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Public Bill Committee Debates

Draft Local Involvement Networks (Duty of Services-Providers to Allow Entry) Regulations 2008

The Committee consisted of the following Members:

Chairman: Sir John Butterfill
Allen, Mr. Graham (Nottingham, North) (Lab)
Arbuthnot, Mr. James (North-East Hampshire) (Con)
Atkinson, Mr. Peter (Hexham) (Con)
Borrow, Mr. David S. (South Ribble) (Lab)
George, Mr. Bruce (Walsall, South) (Lab)
James, Mrs. Siân C. (Swansea, East) (Lab)
Jones, Helen (Warrington, North) (Lab)
Leigh, Mr. Edward (Gainsborough) (Con)
Linton, Martin (Battersea) (Lab)
Love, Mr. Andrew (Edmonton) (Lab/Co-op)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
Mulholland, Greg (Leeds, North-West) (LD)
O'Brien, Mr. Stephen (Eddisbury) (Con)
Primarolo, Dawn (Minister of State, Department of Health)
Pugh, Dr. John (Southport) (LD)
Sharma, Mr. Virendra (Ealing, Southall) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Glenn McKee, Committee Clerk
† attended the Committee

Second Delegated Legislation Committee

Tuesday 25 March 2008

[Sir John Butterfill in the Chair]

Draft Local Involvement Networks (Duty of Services-Providers to Allow Entry) Regulations 2008

4.30 pm
The Minister of State, Department of Health (Dawn Primarolo): I beg to move,
That the Committee has considered the draft Local Involvement Networks (Duty of Services-Providers to Allow Entry) Regulations 2008.
Good afternoon, Sir John. It is a real pleasure to see you in the Chair. I am sure that you will guide us expertly through our proceedings.
The regulations set out the duty on health and social care service providers to allow authorised representatives of local involvement networks—LINKs—to enter and view their premises to assess whether appropriate health and social care services are being provided.
A policy statement relating to LINKs was passed to the Committee that considered the Local Government and Public Involvement in Health Bill and the Health Committee in March last year. Furthermore, the regulations were the subject of a full public consultation process that began before the Bill was debated on Report and Third Reading in the House of Lords. It received Royal Assent in October last year. The Government believe that it is really important for authorised representatives to enter and view certain health and social care services. Without that facility, there would be a significant gap in their role to seek the views of those who use health and social care services: they could do so only either before or after people had used the services, rather than when patients are most concerned and engaged, which is when they are actually using the services.
Currently, a patients forum is established for every NHS trust, foundation trust and primary care trust in England. Each patients forum has an average of eight members, so there is a total of about 4,000 forum members. A change in the patient and public involvement system has been made necessary by the significant changes that are taking place in nature of the health and social care system. By that, I mean the changes to the configuration of primary care trusts and the move towards greater coterminosity with local authorities; the fact that PCTs are changing their role to focus on the commissioning of services; the move towards greater choice of service delivery and the increased joint commissioning throughout health and social care.
For those reasons, it is no longer appropriate to have a patient and public involvement system based on the scrutiny of individual services. In August 2005, it was decided to undertake a strategic review of patient, user and public involvement to ensure that the arrangements for future involvement and engagement were as suitable and effective as possible. We want the new system to consider both health and social care, so that patient and public involvement can be joined up throughout the entire user journey and encourage the involvement of a far greater number of people in the health and social care systems.
Entering premises to observe the provision of health and social care services is just one of the ways in which a LINK can be helped to form an opinion about local care services and involve local people in the scrutiny and monitoring of those services. LINKs may well use a range of other mechanisms to involve people in various aspects of the commissioning and provision of services. However, to enable them to gather the information that they need about services, there will be times when it is right for them to see and hear for themselves how those services are being provided. The draft regulations therefore impose a duty on health and social service providers to allow authorised representatives of LINKs to enter premises that they own or control to observe the services that are provided.
