Mr.
Lewis: The hon. Gentleman has an awful habit of making me
believe that something I had thought was absolutely certain is not
quite so certain, when in fact it is. Such people will be covered by
the definition of “vulnerable adult” in clause 44(1)(d)
and the definition of “regulated activity” in schedule 3
part 2. All the way through the Bill, I have said to him that I believe
that health services provided by the independent sector to meet the
needs of the national health service are covered in the mainstream part
of the Bill. I said
in my contribution—I gave the hon. Gentleman the credit for
raising an important issue; he is not very magnanimous on these
occasions—that we are discussing whether people who move around
in their employment within the independent sector should have to
undergo repeated checks and monitoring or whether the same common-sense
approach used with
directly employed national health service staff will not require them to
be checked on a multiplicity of occasions. That is the point that I made
in my direct response to his amendment, which referred to the
inconsistency between the rules applying to directly employed NHS staff
and those applying to people commissioned from the independent sector
to provide a service to the NHS. There is no question about it. I give
him a final clarification that those working in the independent sector
who are contracted to provide services to the national health service
will be covered by the mainstream part of the Bill, and I can give him
specific
references.
Tim
Loughton: I think that that intervention is over. I am
grateful to the Minister. It is not a question of being magnanimous or
taking the credit; all that I am concerned about is ensuring that
vulnerable people will be
covered.
Tim
Loughton: Well, the Minister did not say that. He started
by saying that he would have a look at it and come back. After some
in-flight refuelling, he has been able to say that actually, there are
some definitions later in the Bill that will cover those people. That
is what I wanted to know. It is the answer that I should have had in
the first place, and the answer that he should have been able to give
off pat if he really knew who the Bill covers.
It is pretty basic stuff.
Vulnerable people should be covered whether they are treated by an NHS
employee or by somebody who is not an NHS employee but a private,
independent provider of the same treatment. That is the simple question
that I asked at the outset. It was perfectly clear to all of us in the
Conservative party, and the amendment is simple and straightforward. At
last, and only because we have extended the debate slightly, we appear
to have the answer that the amendment was designed to elicit and that I
asked for some time ago. I am glad we have it now, and on that basis,
unless the Minister changes his mind again, I beg to ask leave to
withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 15 ordered to stand
part of the
Bill.. Clauses
16 and 17 ordered to stand part of the
Bill.
Clause
18Controlled
activity relating to
children 2.15
pm Amendments
made: No. 157, in clause 18, page 11, line 30, leave out
‘medical’ and insert
‘health’. No.
158, in
clause 18, page 11, line 30, at
end insert— ‘(8) The
Secretary of State may, by order, amend subsections (2) to (7)
(including by adding new subsections or omitting or varying any of the
subsections or anything contained in them).’.—[Mr.
Dhanda.] Clause
18, as amended, ordered to stand part of the
Bill.
Clause
19Controlled
activity relating to vulnerable
adults
Tim
Loughton: I beg to move amendment No. 142, in
clause 19, page 12, line 10, after
‘health’ insert ‘or
personal’.
The
Chairman: With this it will be convenient to discuss the
following amendments: No. 143, in
clause 19, page 12, line 32, at
end insert— ‘(g) an
independent health
provider;’. Government
amendments Nos. 159 to
161.
Tim
Loughton: These are, again, probing amendments, but I hope
that we will not have to probe for quite so long this time before we
establish whether they are required. Amendment No. 142 concerns people
who have the “opportunity to have access” to the health
records of a vulnerable adult. The measure should not be limited to
health records because, after all, what constitutes a health record?
Does it cover only information that is provided by a GP or specialist?
What about forms of counselling that do not, strictly speaking,
constitute medical or health treatment? What about other records
containing detailed information about a vulnerable person’s
family background, or traumatic events that have happened to them, such
as domestic sexual abuse?
A paedophile could use records
of a vulnerable person’s past traumatic experiences or difficult
domestic time as a child to exploit a chink in their armour and
ingratiate himself or herself with that vulnerable person. Those are
not health records, but if people can gain access to those sorts of
records, which I have termed as “personal”, surely they
too should be included. I believe that “health records”
is too narrow a definition, and I would be grateful for the
Minister’s response as to whether more extensive personal
records could be just as useful, or even more useful, to a potential
abuser who could use that information to abuse a vulnerable
adult. The second
amendment also concerns the definition of health. I know that the
Minister will come straight back and tell me that it is not necessary
because it is covered in whatever paragraph such definitions are
covered. Hospital services are defined through six different
categories: a national health service trust,an NHS foundation
trust, a primary care trust, an independent hospital, an independent
clinic and an independent medical agency. At least this part of the
Bill has explicit references to the independent sectors, which is part
of the point that I was getting at earlier. However, it refers only to
establishments—in effect, a hospital, clinic or medical
agency “within the
meaning of that
section”, which again is
rather vague. Surely what should be covered is an independent health
provider. It is the person who is going to do the damage if they are so
minded, rather than the establishment in which they are contracted to
work. The amendment is
designed to probe whether—perhaps this will be in schedule
3—all independent personnel are covered. We want to know that
independent personnel are not covered just by virtue of the fact that
they are working in an independent hospital, an independent clinic or
through an independent medical agency, because many such people will be
working in the homes of vulnerable people. That is what we are getting
at. Mr.
