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Baroness Masham of Ilton: My Lords, perhaps I may intervene before the noble Lord, Lord Warner, rises to speak because he may be able to answer the questions that I want to ask. Let us suppose that a person's name goes forward to the Secretary of State but the person concerned maintains that he is innocent. If he does not "fly away", will he still be paid and employed, or will he be suspended with pay, or dismissed?
I take this opportunity to say, as I have said before, that I feel that it is very important for children's homes and care homes to have independent visitors who know the staff and the residents and who are able to stop any abuse taking place. I say this as a member of a board of visitors of a young offenders' institution. That is just what we used to do; we could feel what was happening, and see and talk to people.
Lord Warner: My Lords, I rise to attempt to bring us back to earth a little regarding what takes place at the local level. I shall relate one or two cases which, from my dim memory, I can recall as examples of the type of issues with which we are dealing. I remember two cases very vividly. In one, the driver of a bus carrying people with serious learning difficulties sexually abused a young girl at the end of the journey. In another case, a care worker in an old people's home beat up elderly people. We are talking about seriously vulnerable people who have been abused--sometimes badly physically abused. Let us keep that in mind before we go overboard in terms of a balance in favour of the civil liberties of some of the people who have been accused of abuse.
We should also bear in mind--this is where I believe that the noble Lord, Lord Phillips, has it wrong--that there are considerable checks at the local level before a case reaches the Secretary of State. We are talking about a set of circumstances in which there is scope for hearings and disciplinary processes, and there are no incentives to malicious--
Lord Warner: I shall give way to the noble Lord, but perhaps I may at least employ the argument before he asks me any questions. We are talking about a set of circumstances in which people at the local level have many checks on employers who misbehave. Yes, there are. I see the noble Lord, Lord Clement-Jones, shaking his head. We have checks in the system. However, I suggest to the noble Lord that some of us who have worked at the local level, who have run these services and have registered other bodies which provide these services, have some experience in this matter.
I suggest to the noble Lord that there are checks in the system at the local level. There are no incentives to malicious employers to refer employees up the line to the Secretary of State. If, for example, a private home
Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord for giving way. He talks--I am almost inclined to say "blithely"--about the universal presence of those checks. Will he tell me what check there is in relation to a typical small private home for half a dozen old people where an employee who has been there for 10 months is sacked? What checks are there?
Lord Warner: My Lords, we are not talking about any grounds. We are talking about grounds on which the employee is removed and his name referred because of allegations of misconduct against one of the residents of the facility.
We are not talking about employees who were sacked for bad timekeeping or raiding the till. We are talking about employees who are sacked or who resign after accusations of abuse against vulnerable people. We are not talking about the Scouts and children. This provision is in relation to vulnerable adults who are in no position to defend themselves in many of those cases.
I believe that the noble Lord has got it wrong. It is the civil liberties of the vulnerable people that we are trying to protect here. These processes are there to protect those particular people. I strongly suggest to the House that we do not support this particular amendment.
Lord Clement-Jones: My Lords, before the noble Lord sits down, he keeps referring to the process as though it is inevitably only subsection (2)(a) which will apply; that is, that the provider has dismissed the worker. He has completely ignored paragraphs (b), (c)
Lord Warner: My Lords, not at all. If, in the particular case which the noble Lord is talking about, the person has resigned and left, he may well have left because he was fearful of the process which would have led to his eventual dismissal after the full truth of his activities had emerged.
Lord Mackenzie of Culkein: My Lords, I hesitate to keep the discussion going at this late hour but I feel strongly about this matter. I want to say something about this from two perspectives: first, from the perspective of my younger years as a nurse with responsibility for managing other nurses and for aspects of healthcare delivery; and, secondly, at a second stage in my life, from the perspective of a healthcare trade union officer representing members before disciplinary and appeals tribunals of health authorities or disciplinary committees of the nursing and midwifery statutory bodies.