In many circumstances in which care and treatment are provided, individuals are vulnerable and deserve due consideration and respect. For that reason, we have included some exemptions to the duty, which will ensure that patient safety and dignity will continue to be protected. The Committee might find it helpful if I clarify the circumstances in which a service provider does not have to allow entry to a LINK representative. A provider may refuse entry if it would compromise either the effective provision of the service or the privacy and dignity of a person.
Further, the draft regulations stipulate that, while an authorised LINK representative is on premises owned or controlled by a service provider, they must not compromise the provision of care services to any person. If they do, the duty on the service provider ceases. LINKs will not have a right to enter premises, or parts of premises, at any time when health and social care services are not being provided.
The exemption may seem obvious, but it was included to ensure that LINKs do not expect to enter premises that are closed at the time—for example, GPs’ surgeries—or ones that would be inappropriate for them to have the right to enter. Hence the duty to allow entry in those cases does not apply. Such an exemption is particularly important when it concerns the provision of care in non-communal areas of a care home, such as a person’s private bedroom. The LINK can enter when invited by residents, but service providers are not under a duty to allow them entry. The duty will also not apply in respect of premises used as accommodation for the employees of service providers. I am sure that we can all appreciate why such a measure is necessary in balancing the question of privacy and dignity.
LINKs will also not have the right to enter premises if, in the opinion of the service provider, the authorised representative who is seeking to enter and view its premises is not acting reasonably and proportionately.
Mr. Stephen O'Brien (Eddisbury) (Con): In going through the areas in which there is no duty on the service provider to make access available, I found that they included kitchens. That was a surprise because kitchens should be inspected for the sake of patients.
Dawn Primarolo: The hon. Gentleman would agree that the requirement on the LINK relates to the quality of services. In some cases, it may be necessary for a representative to visit premises in which hospital accommodation is provided. Therefore, it is necessary for the LINK representative to be able to access everywhere that is used by patients or users of services to appreciate what is happening to the patient. However, such access should not cross over with other areas of regulation and concern, such as hygiene in kitchens. If the hon. Gentleman is touching on the quality of the food, there are clearly ways in which that could be dealt with. What the hon. Gentleman touches on and what the regulations are seeking to provide is a proportionate and reasonable right of access to ensure proper scrutiny of the quality of care and treatment on offer to patients. There are times when a patient’s dignity or privacy could be breached if there was an unfettered right to enter at every point and at any time.
Importantly, the Department of Health has commissioned the NHS Centre for Involvement to produce a code of conduct, which will set out detailed guidance on visits to which service providers and authorised representatives of LINKs can refer, so that everyone concerned is aware of their roles and responsibilities. Some of the issues raised by the hon. Gentleman, such as when it might be appropriate to visit certain areas, might be helped by that code. The code will underpin the appropriate behaviour of LINKs members and service providers in relation to such visits. The exemptions and the supporting good practice code will ensure that LINKs’ ability to enter and view premises is in line with principles of good regulation and with the general intention that LINKs should use their rights with discretion and judgment.
Another important safeguard is that the duty does not apply to the observation of activities that relate to the provision of social care services to children. We made that decision because, as hon. Members will know, Ofsted is charged to take account of the views of users of the services that it inspects and regulates. In addition, the children’s rights director has a statutory duty to ascertain the views of children who live away from home or receive social care services. That office’s methods of gathering children’s views are innovative and sophisticated; it uses children’s conferences, consultation events, discussion groups, web surveys, visits to establishments and mobile phone texting panels.
Inspectors consider Every Child Matters outcomes and concentrate on how well children’s social care services perform against the minimum standards associated with each of those outcomes. A good deal of their time is spent with children and young people, to evaluate how the services are experienced. LINKs will have an important role in listening to children and young people, taking account of their views, giving them a chance to influence the planning and running of their health services and giving services feedback on what children and young people think. However, as I have explained, it is right that that role applies to health services for children and young people, not to social care services.
