Care Bill [Lords]


The Committee consisted of the following Members:

Chairs: Hugh Bayley  , † Andrew Rosindell 

Abrahams, Debbie (Oldham East and Saddleworth) (Lab) 

Burstow, Paul (Sutton and Cheam) (LD) 

Doyle-Price, Jackie (Thurrock) (Con) 

Esterson, Bill (Sefton Central) (Lab) 

Griffiths, Andrew (Burton) (Con) 

Jones, Andrew (Harrogate and Knaresborough) (Con) 

Kendall, Liz (Leicester West) (Lab) 

Lamb, Norman (Minister of State, Department of Health)  

Lewell-Buck, Mrs Emma (South Shields) (Lab) 

Malhotra, Seema (Feltham and Heston) (Lab/Co-op) 

Morris, Anne Marie (Newton Abbot) (Con) 

Morris, David (Morecambe and Lunesdale) (Con) 

Morris, Grahame M. (Easington) (Lab) 

Munn, Meg (Sheffield, Heeley) (Lab/Co-op) 

Newton, Sarah (Truro and Falmouth) (Con) 

Penrose, John (Weston-super-Mare) (Con) 

Poulter, Dr Daniel (Parliamentary Under-Secretary of State for Health)  

Reed, Mr Jamie (Copeland) (Lab) 

Shannon, Jim (Strangford) (DUP) 

Smith, Nick (Blaenau Gwent) (Lab) 

Stephenson, Andrew (Pendle) (Con) 

Wheeler, Heather (South Derbyshire) (Con) 

Wollaston, Dr Sarah (Totnes) (Con) 

Fergus Reid, Committee Clerk

† attended the Committee

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Public Bill Committee 

Tuesday 21 January 2014  

(Morning)  

[Andrew Rosindell in the Chair] 

Care Bill [Lords]

Clause 39 

Where a person’s ordinary residence is 

8.55 am 

Question proposed, That the clause stand part of the Bill. 

The Chair:  With this it will be convenient to discuss new clause 20—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.’.

Liz Kendall (Leicester West) (Lab):  I am delighted to be back today, and welcome those attending the Committee who are not hon. Members or their staff, or officers of the Commons. It is nice to see some people here today. 

I will speak to our new clause 20, which is about the portability of care packages. The Bill will allow people to take their care packages with them, if and when they move to different parts of the country. That is important because often when someone becomes frail and needs care and support, families start to discuss whether Mum or Dad might be able to move closer, so that they can help to look after them—indeed, sometimes the person needing care and support thinks it might be better to move closer to their loved ones—but the portability of care packages between the nations in the United Kingdom is an issue that has been raised with Opposition Members. New clause 20 would require the Secretary of State to prepare a report on the legislation that would be necessary to make sure that people who receive community care packages are able to take those packages with them when they move between the different nations of the United Kingdom. 

My hon. Friend the Member for Edinburgh East has raised that issue with me, with Ministers and with the Scottish Government. The key point is that although the Bill makes provision for people to take residential care packages with them when they move, say, between England and Scotland, there is no such provision for community or home-based care. As we have said many times before, ensuring that people can stay living independently in their own home is the key challenge for the future. The Bill rightly gives people the ability to take a residential care package with them when they

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move, which is a good step forward, but we need to make sure that that applies equally to people who have community-based packages of care and support and are moving between England and the devolved Administrations. 

My hon. Friend has taken the issue up because she has a constituent, Mr Neil Kenny, who is paralysed from the chest down and uses a wheelchair, and who previously received funding for his care package from Greenwich council. He wanted to move to be closer to his family, who live near Edinburgh, but Greenwich council indicated that it was unwilling to continue to contribute towards the care package if he moved, and Edinburgh council also said that it was unwilling to contribute. The disagreement took place over four years, from 1996 to 2000, and when Mr Kenny eventually moved to Edinburgh, he had to pay for his own care and incurred a lot of debt. Although Edinburgh council eventually agreed to start paying for his care, Mr Kenny rightly contends that people with disabilities should be as free as anyone else to move from one local authority to another, which he feels is not possible now because of the ambiguity of the law in this area. 

The care Minister has helpfully corresponded with my hon. Friend, as have Scottish Ministers, but beyond saying that the care systems are different in each nation, that it is hard to apply rules across borders and that the devolved Administrations are working on all this, we do not seem to have moved much further on from when my hon. Friend first raised the issue. The new clause is designed to give Ministers a positive, but forceful push to set out precisely what needs to change, whether in primary or secondary legislation, to make the transfer of home care packages possible between the nations of the United Kingdom, and oblige them to do so within six months of the Bill receiving Royal Assent. The care Minister has said, “We’re looking at this,” but we have seen no more details, so the amendment would ensure that the Government get a bit of a wriggle on and do it. It is important, because this is the United Kingdom—I am sure all hon. Members present believe that. We want to ensure that people can move to be with their families, wherever they are. The amendment is a push to the Government to sort out the problem. 

The Minister of State, Department of Health (Norman Lamb):  It is an enormous pleasure to be back again. I thank the shadow Minister for her speech and for her new clause. I completely agree that within the United Kingdom—something that she and I strongly support—it is important that we do what we can to facilitate people moving, in particular to be close to family when care needs develop. I am pleased that the Bill achieves a substantial advance in that direction, but the hon. Lady raises a legitimate issue, so let me try to deal with it. 

Given the different legislative frameworks operating in the different territories of the United Kingdom, transfers of care across borders present a complicated set of issues, as I am sure the hon. Lady recognises. The placement of people in residential care has been talked about for two decades, which makes one begin to realise how complicated getting agreement is. What we have achieved with the Bill is a fantastic advance. Officials in my Department have worked closely with their counterparts in the devolved Administrations over the past year to develop and agree the provisions of the Bill. It is important

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to be clear about the distinction between, on the one hand, a local authority funding and placing a person in a care home in a different part of the UK and, on the other, situations in which persons receiving care in their own home independently move to a different country, but wish to keep their current care package. 

In the case of local authority-funded placements, an individual and the local authority work together to draw up a suitable package of care that includes a move to residential care in a different country of the UK. Schedule 1 puts in place a legislative framework that will make clear the principle that, when such care is arranged, generally the placing local authority will retain responsibility for the individual concerned. It is worth pointing out that we do not expect this situation to arise frequently. We are talking about tens of placements each year, not thousands. 

The new clause deals with a different situation, as the shadow Minister explained, in which individuals receiving care in their own home move to a different territory in the UK, but remain in a home of their own after the move. In such a situation, the individuals would normally become ordinarily resident in their new local authority area, and that local authority would therefore be the responsible authority should the individual require services from a local authority. 

I am confident that what concerns hon. Members is ensuring that, when the person moves, that person’s care will continue and that there is no break in care arrangements during the move. That is what everyone is rightly concerned about. Given the inherent complexity involved in trying to reconcile four separate legal frameworks, the Government’s approach is to work with devolved Administrations to develop understandings in principle about cross-border continuity of care that achieve the same practical effect as further legislation. 

The principles will set out what the local authority for the area where the person currently lives and the authority that he or she is moving to have to do to ensure continuity of care, such as both authorities sharing information and maintaining contact during the process. We absolutely agree with the principle of cross-border continuity of care—it just makes sense to everyone—but the complexity of any further legislation is such that is more effective to develop understandings in principle and practical co-operation between local authorities and those devolved Administrations that achieve the same practical effect as legislation. I hope that hon. Members feel sufficiently reassured that we share their aims and are working to achieve them, and that they will not press the new clause. 

Liz Kendall:  The trouble is, we need a timetable. Can the Minister spell that out? The new clause does not seek to set out all the details here and now—that would be very complicated and would probably be a whole other chunk of the Bill. Instead, it says that there should be a report setting out whether primary or secondary legislation is needed and a timetable for that. I am concerned that we will let the process drag on when it is important that we do it quickly. Do the Government intend to publish any kind of report or policy document on this matter, and if so, when? If I had a commitment on timing and publication of something clear, I would consider not pressing the new clause. 

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Norman Lamb:  I take the hon. Lady’s point. I can confirm that we are speaking to the devolved Administrations and looking to have principles in place by November this year. I am happy to commit to writing to her in November to confirm that we have achieved that, as I hope we do, and if we have not, why and what the time scale is likely to be. I hope that helps the hon. Lady. 

Liz Kendall:  That is a very welcome commitment. May I cheekily ask if he would also inform my hon. Friend the Member for Edinburgh East when this happens? She raised this matter with me on behalf of her constituent and has had a bit of a battle getting attention. If the Minister will make sure that this happens and writes to me, then I am prepared to withdraw the amendment. 

The Chair:  I am advised that withdrawing the amendment is not procedurally accurate at this point, because it is a new clause. 

Liz Kendall:  Then when we come to vote on all the new clauses, which is what I assume will happen, I am prepared not to press it to the vote. 

The Chair:  I am advised that the clause is not moved. 

Question put and agreed to.  

Clause 39 ordered to stand part of the Bill.  

Schedule 1 agreed to.  

Clauses 40 and 41 agreed to.  

Clause 42 

Enquiry by local authority 

Paul Burstow (Sutton and Cheam) (LD):  I beg to move amendment 42, in clause 42, page 38, line 13, at end add 

‘if the local authority has reason to believe enquiries are being impeded such that it cannot determine whether any action is necessary it shall record whether or not an application for an adult safeguarding access order was considered or made under section [ ].’.

The Chair:  With this it will be convenient to discuss the following: 

Amendment 116, in clause 42, page 38, line 14, leave out subsection (3) and insert— 

‘(3) “Abuse” includes—

(a) physical abuse;

(b) sexual abuse;

(c) psychological abuse;

(d) financial abuse, which includes—

(i) having money or other property stolen;

(ii) being defrauded;

(iii) being put under pressure in relation to money or other property; and

(iv) having money or other property misused;

(e) neglect and acts of omission;

(f) discriminatory abuse; and

(g) other, as guidance may specify.’.

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Amendment 117, in clause 42, page 38, line 19, at end add— 

‘(4) A relevant partner (as identified 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.’.

Amendment 118, in clause 42, page 38, line 19, at end insert— 

‘(4) In the case of financial abuse, investigation may be instigated following a complaint from a person with power of attorney for an adult having needs for care and support.’.

New clause 3—Adult safeguarding access order  

‘(1) An authorised officer may apply to a justice of the peace for an order (an adult safeguarding access order) in relation to a person living in any premises within a local authority’s area.

(2) The purposes of an adult safeguarding access order are—

(a) to enable the authorised officer and any other person accompanying the officer to speak in private with a person suspected of being an adult at risk of abuse or neglect;

(b) to enable the authorised officer to assess the mental capacity of a person suspected of being an adult at risk of abuse;

(c) to enable the authorised officer to ascertain whether that person is making decisions freely; and

(d) to enable the authorised officer properly to assess whether the person is an adult at risk of abuse or neglect and to make a decision as required by section 41(2) on what, if any, action should be taken.

(3) While an adult safeguarding access order is in force, the authorised officer, a constable and any other specified person accompanying the officer in accordance with the order, may enter the premises specified in the order for the purposes set out in subsection (2).

