Health and Social Care Bill

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Clause 112

Co-operation between prescribed bodies
Sandra Gidley: I beg to move amendment No. 267, in clause 112, page 60, line 25, leave out ‘may show’ and insert ‘shows’.
The clause has the generally laudable aim of ensuring that there is a mechanism for sharing information about health workers. As a general principle, that is to be welcomed. There have been occasions where the system has failed in the past because it has not joined up and earlier, I cited an example of a nurse in a nursing home who was able to practise for some time before her regulatory body caught up with her.
There is a concern about the current drafting. The aim of the amendment is to ensure that the sharing of any information that relates to the conduct or performance of a health worker could happen only if it actually shows that the worker is likely to constitute a threat to the health and safety of patients. The current wording in the Bill says “may”, and that seems to encompass a range of levels of proof. It would only potentially show that a worker may be a threat, and it is not clear how robust that evidence has to be.
The regulations will require NHS trusts and other bodies to provide and share information about health care workers in circumstances where a person may constitute a threat to the health and safety of patients. The BMA identified a potential problem with the clause from an employment law perspective. Clause 112(1)(a) refers to information that
“may show whether a worker is likely to constitute a threat to the health and safety of patients.”
Legal advice received by the BMA shows that if an employer were to pass on an unproven or damaging piece of information without the employee’s knowledge, it could be the basis of a claim that the employer had breached an implied term of trust and confidence in his or her employment contract. The use of unproven information does not indicate what level of investigation there has to have been. Obviously any comments that raise concerns are potentially damaging to an employee's reputation, so the matter would need to be carefully looked into. There is a case for saying that information should be shared only where the employer can demonstrate cause. In effect, that means that there would be a full and proper investigation and that the employee would be informed of the allegations.
It would be helpful to know how and when those powers will be used. Can the Minister clarify the procedures for the sharing of such information, including the need to inform the subject of the investigation at the earliest possible stage about the allegations that are being investigated? What assurances can the Minister give that the information shared would be kept in strict confidence, and to whom will that information be restricted?
Page 61, line 4 defines a “designated body”. Will the Minister clarify what other bodies he intends to prescribe for the purpose of that measure? It is right to say that protecting patients is vital, but the human rights of the health professional also need to be taken into account. At this stage, can the Minister outline the content of the secondary legislation and guidance?
I have a couple of further questions. What are the appropriate circumstances in which unproven information should be shared? If the intention is that the powers will be used only in cases where there is evidence of a significant risk to patient safety and where appropriate investigations are under way, can the Minister give examples of cases where information sharing would be an integral part of the investigation? What guidance will PCTs be given on considering all relevant factors, including assessing the degree of urgency and potential threats to patient safety, and examining the contribution that information from one organisation could make to the investigation before making the decision to share the information? Will the Minister clarify the circumstances in which it may be necessary to share information that is unproven at the time the information is shared? What onus will be on the organisation receiving the information to use the same confidentiality safeguards that it would if it had received the allegation directly from a member of the public?
There is general happiness about the overall intent of the Bill, but the use of the word “may” has given rise to some significant concerns, on which I seek the Minister's reassurance.
Mr. Bradshaw: The amendment would prevent organisations from sharing information—even where proven—that on its own may not be enough to demonstrate a threat to patient safety. However, when such information is put together with other information a pattern of behaviour may be revealed that could put patients at risk. For example, the settlement of a clinical negligence claim does not in itself show that the worker was a threat to patient safety, but repeated claims may show that there is likely to be a threat to patients.
6.15 pm
A common conclusion of recent inquiries, including the Shipman, Ayling and Kerr/Haslam inquiries, was that health care organisations failed, both singly and collectively, to join up information that was available to them. We are concerned that the hon. Lady’s amendment would limit their ability to do so. I will come on to the safeguards that she sought in a moment.
I absolutely understand and sympathise with the need to protect health care workers from unfounded allegations and we will therefore ensure that any regulations made under the clause are accompanied by robust guidance, which sets out the necessary safeguards regarding the way in which the shared information is stored and used in the receiving organisation. The basic principles should be that any uncorroborated information be held in strict confidence by the receiving organisation, and that health care workers be told, at the earliest possible stage, of the accusations against them and of the proposed way in which they will be investigated.
In response to the hon. Lady’s specific questions, information on unproven allegations will be shared only under strict conditions of confidentiality and on a need to know basis. There is no question of taking disciplinary action against any professional without a full investigation, in which the truth of such allegations can be rigorously tested through a fair process.
Sandra Gidley: Information could be passed on to another body and later not be proven. It is not clear what means there is of withdrawing such information so that a slur does not unnecessarily stay on a health professional’s record.
Mr. Bradshaw: That is exactly the sort of thing we would need to make plain in the secondary legislation. Soft information should be kept subject to strict controls and confidentiality so as not to harm the reputation of health professionals. Where on the basis of the information available a health care organisation decides that there is a need to investigate further, the professional concerned must be told of the allegation and given an opportunity to give his or her side of the story.
The procedures will be set out, as I already said, in regulations. Guidance will be based on the advice of an expert group that will include the BMA, and that legislation will also be subject to full public consultation. We expect to carry that out later in the year. It is our intention that the guidance include the need to inform the subject of the investigation at the earliest possible stage.
Finally, the hon. Lady sought an example of where unproven information may be shared. One example is where a doctor is employed by two or more organisations and an investigation into a serious allegation has been initiated by one of them. In deciding whether to share that information with a second organisation, the organisation will need to consider the central issues of the nature and strength of the allegation, the degree of urgency and the vulnerability of those to be protected. I hope that on the basis of those reassurances the hon. Lady will feel able to withdraw her amendment.
Sandra Gidley: I thank the Minister. There is always a problem when dealing with legislation whose detail is to come after, and when there are relatively few opportunities for parliamentarians to change the fine detail of the final product. I am happy to withdraw the amendment at this stage but I will reflect further and look closely at the Minister’s words to check that all my concerns have been allayed. I am not convinced that they have been and it is possible that we may wish to return to the point on Third Reading.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 112 ordered to stand part of the Bill.
Clause 113 ordered to stand part of the Bill .

