Private and Voluntary Health Care (England) and Care Home Regulations 2001

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Ms Shipley: I disagree; the concessions could be dangerous. I am disappointed that it has taken so long for the Criminal Records Bureau to be set up, although I understand the reasons why. I say that because of my association with the Protection of Children Act 1999, and legislation to protect vulnerable adults. The postponement of checks on existing members of staff until 2003 could border on negligence.

Jacqui Smith: May I reassure my hon. Friend that the Home Office has reassured us that the CRB will be in place? However, it is precisely because we want to improve the current position that we are putting the necessary procedures in place, should there be transitional arrangements. For example, it will be necessary for more rigorous checks to be made on staff up to the commencement of the CRB, and up to April 2003.

I shall write to my hon. Friend to reassure her about the extent to which the new provisions from April will improve things for vulnerable adults. However, we may need to find transitional arrangements to overcome short-term issues.

Peter Bottomley: I am prepared to associate myself with the Minister's response. We must be practical and accept the responsibility that things may be discovered later that could have been discovered earlier, which was the point made by the hon. Member for Stourbridge.

May I refer the Minister to regulation 19(5)(a), which states that a person is not fit to work unless

    ''he is of integrity and good character''?

There are several ways in which I could lose my character while not posing an additional threat to a vulnerable adult or a child in a children's home. For example, if I had been convicted of drink driving and I was disqualified from driving, I would be regarded as having lost my character. However, that would have nothing to do with whether I posed a threat to a person in a care home.

I hope that there will be guidance so that if a care home discovers that any of its employees have been convicted for an offence that is irrelevant to the vulnerability of the people in the home and that does not cause them to pose an extra risk, it will not start dismissing employees who should be able to continue with, or find, employment in a care home.

Jacqui Smith: The important point about the Criminal Records Bureau is that it is the route of access to the registers for the protection of children and vulnerable adults. It is the important one-stop route to ensure that we identify people.

Peter Bottomley: I just want to make this absolutely clear. I, as an employee, could have a conviction that could be interpreted as meaning that I was not of good character, but no aspect of the conviction would mean that I posed an additional risk. If a registered person who ran a care home discovered that, I hope that

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people would ensure that the registered owner of the care home would not dismiss me because of information that came from the police.

Jacqui Smith: I am sure that the hon. Gentleman does not have a speeding conviction. Clearly, some criminal convictions would not cause him to be a risk. The CRB has guidelines on such convictions, and the National Care Standards Commission will produce guidance on the extent to which factors may be risks.

Peter Bottomley: I am grateful to the Minister for saying that. The key words are in the regulations. They are ''of good character'', rather than of relevant good character. I hope that the Department, with the Home Office and others who are concerned with the employment of people with convictions will ensure that the new system does not cause an arbitrary impact. I think that that is generally understood. I shall not pursue the point further this afternoon but it is, to my mind, as important as protecting people from those about whom information is available to show that they should be disqualified from working in a care home.

Jacqui Smith: The hon. Gentleman has made his point. Criminal record checks will have to be made in the NHS for prescribed services equivalent to those in the private sector for the protection of children and vulnerable adults.

The hon. Member for West Chelmsford raised the issue of financial viability, which we covered to some extent yesterday. Regulations require providers to demonstrate that they have the resources to ensure that the services that they intend to run can operate securely. As I explained yesterday, the regulations stem from the specific case of Regina v. Registered Homes Tribunal ex parte Hertfordshire County Council and a judicial review in the High Court, which was about the financial viability—both then and in the future—of an application for registration.

The court ruled in favour of Hertfordshire, and made a clear statement that continuing financial viability was essential, and was an important issue about which regulators need to be able to make a judgment. We have tried to reflect that in the regulations. That is important as care homes, as hon. Members have said, provide for some of our most vulnerable people, who do not have the opportunity or desire to move. We must do everything that we can to ensure that the provision of those services is stable and viable in the long term.