Lewis: I will try to help the hon. Gentleman. He accepts,
to some extent, that these are probing amendments. Controlled activity
will include access to the health records of a vulnerable adult.
Amendment No. 142 would add the words “or personal” after
the word “health”. “Health records” is a
clearly understood term and is intended to cover all records that
relate to a person’s physical and mental condition. The
amendment would extend that to other personal
records. I understand
that the intention is to ensure that access to records of a similar
level of sensitivity is included in controlled activity. The problem is
that the additional words are wide and nebulous and might cover things,
such as bank records, that we do not intend to
catch. That said, I
will offer the hon. Gentleman some assurances on the regulation-making
power in subsection (5)(c). That gives the Secretary of State the power
to prescribe “other
information...relating to a vulnerable
adult.” We intend to use
that power to prescribe clearly and accurately social care records
relating to a vulnerable adult. Such records are clearly of a personal
nature, but will be described in regulations so as to make them clearly
identifiable. I hope that the hon. Gentleman will accept that
reassurance. We will use the power to be clear about what “other
information”
means.
Tim
Loughton: Would that include records of counselling? I
gave the example of someone who has had a traumatic child abuse
experience and has received counselling. Such a record is not a health
record, but it is a record of some form of counselling. Is that
specifically intended to be included in the prescription to which the
Minister
referred?
Mr.
Lewis: I can assure the hon. Gentleman that that example
would be covered in those circumstances. He makes a perfectly
legitimate point. The situation that he describes would be incredibly
sensitive. Amendment
No. 143 deals with independent health providers and those who are
employed in those sectors. The amendment is genuinely unnecessary, as
independent health providers are included in paragraphs (d), (e) and
(f) of the list. Those providers are required to register with the
Healthcare Commission pursuant to part 2 of the Care Standards Act
2000. That will include providers who contract with the NHS. Where the
NHS contracts with providers outside the regulated sector—an
example might be an acupuncturist—it will be possible to ensure
that the appropriate checks are made through the contracts issued. The
contract will provide an
opportunity for the commissioner to make it clear what checks are
expected in the case of a provider outside the regulated
sector. Amendments
Nos. 159 to 161 are minor and technical, making consequential
amendments to adjust references in the Bill to national health service
legislation to ensure that the references are consistent with those in
the National Health Service (Consequential Provisions) Bill. On that
basis, I hope that hon. Members will not press their amendments and
that they will support the Government
amendments.
Tim
Loughton: I am grateful for that clarification. It is as
easy as that—I asked a specific question with the probing
amendments and the Minister has been able to agree that the provision
will cover counselling such as that in the example that I gave and that
such scenarios will be included in the regulations to be issued by the
Secretary of State. That is reassuring, and we therefore do not need to
press amendment No. 142 to a vote. He has also explicitly referred me
to definitions in another part of the Bill that make amendment No. 143
redundant. On that basis, and with delight, I beg to ask leave to
withdraw the
amendment. Amendment,
by leave,
withdrawn. Amendments
made: No. 159, in clause 19, page 12, leave out lines 34 to 36 and
insert— ‘(a) primary medical
services or primary dental services provided under the National Health
Service Act 2006 (“the NHS Act”) or the National Health
Service (Wales) Act 2006 (“the NHS (Wales)
Act”); (b) general
ophthalmic services provided under Part 6 of the NHS (Wales)
Act;’. No.
160, in
clause 19, page 12, line 38, leave
out ‘that Act’ and insert
‘the National Health
Service Act
1977’. No. 161,
in
clause 19, page 12, line 40, leave
out from ‘section’ to end of line 42 and insert
‘126 or 127 of the NHS Act or section 80 or
81 of the NHS (Wales) Act, or local pharmaceutical services provided
under section 134 of, or Schedule 12 to, the NHS Act or under
section 92 of, or Schedule 7 to, the NHS (Wales)
Act;’.—[Mr.
Dhanda.] Clause
19, as amended, ordered to stand part of the
Bill.
Clause
20Controlled
activity:
guidance
Mrs.
Miller: I beg to move amendment No. 115, in
clause 20, page 13, line 2, leave
out ‘may issue guidance’ and insert
‘shall by regulation, subject to
the affirmative resolution procedure, make
provision’.
The
Chairman: With this it will be convenient to discuss the
following amendments: No. 131, in
clause 20, page 13, line 4, at
end insert— ‘(1A) Guidance
issued under subsection (1) shall include a description of how an
employer deciding to employ a barred person to undertake controlled
activity will be required to demonstrate that they have considered the
following—
(a) the level of access to children or vulnerable
adults afforded by the
post; (b) what other
information they had about an individual, including any summary of the
reasons for a barring
decision; (c) what safeguards
they have put in place in order to minimise the risk of harm;
and (d) how they will review
the risk posed by the
employment.’. No.
108, in
clause 20, page 13, line 5, leave
out ‘have regard to’ and insert
‘act in accordance with
any’.
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