healthcare and the appropriate balance between different types of intervention, in particular between:—

(i) health and social care,

(ii) primary and secondary care,

(iii) physical and mental health, and

(iv) treatment and prevention; and

(c) any other matter that the Secretary of State sets out in the review‘s terms of reference.

(4) The Secretary of State shall lay before each House of Parliament a copy of an interim report on emerging themes and trends identified by the first such review by the end of November 2014 and make arrangements for a consultation process to be undertaken in relation to those interim findings.

(5) The Secretary of State shall lay before each House of Parliament a copy of the final report by the end of July 2015.

(6) At no more than five year intervals, the Secretary of State shall make arrangements for the updating of the report of the review mentioned in subsection (1) with the same objective and approach as mentioned in subsections (2) and (3), and including such matters as are provided for in paragraph (3)(c), and shall prepare and lay before each House of Parliament a report on the outcomes.

(7) The Secretary of State shall prepare and lay before each House of Parliament, as appropriate, a statement on the extent to which the reports mentioned in subsections (1) and (6) inform the Government‘s wider fiscal and economic strategy and decisions in each public spending review.’.

New clause 9—Reporting on the funding for new costs arising from the Care Act

‘(1) The Joint Care and Support Reform Programme Board must inform the Secretary of State by an annual written report that it is satisfied whether sufficient funding is in place to ensure that social care is adequately funded and that the provisions in the Act can be implemented satisfactorily.

(2) In subsection (1), the “Joint Care and Support Reform Programme Board” means the board of that name consisting of representatives of (but not limited to): the Local Government Association, the Association of Directors of Adult Social Services and the Department of Health.

(3) The report mentioned in subsection (1) should include a statement of the satisfaction of the Joint Care and Support Reform Programme Board with (but not limited to)—

(a) adequacy of the funding of the provisions in this Act,

(b) on-going costs of implementation,

(c) an additional five yearly review of the short and medium term cost of setting the eligibility criteria at the level set out in regulations.’.

New clause 11—Provision of certain care and support services to be public function

‘(1) A person (“P”) who provides regulated social care for an individual under arrangements made with P by a public authority, or paid for by a public authority, is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature in doing so.

(2) This section applies to persons providing services regulated by the Care Quality Commission.

(3) In this section “social care” has the same meaning as in the Health and Social Care Act 2008.’.

New clause 13—Deferred payment data

‘The Health and Social Care Information Centre shall make arrangements to collect and publish data including, but not limited to—

(a) the number of individuals entering into a deferred payment arrangement,

(b) the proportion of those individuals who received—

(i) regulated financial advice,

(ii) other forms of advice, and

(iii) no advice

before entering into a deferred payment arrangement,

(c) the average length of time a deferred payment arrangement is held,

(d) the numbers of individuals holding such arrangements broken down by different periods of time held, and

(e) the amount of money deferred under such arrangement.’.

New clause 15—National framework for local authority fees for care providers

‘(1) The Secretary of State shall establish an indicative national formula with which local authorities shall determine the costs of care provision in their area.

(2) In having regard to the matters mentioned in section 5(2)(b), a local authority must derive fee levels for independent providers of care and support services from the formula mentioned in subsection (1).

(3) The Secretary of State shall make arrangements for the audit of local authority fee levels to determine their compliance with the duty mentioned in subsection (2) and the extent to which this contributes to the effective delivery of the requirements of section 5(2), with particular reference to paragraphs (b), (d), (e) and (f).

(4) The formula in subsection (1) shall be made by regulations laid in pursuance of section 123(4) of this Act.’.

New clause 17—Duty to review economic, financial and other factors affecting provision of care services

‘(1) The Secretary of State shall make arrangements for—

(a) a review of the economic and financial factors affecting the employment (including recruitment, training and development, effective deployment and retention) of care workers and the extent to which current policies, mechanisms and relevant compliance by regulated providers of care services make it more or less likely that the objectives of this Act will be realised; and

(b) a public consultation on the conclusions and recommendations of the review.

(2) The Secretary of State shall lay a report of the review and public consultation before each House of Parliament by 1 September 2014.’.

New clause 18—Impact of working conditions on quality of care

‘(1) In exercising their functions under Part 1 local authorities must assess and consider how working conditions for people employed in care and support services impact on the fulfilment of local authority duties under Part 1 of this Act.