Clause 114

Regulation of social care workers
Mr. O'Brien : I beg to move amendment No. 56, in clause 114, page 62, line 18, leave out subsection (4).
This is a probing amendment to ascertain the Government’s plans under subsection (4) for the regulation of social care workers who are not currently social care workers. The simple question is, what groups does the Minister have in mind? The Minister confirmed during the debate on clause 5 that it is not the Government’s intention
“that the domestic or private arrangements that they outlined should fall under the requirement for regulation”.——[Official Report, Health and Social Care Public Bill Committee, 15 January 2008; c. 226.]
Regulations under this provision are made by statutory instrument under the affirmative procedure, in recognition of the fact that in granting the Secretary of State the power to repeal or amend any provision other than section 55 of the Care Standards Act 2000, this is a Henry VIII clause—our old friend whom we discussed earlier. I shall refrain from reading out the remarkably humorous contribution I made at the time.
Our memorandum of information notes:
“It has hitherto not proved possible to make amendments as promptly as would be desirable in that changes require an appropriate legislative vehicle and sufficient Parliamentary time.”
I felt quite irritated and irked by that. It is not a strong argument. For a Government it is a very weak argument, because not only is control of both elements wholly within their power, there has not been one parliamentary year since Labour came to office when an Act meddling with the NHS or social care sector has not gone through the House, any number of which might have contained the proposed provision. Committee members need only look at part 5 of the Bill for examples.
It remains a moot question, therefore, whether the Committee should vote away even more of Parliament’s democratic role solely because either the Government are not on top of their policy making in advance of their proposed legislative programme or they have some problem with their parliamentary timetabling, such that we need this extraordinary catch-all definition of social care workers who are not currently social care workers. I look forward to the Minister’s response.
Angela Browning: I support the amendment. It brings us back to something about which the Minister has given us verbal reassurance throughout the course of the Bill, but subsection (4)(c) seems to catch all the people we have talked about. I am particularly concerned about the flexibility, which I have already said I support, of direct payments. Many people are employed directly by people who need a package of social care paid for through direct payments from public funds. We have just started to get a breakthrough in that flexible arrangement for people who are befrienders, such as those helping people with mental health problems or with autistic spectrum disorders, who need a package of care that is not the sort we have historically identified with physical disability or old age, but which makes a huge difference to their lives whereby their needs are recognised and they can at last start to take their place in society and do the sort of normal things that the rest of us enjoy but from which they are precluded.
Let us take as an example people who need a care package so that an age-appropriate or gender-appropriate person can accompany them socially—perhaps to go to the pub with them once a week. That may sound rather minuscule and trivial, but it makes a difference and I cannot see how such befrienders and people officially employed with public money will not fall foul of subsection (4)(c). They are just the sort of people who will be caught by that catch-all. Once they are subject to a lot of regulation they will be discouraged from doing those jobs and making themselves available one or two evenings a week. This is important, so I must ask the Minister to address what is on the face of the Bill, as it seems to fly in the face of some of his earlier reassurances.
In answer to the hon. Member’s question, it may include other groups who will need the flexibility to register in future. We have already announced that the first new group to be registered will be staff working in domiciliary care. The Government have also accepted GSCC advice on further groups, which include residential care workers. Those two groups cover staff in Commission for Social Care Inspection registered children’s care homes, residential family centres, care homes for older people, care homes for adults, domiciliary care agencies that provide personal care in people’s homes, fostering agencies, voluntary adoption agencies and so on. They are not the sort of individual contractual arrangements we discussed earlier and which the hon. Lady has just raised again.
That is why we are seeking the flexibility that the clause would give us. The difficulty we have with the hon. Member for Eddisbury’s amendment—notwithstanding his concerns, which I share, that we would not want the flexibility to be limitless—is that it would create uncertainty for the groups I have just referred to and may mean that those people or activities would not be brought within the regulatory framework or their regulation modified without primary legislation. I do not think that would be a sensible restriction so I hope he will feel able to withdraw his amendment.
Mr. O'Brien: I have listened carefully. Although it has unquestionably been helpful for the Minister to say that he has in mind, for instance, staff working in domiciliary care, residential care workers and a number of others, it is either appropriate to define them, which would be possible, or, given that so much is in regulations, it could be done by regulation. What I do not like is that the provision is so general and unspecific that it could possibly capture more.
This is not a vote against the Government as a matter of principle but a vote against on the basis that we have made a sensible point that has not yet been fully addressed. I encourage the Minister to think afresh with his officials as they look at the next stages of the Bill. On a feet-to-the-fire basis, I seek to divide the Committee.
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 10.
Division No. 12 ]
Browning, Angela
Milton, Anne
O'Brien, Mr. Stephen
Wright, Jeremy
Bradshaw, Mr. Ben
Burden, Richard
Cooper, Rosie
Hesford, Stephen
Hopkins, Kelvin
Jenkins, Mr. Brian
Kumar, Dr. Ashok
McCabe, Steve
Mallaber, Judy
Moffatt, Laura
Question accordingly negatived.
Clause 114 ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 115 ordered to stand part of the Bill.
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