(4) The justice of the peace may make an adult safeguarding access order if satisfied that—

(a) all reasonable and practicable steps have been taken to obtain access to a person suspected of being an adult at risk of abuse or neglect before seeking an order under this section;

(b) the authorised officer has had regard for the general duty in section 1 (Promoting individual well-being) in making a decision under subsection (1).

(c) the authorised officer has reasonable cause to suspect that a person is an adult who is experiencing or at risk of abuse or neglect;

(d) it is necessary for the authorised officer to gain access to the person in order to make the enquiries needed to inform the decision required by section 41(2) on what, if any, action should be taken;

(e) making an order is necessary in order to fulfil the purposes set out in subsection (2); and

(f) exercising the power of access conferred by the order will not result in the person being at greater risk of abuse or neglect.

(5) An adult safeguarding access order must—

(a) specify the premises to which it relates;

(b) provide that the authorised officer may be accompanied by a constable; and

(c) specify the period for which the order is to be in force.

(6) Other conditions may be attached to an adult safeguarding access order, for example—

(a) specifying restrictions on the time that the power of access conferred by the order may be exercised;

(b) providing for the authorised officer to be accompanied by another specified person; or

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(c) requiring notice of the order to be given to the occupier of the premises and to the person suspected of being an adult at risk of abuse.

(7) A constable accompanying the authorised officer may use reasonable force if necessary in order to fulfil the purposes of an adult safeguarding access order set out in subsection (2).

(8) On entering the premises in accordance with an adult safeguarding access order the authorised officer must—

(a) state the object of the visit;

(b) produce evidence of the authorisation to enter the premises; and

(c) provide an explanation to the occupier of the premises of how to complain about how the power of access has been exercised.

(9) In this section “an authorised officer” means a person authorised by a local authority for the purposes of this section, but regulations may set restrictions on the persons or categories of persons who may be authorised.’.

New clause 4—Duty to report adults at risk of abuse  

‘(1) If a relevant partner of a local authority has reasonable cause to suspect that the local authority would be under a duty to make enquiries under section 42, it must inform the local authority of that fact.

(2) If the person that the relevant partner has reasonable cause to suspect would be the subject of enquiries under section 42 and appears to be within the area of a local authority other than the one of which it is a relevant partner, it must inform that other local authority.

(3) If a local authority has reasonable cause to suspect that a person within its area at any time would be the subject of enquiries under section 42 and is living or proposing to live in the area of another local authority (including a local authority in Wales, Scotland or Northern Ireland), it must inform that other local authority.

(4) In this section “relevant partner”, in relation to a local authority, means—

(a) the local policing body and the chief officer of police for a police area any part of which falls within the area of the local authority;

(b) any other local authority with which the authority agrees that it would be appropriate to co-operate under this section;

(c) any provider of probation services that is required by arrangements under section 3(2) of the Offender Management Act 2007 to act as a relevant partner of the authority;

(d) any provider of regulated activities as listed in Schedule 1 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010;

(e) a local health board for an area any part of which falls within the area of the authority;

(f) an NHS trust providing services in the area of the authority; and

(g) such person, or a person of such description, as regulations may specify.’.

New clause 19—Corporate responsibility for neglect  

‘(1) This section applies where a person registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 (a “registered care provider”) in respect of the carrying on of a regulated activity (within the meaning of that Part) has reasonable cause to suspect that an adult in their care is experiencing, or is at risk of, abuse and neglect.

(2) The registered care provider must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom.

(3) Where abuse or neglect is suspected, the registered care provider is responsible for informing the Safeguarding Adults Board in its area and commits an offence if (without reasonable cause) it fails to do so.

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(4) A registered care provider is guilty of an offence if the way in which its activities are managed or organised by its board or senior management neglects, or is a substantial element in, the existence and or possibility of abuse or neglect occurring.

(5) A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding five years, or to a fine, the range of which will be specified by regulations, or to both.’.

New clause 22—Duty of candour  

‘(1) Local authorities must take reasonable steps to create an open and honest culture that enables employees to report reasonable suspicions of abuse and neglect of individuals in the care of the local authority or a provider commissioned by the local authority.

(2) “Reasonable steps” include—

(a) ensuring that staff are aware of and trust processes open to them;

(b) provision of advice about the process;

(c) review of procedures; and

(d) regular communications to staff about the processes.’.

New clause 23—Offence of abuse of adult in care  

‘Any person who wilfully causes or permits an adult who has care and support needs to suffer physical or mental pain or injury or, having the care or custody of that adult, wilfully causes or permits the person or health of that adult to be injured, including through the neglect of their care and support or health needs, or wilfully causes or permits that person to be placed in a situation that endangers his or her person or health, including mental health, is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both.’.

New clause 24—Offence of corporate neglect  

‘In section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007, insert—

“1A Corporate neglect

(1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised—

(a) cause a person to suffer abuse or neglect;

(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the person who suffers abuse or neglect; and

(c) the offence under this subsection is called corporate neglect.’.

Paul Burstow:  This is a large group of amendments covering a range of important issues. It touches on the dark side of the Bill and issues of abuse, neglect and exploitation. It raises questions of definition and of duties on others to report suspicions about abuse. This is particularly addressed to the health service where often there have been concerns that health providers from some organisations have not been as good as they could be when it comes to their safeguarding responsibilities. It also raises questions about powers of entry, issues of wilful neglect and the applicability of existing law, and crime reporting and accountability. 

I will quickly take the Committee through the thinking behind amendment 42, new clauses 3, 4, 23 and 24. Clauses 42 to 47 will put into primary legislation for the first time the obligation on local authorities and others to safeguard people from abuse and neglect. That is not to say that it was not there before; it was in statutory guidance, but this will be the first time that it has been clearly codified in primary legislation. 

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When the Joint Committee looked at this part of the Bill, we made a number of suggestions, for example, that greater emphasis should be given to prevention. The Government are clear that this is one of the points that needs to be part of a good, functioning safeguarding system. They are seeking to avoid the circumstances and conditions in which a person becomes vulnerable and a victim of abuse and neglect. None the less, there are far too many people who are victims of those things. 

The Government also thought carefully about the implications of clause 42, which is the inquiry duty, where a local authority has reason to believe a person is experiencing or is at risk of abuse and neglect and is unable to protect themselves because they have care and support needs. We concluded that the duty to make inquiries was very welcome but not sufficient. It prompts the question that, if there is a duty, what are the mechanisms by which it can be made a practical, working reality? We agreed with the Law Commission that there is a gap in the law in this area. This is not about the individual who is a victim, other than making sure that person gets relief and protection at the earliest opportunity. It is about what happens—as it does in many cases—when a third party, a family member or a close acquaintance actively prevents inquiries being made under clause 42. 

What happens when a person is too frightened to speak up, is under duress, or is effectively a prisoner in their own home? Ultimately, we are told, the High Court has jurisdiction to act. It can hear any matter that comes before it; that is where the buck stops. This is a very rarely used power of inherent jurisdiction. I know that the Minister takes some comfort from this principle of inherent jurisdiction, but I and the Joint Committee do not believe that this is sufficient. 

I will give the Committee some context. The most relevant and recent figures are those for England. They show that 40% of safeguarding referrals are about people living in their own home. There is a myth that the majority of all types of abuse takes place in more formal settings; an awful lot takes place in people’s own homes. Research commissioned by the Department of Health, funded by Comic Relief some years ago and undertaken by King’s college, suggested that more than half of perpetrators of elder abuse live in the victim’s own household. The same prevalence study also suggests that the true level of abuse is much, much higher than the official statistics would suggest. Indeed, some work done for me by the House of Commons Library estimates that on the most recent population figures, more than 370,000 old people suffer from abuse or neglect in any one year. I stress that I did not conjure that figure out of thin air. It comes from that prevalence study updated for the most recent population figures. It is the UK study of abuse and neglect of older people. That research excluded single incidents and people who lack capacity. So it does not even touch the whole of the likely scale of the problem. 

9.15 am 

Given the scale of the problem, it seems hard to imagine that we should place confidence in the inherent jurisdiction of the court or, for that matter, existing powers in other statutes that may or may not be applicable. They have surely been weighed in the balance and found wanting because they have not been used regularly, routinely or, it would seem, more than rarely. It has

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been argued that the current law is sufficient and I question that. Let me go through some of the examples of why it should be questioned. 

The Police and Criminal Evidence Act 1984 is offered up in these debates. Is that really credible? It has been suggested that the police retain a common law power of entry without warrant. I understand—I hope the Minister can cite chapter and verse on why perhaps my understanding is wrong—that that common law power of entry without a warrant was abolished by PACE. It would be useful to know whether that is the case. If the Minister cannot set that out today could he write to us urgently about that? 

The Court of Appeal ruled in 2005 that a power of entry under PACE turns on whether a 

“real and present threat to the peace” 

can be shown, to save life or limb, or to arrest someone who has committed a crime. In other words, a high threshold is set and it is directed to the perpetrator, not to the protection of the victim of abuse. 

Meg Munn (Sheffield, Heeley) (Lab/Co-op):  Does the right hon. Gentleman agree that without a proper framework to address this issue it is difficult for social workers working in communities to approach their local police force and expect a response that would help them to move forward? Given all the pressures on the police, this is, thankfully, a relatively minor issue in police terms and therefore it is difficult for social workers to get that support or even to think of using that method. 

Paul Burstow:  The hon. Lady makes an important point about the concerns that practitioners have in this area. The police give this a relatively low priority. Clarity in primary legislation would help, underpinned by guidance to support practice in future. We can look to the experience in Scotland and draw some conclusions, albeit the legislation is different. I will come on to that in a minute. 

It is hardly surprising that the power in PACE is hardly ever used. Some say that section 2 of the Criminal Justice Act 1987 could be used but, again, the test in this case, which is of serious or complex fraud or corruption, makes its use impractical as a means of having a private conversation with someone suspected of being at risk of abuse or neglect. The matter at hand is about someone’s right to take decisions which we in this Committee and others in their community might just judge to be against their best interests. This is not about granting any state authority the power to usurp an individual’s autonomy to make what we might consider to be bad decisions. It is not about that first party; it is about the acts of a third party in this case. That is where that autonomy has already been compromised by that third party—someone living with the person being subject to abuse or neglect. 

I labour that point because it is not clear to me and to others who have looked at the responses to the Department of Health’s consultation that this was understood by all those who objected to this provision. The vast majority of organisations, non-governmental organisations, local authorities and health bodies supported a limited, quite tightly circumscribed power of entry of the sort I propose in new clause 3. 

In its evidence to the Committee, the Equality and Human Rights Commission stated: 

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“If a public authority...knows, or ought to know, that a vulnerable person is suffering ill-treatment, it may be under a positive obligation to take urgent steps to stop the abuse. The proposed amendment”— 

my new clause— 

“would facilitate the fulfilment of this positive human rights obligation.” 

I have examples from work done by the College of Social Work of what that might mean in practice. For example, an older man was not allowed to see a care worker or a social worker without his daughter being present. In that case, the daughter was subsequently convicted of his murder, and that is a good reason why we should be considering the circumstances of individual cases. 