(2) “Care and support services” means—

(a) services provided by a local authority; and

(b) services commissioned by a local authority.

(3) Regulations may specify particular matters local authorities must have regard to in relation to subsection (1).’.

New clause 19—Promoting health of carers

‘(1) In exercising their functions health bodies shall—

(a) promote and safeguard the health and well-being of carers;

(b) ensure that effective procedures exist to identify patients who are or are about to become carers;

(c) ensure that appropriate systems exist to ensure that carers receive appropriate information and advice; and

(d) ensure that systems are in place to ensure that the relevant general medical services are rendered to their patients who are carers.’.

New clause 20—Local authorities: duties with respect to young carers

‘(1) A local authority must ensure that it takes all reasonable steps to ensure that in relation to—

(a) any school within its area and under its control; and

(b) any functions it discharges in pursuance of its responsibilities as a children’s services authority, there is in place a policy that both identifies young carers and makes arrangement for the provision of support for pupils who are young carers.

(2) In discharging its duty under subsection (1), a local authority must have regard to any guidance given from time to time by the Secretary of State.’.

New clause 21—Further and higher education: duties with respect of student carers

‘(1) The responsible body of an institution to which this section applies must identify or make arrangements to identify student carers and have a policy in place on providing support for student carers.

(2) This section applies to—

(a) a university;

(b) any other institution within the higher education sector; and

(c) an institution within the further education sector.

(3) A responsible body is—

(a) in the case of an institution in subsection (2)(a) or (b), the governing body;

(b) in the case of a college of further education under the management of a board of management, the board of management; and

(c) in the case of any other college of further education, any board of governors of the college or any person responsible for the management of the college, whether or not formally constituted as a governing body or board of governors.’.

New clause 22—Duty for Financial Services Consumer Panel

‘(1) The Financial Services Consumer Panel at the Financial Conduct Authority shall have a duty to review the availability, quality, adequacy and effectiveness of financial advice being provided to care users and their families on the implications of the relevant provisions of this Act, and make an annual report thereon to the Secretary of State containing recommendations for steps to take to remedy any deficiencies identified by the Panel.

(2) The Secretary of State shall lay a copy of the report mentioned in subsection (1) before each House of Parliament. The first such report must be so laid within 12 months of this Act receiving Royal Assent.’.

New clause 23—Financial advice for care users: qualification to provide

‘(1) The Financial Conduct Authority shall prepare and conduct a review of the implications of the relevant provisions of this Act for—

(a) training and development; and

(b) the level of the required qualifications

for advisers seeking licences to provide financial advice to care users and their families.

(2) The Authority shall submit a report of the findings of the review mentioned in subsection (1) to the Secretary of State, along with recommendations.

(3) The Secretary of State shall lay a copy of the report mentioned in subsection (2) before each House of Parliament. The first such report must be so laid within 12 months of this Act receiving Royal Assent.’.

New clause 24—Public awareness

‘(1) Local authorities shall have a duty to prepare, publish, consult on and implement a plan for raising and maintaining awareness amongst the residents of their areas of the arrangements for social care, and in particular of any changes to such arrangements brought about by Part 1 of this Act.

(2) The Secretary of State shall prepare and lay before each House of Parliament an annual report on the level of public awareness and understanding of the arrangements for social care, in particular—

(a) awareness and understanding of the changes brought about by the provisions of this Act; and

(b) the effectiveness of local authorities’ implementation of their plans for raising public awareness in their areas.’.

New clause 26—Declassification of a police station as a place of safety for the purposes of section 136 of the Mental Health Act 1983

‘(1) The definition of a place of safety in section 135(6) of the Mental Health Act 1983 shall no longer be read to include a police station for the purposes of section 136 of that Act.

(2) With regard to persons removed to a place of safety under section 136(1) of the Mental Health Act 1983, subsection (1) above shall have effect from—

(a) 1 April 2015, where such a person is aged 18 years or under; and

(b) 1 April 2017, where such a person is aged over 18 years.

(3) By 31 March 2015 the Secretary of State shall prepare and lay before each House of Parliament a report setting out the progress made by that date towards fulfilling the objective set out in subsection (1) above.’.