Dawn Primarolo: No, LINKs can visit kitchens that are part of hospital accommodation, even if patients themselves do not have access to them. The purpose of LINKs is to gather the views of patients about the services and care provided. Duties to inspect will follow, with the exclusions that I have mentioned, and the code of practice will underpin that with reasonable and proportionate rights. That is quite clear. Where a kitchen is connected and part of a hospital, yes, they would have a right to enter.
Given the provisions for LINKs and the extent to which they can now look across both health and social care, we are taking considerable steps to appreciate the interaction of those services and how that impinges on the patient—seeing it from the patient’s point of view, rather than having the separate disciplines of social care and hospitals. My remarks make it clear that the Government intend LINKs to be able to undertake those inspections.
I remind the Committee that LINKs will enable the genuine involvement of a far greater number of people than currently, thus ensuring that local communities have a stronger voice in the process of commissioning health and social care and enabling them to influence key decisions about services that they both use and pay for. The responses to our public consultation on the regulations show broad support for our proposals, which represent just one part of a wider set of arrangements designed to create a stronger voice for service users and members of the public at every level of the health and social care system. On that basis, the regulations will provide real improvements to people’s perception and experience of their care and give them influence in shaping the decisions. I commend the regulations to the Committee.
4.46 pm
Mr. O'Brien: It is a welcome pleasure to serve on the Committee under your chairmanship, Sir John, and for us to meet with the Minister, who stands in today for her colleague, the Under-Secretary of State for Health, the hon. Member for Brentford and Isleworth (Ann Keen). We all send our best wishes for her recovery. She has obviously had something nasty; we had to postpone 12 days ago, but she is still suffering, so we wish her well.
I intend briefly to set out the provenance of the regulations and then to explore some of my concerns, particularly the dependence of LINKs on the Freedom of Information Act 2000. LINKs are the Government’s second attempt at turning down the volume of the patient voice. I noticed that the Minister, at the end of her remarks, talked about how LINKs would increase the number of people involved in a patient voice. However, that does not bear relation to the number that were already involved under community health councils—the first incarnation of a patient voice—which were much loved, despite which the Government axed them.
LINKs replaced patient and public involvement forums, which had replaced community health councils, which were excellent, bar the one or two that the Government prayed in aid when axing them. LINKs constitute another of the many reorganisations that the Government have put our NHS through. LINKs, unlike patients forums, will be able to consider the provision of social care as well as health services, which at least takes us in a positive direction.
The Government tried to abolish community health councils without consultation, way back in 2000—I think that I am right in remembering that it was mentioned at paragraph 10 of page 26 of the 10-year plan for health. I caught the Government out at a Prime Minister’s Question Time and got a three-page, handwritten, signed apology from Tony Blair as a result, because there had been no consultation. Unfortunately, despite a fantastic cross-party campaign to save CHCs, the Government ploughed ahead, although we got a year’s stay of execution. CHCs were valued by the most vulnerable patients, who needed the NHS but were concerned about how to complain or to make their voice heard. They still need it; they are still vulnerable, and CHCs were able to hold their hand and chart their way forward.
Thus, in December 2005, David Currie’s independent review of the NHS regulatory framework, ordered by the Department of Health, concluded that establishing representative national and regional forums to contribute a reasoned, collective consumer perspective to the process of reform could well improve both the efficacy and the legitimacy of that reform.
It is telling that the Government have as yet been unwilling to put LINKs, as bodies that represent patients, into the Health and Social Care Bill, on which I have just been leading for the Conservatives in the Commons and which is now before their lordships in another place. It has to be said that that is a vote of no confidence in LINKs, a perception held by the hon. Member for Tamworth (Mr. Jenkins), who noted to the Committee that the reason for not prescribing the concept of LINKs in the Bill was in case
“it ceases to exist during the lifetime of the Bill.”——[Official Report, Health and Social Care Public Bill Committee, 17 January 2008; c. 284.]