Another example was of a man who had learning disabilities. He was being abused by his family, but they would not allow access to the social workers on the grounds that he was afraid of the social workers. In fact, it was his family that he feared. Again, when the social workers eventually managed to find a route to gain access, the family were abusive to the social workers. 

A son was stealing from his mum and preventing her from meeting social workers alone. It came to light only after the son had had an accident and was removed from the equation by that act of God or that act of incompetence on his part. All such cases—there are others in the material that the College of Social Work provided—suggest we need to do something. 

New clause 3 provides a proportionate power to support the duty to make inquiries in clause 42. It gives the courts oversight and sets clear conditions that must be satisfied before an access order is granted. The revised new clause 3—I apologise for the slight redrafting, which was to try to reflect the concerns that I have heard from objectors—also makes it clear that before an order is granted all reasonable steps must be taken to gain access, and also that the well-being principle should be properly considered. It is worth remembering that the whole of part 1 of the Bill hinges on clause 1, and clause 1(3) (a), (b), (d), (e), (g) and (h) set out all the considerations that would be the additional checks and balances and safeguards—the objectors, who are the minority, have none the less have been deemed to be the majority when it comes to objecting to such measures—that are there in the Bill already. 

The practice evidence from Scotland is that the whole power is rarely used, but it is valued by practitioners as a backstop and an aid to negotiating access. In that way it will be creatively used in practice to achieve what the state should be using its power to achieve, which is to protect vulnerable people from the risk of abuse or actual abuse and neglect. 

I hope the Minister will accept the new clause, although I fear, given the direction so far, he might not. However, I hope he will continue to open his mind to the possibility that this is an area where change is necessary. 

New clause 4 is similar to the intentions behind amendment 117, although I hope it is less contentious. It simply places a statutory obligation on health bodies and a range of other public bodies to report where they suspect abuse or the risk of abuse. It is about making sure there are more sentinels in our communities who are spotting and acting. Too many cases of abuse that are not being picked up quickly enough can be traced

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back to failings of other public bodies and are not solely or indeed primarily a failure of the local authority. We need to make sure that the duties are clear and in the Bill for other public authorities. The new clause also serves to heighten awareness that safeguarding is everybody’s business, not only the local authority’s. 

New clause 24 reflects some of the sentiments contained in new clause 19, tabled by the hon. Member for Blaenau Gwent. I have added my name to his new clause because I share his intention. Both new clauses deal with corporate neglect, an issue tragically highlighted by the events at Winterbourne View and by the work of Operation Jasmine, which I am sure the hon. Gentleman will talk about when speaking to his new clause. Winterbourne View saw sustained, shocking abuse, and the 11 perpetrators of those crimes rightly ended up in the dock and were punished for what they did. But those who owned, managed and sat on the board of directors of Winterbourne View were not punished. They failed in their duty of care. In the words of the judge in the case, 

“A culture of ill-treatment developed” 

that “corrupted and debased” the staff, “all of whom” were “of previous good character”. That points to what many believe they witnessed at Winterbourne View: a care provider that betrayed those in its care and left unchecked a culture that bit by bit tolerated ever more degrading treatment, and a culture of cruelty that was allowed to fester. As we heard last week, it charged £3,500 for the pleasure of being abused repeatedly. 

New clause 24 would amend the Corporate Manslaughter and Corporate Homicide Act 2007 and widen its scope to include abuse and neglect. There is a gap in the law, and I tabled the new clause to probe the Government’s approach to corporate neglect. Clearly, the establishment of the new fundamental standards and the removal of the need to serve notice offers an alternative route. It would be helpful if the Minister said what steps are being taken to ensure that the drafting of those fundamental standards is as watertight as possible. If it is not, I am sure that a well paid QC could find their way through it and easily avoid prosecutions. We must ensure that it is as judiciable as possible and effective when it comes to enforcement. 

It is not about acts of commission, but acts of omission by boards of directors of care organisations that do not take their duty of care seriously and do not get out on the shop floor of their organisations. Using the corporate manslaughter legislation would remove the defence, “I did not know what was going on in my organisation.” In other words, there would not have to be a guiding mind actively soliciting the abusive behaviour for the directors to be subject to criminal prosecution. I hope the Minister will be able to reassure me on those points. 

New clause 23 would close another gap in the law, which was identified by the Law Commission. In English law, there is no offence of wilful neglect or ill-treatment, unless the person lacks capacity or falls under the ambit of the Mental Health Act 2007, in which case there are offences. I do not think that is right, nor do many of the organisations that made representations to the Joint Committee. In his review for the Government, Don Berwick said that the Government should create 

“a new general offence of wilful or reckless neglect or mistreatment.” 

He argued in his report, entitled “A promise to learn—a commitment to act”, that legal sanctions should be

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available in those rare cases, and he proposed placing neglect and mistreatment on a par with what already applies for mental capacity. 

During the House of Lords debate, the Government said that 

“people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution”.—[Official Report, House of Lords, 14 October 2013; Vol. 748, c. 340.] 

Will the Minister tell us how that will be translated into law? Is there an intention to legislate? 

In conclusion, I will touch briefly on amendment 116 and new clause 22, and report some of the Joint Committee’s findings. Amendment 116 would widen the definitions in the Bill. I understand why the Opposition seek to do that. However, the Joint Committee carefully considered the definitions, and we were persuaded that the common usage of “abuse” and “neglect”, as set out in dictionaries and elsewhere, is clear, but that the inclusion of “financial abuse” was not obvious. I would be interested to hear from the Minister what guidance the Government will produce to ensure that practice continues with the common usage of those words to understand what abuse and neglect are. 

New clause 22 is about the duty of candour, which is covered in clause 80. It would be useful if the Minister reconfirmed that it will apply to social care as well, as he said in evidence to the Joint Committee. When will it apply? 

Our debate today is about human rights. This set of amendments is about ensuring that our obligations are clear. It is about people abused in their own homes by families and acquaintances. That is a hard thing to talk about, but we need to be clear about our obligations and ensure that the right protections are in place. The state has a positive obligation to protect such people. The Bill enshrines the duty to inquire, but it falls short by not giving a carefully circumscribed power to gain access where a third party is blocking access.

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What happens to those people? We know. They live insufferable lives and are abused because successive Governments have not put in place the necessary power. The Bill gives us the opportunity to do that, and this new clause is the means. I hope that the Minister will be able to give us some positive responses.

Liz Kendall:  The set of clauses about adult safeguarding is important. It is welcome that the Bill will place that subject in statute for the first time. We have had legislation for many years in relation to children’s services, and it is absolutely right that we are now bringing the issues together and legislating for adult safeguarding. I think Members on both sides of the Committee want to try to get it absolutely right first off, to cover all the issues effectively, so that we have a great piece of legislation that is clear to the people who use and provide services and so that we can make it work. 

That is the context in which we have tabled a series of amendments and new clauses. My hon. Friend the Member for Blaenau Gwent will speak about new clause 19. I might make a couple of brief comments about it, and about new clause 24, which the right hon. Member for Sutton and Cheam tabled. I will also touch on the important issue of power of access and entry, about which the right hon. Gentleman has just spoken. 

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However, I want to speak predominantly about amendment 116, which would spell out a definition of abuse in the Bill, so that all the issues are covered and the Bill does not focus on only one particular type of abuse. Amendment 117, which is quite similar to one of the amendments that the right hon. Member for Sutton and Cheam tabled, would extend the duty on reported suspected abuse to the relevant partners of a local authority, such as the police, the NHS and the probation service. 

Amendment 118 would make it clear that, when someone who has a power of attorney reports suspected abuse, such as financial abuse, the local authority may talk to them about what is happening to the victim and is not prevented from doing so by laws on data protection. Anyone who has themselves had to take on that power of attorney, or has family members or constituents who have had to do so, knows that it is an important role. Those people want to stand up for and support their loved ones. If they suspect that financial abuse is taking place, it is important that their views are listened to. 

New clause 22 seeks to introduce a duty of candour for local councils, just as the Bill seeks to introduce such a duty in the NHS, to ensure that there is a fully open culture in local councils as well as in our health service. 

I want to start with defining abuse. There have already been debates about that in the Lords. With amendment 116, we have changed the amendment slightly compared with how it was tabled in the Lords. The amendment in the Lords was tabled by Baroness Hollis and Lord Ricks. Mencap raised the issue was raised with them to ensure that the kinds of abuse that the Bill seeks to prevent or reduce are fully described in it. 

The Bill, rightly, defines financial abuse, in order to protect vulnerable adults from the examples we have seen, whether in care homes or in their own homes, where their money was stolen or where they were wrongly or persistently charged for services and support. However, the Bill does not define other types of abuse, leaving them instead to be spelled out in guidance. 

Some organisations are concerned that having a more explicit definition of financial abuse but not of other types of abuse means that financial abuse will be given priority over other types of abuse. Amendment 116 spells those other types out, and covers physical, sexual and psychological abuse, neglect and acts of omission, discriminatory abuse and—a key element—other types of abuse, as the guidance may specify. In the House of Lords, the Minister said that if we were too prescriptive we would have to put every single possible type of abuse in the Bill, so we have added the final subsection to the amendment to give the Government the ability to set out more in guidance. 

Amendment 116 would give the Bill a better framework of the types of abuse that it will cover. I hope the Government will accept it, because it is important that the kinds of abuse to which vulnerable people are subjected are spelled out more broadly in the Bill. It defines financial abuse in detail but not other types of abuse. 

Amendment 117 would extend the requirement in the Bill to make sure that the police, the NHS and probation services—we are also suggesting housing associations—are

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under a duty to report suspected abuse to the local authority. As the right hon. Member for Sutton and Cheam said, we have seen many cases concerning children’s services in which different parts of the system have not worked together and people have not informed others when they have suspected abuse. We want to make sure that that does not happen when we are legislating about care and support for vulnerable adults. Everybody who works with older and disabled people who are in care should be under a duty to report abuse if they suspect it. That would send a clear message to people working in all those parts of the system that they are under a legal duty to report suspected abuse, and would make a big difference. 

Amendment 118 would allow that, in the case of financial abuse, an investigation could be instigated after a complaint from a person with the power of attorney for an adult who has care needs. That would mean that if that person, who is usually a family member, wanted to report suspected abuse, local authorities could not be prevented from acting or even talking to them by concerns about data protection. I pay tribute to Baroness Byford, a Conservative Member of the other place who spoke to an amendment on the same issue in the Lords. It would give local authorities a clear understanding that they are not going to be hauled over the coals for breaching data protection if they listen to and act on concerns about financial abuse and theft when those concerns come from family members with the power of attorney. 

If a daughter suspects that someone is stealing from her mum, she has every right to be outraged by that and to try to stop it, and for people to take her concerns seriously. The idea that data protection concerns should get in the way is surely not in keeping with the spirit of either the Data Protection Act 1998 or the attempt we are making in the Bill to improve safeguarding and clamp down on abuse. If I ever—God forbid—have to take over power of attorney for my parents and I think that there is a problem with financial abuse concerning them, I want my concerns to be listened to and acted on. That is what amendment 118 seeks to allow. 