New clause 31—Register of persons who provide regulated social care

‘(1) Health Education England must make arrangements for the compilation, publication and maintenance of a register of persons as set out in section [Provision of certain care and support services to be public functions] who provide regulated social care for an individual under arrangements paid for by a public authority that have undertaken education and training in accordance with the duty set out in section 95.

(2) This duty may be delegated by HEE to Local Education and Training Boards established under section 101.’.

New clause 32—Funding and remuneration of home care workers

‘(1) The Secretary of State shall establish an independent review of the funding and remuneration of home care workers with a view to a report making recommendations regarding—

(a) hourly salary,

(b) remuneration of travel time,

(c) remuneration of travel costs,

(d) minimum time required properly to fulfil each of the care tasks and duties to be performed,

(e) establishment of an efficient means of recording arrival and departure times at residential settings, and

(f) the charging basis of the agency employing the care worker with a view to ensuring that all the costs of providing for (a) to (e) above are adequately met.

(2) The Secretary of State shall lay a copy of the report of the review mentioned in subsection (1) before each House of Parliament.’.

Amendment 26, in clause 1, page 2, line 5, at end insert—

(j) the right to living independently and being included in the community.’.

Amendment 21, in clause 5, page 6, line 2, leave out from ‘must’ to end of line 4, and insert—

‘(a) have regard to the need to ensure that sufficient services are available for meeting the needs for care and support of adults in its area and the needs for support of carers in its area; and

(b) ensure that the fee levels provided to independent providers for the delivery of care and support services are derived from a national formula which determines the accurate cost of care in each local authority area, the result of which will mean that the provisions of paragraphs (2)(b), (d), (e) and (f) can be delivered effectively.’.

Amendment 20, in clause 12, page 11, line 31, at end insert—

‘(aa) require the local authority, when carrying out the assessment, to capture an individual’s main and other disabling conditions.’.

Government amendments 1 and 2.

Amendment 31, in clause 24, page 22, line 39, at end insert—

‘(3A) The Secretary of State shall, after suitable consultation, establish by regulation a specified timeframe for the conclusion of the steps required of local authorities by virtue of this section.’.

Government amendment 3.

Amendment 32, in clause 27, page 25, line 8, leave out ‘keep under review generally’ and insert ‘review regularly’.

Amendment 33, page 25, line 42, at end insert—

‘(5A) The Secretary of State shall, after suitable consultation, establish by regulation appropriate arrangements and timetable for the regular review of care and support plans and of support plans by local authorities provided for in subsection (a).’.

Government amendments 4 and 5.

Amendment 27, in clause 42, page 38, line 24, at end insert—

‘(2A) There are different types of abuse, as defined in guidance.’.

Amendment 28, page 38, line 29, at end add—

‘(4) A relevant partner, as defined in section 6(7) has a duty, where it has reasonable cause to suspect a person is an adult at risk of abuse or neglect, and the adult appears to be within the local authority’s area, to inform the local authority of that fact.’.

Government amendments 6 and 14.

Amendment 22, in clause 76, page 69, line 33, after ‘adults’, insert ‘and children’.

Amendment 23, page 69, line 37, after ‘adults’, insert ‘and children’.

Amendment 24, page 69, line 42, after ‘adults’, insert ‘and children’.

Amendment 25, page 69, line 44, after ‘adults’, insert ‘or child’.

Government amendment 7.

[Paul Burstow]

I hope that the House will forgive my having a number of new clauses to explain in the time available to discuss part 1 of the Bill. I will try to crack on as quickly as possible to explain the thinking behind each of them. I will do so not in numerical order, but in order of importance, starting with the new clauses on which I particularly want to hear the Minister’s response.

First, I wish to discuss new clause 11, which deals with the Human Rights Act 1998 and its application to social care. The Act has enormous potential to improve the lives of those most vulnerable to human rights abuses in social care settings. People who are being provided care in their own homes or in care homes face risks in respect of their privacy, their family life, being safe and not suffering degrading treatment. Such matters are all very much at the heart of how we ensure that we provide dignified care.

