Health Bill [HL]

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Health Bill [HL]

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
56

(3)
A Local Commissioner may disapply the requirement in subsection
(1)(b) in relation to a particular matter.
Investigations by a Local Commissioner
34F
Procedure in respect of investigations
(1)
A Local Commissioner who proposes to investigate a matter under
5
this Part must give the following persons an opportunity to comment
on the matter—
(a)
the adult social care provider concerned;
(b)
any person who is alleged in the complaint (if any) to have
taken or authorised the action which would be the subject of
10
the investigation;
(c)
any person who otherwise appears to the Local
Commissioner to have taken or authorised that action.
(2)
Every investigation under this Part is to be conducted in private.
(3)
Subject to subsection (2), the procedure for conducting an
15
investigation is to be such as the Local Commissioner considers
appropriate in the circumstances of the case.
(4)
The Local Commissioner may, in particular—
(a)
obtain information from such persons and in such manner as
the Local Commissioner thinks fit,
20
(b)
make such inquiries as the Local Commissioner thinks fit,
and
(c)
determine whether any person may be represented (by
counsel, solicitor or otherwise) in the investigation.
(5)
The Local Commissioner may, if the Local Commissioner thinks fit,
25
pay to the person by whom the complaint (if any) was made, and to
any other person who attends or furnishes information for the
purposes of an investigation under this Part—
(a)
sums in respect of the expenses properly incurred by them;
(b)
allowances by way of compensation for the loss of their time.
30
34G
Investigations: further provisions
(1)
For the purposes of an investigation under this Part a Local
Commissioner may require the following persons to furnish
information or produce documents relevant to the investigation—
(a)
the adult social care provider concerned;
35
(b)
any other person who in the Local Commissioner’s opinion is
able to furnish any such information or produce any such
documents.
(2)
Nothing in subsection (1) affects the restriction imposed by section
26 of the PSOWA 2005.
40
(3)
For the purposes of an investigation under this Part a Local
Commissioner has the same powers as the High Court in respect of—
(a)
the attendance and examination of witnesses, and
(b)
the production of documents.

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
57

(4)
To assist in any investigation, a Local Commissioner may obtain
advice from any person who in the Local Commissioner’s opinion is
qualified to give it.
(5)
A Local Commissioner may pay to any such person giving advice
such fees or allowances as the Local Commissioner may determine.
5
(6)
A Local Commissioner may appoint and pay a mediator or other
appropriate person to assist in the conduct of an investigation under
this Part.
(7)
Any person appointed under subsection (6) is to be deemed to be an
officer of the Commission in carrying out functions under that
10
appointment.
(8)
No person may be compelled for the purposes of an investigation
under this Part to give any evidence or produce any document which
the person could not be compelled to give or produce in civil
proceedings before the High Court.
15
(9)
If any person without lawful excuse—
(a)
obstructs a Local Commissioner in the performance of the
Local Commissioner’s functions under this Part,
(b)
obstructs any person discharging or assisting in the discharge
of those functions, or
20
(c)
is guilty of an act or omission in relation to an investigation
under this Part which, if that investigation were a proceeding
in the High Court, would constitute contempt of court,

the Local Commissioner may certify the offence to the High Court.
(10)
Where an offence is so certified, the High Court may inquire into the
25
matter and, after hearing any witnesses who may be produced
against or on behalf of the person charged (“D”), and after hearing
any statement that may be offered in defence, deal with D in any
manner in which the High Court could deal with D if D had
committed the like offence in relation to the High Court.
30
Statements etc. about investigations
34H
Statements about investigations
(1)
A Local Commissioner must prepare a written statement in
accordance with subsections (2) to (4) if the Local Commissioner—
(a)
decides not to investigate a matter under this Part,
35
(b)
decides to discontinue such an investigation, or
(c)
completes such an investigation.
(2)
In a case falling within subsection (1)(a) or (b), the statement must set
out the Local Commissioner’s reasons for the decision.
(3)
In a case falling within subsection (1)(c), the statement must—
40
(a)
set out the Local Commissioner’s conclusions on the
investigation, and
(b)
include any recommendations the Local Commissioner
considers it appropriate to make.