I will speak briefly to new clause 22 on the duty of candour—I have no doubt we will come back to and discuss that matter a lot when we consider part 2. I pay tribute to Baroness Greengross, who has been a stalwart champion of care issues over many years. She rightly felt that such a duty of candour should apply to any contract that a local authority awards to a community-based service. If people suspect abuse or are worried about poor quality care happening in different organisations and do not think that enough action is taking place, they should be able to blow the whistle but have their rights protected. 

The new clause would extend the requirements on health and social care employers by introducing a duty of candour. All staff should have a professional duty to blow the whistle if they see practice that they believe puts the people they are supporting at risk of harm. Organisations must also have a clear whistleblowing procedure in place for when that bad practice is spotted. Such procedures should stipulate that, if a care worker or social worker sees abuse, mistreatment or neglect in any setting or has any questions about how treatment is affecting someone, whether they are responsible for that person directly or just come across them in the course of their work, they have a duty to draw that to the attention

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of both the managers of the service and the commissioners. There should be a follow-up afterwards to see if what was reported has been acted on. 

That duty of candour, as part of changing the wider culture, is essential to improve the quality of care and support. The Health Minister or the care Minister will probably speak about the duty of candour on the NHS when we come to part 2, but that duty should apply to councils and the NHS. I therefore hope that the Government will accept the amendment. 

I want to leave my hon. Friend the Member for Blaenau Gwent to speak to his proposal, new clause 19. The right hon. Member for Sutton and Cheam raised similar issues. We have seen evidence showing that, even where the care home owners may have understood or known that procedures were not in place to protect people from abuse, they did not take action. The people on the boards of those companies should be held to account if such evidence shows that they neglected their duties. Opposition Members really support the new clause. My hon. Friend will speak to it far more eloquently that I can, but it is essential that people are held to account properly. We can do that now in public services, but we need that accountability in private providers too. 

I will finish with some comments on the power of entry and new clause 3, about which the right hon. Gentleman spoke. There has been a big debate about that, with strong views on either side. Some organisations are concerned that the power of entry, with access into homes, might infringe people’s rights to private lives, so they think that this measure should be set out in guidance, policy and practice. However, others are rightly concerned that, when they have a suspicion of third party abuse in someone’s house, they are denied access to check what is going on. We need to overcome that problem. Just as in the House of Lords, the Government Front Benchers said that, on balance, they accepted the need for a power of entry in tightly defined circumstances. 

I appreciate what the right hon. Gentleman said about the issue. His new clause, just like that tabled in the House of Lords, would be strict about the criteria under which such an entry should take place. I have heard of several cases where family members have denied social workers who suspect financial abuse the right to access someone’s house, and other hon. Members will know of similar cases. Leaving such a measure to policy and guidance may not be enough to make those staff take action, because they will be less likely to try to get access if they are concerned that they would be breaking the law by doing so. Opinions differ on the issue but, as long as the clauses are tightly defined, it is essential that enable people to do that. 

9.45 am 

Paul Burstow:  The shadow Minister is absolutely right about what this proposal is and what it is not. That is why I amended new clause 3 to make it contingent on a justice of the peace satisfying themselves that the well-being principles have been followed properly. One of those principles, as noted in clause 1(3)(h) of the Bill, is 

“the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.” 

What is least restrictive is a principle that is now part of the safeguarding arrangement. 

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Liz Kendall:  The right hon. Gentleman has been careful in crafting his new clause, just as the amendments in the Lords sought a proper definition—but if there is suspicion of abuse by a third party, and that third party is denying a social worker or other relevant professional entry to determine what is going on, the balance needs to be tightly drawn. The real issue is how we protect people from abuse; if we have a tightly drawn set of amendments in this place, on balance we would support that, as we did in the House of Lords. 

Meg Munn:  I want to make a few remarks in support of the group of amendments and new clauses. As the Committee knows, we are arguing strongly for more people to be cared for at home by family and friends. The corollary of this is that more people will be open to potential abuse and neglect in situations in which they are not necessarily being seen regularly by other people. Upping our regulations and arrangements to ensure that we can protect and promote the welfare of people who are in their own homes, which is where they want to be, is essential. 

It is most important to create the right culture in the social work and health professions and in residential institutions or supported living arrangements. Such cultures should at heart enable those who have the welfare of the people for whom they are caring to do the right thing and to be supported in law in doing so; discourage people who target elderly people for financial or other abuse; and ensure that other family members understand that they cannot—just because those people are a member of their family—choose to use their money to restrict their freedom in ways that we would not accept. 

I support very strongly the need for a power of entry—one that would, as the right hon. Member for Sutton and Cheam has just explained, require social workers to obtain, in effect, a court order to enter, if they cannot gain entry by other means. That is enormously important, because although the power would not be used a great deal, those who represent the state and act on behalf of the elderly would have a right to request it and have the situation looked at. Without such a power, social workers will continue to be left in a very difficult position. 

There are issues to do with privacy and mental capacity. We are clearly discussing people who would not be deemed to lack mental capacity, but we all know that, in any relationship involving family, care or a friend, people can put pressure on others in all sorts of ways. It can be difficult to do anything about this, for all the emotional reasons, especially when a person is vulnerable. Often, it is not that the professionals do not want the relationship or the caring to continue, but that they want the situation to be resolved in a way that promotes the dignity and safety of the elderly person. I do not think that I am putting it too strongly to say that we would be missing an opportunity to make safeguarding adults effective if we do not have power of entry. 

I speak as somebody who worked in social work for 20 years. The majority of my work was in safeguarding children, and I know from that experience that the fact that I could, if necessary, ask for an emergency protection order to see children made a difference. It gave a sense of a backdrop of a court process. I can count on the fingers of one hand the number of times I had to go down that route. In reality, such orders do not happen,

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but they change the culture. I put it strongly to the Minister that to go ahead with all the laudable arrangements on safeguarding adults without a power of entry would be a mistake that I guarantee he will come to regret. 

I also want to talk briefly about proposed new clause 22 on duty of candour. Such a duty is equally important, because, again, it is about culture change. As I have said, I know a great deal more about child protection. It is important to ensure that policies, procedures and laws are in place that do everything they can—they cannot completely stop it—to keep away from these areas of work people who do not have the best interests of elderly people at heart. 

As the right hon. Member for Sutton and Cheam spoke, he took me back probably about 15 years to when I was a manager of both children’s and adult services. I recall the case of a manager of an elderly persons’ home, who, in addition to financial abuse, was involved in running a home where the staff were extraordinarily scared of her and where there was an atmosphere of lack of caring. Elderly people were told to hurry along, to go back to their rooms, not to do this, not to do that—the kinds of things that none of us would want to see any elderly person experience. Due to the power of the person in the management position, it was difficult for the staff to come forward and raise issues. 

If we create a culture that says there is a duty of candour, alongside implementing the legislation, those local authorities and private, voluntary and charitable organisations that run such bodies and act properly—they would also be assessed as acting properly by the various inspectorates—would put in place training and guidance about the duty for their staff. They would have to do so and would have to have policies and procedures with regard to the duty. If staff had concerns, they would know that a duty of candour existed in law and they would therefore be likely to be supported if they raised an issue. In effect, the duty supports whistleblowers. Such a duty would be a welcome addition to whistleblowing procedures, which most local authorities now have. 

I understand why it may not be possible for the Minister to accept the new clauses as drafted today, but I urge him to please go away and look at them. The issue is about practice on the ground. It is a long time ago now, but I know from all my years of trying to deal with complex situations involving families who have different views about what their relative’s situation should be, and about which social workers have real concerns, that clarity in law is enormously important to deal with these issues. 

I want to talk briefly about amendment 116, to which I have added my name. I have some concerns about the drafting of the clause and whether it would achieve what we want it to achieve. However, the issue that has been raised is fundamental. I come back to the concern that somewhere in the legislation or in guidance, there should be clarity about the range of abuse being discussed —the fact that financial abuse appears separately—which could otherwise cause confusion. 

I also want to talk about the term “discriminatory abuse”. I felt the terminology was difficult and could be misinterpreted, but the issue is important. It comes back to the “protected characteristics” that are found in

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the Equality Act 2010. People are abused on the basis of their ethnicity or disability, whether it is physical or, particularly, a learning disability. We have had horrific cases of people with learning disabilities being abused. This is an area of abuse that needs to be highlighted and specified. Without legislation that clearly includes all these issues, some people will be trained in this way and some authorities will look at them all, but not everyone. The Government have an opportunity here to set out the range of concerns and issues that need to be taken into account. That could be either in the Bill or in guidance, but it needs to be done. 

Debbie Abrahams (Oldham East and Saddleworth) (Lab):  I support the amendments and new clauses because they would strengthen the safeguarding legislation, particularly for older people. I want to speak about my experience with my mother. As I mentioned before, she had Alzheimer’s disease and died in September 2012. My mother remarried and lived in the States, but in July that year, I was informed that she had been moved about 1,000 miles away from where we thought she was living. She had been moved away by a carer within the family who had got control of all my stepfather’s and mother’s finances and who had basically lifted them up and moved them down from New York to South Carolina. 

Neither my brother nor I knew about that and we heard about it only when she was admitted to hospital and given a few days to live. When I arrived in the States, she was living in an absolute hovel, in a dire situation. It was dreadful, with rats; it was awful. We had not been informed. My stepfather had power of attorney and, knowing the system here but not knowing it particularly well over there, I contacted adult protection and the police, and I went to lawyers, the senator and the governor. Nobody wanted to know. Because he was a proud man, my stepfather did not believe that he had done anything wrong. He did not understand that this women, having access to all their personal details and accounts, had sold the property in New York that they lived in. It was dreadful. 

10 am 

People have had those experiences, and I want to ensure that, whatever legislation we pass, nothing like that can happen to anyone again. I queried with our local social services team whether my having raised the matter and escalated it automatically meant that a social worker would interview me—I could have been making things up, after all—but no one came to see me or my brother to find out what had happened. I want to ensure that any reported abuse is escalated and investigated and then, as my hon. Friends have said, to ensure that there is a power of entry. My stepfather would not meet or see anybody. My mother was not an American citizen and I realise that we do not have jurisdiction, but I want to ensure that this applies not just to British citizens but to anybody in this situation living in this country, so that they do not suffer the way that my mother did. 

Similar circumstances have been reported to me by one of my constituents. I have mentioned my personal experience, but that situation is arising in this country as well, as the statistics show. We must take robust

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action for anybody who is vulnerable. We need to ensure that cases are escalated when reported and not just pushed under the carpet. 

Dr Sarah Wollaston (Totnes) (Con):  I am sorry to hear of the experiences of the hon. Member for Oldham East and Saddleworth. She set out so clearly that human nature is as it is. Of course, the overwhelming majority of carers whom we all encounter do an extraordinary job and have the best interests of their loved ones at heart. However, I am afraid that is not always the case. I support new clause 3 because I feel it is better to have its provisions there and rarely have to use them, than it is to need to use them and not be able to access them, not to have that power of entry. As the hon. Lady set out so clearly, there are those who absolutely do not have the best interests at heart of those they purport to care for. 