The hon. Member for Luton, North (Kelvin Hopkins) told the Committee that
“ever since the community health councils were abolished Labour Members have been concerned about the strength of protection for patients and of patient representation”.——[Official Report, Health and Social Care Public Bill Committee, 22 January 2008; c. 412.]
The abolition of patients forums also involved the abolition of the Commission for Patient and Public Involvement in Health. The explanatory notes to this statutory instrument say that CPPIH
“has represented, supported, and managed the performance of, Patients’ Forums. It has also had a role in advising the Secretary of State on arrangements for public involvement in, and consultation on, matters relating to the health service.”
We feel that a national patient voice is an important part of patient and public involvement. We are disappointed that the Government have still not used this opportunity to steal our policy on Health Watch, a national consumer voice for patients. Health Watch would provide support to patients at a national level and leadership to LINKs at a local level, incorporate the functions of an independent complaints advisory body, make representations to the NHS board on matters such as the closure of NHS services and, subject to consultation, have statutory rights over guidelines issued nationally on the care that NHS patients should receive and decisions that affect how NHS care is provided. Above all, Health Watch would be independent and not a creature of the Government and the NHS. It is the independence that gives it the ability to be trusted, and that trust is absolutely vital.
Another measure of the disregard with which the Government hold the patient voice is the fact that the creation of LINKs was tagged on to the Local Government and Public Involvement in Health Act 2007, which was led by the Department of Communities and Local Government, rather than being the preserve of the Department of Health. The Conservatives won an important set of concessions to that legislation, particularly on the governance of LINKs, making them arm’s length from local authorities, and on transitional arrangements to cover the period between the abolition of PPI forums and the establishment of LINKs. Again, we have to examine that in more detail. I hope that the Minister will update the Committee on the progress of the transition, including how many local authorities will have LINKs in place when PPI forums cease to exist at the end of this month, in five days’ time. As the explanatory memorandum says, this is the first statutory instrument under that Act.
The major question hanging over the regulations today is why they leave LINKs dependent on the Freedom of Information Act 2000. I have put in a number of requests for information under the 2000 Act, and I am regularly told that the data are not available in that format or that the requests would cost too much to answer. It cannot be right that such limits are put on patient representatives. Will the Minster clarify whether private care homes are subject to the Freedom of Information Act, bearing in mind that they are not public bodies for the purpose of the Human Rights Act 1998? It is surely spurious to suggest, as the regulatory impact assessment does, that costs will be involved in providers having to have
“two parallel processes for handling requests for information.”
Providers have a multitude of information and communication channels, and there is no reason why they cannot run them concurrently to deliver efficiencies.
The regulatory impact assessment puts the total cost at £258 million, with a £30.16 million average annual cost. That is an increase from the current £28 million annual cost. The Minister will no doubt seek to justify that by pointing to the expanded remit of LINKs to social care. However, that raises the question of whether £2 million across the whole country is a serious amount to budget in this case.
Will the Minister explain the relationship between the total cost and the average annual cost in the RIA? The RIA also puts the benefit at £77 million, but buried in the RIA is the admission that that is based on a number of “very bold” assumptions. Not even Sir Humphrey dared to use that phrase. What is particularly odd is that the costs are exactly the same for option 3 in the RIA, which would remove LINKs’ dependency on the Freedom of Information Act to
“Exercise all Regulation-making powers, including duties on service providers to provide information”
apart from
“a small unquantified cost in enabling providers to handle two parallel processes for handling requests for information.”
If the costs are the same, why are the Government not doing it?
Let us move to an area that I touched on in an earlier intervention. There are worries that the definition of “excluded premises” under regulation 2 is too wide. It excludes WCs that may be shared but are not communal and kitchens that are not communal but serve communal dining rooms. The Minister said that that was because the access should be proportionate and based on patient experience and use, and therefore focused on the food that they eat, rather than on where the food was prepared. Clearly, this depends not only on her answer, which was that the code might be therefore used to enforce, but on all the agencies working well together. For example, if cockroaches were in the kitchen—something that is not unheard of in care settings—it would require environmental health departments to work hand in glove with representatives of LINKs. That is not something that the Government have identified or can guarantee, so it is important to make sure that those who have a right to inspect are not excluded from such places. Circumstances that would make up the entitlement to be excluded would be when a service provider did not feel an obligation to let the representatives have access. I remain concerned about the right of access in respect of kitchens.