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
58

(4)
The recommendations the Local Commissioner may make are
recommendations with respect to action which, in the Local
Commissioner’s opinion, the adult social care provider concerned
should take—
(a)
to remedy any injustice sustained by the person affected in
5
consequence of the action of the provider which was the
subject of the investigation, and
(b)
to prevent injustice being caused in the future in consequence
of similar action of the provider.
(5)
The Local Commissioner must send a copy of a statement prepared
10
under this section to each of the persons concerned.
(6)
The persons concerned are—
(a)
the complainant (if any);
(b)
the adult social care provider concerned;
(c)
any person who is alleged in the complaint (if any) to have
15
taken or authorised the action which was the subject of the
investigation;
(d)
any person who otherwise appears to the Local
Commissioner to have taken or authorised such action.
(7)
The Local Commissioner may send a copy of a statement prepared
20
under this section to—
(a)
the Care Quality Commission, and
(b)
any local authority which appears to the Commissioner to
have an interest in the subject matter of the statement.
(8)
The statement must identify the adult social care provider concerned
25
unless—
(a)
the provider is an individual, or a particular individual
would, in the opinion of the Local Commissioner, be likely to
be identified as a result of identifying the provider, and
(b)
the Local Commissioner considers that it is not appropriate
30
for the individual to be identified.
(9)
The statement must not—
(a)
mention the name of any person other than the provider, or
(b)
contain any particulars which, in the opinion of the Local
Commissioner, are likely to identify any other person and
35
can be omitted without impairing the effectiveness of the
statement,

unless, after taking into account the public interest as well as the
interests of that person, the complainant (if any) and of other
persons, the Local Commissioner considers it necessary to mention
40
the name of that person or to include in the statement any such
particulars.
34I
Adverse findings notices
(1)
This section applies where an adult social care provider receives a
statement prepared under section 34H which contains
45
recommendations.
(2)
The adult social care provider concerned must—

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
59

(a)
consider the statement, and
(b)
notify the Local Commissioner within the required period of
the action which the provider has taken or proposes to take.
(3)
The Local Commissioner may by notice require the provider to
arrange for an adverse findings notice to be published in accordance
5
with subsections (4) and (5) if the Local Commissioner—
(a)
does not receive the notification mentioned in subsection
(2)(b) within the required period or is satisfied before the end
of that period that the adult social care provider concerned
has decided to take no action,
10
(b)
is not satisfied with the action which the provider concerned
has taken or proposes to take, or
(c)
does not within a period of one month beginning with the
end of the required period, or such longer period as the Local
Commissioner may agree in writing, receive confirmation
15
that the provider has taken action, as proposed, to the
satisfaction of the Local Commissioner.
(4)
An adverse findings notice is a notice, in such form as the adult social
care provider concerned and the Local Commissioner may agree,
consisting of—
20
(a)
details of any action recommended in the statement which
the provider has not taken;
(b)
such supporting material as the Local Commissioner may
require;
(c)
if the provider so requires, an explanation of the provider’s
25
reasons for having taken no action on, or not the action
recommended in, the statement.
(5)
The adverse findings notice must be published by the adult social
care provider in such manner as the Local Commissioner may direct.
(6)
If the adult social care provider—
30
(a)
fails to arrange for the publication of the adverse findings
notice in accordance with subsections (4) and (5), or
(b)
is unable, within the period of one month beginning with the
date on which the provider received the notice under
subsection (3), or such longer period as the Local
35
Commissioner may agree in writing, to agree with the Local
Commissioner the form of the adverse findings notice to be
published,

the Local Commissioner must arrange for an adverse findings notice
to be published in such manner as the Local Commissioner considers
40
appropriate.
(7)
The adult social care provider concerned must reimburse the
Commission on demand any reasonable expenses incurred by the
Local Commissioner in performing the duty under subsection (6).
(8)
In this section the “required period” means—
45
(a)
the period of one month beginning with the date on which
the adult social care provider concerned received the
statement, or

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
60

(b)
such longer period as the Local Commissioner may agree in
writing.
34J
Publication of statements etc. by Local Commissioner
(1)
A Local Commissioner may—
(a)
publish all or part of a statement under section 34H,
5
(b)
arrange for further publication of all or part of an adverse
findings notice published under section 34I(3) or (6), or
(c)
publish a summary of a matter which is the subject of a
statement or adverse findings notice under section 34H or
34I,
10

if, after taking into account the public interest as well as the interests
of the complainant (if any) and of other persons, the Local
Commissioner considers it appropriate to do so.
(2)
A Local Commissioner may—
(a)
supply a copy of all or part of a statement, adverse findings
15
notice or summary mentioned in subsection (1) to any person
who requests it, and
(b)
charge a reasonable fee for doing so.
(3)
Subsections (8) and (9) of section 34H apply to any part of a summary
of a matter that is published, or a copy of which is supplied, under
20
this section as they apply to a statement prepared under that section.
34K
Disclosure of information
(1)
Information obtained by a Local Commissioner, or any person
discharging or assisting in the discharge of a function of a Local
Commissioner, in the course of or for the purposes of an
25
investigation under this Part must not be disclosed except—
(a)
for the purposes of the investigation and of any statement,
adverse findings notice or summary under section 34H, 34I
or 34J,
(b)
for the purposes of an investigation under Part 3 and of any
30
report, statement or summary under section 30, 31 or 31B in
relation to such an investigation,
(c)
for the purposes of a complaint which is being investigated
by the Parliamentary Commissioner or the Health Service
Commissioner (or both),
35
(d)
for the purposes of any proceedings for an offence under the
Official Secrets Acts 1911 to 1989 alleged to have been
committed in respect of information obtained, by virtue of
this Part, by a Local Commissioner or by a person
discharging or assisting in the discharge of a function of a
40
Local Commissioner,
(e)
for the purposes of any proceedings for an offence of perjury
alleged to have been committed in the course of an
investigation under this Part,
(f)
for the purposes of an inquiry with a view to the taking of
45
proceedings of a kind mentioned in paragraph (d) or (e), or
(g)
for the purposes of proceedings under section 34G(10).