I have come across that in clinical practice, though thankfully rarely. As an MP I have heard cases that echo the themes raised in the hon. Lady’s very moving speech. I am sure that is the case for many hon. Members. Where such individuals know that there are no powers of entry, they can act with impunity. With these powers in place they will know that there is a final backstop. We agree that there needs to be a process. The changes in the new clause would bring in well-being principles and would reflect that the powers should be used in exceptional circumstances. 

It is in everybody’s interests that the entry powers should be exercised through negotiation. That is the best way forward, and I am confident that the drafting of new clause 3 sets it out clearly. The powers would be used only in exceptional circumstances. As the hon. Member for Sheffield, Heeley, who has great experience in social work, says, if we do not have these powers we will have to come back at a future date to get them, because an avoidable tragedy has arisen. I would like us to do this now. Having sat through the evidence and considered the matter in the draft Bill Committee, I support my right hon. Friend the Member for Sutton and Cheam in saying that we need this provision. I hope that the Minister will reflect that view in his response. 

Nick Smith (Blaenau Gwent) (Lab):  I welcome the opportunity to move new clause 19. I will say right at the top that I do not plan to divide the Committee on the clause. I seek consensus in what is a very complex area. 

I am a Welsh MP, and although health and social care are devolved matters, I was keen to serve on this Bill Committee because safeguarding and justice are issues for England and Wales. Some large providers In the social care sector operate in England and Wales and other parts of the UK, so corporate accountability affects us all. 

I welcome very much the safeguarding elements of the Bill. I think they go a long way, but my recent experience of truly appalling neglect of elderly residents in care homes in south Wales leads me to conclude that we must go that extra mile to ensure that our safeguards deliver for care home residents. We must leave care providers in no doubt that their primary responsibility is the care of their residents. They must know that if they fail in this duty, they will be prosecuted for corporate neglect, with strong penalties if they are convicted. 

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The Government have the opportunity with this Bill to set the bar high and to shape the future culture and development of the care sector. I tabled the new clause, which is supported by Age UK, because last year saw the conclusion of Operation Jasmine—a six-year inquiry, costing £11.6 million, into 63 deaths in care homes in Gwent in south-east Wales. It was the largest investigation ever conducted by Gwent police and the largest residential care home inquiry ever conducted across the UK. However, just three convictions have been secured for wilful negligence since the start of the inquiry in 2005. 

It took so long to bring charges against the director of the residential care homes that, by the time of his court case, which was scheduled in March last year, Dr Das had suffered an unrelated assault, which left him unfit for trial. It is interesting to note that the charges brought against Dr Das related to health and safety breaches and financial offences only. There were no neglect charges in the indictment, although the health and safety breaches included pressure sore management issues and identified 16 victims who suffered as a consequence of pressure sore management failures. There were some terrible cases. Gwent police told me that, even with the full co-operation of the Crown Prosecution Service and expert witnesses over this long period of time, they could not reach the threshold test to bring the serious charges that they felt were merited. These are cases where the death of an elderly person in a care home was attributed to omissions as opposed to deliberate acts—it is quite tricky. 

As I said on Second Reading, the Government’s plans regarding fit and proper persons allied with fundamental standards as part of the registration requirement for care homes are good. They will go some way to preventing a situation like the one in Gwent or, say, Winterbourne View, happening again. We all agree that prevention is always the best option, yet the Government’s consultation last year, “Strengthening Corporate Accountability in Health and Social Care” posed a question that remains unanswered: who sets the culture in the organisation? In my view—I have heard this a number of times today—it is set at the top. 

An offence of corporate neglect would make it crystal clear that it is not just the foot soldiers—the care assistants or the nurses—who will be held responsible in cases of neglect or abuse. When my Gwent colleague, Lord Touhig, moved this amendment in the other place, Baroness Northover for the Government agreed that providers who allow such neglect should face serious consequences, including—this is my emphasis—“potential” prosecution. Only potential prosecution. The noble Baroness went on to say that the new fundamental standards will ensure that the Care Quality Commission will be able to take action against providers for unacceptable standards of care, including abuse and neglect. The Government consultation—I want to give fair weight to what the Government are doing—says the same in paragraph 34. Indeed, it says that in effect the CQC will have the power to prosecute for criminal neglect. I expect the Minister to give a similar answer today. I emphasise that I am looking at abuse or neglect that is attributable to the practices and procedures of a company. That is the issue that needs addressing today. 

New clause 19 would strengthen protection by ensuring that if abuse is found to have an element of corporate responsibility, where the systems or approaches taken

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by the care provider were a contributory factor in any abuse or neglect, a new offence would be created, allowing prosecution of a registered care provider. That would not undermine the individual responsibilities of staff. As a number of Members here who served on the Joint Committee that considered the Bill will know, that Committee itself recommended an offence of corporate neglect if a director, manager or other officer of a corporate body consented to or played a contributory part in any neglect. 

I will now say briefly why I would argue for a sentence for a new offence of corporate neglect of up to five years. Only this month it was reported that three nursing home staff from Hillcroft nursing home in Lancashire were jailed for abuse of vulnerable victims. The longest sentence given to one of those staff was just eight months. We know that in the case of the Winterbourne View care home, the longest sentence, for a staff member who pleaded guilty to nine charges of ill-treating three patients, was just two years. That does not wash with the victims of abuse and their families. Given those sentences, I think a maximum sentence of five years would be fair for an offence of corporate neglect. 

Having worked with the families of victims of abuse, I believe a strong penalty for corporate neglect is necessary and justified. I hope the Minister will be able to accommodate the broad backing for an offence of corporate neglect that I and others, including members of the Joint Committee, have endorsed. I do not plan to test the opinion of the Committee today, but I hope the Minister will give due consideration to the new clause and come forward with strong ideas on how corporate neglect in care homes can best be dealt with. I hope that we can consider the topic further on Report. 

Norman Lamb:  I thank my right hon. Friend the Member for Sutton and Cheam and all hon. Members for their contributions to the debate, which has dealt with extraordinarily important issues. I hope that those who have spoken, particularly with regard to the question of the power of entry, would recognise that this issue is about a balance of risks. There are risks on both sides, whether or not there are formal powers. I understand the case that has been put but I hope that those who have spoken in favour of a power of entry will recognise that there are risks on the other side as well. I will seek to explain what I mean by that in due course. 

I am grateful to my right hon. Friend the Member for Sutton and Cheam, my hon. Friend the Member for Truro and Falmouth and hon. Members on the Opposition Benches for tabling the amendments. Safeguarding those people most vulnerable to abuse and neglect is fundamental to our claim to be a civilised society. I welcome the shadow Minister’s welcome for the measures in the Bill on adult safeguarding, which are really important advances in providing a statutory framework for this important issue. 

New clause 3 would enable the local authority to apply to a court for an order to gain access to an adult’s home to speak with an adult suspected of being at risk of abuse or neglect. Whether there ought to be a power of access or entry is a complex and sensitive issue. That is why the Government launched a three-month consultation in 2012 to gauge the opinions of both

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professionals and—importantly—members of the public: the individuals who may be in those circumstances. Their voices must be heard as well as those of the professionals who deal with such cases. 

10.15 am 

Paul Burstow:  The Minister is right. It was good that the Government consulted and sought the views of individuals. Will he explain, however, how those who the amendment would assist—those being coerced and prevented from expressing their fears about being abused, or those who are being abused—could have taken part in such a consultation? 

Norman Lamb:  I understand the limitations on individuals in some circumstances being able to contribute, but that is always the case with Government consultations. There was, however, the opportunity for others to express opinions on behalf of those who may not be able to have a voice. 

I do not think that Government consultations can ever be perfect in seeking to elicit the views of everyone who has an interest; none the less, the process is important. The consultation revealed no clear consensus and everyone looking at the outcome of that needs to accept that that was the case. I will come on to deal with some of the responses. 

Liz Kendall:  So that the Committee is clear, will the Minister tell us which organisations were against a power of entry? 

Norman Lamb:  I will come on to deal with some of the contributions that came in from organisations, if the hon. Lady will bear with me for a moment. Of the 212 respondents, 50% backed a new power and 40% were opposed. However, among individuals 77% disapproved of the proposal. One individual said that 

“this power would create a serious lack of trust between vulnerable people and the local authority…creating situations where people will not seek help.” 

We received no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unfortunate, and potentially devastating, outcomes of that. Subsection (4)(f) of the proposed new clause 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.” 

It is unclear how such—[ Interruption.] That is a good musical accompaniment. We are discovering the musical tastes of the Under-Secretary of State for Health, my hon. Friend the Member for Central Suffolk and North Ipswich. 

Mr Jamie Reed (Copeland) (Lab):  I wish we hadn’t. 

Norman Lamb:  As the hon. Gentleman says, we wish that we had not. I can just see him boogying on the dance floor, as we all can. I apologise, Mr Rosindell, on behalf of my hon. Friend. 

It is unclear how such a judgment could ever be reliably made in such circumstances and that goes to the very heart of the issue. If I may provide two quotes, Age UK Camden, one of the organisations concerned, said that following entry: 

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“If the person who is suspected of causing harm lives with them, it could be dangerous for them to return…any action taken”— 

should preferably be “the least intrusive” and taken in a “sensitive manner.” 

I also quote Hampshire county council, which overall was in favour of the power. None the less, it said: 

“Gaining entry could provoke the perpetrator to abuse the victim further and as we have learnt from domestic violence, victims will often, as a result of coercion or threat, try to protect the perpetrator.” 

It added: 

“The current law already allows social workers to gain entry in order to make an inquiry, however this relies heavily on working with the police”. 

My plea to my right hon. and hon. Friends is to accept what I said at the start. This is a balance of risk. This is an extraordinarily important issue. It is tempting just to think that we are giving extra protection to people. But if the result of gaining entry was that the perpetrator inflicted revenge on the individual we would have to take that incredibly seriously. Although that concern and risk is acknowledged in the amendment, how on earth would we make the judgment about whether that person would be safe when the social worker and the police officer leave the premises? My plea is simply that my right hon. Friend and other hon. Members should accept that there are risks involved here and that it is a difficult judgment to make. 

Paul Burstow:  Of course there are risks and there is a balance of risks, but surely that balance should be a consideration of the merits of an application for an order in a court as set out in the amendment. This is not just casting it out and saying there should be a generalised power of entry without those safeguards. Subsection (f) states, 

“exercising the power of access conferred by the order will not result in the person being at greater risk of abuse”. 

The Minister indicated that, even with the inherent jurisdiction of the court now, that is something the court would have to satisfy itself on. The amendment codifies that and makes it clear. 

Norman Lamb:  I understand why my right hon. Friend seeks to codify this but I want to reinforce the concern that has been expressed in response to the consultation about a completely unintended consequence of exercising a power of entry rather than exercising skills in negotiating an outcome. The hon. Member for Sheffield, Heeley will be able to speak with great experience about this. Those skills of the social worker were another feature of the responses to the consultation. That is what the professionalism of the social worker is ultimately all about. 