I am surprised that there is no right for LINKs to gain access to service providers’ property in relation to disabled access. That is strange. Surely, disabled patients need to be able at all times to access the very building in which they are being cared for. Furthermore, access is not allowed to inspect the fabric of the building. If patients found water coming through their ceilings, they would hope that the service provider would do something about it. As part of the patient experience, it would be likely that the roof would need to be inspected.
I hope that the Minister will consider amending the regulations and the code to ensure that authorised representatives will have the required access to do their job fully and properly. Such things should not be based only on the proportionality test that she identified. Can she clarify whether regulation 3 limits a LINK to sending only one authorised representative into the premises? If so, why is there a limit? Surely, a group of LINK representatives should be allowed access. They might have complementary skills and experience, and it may be necessary to ensure that they do not have to operate individually. Safety aspects could come into play if a lone female employee or representative of a LINK were involved.
Regulation 6 covers the service providers. Given that section 225(7) of the Local Government and Public Involvement in Health Act defines service providers, while leaving space for
“a person prescribed by regulations made by the Secretary of State”—
hence the regulations—why was a provision similar to regulation 6 not included in the original Act? The RIA states that the policy will be reviewed in April 2011. What form will that review take?
The constant reorganisation of patient and public involvement is the product of a Government who will brook no dissent, especially about the NHS, which is one of our largest and most important public services. I am glad that there is cross-party consensus about decent public and patient involvement in our NHS, but with an independent voice. However, the Government have ignored us. More importantly, they have ignored their own independent review and abolished a national voice for patients and the public. The number of questions about continuity is growing as few councils seem to have established fully functioning LINKs. The regulations give rise to deep concern about access to both services and information.
I hope that the right hon. Lady will have the opportunity to answer my questions. If she cannot do so today, perhaps she will let me have the information in writing. I wish to amend the regulations during their passage through the House to strengthen the patient voice, even though we have only five days in which to do so. I assume that the regulations must go to another place. If not, we should be amending them now. We need not only an independent voice, but to ensure that the strength of access gives rise to the chance for patients to be best protected, to have a decent voice and for their collective experience to be able to inform, instruct and, at times, criticise and, above all, improve the care and treatment outcomes for all patients that our NHS and social care providers make available.
5 pm
Dr. Pugh: I have a few remarks to make. I wish first to associate myself with the remarks of the hon. Member for Eddisbury about community health councils. They were lamented.
I was on the Committee that considered the Local Government and Public Involvement in Health Bill that introduced the LINKs. We found them a strange beast at the time, in terms of trying both to discover what they were and to figure out what exactly they were supposed to do. They replaced PPI forums. I am not among those who lament that grievously, because they barely had a chance to achieve anything. I was sent a huge batch of brochures by my local PPI forums recently, and I was not notably edified by what they had discovered. It seemed that, in some cases, they had been domesticated by the institutions that they sought, or were established, to appraise and criticise.
During the passage of that Bill, there was much debate about the powers of inspection, and on the face of it, the regulations seem to put at rest some of the concerns that people expressed. They are reasonable and were consulted on, and there seems little to argue with. However, inspection is obviously an art, and it can be cosmetic and ineffective. It can fail. I remember that the old hospital visitors used to concentrate more on the state of the floors than on the state of the patients, because that is what they knew to look for.
Looking at the regulations, there are two reasons why LINKs might fail. First, they might lack expertise in inspecting premises. That seems relatively unlikely, because I understand that LINKs can co-opt the world and his wife. It is therefore likely that they will have some relevant expertise for appraising the institutions that they visit.