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
61

(2)
A Local Commissioner or a person discharging or assisting in the
discharge of a function of a Local Commissioner may not be called
upon to give evidence in any proceedings (other than proceedings
within paragraphs (d), (e) or (g) of subsection (1)) of matters coming
to his or her knowledge in the course of an investigation under this
5
Part.
(3)
A Local Commissioner must not prepare a statement under section
34H which includes government information unless the Local
Commissioner has—
(a)
obtained the written consent of an officer of the government
10
department concerned, or
(b)
given the department not less than one month’s notice in
writing of the intention to include the information in a
statement.
(4)
In subsection (3) “government information” means information
15
disclosed under section 34G(1) which—
(a)
is derived from a communication with a government
department, and
(b)
has not been made public.
(5)
Information obtained from the Information Commissioner by virtue
20
of section 76 of the Freedom of Information Act 2000 is to be treated
for the purposes of subsection (1) as obtained for the purposes of an
investigation under this Part and, in relation to such information, the
reference in paragraph (a) of that subsection to the investigation has
effect as a reference to any investigation.
25
34L
Law of defamation
(1)
For the purposes of the law of defamation the following are
absolutely privileged—
(a)
the publication of any matter in communications between an
adult social care provider and a Local Commissioner, or any
30
person discharging or assisting in the discharge of a function
of a Local Commissioner, for the purposes of this Part;
(b)
the publication of any matter by a Local Commissioner or by
any person discharging or assisting in the discharge of a
function of a Local Commissioner, in communicating for the
35
purposes of this Part with a person mentioned in
subsection (2);
(c)
the publication of any matter in preparing, making and
sending a statement in accordance with section 34H;
(d)
the publication of any matter by inclusion in an adverse
40
findings notice published in accordance with section 34I(3),
(4) and (5) or (6);
(e)
the publication of any matter by inclusion in a statement,
adverse findings notice or summary published or supplied
under section 34J;
45
(f)
the publication of any matter contained in a report by a Local
Commissioner which has been made available to the public,
being publication by inclusion in a report made or published
under section 34S.

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
62

(2)
The persons mentioned in subsection (1)(b) are—
(a)
a complainant or the person affected in relation to a matter;
(b)
the Parliamentary Commissioner, the Health Service
Commissioner or any officer of either such Commissioner;
(c)
the Care Quality Commission or any officer of that
5
Commission;
(d)
a local authority.
Arrangements with other Commissioners etc.
34M
Consultation with other Commissioners
(1)
Subsection (2) applies if, at any stage in the course of an investigation
10
under this Part, a Local Commissioner forms the opinion that the
matters which are the subject of the investigation include a matter
which could be the subject of an investigation by—
(a)
the Parliamentary Commissioner, in accordance with the
PCA 1967;
15
(b)
the Health Service Commissioner, in accordance with the
HSCA 1993;
(c)
the Scottish Public Services Ombudsman in accordance with
the SPSOA 2002; or
(d)
the Public Services Ombudsman for Wales, in accordance
20
with the PSOWA 2005.
(2)
The Local Commissioner—
(a)
must consult with the appropriate Commissioner or
Ombdusman about the matter, and
(b)
where a complaint was made about the matter must, if the
25
Local Commissioner considers it necessary, inform the
person initiating the complaint under this Part of the steps
necessary to initiate a complaint under the PCA 1967, the
HSCA 1993, the SPSOA 2002 or the PSOWA 2005, as the case
may be.
30
(3)
Consultation under subsection (2)(a) in relation to a matter under
investigation under this Part may be about anything relating to the
matter, including—
(a)
the conduct of any investigation into the matter, and
(b)
the form, content and publication of any report or statement
35
of the results of or conclusions on such an investigation.
(4)
Subsection (5) applies if, at any stage in the course of conducting an
investigation under the PCA 1967, the Parliamentary Commissioner
forms the opinion that the complaint relates partly to a matter which
could be the subject of an investigation under this Part.
40
(5)
The Parliamentary Commissioner—
(a)
must consult with the appropriate Local Commissioner
about the complaint, and
(b)
if the Parliamentary Commissioner considers it necessary,
must inform the person initiating the complaint of the steps
45
necessary to initiate a complaint under this Part.