Meg Munn:  The Minister is right that there are risks. But those risks need to be assessed by the social work team and then, as the right hon. Gentleman said, by the court. If there is no power of entry, one of the tools in the social worker’s bag has been taken away. My point is that going into a situation, a discussion is had with the person who then says, “There is nothing you can do about it” and slams the door. End of discussion. To get in at the moment it has to be a much higher threshold and it has to be the police. Whereas if there is a power

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of entry—I apologise for making this intervention, Mr Rosindell, but it is an important issue—the discussion goes more along the lines of, “Well, if I have concerns of a higher level I could go to a court. I don’t want to do that. Perhaps we could discuss this further.” It creates a way in. I understand the Minister’s concerns, which is why everyone here would accept the need to think about it. But I ask him to look at this. I guarantee that if we do not do it now a future Committee will do so. 

Norman Lamb:  I take the comments of the hon. Lady and others, including my right hon. Friend, very seriously. I have been thinking about this a lot. I have not reached a precipitate judgment on this. I always instinctively remain open to discussion. I reached my judgment as a result of looking at the responses to the consultation and all of the discussions I have had, including talking about this with senior representatives from the Association of Directors of Adult Social Services, an organisation that represents the very social workers the hon. Lady was talking about. 

Liz Kendall:  It actually represents the directors of social services. I want to return to the comparison that the Minister made with domestic violence, because this goes to the heart of his concerns. He said that if a complaint was made, an abuser might become more abusive to a woman and cause her more problems, but such an attitude would be a recipe for never doing anything. Such issues must be dealt with, ideally through negotiation. We cannot simply say that there should not be a power of entry to get to grips with a situation in case the victim is abused further. That risk must be handled, but it is not a substantive argument against the point. 

Norman Lamb:  That is absolutely not a recipe for doing nothing. It cannot be said that because there is no formal power to require entry, nothing can be done. That is what social workers do the whole time. Their professionalism, skills and training lead them to negotiate solutions, and that, to me, is the essence of social work. The proposal would alter the power relationship, and although hon. Members who have contributed think that it would inevitably alter the power relationship in a good way, I will use some quotes from Mind to demonstrate that it might do precisely the opposite. Hon. Members and my right hon. Friend must take the concerns of such organisations incredibly seriously. 

Dr Wollaston:  I wish to reiterate the point that has just been made about the comparison that the Minister used with domestic violence. Of course there is strong evidence that a victim will sometimes try to protect a perpetrator, but if we took the view that there should be no right to investigate because of the chance of escalating that risk, we would see many more fatalities as a result of domestic violence than we already do. The point is to protect people and to have an ultimate back-stop in extreme circumstances, not to give social workers an automatic right to use the power as some kind of bargaining chip. In the case of the tiny minority of people who are absolutely hellbent on not having any contact at all, we are talking about having a final back-stop with the protection of the courts. 

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Norman Lamb:  I take my hon. Friend’s point extremely seriously. To be absolutely clear, the reference to domestic violence was in the quote from Hampshire county council’s response to the consultation on the proposal. I am absolutely not saying that one should not investigate in such circumstances. Such allegations must be taken with the utmost seriousness, but it is a question of what powers are available. As I will go on to explain, I believe back-stop powers already exist in such extreme cases. As hon. Members have emphasised, we are talking about the most extreme circumstances. 

Debbie Abrahams:  The Minister has mentioned that ADASS does not support the power of entry. Does he acknowledge, however, that the College of Social Work, which represents social workers rather than directors of adult social care, supports the proposal? 

Norman Lamb:  Absolutely. I would like to clarify that the Association of Directors of Adult Social Services represents the directors responsible for the services within which social workers are employed; I take the clarification that the shadow Minister offered to me. I accept that the College of Social Work favours the proposal. The point I am trying to make is that even among the professionals there is no unanimity of view. I should also clarify that I was not saying that ADASS has formally opposed the proposal. I was referring to informal discussions that I have had with representatives from ADASS, which have led me to believe that among those very experienced people there is, again, a range of views about this incredibly important and sensitive issue. 

10.30 am 

Let me quote from Mind. In my discussions on the matter, including with members of the Joint Committee, the assertion was made when I mentioned Mind: “But we are not talking about the people that Mind represents.” However, we are absolutely talking about them. We are talking about a whole range of people, including importantly, those represented by Mind, which is an organisation that I suspect all of us in this room have a very high regard for. 

Let me quote what 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”. 

That theme was found in many other responses. Mind’s submission in response to the consultation stated: 

“Mind believes that the proposed new power of entry is a disproportionate, sweeping provision that would disempower those it seeks to protect and fail to adequately take into consideration their rights, preferences or perspectives.” 

I quote again: 

“We are pleased that the consultation document states ‘it is not our intention to introduce further powers of entry unless a compelling case could be made’ and we firmly believe that there is no compelling case for introducing this power.” 

It also stated: 

“Mind would also strongly disagree with the argument that failing to introduce a new power of entry, and therefore relying on the inherent jurisdiction of the High Court in the few cases”— 

which has been widely accepted in this Room— 

“where existing legislation may not apply, is disempowering for the people involved. To the contrary, we believe that the fear that

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a social worker could forcibly enter a person’s home against their will is extremely disempowering, not to mention the experience of actually having someone enter their home against their will.” 

I quote again: 

“Mind believes that any perceived gap in provisions would not require the creation of this new power. However, as well as being unnecessary, we believe that the proposed new power is disproportionate, inconsistent with a human rights-based approach to safeguarding and practically extremely difficult to implement effectively.” 

I know that I will not persuade hon. Members and my right hon. Friend the Member for Sutton and Cheam to change their view this morning. I urge them, however, to take those submissions by Mind and the other organisations that I have quoted extremely seriously. Sometimes there are unintended consequences with legislation that we pass with the best will in the world. If the consequence is that we put the person at increased risk of retribution, I suspect that we would all be very sorry with that outcome. 

Paul Burstow:  Of course, the risk that the Minister described is important. I respect and value, as I am sure all members of the Committee do, the work that Mind does. However, Mind was responding not to the new clause that we are debating today, but to the consultation and the questions in it. Mind did not have the benefit of seeing the precise language. In the past couple of weeks, my office has been spending quite a bit of time digging down to understand the nature of its concern. Much of it appears to be born out of its concern about inappropriate uses of section 135 of the Mental Health Act 2007, which talks about gaining access with the purpose of providing treatment, whereas this proposal is not about gaining access to deliver treatment against someone’s will, but about gaining access against the will of a third party that is stopping someone from getting access to determine whether there is a risk of harm taking place. 

Norman Lamb:  I understand the points made by my right hon. Friend. None the less, the quotes that I have given—which, yes, are in response to the consultation—are absolutely relevant and cannot be distinguished from the amendment we are discussing. No legislative vacuum exists to prevent care and other professionals from accessing those in urgent need of assistance. This is where the existing legislation already provides for those crisis cases to which hon. Members have referred. Everyone has been clear about stressing that it is in the most extreme cases that the power might be used. Indeed, the hon. Member for Sheffield, Heeley talked about the deterrent effect, as it were. I urge caution on any social worker, although I am sure they already accept that it is quite dangerous to go around in a manner that might be perceived as offering a threat, because it changes the power relationship in a way to which Mind alluded. Nevertheless, in those circumstances of real concern to which the hon. Lady and others referred, the powers are already in place. 

Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises for the purposes of 

“saving life or limb or preventing serious damage to property”, 

which would cover the circumstances of when it is suspected that an adult is at risk of abuse or neglect. A wealth of powers for use on the front line already exists. One safeguarding board stated that the new power 

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“would possibly be a duplication of current powers which do not appear to be used to their full potential.” 

Furthermore, the inherent jurisdiction of the courts to intervene provides a final safety net, so a safeguarding access order is not necessary, given the extreme concerns that I have described from organisations that we all respect. 

Meg Munn:  The Minister is misunderstanding the nature of the cases in which the power might be used. Hon. Members have said that this is not a lot of cases, but that does not necessarily mean that the cases are extreme in themselves. This is not about cases where someone is likely to be killed, although such situations happen; it is where the treatment of the person gives rise to concerns and might have been going on for a long time—it is a chronic situation, as opposed to one of the few extreme situations. 

The College of Social Work has provided case examples, where the power would have been useful, and— 

The Chair:  Order. I remind hon. Members that interventions should be brief and should not be speeches. 

Meg Munn:  I understand that, Mr Rosindell, but the Minister misrepresented my previous speech. I wish to challenge him on a point or two on the record. I was not speaking of the power of entry as a deterrent; it is a support to the social worker in discussing issues and it helps the situation. In no way is the power a deterrent. That is what I wished to say. 

The Chair:  Order. I remind colleagues that it is possible to give another speech, if that is preferable to making an intervention. 

Norman Lamb:  I am grateful to you, Mr Rosindell, for encouraging discipline in the Committee. I apologise to the hon. Member for Sheffield, Heeley if I misrepresented her—that is a strong charge she makes against me, but I apologise if there was any risk of misrepresentation. 

I should respond to the point made by my right hon. Friend the Member for Sutton and Cheam on distinguishing between what the organisations responded to in the consultation and what is being proposed now. A power of access that we consulted on had a higher level of challenge—use of judges sitting in the Court of Protection—than the amendment, so that also needs to be weighed in the balance. 

The Police and Criminal Evidence Act 1984, 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 on the front line. I want to develop the point, because I suspect that there is widespread ignorance of what those powers amount to. That is no one’s fault; it is just the case. 

My right hon. Friend has been, as I would always expect of him, diligently exploring the various powers. The court can also hear any matters that come before it, unless excluded by a rule or statute. That enables the common law to develop and adapt as is required on a case-by-case basis to provide the remedy needed. We think that this inherent jurisdiction can meet the need of protecting vulnerable adults more readily than legislation may. There is a risk that by legislating, Parliament

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would oust the court’s inherent jurisdiction in this area and so limit the scope and means by which the courts can safeguard adults in need of care and support. 

As for the ability to gain access to assess the mental capacity of a person suspected of being an adult at risk of abuse, that route is already available via the Court of Protection. The court is accessible, and can make orders, 24 hours a day. 

Further legislation for a new power of access would risk sending the message that legal intervention takes primacy over negotiations and consensus, which, as I said, are at the heart of the skills of a good social worker. Age UK Redbridge said that 

“the answer is more partnership, closer co-operation and more diligence and more information out to the public & to community groups, rather than this heavy handed kind of measure.” 

I will also ask this question: what do people do when they have gained entry? No one is arguing for, as exists in Scotland, a power to remove, which is quite draconian. That is not, I suspect, a power advocated by anyone directly here, but it seems to me that there is quite a danger that people would be left high and dry, having exercised this quite significant power to enter someone’s premises and then having no power to do anything further. 

Grahame M. Morris (Easington) (Lab)  rose—  

Paul Burstow  rose—  

Norman Lamb:  I will give way to my right hon. Friend first. 

Paul Burstow:  I am just a little concerned about this line of argument and want the Minister to reflect on what he is saying. He seems to be saying to the Committee that the duty to inquire can lead nowhere because there is no means to act, so will he just set out what will happen, without this power to gain access, in the event that a duty to inquire results in a discovery that something is happening? What happens then? 