The hon. Gentleman made the point, also made by the NCSC, that we must provide the relevant documents. However, detailed documents need only be provided in a small number of cases. The NCSC headquarters' finance function will scrutinise documents of that nature when necessary. They will have staff to do that, and will bring in additional advice as necessary. Furthermore, inspectors will be required to assess compliance in a range of topics. Although they will mostly be social workers or nurses, they will receive training and will be supported by the NCSC financial team, who will teach them what to look for. That will be a core module on the new qualifications

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for inspectors. The aim is not that they become accountants, but that they identify risk. If there is a concern, financial experts will be drawn in to further consider the details.

The hon. Members for West Chelmsford and for Oxford, West and Abingdon raised issues about the detail in regulation 16. Given that the hon. Member for Oxford, West and Abingdon then pushed for a range of things to be included in the regulations and made—quite rightly—extremely detailed points about what he felt should have been included in the previous regulations, it is a bit much for him to start criticising us for including too much detail. The important point about the regulation is that it makes it clear that the facilities and services available to users have to be at the heart of the provision made for them. It is appropriate that that is laid out in the regulation in a reasonably straightforward way.

Dr. Harris: The hon. Member for West Chelmsford may wish to pursue the issue of some of the adjectives. Concern that sections of duties are missed out is not the same as believing that there is not enough detail. Those are two separate issues, and one can say that something is too detailed but still argue that there are whole sections of duties missed out which should be there. I still think that there are substantive questions to be asked about whether, notwithstanding the comments of the hon. Member for Worthing, West about the efforts of those who drafted the regulations, there was too much enthusiasm as to the detail in regulation 16.

Mr. Burns: Will the Minister give way?

Jacqui Smith: I will stand up long enough to give way to the hon. Gentleman.

Mr. Burns: Will the Minister be kind enough to tell the Committee what the legal definition of an offensive odour is?

Jacqui Smith: Clearly, as is the case in any legislation, the regulations contain a range of terms for which there is no legal definition. I have already spelled out the common-sense approach that the National Care Standards Commission will take in implementing the proposals. I know what a bad smell is.

Mr. Burns: So do I.

Jacqui Smith: Exactly. A common-sense approach will enable us to be clear that we expect people who provide homes to ensure that there are no bad smells in those homes. I do not like a bad smell in my house, and I do not believe that vulnerable and older people should have to live somewhere where there are bad smells either.

Mr. Burns: The Minister is right, which begs the question, why must we specify that in the regulations? It is so vague, and it is different for different people. For example, to some people the smell of curry is an offensive odour; to others it is not. Surely care home owners do not want to work, and possibly live, in an

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environment with offensive odours. They do not need it to be specified in the regulations when legally the phrase is nonsense.

Jacqui Smith: The hon. Gentleman has made his point, and I have made mine. An important part of the inspection and assessment will be asking users their views.

The hon. Gentleman also mentioned serious injury and illness. Action is required when a service user falls seriously ill in the home and the home cannot meet their needs. Injury might be related to falls or accidents with equipment, for example. The important point is the seriousness of the injury and whether the home can meet the person's needs. The regulations are enforceable if breached, and it is important that offences that affect service users' health and welfare are reported.

One of the points that I did not cover in response to my hon. Friend the Member for Stourbridge was the funding of the NCSC. As we discussed yesterday, the funding will come partly from fees to be raised from providers and partly from money provided centrally by the Government. The cost of the NCSC in its first year is budgeted at about £134 million, of which approximately £30 million comes from fees, and the rest from central Government provision. The intention is to move to full cost recovery.

I was asked about the sanctions that will be available. Clearly, the way in which care standards inspectors determine sanctions will depend on the nature of the problem. As I said, in the event of difficulties that do not impact directly on users' safety, it will be important to take an approach involving appropriate action plans and time scales to put those problems right. In the event of danger to a service user, the NCSC has strong powers to cancel the registration and to take action against providers that do not meet the high standards.

The hon. Member for Oxford, West and Abingdon asked about the definition of relatives. The reference to people living together as husband and wife relates to people who are unmarried but cohabit as a married couple—in other words, are in a long-term relationship. The significance of that definition is that it is referred to in paragraph 13 of schedule 1, which relates to contact, and paragraph 11 of schedule 4, which relates to the record of complaints. ''Relative'' is defined in the Act, but that definition refers to the Children Act 1989, and is not appropriate for these regulations. We have therefore included that definition to cover circumstances in which contact with a relative is important.

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