I am sure that the Minister knows, as do other hon. Members, that a loophole has opened up in our law as a consequence of a judgment made by the courts some years ago. It arose in 2007 following the decision by the House of Lords in the YL v. Birmingham city council case. The Law Lords held that a private care home providing residential care services under contract to a local authority was not performing a “public function”, so its residents were excluded from the protections of the Human Rights Act. In practice, that means that domiciliary care users, or their families or carers, can complain to the care company, depending on the terms of their contract, but in many cases they will not be able to take their complaint any further. Contractual terms and conditions are important, but they can often fail to give the protection that we would want to see, and residents in care homes have no security of tenure and are often afraid to complain because of fear of eviction. Many people with care needs face additional challenges asserting their contractual rights, particularly if they lack the capacity to do so because of dementia or learning disabilities.

The decision that private and third sector care home providers were not directly bound by the Human Rights Act meant that thousands of service users had no direct legal remedy to hold their providers to account for abuse, neglect and undignified treatment, even though the public body commissioning those services remains bound in law by the Human Rights Act. There is need for change in this area. The loophole was partly closed by the previous Government, with cross-party support, through section 145 of the Health and Social Care Act 2008, which covers residential care services. However, under changes that this Bill will introduce, it will need to be reinstated by order, but there is a far better and more elegant way in which that could be done—by implementing new clause 11.

New clause 11 seeks to clarify the law so that all providers of publicly arranged or paid-for care are within the scope of the Human Rights Act. Service users who experience serious human rights abuses will then have direct means of legal redress. However, this is not just about going to law; it is about what goes on in the hearts and minds of those organisations and the attitude they take towards how they provide services, so the Human Rights Act has a part to play in culture change as well. For example, the Act has been successfully invoked in an argument about a local authority’s refusal to place a married couple in the same nursing home.

The Government have accepted that there is a loophole, and we very much welcome that. We raised the matter during consultation on and scrutiny of the draft Bill, and we offered up a suggestion, which their lordships adopted. In response to the Joint Committee, the Minister told us that organisations that were not covered by the Act should none the less consider themselves bound by it. Lord Hope, the recently retired Deputy President of the Supreme Court had this to say about that:

“Comments of the kind that were made, that people should consider themselves bound by a convention right, however well intentioned, do not have the force of the law”.—[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 549.]

That is why we need to give it the force of law, which is what new clause 11 attempts to do. It puts back the law to where Members of all parties expect it to be, and ensures that a poor judgment by the court is corrected.

New clause 1 deals with the issue of power of access. Last week, I handed in a letter to the Prime Minister, setting out the case for the measure. It was signed by 602 organisations and individuals, including Age UK, Mencap, the National Autistic Society and many others with expertise in the area of adult safeguarding. They all share a common concern that there is a gap in the law when it comes to protecting vulnerable people who have the ability to make decisions for themselves but who are living in a home with someone else who is abusing them or neglecting them and who is denying them, because of their ability to exert their authority over that person, the ability to get the protection that they need. The Law Commission took that view in its review of mental capacity legislation, and the Equality and Human Rights Commission also took that view in its analysis of the legislation.

In our debates in Committee, my hon. Friend the Minister of State said that when officials were asked to provide the evidence behind their advice that the new power was unnecessary, there was an opaqueness surrounding the issue. There was not the necessary level of clarity to understand what powers could be used and in what scenario. I must say to the Minister that the scenarios that have been offered up to justify the position that there is no need for legislation do not address the circumstance that I and my new clause 1 seek to address. I am talking about someone who legally has capacity but who is under duress and unable therefore to exercise their individual right to seek protection. As a consequence of that, we need this power.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment (a) to Government new clause 34, in subsection (3), after ‘of’, insert ‘improving’.

Amendment (b) to Government new clause 34, in subsection (3), after ‘adult social care’, insert

‘; and if it has satisfied itself that the recipient is competent to handle the data in compliance with all statutory duties and to respect and promote the privacy of recipients of health services and adult social care.”.’.

New clause 25—Misuse of data provided by the Health and Social Care Information Centre: offence—

‘(1) A person or entity commits an offence if they misuse, or negligently allow the misuse of information they have requested and received from the Health and Social Care Information Centre.

(2) “Misuse” means—

(a) using information in a way that violates the agreement with the Health and Social Care Information Centre;

(b) using information in a way that does not violate the agreement with the Health and Social Care Information Centre, but that gives rise to use that is outside the agreed limits of use; or

(c) using information supplied by the Health and Social Care Information Centre in such a way as to allow or enable individual patients to be identified by a third party.

