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Care Standards Bill [H.L.]

5.48 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, in moving that the House do now again resolve itself into Committee on this Bill, I should like to apologise to the House for something I said on Monday. The noble Lord, Lord Clement-Jones, moved Amendment No. 5 intended to ensure that private GP call-out services would be regulated under the Bill. In reply, I indicated that all wholly private GPs would be covered by the provisions in the Bill and that we would not be regulating only premises.

I am sorry that my comments were not wholly accurate. The Bill as currently drafted will regulate premises where private GPs provide treatment but not all private GP services. I apologise to the House for the error. I am grateful to the noble Lord, Lord Clement-Jones, for drawing attention to the issue and I recognise fully the concerns which prompted his amendment. We shall look carefully at the options for tackling those concerns, in particular whether we might seek to use this Bill for that purpose or whether there are other more appropriate approaches. I shall, of course, let the noble Lord know the outcome of our thinking. I beg to move.

Moved, That the House do now again resolve itself into Committee.--(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

House in Committee accordingly.

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[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne) in the Chair.]

Clause 20 [Regulation of establishments and agencies]:

Lord Clement-Jones moved Amendment No. 46:

    Page 10, line 28, leave out ("may") and insert ("shall").

The noble Lord said: Without being out of order, perhaps I may take the opportunity to thank the Minister for his response. He made it as soon as he was aware that his previous statement was incorrect. I look forward to hearing the result of the ruminations within the department.

In moving Amendment No. 46, I shall speak also to Amendments Nos. 55, 57, 61 and 62. I am getting too long in the tooth to trade wording with Ministers, particularly as regards "may" and "shall", and I should not like the Minister to believe that I do not accept that for many technical and historic reasons the vast bulk of duties on Ministers exist as "may" rather than "shall". However, in Committee it is important to try to elicit from Ministers the depth of their commitment, hence I propose the use of the word "shall". I give the Minister due warning that I shall not take the proposal through to Report stage.

It is important for the Minister to give an assurance. Those from the voluntary organisations who have briefed me are concerned that the wide discretion to make provision in regulations covering many important aspects of the regulation of private healthcare--for instance, complaints procedures--could dilute the effectiveness of the measure. They and we on these Benches want to see a firm commitment from the Government to make provision as regards the essential details of the regulations.

Amendment No. 55--and I see that Amendment No. 56, tabled by the noble Earl, Lord Howe, is similar--is designed to tease out more about the meaning of the word "welfare" because it is not clear. The proposal in Clause 20 provides regulation-making powers which will cover the management, staff, premises and conduct of establishments and agencies. Subsection (1) provides for regulations which will be key to the registration of establishments and agencies.

Subsections (1)(d) and (1)(e) provide powers to make regulations to ensure that, overall, children's homes, care homes, residential family centres and independent fostering agencies must secure the welfare of the people placed in or through them. The proposal to make establishments responsible for the welfare of persons is warmly supported by ourselves and by others who take a strong interest in the Bill. It is a welcome move from previous legislation, which merely concentrated on premises and facilities. However, we believe that the clause should be strengthened still further by defining the word "welfare". If it is not defined, it leaves open the possibility of the unscrupulous home owner responding in very narrow terms.

The incorporation in statute of the promotion of health, the prevention of ill health and the rehabilitation and recuperation of individuals in support of their daily activities places greater emphasis

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on the quality of care and treatment and leaves little room for ambiguity. I urge the adoption of Amendment No. 55.

Finally, we on these Benches strongly support Amendments Nos. 58 and 59, tabled by the noble Earl, Lord Howe. I beg to move.

Earl Howe: I rise to speak to Amendments Nos. 49, 51, 52 and 63. I shall speak also to Amendment No. 56 which closely resembles Amendment No. 55. The Delegated Powers and Deregulation Committee of your Lordships' House has observed that the Bill, of its very nature, requires a substantial number of powers to be delegated to secondary legislation. I do not seek to argue with that judgment. It is a framework Bill and it is not appropriate to include everything in it. Ministers must have flexibility to amend regulation in the light of changing circumstances. However, we need to be certain that the scope of such delegated powers is appropriate.