Dawn Primarolo: Is the hon. Gentleman seriously suggesting that the people who use the service are not the best people to judge whether the quality of care is to the standard that they expect? He seems to suggest that there should be some professionalised elite that conducts the visits. The Government are allowing the people who use the service to comment, while they are using it, on how it could be better delivered. All and sundry are not involved; the patient is at the centre.
Dr. Pugh: A range of institutions can be co-opted on to LINKs, but the service users will not necessarily be the ones who put pen to paper and write the reports. I have concerns that LINKs may not get to the bottom of every institution that they visit. Regulation 3(2)(a) states:
“in respect of any premises, or parts of premises, if the presence of an authorised representative on those premises, or those parts of premises, would compromise—
(i) the effective provision of care services, or
(ii) the privacy or dignity of any person”.
I can see how that could be used as an excuse not to involve a service user—perhaps a confused lady in a care home—who may have a bit of a grievance but is not consulted because it may be suggested that that compromises her privacy. I am not saying that that will customarily happen; I am saying that it could happen. One hopes in general that it would not.
I am not entirely sure what is meant when the regulations say that non-communal areas will fall outside of inspection. We all know that looking at the state of the bedrooms, what the bedrooms offered and the privacy provided by them—some bedrooms were shared in the old days—was a crucial part of the local authority inspection process for social services premises.
I am not totally convinced by the non-inspection of staff accommodation, for a specific reason. Many care homes employ large numbers of foreign workers. How those employees are treated as workers and how they fit into the institution are not irrelevant in considering the care they may be capable of providing. I totally accept the point of view that LINKs are not intended to be building inspectors or food inspectors. However, I do not wish their remit to be drawn so tightly that it misses out relevant factors that impinge on people’s care.
If a LINK genuinely feels that it needs to inspect something and the home owner or provider gives an explanation such as its not being relevant or that it will compromise care, how are we to judge whether the service provider is being reasonable and proportionate? How are we to resolve such matters? I cannot see that there is a procedure in place to do that if a service provider remains obstinate in the face of legitimate or apparently reasonable requests from a LINK. It is perfectly clear that, if they do so, they will feature in rather adverse terms in any annual report and that the issue can be reported to an overview and scrutiny committee. However, it is not clear what ought to happen after that.
Finally, I should like the Minister to address the issue of notice for inspections. It is not clear whether that is dealt with in the regulations. Does notice always need to be given? How far ahead does it need to be given? What right has the service provider to demand a certain period of notice? Those issues will affect the quality of inspections and what inspectors may or may not find. I accept that effective inspection is important and that LINKs might provide it. However, it will not be easy to achieve and to do so, some of the questions that have asked must be answered.
5.6 pm
Dawn Primarolo: I am grateful for the comments from the hon. Members for Eddisbury and for Southport, in particular those about my hon. Friend, the Under-Secretary of State for Health, who was unable to lead the debate. I therefore hope that they will bear with me. I will endeavour to answer their questions on LINKs. I will check Hansard afterwards and if I not have answered any as clearly as I might, and will follow them up in writing.
The hon. Member for Eddisbury mentioned the Freedom of Information Act 2000. The Government consider the Act the most appropriate and robust mechanism to ensure that LINKs receive the information that they need in a timely fashion. I hope he accepts that it was used for no other reason than that. Perhaps it will help if I write to him to demonstrate under what circumstances we feel it would be necessary to get that timely information. That matter ties in with the concluding point of the hon. Member for Southport about notice and on what basis a LINK representative can seek to enter premises.
Mr. O'Brien: Will the Minister give some thought as to how it can be impressed on those involved that, as the Government choose to rely on the FOI Act as the means by which information is provided, answers such as “Information is not collected in that way”, or “The cost of responding would be disproportionate”, will be difficult for us to accept?
Dawn Primarolo: I accept the hon. Gentleman’s point. The Government intend to review the operation of LINKs on an ongoing basis. That will mean considering their annual reports. I think he is already aware of the three-year milestone. We will take steps over that time to look at some of the points that have been made about the smooth operation of the duty to enter.