(3) A person who is guilty of an offence under subsection (1) is liable—

(a) on summary conviction, to an unlimited fine;

(b) on conviction on indictment, to imprisonment for not more than two years or a fine, or both.

(4) An entity who is guilty of an offence under subsection (1)—

(a) is liable to an unlimited fine; and

(b) must disclose the conviction on all future applications to access data from the Health and Social Care Information Centre.’.

Government amendment 8.

Amendment 29, in clause 116, page 100, line 29, after ‘Authority’, insert

‘and the Secretary of State’.

Government amendments 17, 18, 15 and 16.

[Dr Poulter]

The Government are fully committed to the care.data programme and to the core principles that underpin its use, which are to present and promote transparency in the quality of health and care services to patients and the public, while protecting their privacy and confidentiality; to promote health and care research to help us to understand how to fight disease, cure illness and improve care; and to better integrate health and care services by using the data and information to understand what good, joined-up and integrated care looks like.

--- Later in debate ---

[Barbara Keeley]

On a point of order, Mr Speaker. I understood that this debate was scrutiny of the remaining stages of an important Bill. The Minister seems to be reading his speech into the record, which for me does not stack up as a debate on the remaining stages of a very important Bill, and an aspect of it—care data—that is crucial to every NHS patient in the country.

[Mr Speaker]

The Minister is certainly in order and there is a continuation of Report stage tomorrow. I am sure he will want to be sensitive to the fact that other Members wish to contribute.

[Dr Poulter]

Indeed, Mr Speaker, and I hope that other Members will also be sensitive to that. The more interventions I take, the less opportunities there are for Members to speak. I have been very generous. I have taken interventions on a number of occasions from those on the shadow Front Bench, and from the hon. Member for Worsley and Eccles South (Barbara Keeley) and others. I have been generous with my time, but I want to preserve time for other Members to contribute to the debate, as I see you are keen for me to do, Mr Speaker.

Although the HRA amendments are important in ensuring that its remit is clearly and accurately defined, it will be able to work with those with an interest in children’s social care research when research crosses boundaries, to seek consistency in standards and to avoid unnecessary duplication.

Government amendments 15 and 16 are minor and technical. Amendment 15 is consequential to the addition of provisions on the better care fund—part 4—in Committee. It ensures that provisions on commencement cover the better care fund. Amendment 16 removes the privilege amendment inserted in the other place in accordance with the Commons’ sole privilege to deal with monetary matters.

The Government’s proposals ensure that we correct the difficulties we inherited from the previous Government in preserving confidential patient data. They ensure that we have in place a system in which NHS and care data must be used for the benefit of the health and care system and for public health purposes. They put us in a much better place to ensure that we enhance transparency and better use information to benefit patients. They ensure that we have a better basis on which to understand the basis of disease. If in the first place we had had the Health and Social Care Information Centre and the benefits we know will come from care.data, we would have been able to deal with and better combat many diseases while protecting patient confidentiality. We would have understood much more quickly the dangers of thalidomide and other drugs that were harmful to babies in utero. We would have been in a much better place to expose those examples of poor care, such as Mid Staffs; to develop national frameworks for treating diseases such as chronic obstructive pulmonary disease and heart disease; and to understand what good care looks like in the treatment of those conditions by collecting data in a fundamentally better and joined-up way.

The Health and Social Care Information Centre will, for the first time, provide us with a repository for joined-up, integrated data across health and care. Hon. Members often rightly talk of integrated care, and of the benefits of joining up health and care. Unless we have the data collected to understand what good integrated care looks like, and unless we understand what measures of integration are right, we will not be able properly to inform the debate on delivering integrated care or break down the silos that have sometimes existed to the detriment of patients across the health and care system. I hope hon. Members on both sides of the House can support that. I hope they decently recognise that this Government have put in place not just a patient opt-out if they do not want their data to be shared, but strong safeguards—much stronger safeguards than the previous Government —to protect patient confidentiality.

--- Later in debate ---

[Several hon. Members]

rose—

[Mr Speaker]

Order. One might have thought the intervention of the hon. Member for Copeland (Mr Reed) was exquisitely timed.

Bill to be further considered tomorrow.