In the first of those incarnations, I was rather intolerant of any bad practice. But in the second, I used every adversarial and advocacy skill to get my member off or to mitigate the effect of any penalty. But, after a successful case, I would sometimes go home in the evening and wonder what on earth I had done. However, like, I am sure, every lawyer representing someone before the courts, I would rationalise my position by saying that I had a job to do and it was for the other side to prove its case.
So I know about focusing on the rights of workers and I know also of the ambivalence of anyone concerned about care delivery and standards and sometimes, I think, the fear that someone is free to repeat an offence because of one's advocacy.
The reality is that the vulnerable patients and clients must be protected and no one here this evening will depart from that. I suspect that a number of years ago, I should have been tempted to put forward some of the arguments advanced by the noble Lord, Lord Phillips. But, given the recent scandals that have emerged, I do not believe that we shall be lightly forgiven by the public if we do anything other than take effective steps to ensure that the guilty abusers do not move from one job to another.
The issue is whether that much-discussed balance is right; namely, the balance between the rights of vulnerable people and the rights of the worker. It is certainly not easy. If this matter stood in isolation, it might be argued that it has the appearance of individual responsibility, with poor management and
There is an absolute right of appeal to a properly constituted tribunal against any decision to be listed, and I think that is a great step forward. I believe that my noble friend the Minister has the balance--albeit a very difficult balance--just about right.
Lord Hunt of Kings Heath: My Lords, my noble friend Lord MacKenzie really put his finger on it when he talked about the difficulty of coming to the right balance. Clearly, from our debates tonight there is some degree of disagreement on where the line, or balance, should fall. I am confident that we have got the balance in the right place.
I am also confident that these provisions, far from inhibiting people from wishing to work in a care setting in the future, are part of a whole set of arrangements contained in this Bill which in the long term, if not the shorter term, will lead to the whole care setting having a more professional, more developed, and more highly trained and qualified workforce. As such, I am convinced that it will become more attractive for people to work in. The legacy of these inquiries into horrendous cases of abuse which we have seen over the years has in itself deterred entrants to the profession.
Let us consider the general social care council, which is just one element of these measures, and the impact that that will have in determining the greater professionalism of the whole workforce, aligned to the system that we are putting in place to protect vulnerable adults. That will enhance the attractiveness of this profession in the future.
These clauses in the Bill, and indeed the protection of children list on which they are based, are the result of the evolution of the Consultancy Index. This has been run by the Department of Health for some 25 years, after it had inherited it from the Home Office, and it has been operated on a non-statutory basis until now.
In 1998-99, the Home Office led an inter-departmental group to prevent unsuitable people working with children and abusing trust. The group recommended that certain people, including criminals convicted of particular offences, should be prevented from working with children. The group also considered that the protection of vulnerable adults should be dealt with and recommended that there should be a workforce ban on people who abuse vulnerable adults, as no such protection then existed. Part VI of the Bill implements this.
Until we brought forward this Bill, no sure method existed of offering a degree of protection to many vulnerable adults from those who cause them harm or put them at risk. That contrasted with the case of children, for whom at least we have the Department of Health's Consultancy Index, and, indeed, the DfEE's
That is unacceptable. Over the years there have been examples of service failure where workers, as a result of neglect or of deliberate acts, have caused harm to elderly people or to adults with learning disabilities. One can point to a number of examples, such as the Longcare case, where adults with learning disabilities were treated very badly in a number of homes until inspectors stepped in and closed the homes concerned. After that happened there were examples of nurses employed at the home at the time who subsequently were able to obtain employment in another care setting.
The protection of vulnerable adults scheme requires the Secretary of State to keep a list of persons who are unsuitable to work with vulnerable adults. It provides that those listed are prohibited from taking employment in a care position looking after vulnerable adults. Overall, the system is similar to that provided for in the Protection of Children Act 1999 which your Lordships passed some months ago.
An individual must be referred to the Secretary of State for possible inclusion in the list by an employer who has dismissed him on grounds of misconduct which harmed a vulnerable adult or placed him at risk of harm. As we have already heard, to prevent avoidance of the scheme, special provision is made to catch those who have resigned so as to avoid such disciplinary action or who have been suspended, transferred, or provisionally transferred. On referral, the Secretary of State will provisionally list the individual if it appears that it may be appropriate to include him in the list. That person will then be subject to the prohibition from working with vulnerable adults.