The hon. Gentleman made the same point that I would make: while we want to ensure that there is a duty and a right to enter premises, we must also ensure that that is not done in a hugely burdensome way with no discernable benefit to the service provider from the information that is collected. Those are always difficult issues on which to strike a balance.
The hon. Gentleman asked about the number of local authorities that will have the arrangements in place by 1 April. Although local authorities are not under an obligation to inform the Department of Health, we know that they are at various stages of the process. The situation is developing quickly. We hope that the transitional arrangements will settle down over a reasonable period and there will be a move to the new arrangements. We thought that six months was necessary for the transition, and the arrangements should be in place after that.
On the level of funding, I remind the hon. Gentleman that £84 million has been made available to fund LINKs from 2008-09 through to 2010-11. The vast majority of the money has gone directly to local authorities. The amount that each area receives has been calculated using a formula that takes into account population size and factors such as the level of deprivation. I am sure that he is familiar with such issues.
The hon. Gentleman returned to the question of kitchens, as did the hon. Member for Southport. The intention is that LINK representatives have access to everywhere that patients and users of the services go so that they can assess the exact experience of patients. I sought to clarify that with regard to hospitals in particular. The hon. Member for Eddisbury made a fair point, and we would expect collaboration at the local level—it is not rocket science. We see that increasingly through the local area agreements.
We would expect contact and exchange between those groups responsible for different aspects of regulating premises, and the hon. Gentleman mentioned environmental health. I am not sure whether he would necessarily agree, but we cannot write everything into a code or regulations. We know from our constituencies that a great deal of co-operation is already going on. The regulations would not prevent that from happening.
Mr. O'Brien: I think that we are more or less on the same page. There should perhaps be a test of reasonableness, wherever that should exist—here, in the code or in some kind of departmental pronouncement. The worst thing that could happen is if a whole degree of pedantry gets in the way of people inspecting—for example, if someone cannot go through a door when that is an obvious course of action. If people know that there is a test of reasonableness and they collaborate with the appropriate authorities, that should get us to where we need to be.
Dawn Primarolo: Indeed, although even in the House, with so many like-minded and dedicated Members, a definition of reasonableness cannot always be achieved with unanimity. As the hon. Gentleman knows from legislation—for instance, in the Treasury’s area of work—“reasonableness” has to carry certain meanings. We would hope that all people would behave reasonably. My understanding is that the code gives indications in certain circumstances. We can do no more than that. We put our trust in our fellow citizens that they will always behave reasonably and proportionately.
The hon. Gentleman also asked about how many authorised representatives would enter premises. I am informed that LINKs can send as many authorised representatives as they like. I presume that that decision might interact with a concept of reasonableness, in that perhaps 24 representatives for 10 residents in a small care home might be a little unreasonable. However, again, there are no prescribed limits, as I understand it.
The hon. Member for Southport asked who decides whether privacy and dignity will be compromised by a visit and if that might be used on some occasions as an easy way to keep a LINK out. Regrettably, that comes back to the reasonableness point, given that the principle is accepted by LINKs. While it is for service providers to judge whether privacy and dignity will be compromised by a LINK visit, the exemption of the duty does not mean that LINKs cannot enter when invited. That is how we have sought to achieve a balance.
I am sure that no one would behave unreasonably, and I am sure that the hon. Gentleman is not suggesting that someone would use dignity and privacy as reasons for preventing an inspection. However, if the representatives are invited, the service provider would have to take note. In addition, a provider cannot deny a LINK access without good reason, as it will be able to refer the issue both to the commissioner of the services and to the local overview and scrutiny committee. That gives us the tracks back in to the points about co-ordination and understanding and about reasonableness and having a wider test. If a LINK decided that the refusal was unreasonable and referred it to the overview and scrutiny committee, which also decided that it had been an unreasonable denial, then that would affect the access.