One of the risks in a Bill of this kind, which is almost bursting at the seams with regulatory provisions, is that there is a temptation for a government to regulate just a little too much. That tendency seems to be manifest in Clause 20. I should like to hear from the Minister why, for example, he feels it appropriate to regulate the fitness of premises to be used as an agency as distinct from premises in which there are residents or patients--and I quite understand why they need to be regulated. We need to know why the number of people working in an agency is a matter for government.

The financial position of a business and the way in which it keeps its accounts are of considerable importance for its viability and for all who depend on it. However, are they matters for government to pronounce upon and to regulate? In any case, how are inspectors supposed to make a judgment on what the financial position of an establishment or agency is? Will they be qualified in finance and accounting? I doubt it. I doubt, too, that an inspector even when presented with, say, a business plan and a detailed cash-flow forecast, could be sure that they made sense. Still less could he be sure that a bank manager would continue to place his confidence in the management of a particular business.

I am prepared to accept that clear and accurate record keeping is important for the proper operation of any of the establishments covered by the Bill, but is it necessary to include Clause 20(3)(c) when subsection (1)(f) provides for the management and control of the operations of an agency? If it is, I should like to know why.

In considering Clause 20, the Committee needs to bear one general point in mind. The raison d'etre of the Bill, as the Government have repeatedly emphasised, is to minimise the scope for abuse or poor treatment of vulnerable people and generally to raise standards of care. Any power to regulate that appears on the face of the Bill should therefore pass a simple test: do such regulations contribute significantly to those two overriding aims? If the answer is "no", the Bill should

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not provide for them. I believe that it focuses too much on management and administration and not enough on the quality of care.

Lord Rix: Before speaking to Amendment No. 70, which is included in the group, I, too, want to clear up a point which arose in the report of Hansard on Monday this week. In col. 437, it was reported that I said:

    "For that reason, noble Lords may wonder why I have tabled so many soulless amendments".

I remember once many years ago, when I was an actor, an unkind critic once accused me of not knowing my farce from my elbow--I hasten to add that the word is spelt: F-A-R-C-E. It is quite clear that, unfortunately, the Hansard reporter last Monday did not know her Middle English from her Latin, soul being Middle English and solus, "alone", being Latin, often in a dramatic context. I believe that the actress Greta Garbo was fond of saying that she wanted to be alone, but she never said that she wanted to be solus, as far as I am aware. I hope that the matter is cleared up and I should like to say that the Hansard department was quick to apologise and printed a correction the following day, but your Lordships might not be aware of that particular correction.

I turn now to Amendment No. 70. Many publicised abusive situations involving adults demonstrate the need for clearer prescription by way of regulations, regarding what is acceptable behaviour management for adults as well as for children. In many circumstances, restraint is nothing more than gross violation, but in a small number of cases it may have a legitimate role in serious risk management. Mencap is currently involved in three pilot projects exploring methods for responding to challenging behaviour in non-aversive ways. I believe that the Government have a legal responsibility to advocate and enforce best practice in behaviour management so that assault is no longer legitimised in the name of restraint.

6 p.m.

Lord Laming: Amendments Nos. 46, 47 and 48 deal with a real issue; that of "may" or "shall". Clause 20 places a wide range of responsibilities on the Government to deal with the regulation of establishments and agencies. Although I have a certain sympathy with the point made by the noble Lord, Lord Clement-Jones, I believe that for such a wide range of functions, the use of "may" rather than "shall" is helpful. I regret that I cannot support Amendment No. 63 because the Burgner report, which looked into many of the issues relating to the regulation of establishments, identified the need for establishments to maintain good records.

Such establishments deal with people who not only have a wide range of needs but who often come from many different parts of the country. Bad record-keeping was one of the reasons why abusive situations were allowed to develop in some establishments. The regulations do not need to be intrusive, but together they create a framework which is the foundation for

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good practice. I greatly hope that it will be accepted that good practice depends on good administration, good management systems and proper systems which are capable of being evaluated by external sources which include inspectors.

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