The Secretary of State then goes on to disclose the referral papers to the person and to invite observations from him and, if appropriate, further observations from him on any observations made by the referring employer before reaching an opinion as to whether the employer reasonably believed that the person was guilty of misconduct and whether the person is unsuitable to work with vulnerable adults. If both those tests are passed, the permanent listing is confirmed.
That is the point at which the person has the right to take his case to the independent tribunal. The tribunal will remove the person from the list unless it is satisfied that he is guilty of the misconduct and that he is unsuitable to work with vulnerable adults. The tribunal therefore provides a full hearing of the underlying merits of the case with a burden of proof favourable to the applicant. The applicant will have a right to make oral representations to the tribunal.
I should like to emphasise the responsibilities that employers will have in order for the scheme to operate effectively. I turn to a point debated earlier. First, an employer proposing to offer employment in a care position must, before making the offer, check whether the person is on the list. If he is on the list, the employer cannot employ the person in a care position as defined in Clause 70. Secondly, the employer has a duty to refer workers to the Secretary of State for inclusion on the list under the circumstances that I mentioned earlier.
The noble Lord, Lord Phillips, referred unfavourably to the urgent deregistration procedures for child-minders in Part V. Those can be activated only, as he said, where a child is likely to suffer significant harm. In the case of the child-minder, it is only through the action of the Ofsted inspector undertaking an emergency deregistration that the child-minder will be prevented from working with children. In the case of a person referred to the vulnerable adults list, the employer will already have removed the worker from a situation where he may be in contact with vulnerable adults. It is not meaningful to imagine that the likelihood of harm can be assessed in those circumstances.
The issues around provisional listing essentially boil down to this: every person referred to the list should have a right to have the allegations against him proved. If one accepts that point, one is inevitably faced with the question of what to do between the time when the Secretary of State is notified that the employer has already taken disciplinary action and the time it takes for the allegations to be proved at an independent tribunal. Either one takes the stance that no action should be taken to protect vulnerable adults during that period, or one can ensure that precautionary action is taken pending proof.
We have heard that many people in the field believe that it is high time that the Government ensured that effective precautionary action is taken. I agree. That is why provisional listing is a central part of the scheme. In addition, there is an extra safeguard for the worker in ensuring that he comes off the list even before the case goes to a tribunal, unless the Secretary of State believes that there is a reasonable basis for the allegations.
I turn specifically to the amendment. When we discussed the matter of restricting provisional listing I expressed my fears that such a move would seriously weaken the scheme we devised for protecting vulnerable adults. The whole concept of provisional listing provides the important safeguard we require for vulnerable adults.
I am aware of the effect that provisional listing can have on an individual and his or her future. Provisional listing is not something to be taken lightly. However, perhaps I may say to the noble Earl, Lord Howe, that the list is not published as such. The fact of listing is only disclosed to those who are required to check. I assure noble Lords that provisional listing will not happen in every case which is referred to the
Each case will be considered on its merits. The Secretary of State will have to be satisfied that provisional listing is the thing to do in each case. He will have to make a decision that the employer has made a proper reference and that provisional listing is warranted. If necessary, he can go back to the employer and seek additional information if the reference is unclear or incomplete.
We are concerned to ensure that the Secretary of State is able to take a broad view of everyone concerned in a referral when he considers whether it is appropriate to include a worker in the list provisionally. I believe that including restrictions on this on the face of the Bill would detract from the ability of the Secretary of State to act in the best interests of all concerned. It could raise issues of interpretation. I suggest it would raise an impossible test for these arrangements. People are referred to the list only after the employer has taken them away from caring for vulnerable adults.
I do not take lightly the concerns expressed by noble Lords. We have clearly heard a division of view as to where the balance rests in these cases. However, I have thought long and hard about this. At the end of the day, I am convinced that we have got the balance right.
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