Norman Lamb:  I come back to, in a sense, what happens all the time—every week of the year, I suspect—across local authorities in England. Social workers use their powers—of course, we are now reinforcing that with the statutory adult safeguarding boards—to protect vulnerable citizens. It does seem to me—I apologise for repeating this—that the essence of the skills and training of a social worker is the ability to deal with these types of circumstances. 

My officials at the Department of Health have already had discussions with representatives of the Local Government Association and the Association of Directors of Adult Social Services about ways of improving the understanding of front-line practitioners about what legal powers are available to them in cases of abuse and neglect. This goes directly to what my right hon. Friend says. 

Grahame M. Morris  rose—  

Norman Lamb:  I have not forgotten the hon. Gentleman; he can relax. 

I hope that this might go some way towards reassuring hon. Members, including my right hon. Friend. We propose that case studies and possible scenarios illustrating the powers will be included in practical guidance that

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can be developed jointly by the Department of Health, the Local Government Association and ADASS so that, possibly for the first time, there is a clear guide to all the legislative provisions available and what they actually amount to. When I have sought to understand precisely what the various pieces of legislation provide for, I have found a degree of opaqueness. I suspect that many social workers out there in the field are not aware of what powers are available to them. Before I conclude this part of the discussion, I give way to the hon. Member for Easington. 

10.45 am 

Grahame M. Morris:  I am sure that hon. Members on both sides of the Committee are trying to be helpful, but to return to the fundamental point to which the Minister referred earlier, he argues that we must balance the risks and that the vulnerable individual—a frail or elderly person, or someone with learning disabilities—might be at greater risk from the power of entry. Surely he would not make that argument in relation to safeguarding children. 

Norman Lamb:  I take the point, but we in this Committee are debating whether we should introduce a power relating to adults. The point that I have been trying to make is that in response to the consultation, organisations and individuals highlighted concerns about the implications of introducing the new power. I ask hon. Members and my right hon. Friend the Member for Sutton and Cheam to recognise that introducing a new power of entry on top of the inherent jurisdiction in the existing legislative provisions has human rights implications. 

It is a significant matter to gain entry to someone’s home. What came across time and again, in the examples given by organisations of circumstances in which councils and individual social workers have had to deal with practical situations, is that they managed to work their way through the problem and come to a solution. There are plenty of examples of how that has happened in practice here and now, under the existing rules. 

Grahame M. Morris:  I understand that we will deal with some of the issues about how the Human Rights Act will apply in such circumstances when we debate clause 48, but will the Minister address the issues relating specifically to this clause in his remarks? 

Norman Lamb:  I am not sure I entirely understand that intervention. Perhaps the hon. Gentleman wants to come back to convince me further. 

Grahame M. Morris:  My concern is that we are overcomplicating the issue by introducing the human rights argument, which I hope we will deal with later this morning or this afternoon. On the balance of risks, I am still not convinced by the Minister’s arguments why we should not support some changes. These are probing amendments. They are an opportunity for him to take them away and reflect on them. 

Norman Lamb:  I am grateful to the hon. Gentleman for clarifying that further. I said earlier that I recognised that I would not necessarily be able to convince hon. Members who feel strongly about the issue— 

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Grahame M. Morris:  Some of them are on your side. 

Norman Lamb:  I accept that. I have just been urging hon. Members to understand that there are two sides to the issue and that it is extraordinarily difficult. 

Let me explain why the human rights issue is important and, in my view, more relevant here than in the other clause, with which we will deal in due course. The human rights convention, and the Act that followed it in this country, is there to protect the citizen against the overbearing power of the state. That is the whole purpose of it. That is why it was introduced and why it is so important. The state exercising powers to enter someone’s home absolutely must be taken seriously. We cannot brush it aside as a technical problem that gets in the way of an ideal, practical solution. That is why organisations such as Mind refer specifically to the human rights of the individual. I would urge Members to take that a bit more seriously than the hon. Gentleman suggests. 

The contrast with the later clause is that that relates to whether the Human Rights Act should be applied to entirely private relationships between an individual and a private care home. That is a very different set of circumstances to what we are debating, which is the introduction of a power for the state to gain entry into one’s home. 

Bill Esterson (Sefton Central) (Lab):  Since the Minister has raised the issue of human rights and balance, does he accept that, as well as the right to be protected from the state, an individual has an equal right to be protected by the state? Vulnerable individuals should therefore have the right to expect intervention at the right moment. The issue is getting the balance right. Allied to that, good practice gives guidance on how interventions should be made and whether someone should enter a person’s home. Surely that is the way to deal with the concern he is raising. 

Norman Lamb:  I thank the hon. Gentleman for his intervention, but in some of the arguments that are being made by those who favour the proposed power, the suggestion is that in some way I favour doing nothing—neglect. I hope that Members will understand that I am arguing for using the power, training and skills of the social worker as they are already used. The responses to the consultation, even from those in favour of the proposed power, made it clear that that is the best way to achieve the objective in virtually all circumstances. I would like to repeat the point made by Mind, which said that 

“the proposed new power is disproportionate, inconsistent with a human rights-based approach to safeguarding and practically extremely difficult to implement effectively.” 

Paul Burstow:  I appreciate that people’s views on both sides of the issue are clearly held and respected, but I want to challenge the Minister’s point on the basis of the evidence from the Equality and Human Rights Commission, which said that article 3 of the convention 

“is an absolute right, which cannot be restricted under any circumstances. If a public authority (including a local authority or a court) knows, or ought to know, that a vulnerable person is suffering ill-treatment, it may be under a positive obligation to take urgent steps to stop the abuse.” 

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That is the purpose of the amendment. Different organisations, both respected, have different views on the issue. The EHRC is the body that the Government set up to advise them on equalities and human rights—surely we should take its opinion fairly seriously. 

Norman Lamb:  I agree with what the EHRC said in that quote. Those would absolutely be grounds for taking action. We are debating the action that should be taken and the powers available. I also agree with my right hon. Friend that organisations with a lot of credibility behind them disagree on the issue—that is the point I have been making. I guess that the best I can achieve today is for my right hon. Friend and other Members to accept that the issue is extremely complex and that, as well as the arguments that have been put for introducing the power, there are strong reasons not to. 

Meg Munn  rose—  

Norman Lamb:  I am acutely aware that I need to make progress, but before doing so I will give way for the final time because of the special contribution that the hon. Member for Sheffield, Heeley makes to the conversation. 

Meg Munn:  The Minister is too kind. I put it to him that the College of Social Work recognises that it has been proposed that social workers using this power could be approved in the same way as mental health practitioners are, in order to ensure that the power is properly understood and only used in the circumstances that warrant it. 

Norman Lamb:  I understand that and it is something of a reassurance. None the less, I do not think that it conflicts with the main argument that I have put. Incidentally, I should say that the hon. Member for Oldham East and Saddleworth spoke movingly of her mother’s situation. The circumstances that she described are, of course, those that all of us would want to ensure that we avoid. I just do not think that, ultimately, it makes the argument in favour of the power, as against the approach of skilled, qualified and well-trained social workers doing their job to the best of their ability. 

Amendment 42 would require local authorities to record whether or not an application for an access order has been considered in any cases where it believes that its duty to make inquiries is being impeded. The adult safeguarding provisions, including the duty in clause 42 to make inquiries, make it clear that adult safeguarding is a key responsibility for local authorities to co-ordinate. In order to meet their statutory duties, local authorities must make, or cause others to make, whatever inquiries they think necessary to determine what action needs to be taken in cases where abuse and neglect of adults with care and support needs is suspected. We would expect local authorities to ensure that all their staff whose work relates to adults with care and support needs, recognise signs of possible abuse and neglect, take the most effective and appropriate action and properly record the decisions and reasons underpinning those actions. 

I understand the concerns behind new clause 4 and amendment 117. It is, of course, imperative that anyone, particularly local authorities and their relevant partners such as those in the NHS, who suspects that someone is

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at risk of abuse or neglect knows what action to take and reports this information. The Government believe that our best chance of ensuring that relevant partners take action will be through the adult safeguarding boards, which themselves comprise the local authority, relevant representatives of the NHS, police and anyone else the board considers appropriate. The duties in schedule 2 provide a clear foundation for boards to produce and refine their own protocols for dealing with suspected abuse or neglect. 

Further, I strongly believe that we need to encourage all—everyone—to speak up when they suspect someone is being abused or neglected, but I do not believe that the way to achieve this is to prescribe a process that only those who are defined as relevant partners in the Bill must follow. Yet again, there could be an unintended consequence of in some way sanctioning others not on the prescribed list for doing nothing. 

Liz Kendall:  This is a genuine question, because I do not know the answer. In legislation relating to children’s services does it specify that, where people work across a number of different organisations with children who are suspected of being abused and neglected, there are duties on those organisations for the professionals to report that suspicion? 

Norman Lamb:  I will have to write to the hon. Lady. If she cannot get an answer from the hon. Member for Sheffield, Heeley, behind her, I am happy to write, to give her a formal view. 

Liz Kendall:  My hon. Friend the Member for Sheffield, Heeley, who is sitting behind me, says that there are requirements in legislation and duties on professionals working in other organisations to report suspected abuse. So I do not understand why the Government would not seek to make that clear in this legislation for abuse of vulnerable adults as well. What is the Minister’s answer to that? 

Norman Lamb:  I think I have given the answer that I am concerned about the risk of prescribing certain organisations to do what they—and, indeed, everybody—should be doing anyway. If a list of organisations is prescribed, what does that say about the people who are not on the list? We all agree that we should send out the message that we all have the responsibility to report concerns about the neglect or abuse of vulnerable people. 

11 am 

Existing regulations and guidance make it clear that partners and staff are required to report abuse. We will be issuing new guidance on safeguarding under the powers in the Bill. On amendment 116, we made the decision not to provide a statutory definition of abuse and neglect on the face of the Bill, but to rely on the ordinary meaning of those words. We do not want to restrict the scope of local authorities’ inquiry duty to a prescribed list. It is inevitable that creating a list risks excluding something into which a local authority or its partners may wish to inquire. The Joint Committee, which carried out pre-legislative scrutiny on the draft Bill, considered that issue, and its report concluded that concerns about the approach are not justified. It said: 

“We do not agree with this criticism.” 

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Abuse is an ordinary English word, capable of being understood without being defined. We have the opportunity to issue guidance on the meaning of abuse if necessary. 

Amendment 118 seeks to enable a person with power of attorney to ask the local authority to instigate an inquiry in relation to financial abuse. However, they must already do so. Local authorities are under a duty to make whatever inquires they think necessary when they have reasonable cause to suspect abuse or neglect, including financial abuse, regardless of how they come to suspect that there is a risk of abuse or neglect. That would include circumstances where the local authority receives information about suspected financial abuse from an adult’s power of attorney. I do not believe that we should define or set out a list of situations in which a local authority may be asked to undertake or instigate an inquiry. Such a list could never be exhaustive, and might suggest that only the situations listed should necessitate an inquiry. Situations that require a safeguarding response are best reserved for guidance, and we are working with stakeholders on developing guidance on the new adult safeguarding duties and powers. 