Mr. O'Brien: I was not going to raise this, but I have a constituency case that is very shocking. I will mention no names, but it was raised by the wife of an elderly gentleman—he appears to have Alzheimer’s and is in a care home. She has pictures of a very bruised gentleman, who is sometimes collapsed on a loo seat and left for two hours at a time. She is raising allegations and I am doing my best to help her. I am trying to understand if LINKs could help in such circumstances. Given the issue about notice, would a LINK inspection happen in time or not? We are trying to find a way forward for that lady. Whether her allegations are true or not has yet to be established, although there are photographs, which would seem to testify to the circumstances. If LINKs are prevented from going into a WC, which appears to be the case, because of privacy and dignity, I am anxious to know how that would help us with the alleged patient experience. I hope it is helpful to raise that issue.
Dawn Primarolo: That is a very interesting point on the interpretation of dignity and privacy. In the case that the hon. Gentleman described, it could be argued that the duty is to protect dignity and privacy. In that rather shocking and distressing case the allegation is that the person’s dignity and privacy has been undermined by the care provided, which does not respect that dignity. In such circumstances, I think that a LINK would be able to undertake the inspection of the facilities regardless. Obviously, if it was contested—it is impossible for me to speculate on that—it would raise wider issues about the quality of care. That is more likely to involve the overview and scrutiny committee, which would take a view on the dignity accorded to an individual in the care provided and also on what was reasonable. Such a view would be relative to the particular circumstances of the inspection because our definition of reasonable might be slightly different and the infringement of the individual’s dignity by that treatment could be legitimate.
I have given the hon. Gentleman my view on that. I have seen nothing in the notes or in the briefing that leads me to believe that I have not given him the correct interpretation. I will write to him if I find that I have not. I cannot think that it would be reasonable to deny access if there was an infringement of the patient’s dignity and that was the purpose of the visit.
My final point relates to the information that is required if a provider refuses entry. The hon. Member for Southport might agree that we have discussed the matter rather fully. The routes of complaint to the commissioner and the overview and scrutiny committee would provide the protection needed and set up locally what was considered to be acceptable.
Dr. Pugh: I totally accept that if a provider acts in an obstinate and awkward way, there will be a report on them and they will not be commissioned much in the future. That seems to be an inevitable consequence. However, drawing together some of the Minister’s remarks, the perception that I am getting is that the primary job of a LINK is to clarify the experience of service users. To do that they have the right to find out any information and to have access to any documents or people that will accomplish that task.
A second task for LINKs is to offer causal analysis of why the service providers get the experiences that they do. Such a task will entitle them to a different set of documents. For example, in the case in which a person is not seen very frequently by a nurse, that can be reported to LINKs. On the other hand, the reason why that happens may have something to do with the rota-ing of the staff and the way in which the manpower is organised, which would need another set of documents and a further level of analysis. Is the job fulfilled simply when LINKs have identified the nature of the patient experience, or are they mandated to go further and work out the causal reasons and to have the documents associated with that?
Dawn Primarolo: I have had experience of community health councils and patients forums and I no doubt will have experience with the PPI forums as they develop. Bringing together health and social care is crucial as care develops. No limitation can be placed on the analysis that members of LINK would want to make about the quality of care that they witnessed and, if poor, why they thought that it was occurring. They could refer the matter to overview and scrutiny committees, which work with the PCTs through the local area agreement. They have very wide powers to build on. They will listen to and take forward the points identified by LINKs. I think that the hon. Gentleman is unnecessarily and uncharacteristically pessimistic about LINKs and their ability to make a real and valued contribution to the commissioning and development of services and, most importantly, to be a powerful advocate for the user of the services, in terms of its quality and volume. On that basis, I commend the regulations to the Committee.

Question put and agreed to.

That the Committee has considered the draft Local Involvement Networks (Duty of Services-Providers to Allow Entry) Regulations 2008.
Committee rose at twenty-five minutes past Five o’clock.

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