The Government support the sentiment behind new clause 19. We will shortly be consulting on new fundamental standards that will replace the current registration requirements. Those standards will set the basic level of care. Failure to meet those standards will lead to intervention by the regulator, including the possibility of prosecution without the need for an advance warning notice. 

I know that the aim of my right hon. Friend the Member for Sutton and Cheam is to gain some clarification as to our intent. He referred to Winterbourne View. When I came into the job, replacing my right hon. Friend, who had done excellent work on all that, and when I was confronted by the facts of what had happened at Winterbourne View, my direct question to officials was, “What about the company? How on earth can the company get away with having allowed that situation to develop under its watch?” The answer I got was, “We cannot do anything. As we have to serve a notice against the company before prosecuting, if the company complies with the notice, there is nothing we can do, however appalling the abuse or neglect that has been facilitated by how the company has behaved.” 

The change that we are making is a direct result of the Winterbourne View experience and my view that we had to introduce a clear power to prosecute in such cases. The new standards will provide the vehicle by which the Care Quality Commission is able to take action against unacceptable standards of care in all its forms, including abuse and neglect. 

Liz Kendall:  I am not clear on this issue: can regulations introduce a power to imprison or fine someone, as the proposed new clause tabled by my hon. Friend the Member for Blaenau Gwent does? How can a health and social care regulation introduce an ability to send someone to jail or fine them, as the proposed new clause does? I am not clear whether that is possible. 

Norman Lamb:  The hon. Lady’s party, in government, legislated to provide the power of prosecution to the Care Quality Commission. To be blunt, it was a flawed power because a notice had to be served first, which has meant that there have been no prosecutions—there might have been one. Despite all the horrors and scandals

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over the past few years, there have been no prosecutions, because it is impossible for the Care Quality Commission to prosecute because it has to serve a notice first. It is intensely frustrating and the situation must be changed. The power to prosecute is provided in the legislation, but there is a problem with having to serve a notice first. 

Paul Burstow:  The other point, which has been put to me and which I put to the Minister and would like him to address, is that the essential standards, as currently drafted, would be hard to use as a basis for a successful prosecution, even if the obstacle of giving a notice did not exist. Drafting the fundamental standards will be key to ensuring they can be used in a court ultimately to get a prosecution. Is that in hand? 

Norman Lamb:  My right hon. Friend asked that question in his speech. I am advised that the absolutely clear intent is to create clear fundamental standards. Let us recognise that there will be circumstances in which everyone would agree, on the basis of clear guidance, that it would not be appropriate to prosecute, but as in the case of Winterbourne View, my hon. Friend the Member for Morecambe and— 

David Morris (Morecambe and Lunesdale) (Con):  Lunesdale. 

Norman Lamb:  I am sorry. It is a part of the country I clearly know well. My hon. Friend the Member for Morecambe and Lunesdale has a case in his constituency of the most appalling abuse in a care home. He is confronted by a situation where the care home operator cannot be prosecuted due to the existing framework. We are changing it to allow prosecutions and ensure real corporate accountability in such circumstances. It is a really good thing that this Government are doing. 

David Morris:  I thank the Minister for acknowledging the case that has occurred in my constituency. From my experience, I think he is totally right: there should be a framework in place to prosecute errant owners. 

Norman Lamb:  I am grateful for that supportive intervention. 

The shadow Minister also raised the question of penalties, and I should make it clear that when we talk about corporate neglect and a corporate offence, we are talking primarily about offences committed by the corporate body. Tempted though we might be in some circumstances to imprison an entire company, the concept of imprisoning a company is not one that the law understands. In corporate offences, the penalty is a fine. At the moment, there is a limit to that fine, but other legislative changes, which have not yet been implemented but have been legislated for, will lead to unlimited fines against the corporate body and the potential to prosecute individual directors if there is clear culpability on the part of the directors. 

In addition, the Government have accepted the recommendation— 

Nick Smith:  I agree with the Minister that, until now, the Care Quality Commission has a failed track record on intervening in such cases. New regulations and powers

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may help in future, but the verb is “may”, given its very poor record until now. Does he accept that an offence of corporate neglect against the managing directors of a company could act as a good deterrent against poor care, and would be simple for directors to understand? 

Norman Lamb:  I agree with pretty much everything the hon. Gentleman said. First, the bottom line is that the Care Quality Commission has not been able to act because of the requirement to serve a notice. When I raised the matter with it, it said there is a lacuna in the law. It was rather prosaic in the way it put that, but that is what it said. The matter needs to be addressed, and that is what we are doing. 

My view overall is that ultimately we do not get a great culture just by tough regulation, prosecutions and so on. Culture develops because of great organisations doing brilliant things and empowering people working within that organisation to give of their very best, but alongside that there must be effective corporate accountability. If people working in any sector are prepared to play fast and loose, there must be effective sanctions to stop such behaviour. The power to prosecute when there are serious breaches of the new fundamental standards will create the deterrent effect that the hon. Gentleman talked about, and will be very welcome. 

Liz Kendall:  We understand the complexities of the issue. We are clear that what will be proposed may include unlimited fines but not prison, and we want to go away and consider that. If this is set out in fundamental standards that the CQC is supposed to uphold, would we rely on it to take the company or the directors to court, or would the police or individuals be able to do that? The CQC has a massive job on its hands inspecting hospitals, care homes and GPs, and we will come to the provider regime. Will it seriously pursue a company in the courts? We must be clear about the fundamental care standards that are set out, and whether individuals, the police or families can take a case to court if they want to, or only the CQC. 

Norman Lamb:  The Care Quality Commission would prosecute, which is what the hon. Lady’s Government legislated for. They created a bar in the way of doing anything, which was unfortunate, but I acknowledge that the Opposition recognise that flaw. 

The hon. Member for Blaenau Gwent made the point that it is one thing to have the power, but the organisation needs to get the culture right as well, and there is a challenge for the Care Quality Commission. In a former life, I prosecuted on behalf of local authorities in health and safety cases and other similar public offences. I was always clearly of the view that it was necessary to demonstrate a willingness to use the available powers because that sends a message across the system to everyone else to take those responsibilities seriously. 

It is incredibly important for the Care Quality Commission in serious cases of neglect or allowing abuse or neglect to take place that the powers are used. There is a challenge for the culture of the organisation, which it recognises absolutely. I have a lot of faith in the leadership now of the organisation. David Behan and David Prior as chief executive and chair understand about challenging unacceptable behaviours and being tough. The organisation as a whole needs to be prepared to act to demonstrate that same toughness. 

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11.15 am 

Debbie Abrahams:  My point relates to one the Minister made a moment ago. He can correct me if I have got it wrong, but he suggested that the culture is set by the leadership of organisations, as distinct from the role of legislation. I agree that leadership in all organisations is paramount. However, the Government have a role in setting the culture for society through legislation and other behaviours and actions. That is why the Opposition are pushing the matter. It is about setting the tone for the culture in our society that abuse of this sort is unacceptable and, in a corporate setting, it needs to be opposed as strongly as possible. 

Norman Lamb:  I agree, but the bottom line is that the previous Government tied the Care Quality Commission’s hands behind its back. They provided potential for prosecution but then made it impossible for the Care Quality Commission to prosecute. This Government are giving it the power to do it, to hold organisations to account, to ensure that there is proper corporate accountability. I am sure, for the reasons the hon. Lady expressed in her intervention, that she will strongly support what we are doing. One can always hope. 

I am conscious that I need to make progress. I have tried to be generous in accepting interventions. 

Nick Smith:  Can I press the Minister further on something I think he might have missed? 

The Chair:  Order. Is the Minister giving way? 

Norman Lamb:  I will give way quickly, but the hon. Gentleman had better be short. 

Nick Smith:  I thank the Minister for being very generous. I want to press him. With the new arrangements, will directors of care homes be liable to personal prosecution and face jail if found guilty? 

Norman Lamb:  Directors could be subject to personal prosecution and to unlimited fines, not to jail, under these provisions. There may be other offences they commit that could lead to a jail sentence. As I explained, we have passed other legislation necessary to introduce an unlimited fine. That is not in place yet but the powers and intention are there to introduce it. 

The Government have accepted the recommendation in Professor Don Berwick’s report on patient safety, “A promise to learn—a commitment to act”, that there should be a new offence of wilful neglect or ill treatment of patients. Professor Berwick is clear that the offence should apply to both individuals and organisations, whether or not they are registered with the Care Quality Commission. We are currently working through how best to implement the recommendation, and will consult as soon as possible on proposals that cover the formulation and scope of the offence, as well as potential penalties. 

Turning to new clause 22, the Government support the right of staff working in the NHS and social care to raise concerns. We expect all NHS and social care organisations to support staff who wish to do so. We

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expect those organisations to have in place whistleblowing policies that are compliant with the provision introduced by the Public Interest Disclosure Act 1998. 

All regulated health and social care professionals have a duty to raise concerns. The Department of Health also funds a helpline providing free, independent and confidential advice to health and social care staff wanting to raise concerns but unsure about how to do so. The chief inspector of hospitals and the chief inspector for adult social care will ensure that inspections are not seen just as a tick-box exercise. 

They will ensure, not only that the organisation is complying with the law and putting policies in place, but that the culture of the organisation actively promotes the benefits of openness and transparency and encourages the raising of concerns by staff as a positive step to improving public and patient safety through the quality of services provided. The statutory duty of candour that the Government have committed to introducing, which was in the Liberal Democrat manifesto, will apply across health and social care to any organisation registered with the Care Quality Commission, including local authorities where they are registered because they undertake relevant activities.

I turn now to new clauses 23 and 24, which were tabled by my right hon. Friend. I want to reassure him that I understand his motivation and, indeed, share his concerns. I have already said that we have accepted Professor Don Berwick’s recommendation to create a new offence of wilful neglect or ill-treatment, and we

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are working to develop proposals as soon as we can. Like Professor Berwick, we envisage that the offence will apply to both individuals and organisations, so it will pick up both the situations proposed in my right hon. Friend’s new clauses. 

However, the issue is not straightforward. For example, Professor Berwick’s remit extended only to NHS services. We are considering carefully whether it is sensible to limit the offence in that way or whether it should apply more widely across both the health and care sectors. We have committed to consulting on our proposals for the new offence, which is the right way to proceed. It is proper to consult first and we plan to do so shortly. The scope and extent of the offence will form part of that consultation. I am sure that my right hon. Friend will agree that a period of consultation and reflection is essential to ensure that the final offence operates effectively and fulfils both the spirit and the letter of Professor Berwick’s recommendation. 

Finally, no amount of legislation will ever completely prevent abuse or neglect. Rather, it is through developing effective partnerships and ensuring the active engagement of the community that we can best protect individuals. I hope that my arguments have reassured my right hon. Friend and Opposition Members and I encourage them not to press their amendments. 

Ordered, That the debate be now adjourned.—(John Penrose.)  

11.22 am 

Adjourned till this day at Two o’clock.  

Prepared 22nd January 2014