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Baroness Gardner of Parkes: I have been in the House too long to enter into a lengthy argument about "may" or "shall"--I have heard it so many times--but I slightly prefer "may" for the reasons given by the noble Lord, Lord Laming.
I want to comment on the point made by my noble friend Lord Howe about agency premises. It is important that there is not legislation in too many forms covering the same matter. Premises for any kind of office or business, which is what an agency basically is, already come under town-planning law and would certainly come under health and safety legislation also. I wonder whether including this provision in the Bill in that way would make them subject to too many different forms of legislation.
Lord Hunt of Kings Heath: I shall speak first to my Amendments Nos. 68 and 115 to 118. Amendment No. 68 is a minor amendment to ensure existing Children Act powers are fully replicated in the Bill. The regulation-making power is already contained in the Children Act 1989, in Schedule 4, paragraph 4(2)(i). Under that power, the Children (Secure Accommodation) Regulations 1991 have been made, governing specific requirements made of children's homes where children's liberty is restricted.
I should point out that the Bill allows the continuation of the current system, whereby such establishments are not only duly registered as children's homes by the national care standards commission, but will also then be subject to a further approval on behalf of the Secretary of State before they may be used as secure accommodation for children.
The regulatory powers in Schedule 4 of the Children Act are repealed by the Bill's provisions. Any regulations made under those powers would fall with that repeal, unless the powers are re-enacted. The power on secure accommodation was omitted in error in the drafting of the Bill. It is essential to provide proper protection for children in such establishments. Among their other provisions, the existing regulations provide for the important approval of the Secretary of State in respect of such matters as the placement of children in secure accommodation, the appointment of persons to review placements and the requirements for record-keeping. The amendment allows the provisions of the existing regulations to remain in force.
I turn now to Amendments Nos. 115 to 118. The amendments are intended to ensure that Clause 44 properly reflects the provision in Clause 20 which sets out the regulation-making powers for independent fostering agencies. Our intention is to enable, as far as
is appropriate, the same requirements to be made of local authority fostering services as are made of independent fostering agencies.The amendments bring the provisions into line. In practice, they mean that regulations may be made about staff in local authorities who carry out work on the fostering functions covered by that part of the Bill. Rather than applying only to fully employed staff, as currently provided for in the Bill, the amendments would ensure that regulations made under those powers in respect of relevant fostering functions would apply to staff who are locum and self-employed, but who carry out functions for the local authority.
I turn now to the amendments moved by other Members of the Committee. Amendments Nos. 46, 57, 61 and 62 raise the issue which, as the noble Lord, Lord Clement-Jones, suggested to us, is familiar: whether the legislation should say "shall" rather than "may". We discuss that issue on just about every Bill which passes through your Lordships' House and indeed, I have no doubt that the noble Earl, Lord Howe, when he was a Minister, defended the use of "may", as opposed to "shall".
However, I understand that Members want me to specify our commitment in terms of the regulations. The reality is that the regulations will be made. The legislation in front of us simply would not work if the regulations for regulated services to meet were not set out. The intention is quite clear and I doubt if there is any disagreement on the matter.
I turn now to the concerns raised by the noble Earl, Lord Howe, as to whether the sum total of the regulations that will be enacted will place too many burdens on the establishments to be regulated. I understand that concern, but I believe that he will understand also that a careful balance has to be drawn in terms of protection of the public interest and ensuring that we are not over-burdensome on the homes and other establishments that will be regulated under the Bill. I believe that we have the balance right.
I turn first to Amendment No. 49, which would exclude domiciliary care agencies, fostering agencies and voluntary adoption agencies from regulations made under Clause 20(1)(c) to ensure the fitness of premises. I understand why noble Lords have asked why the premises of an agency must be so regulated. In fact, there are a number of very good reasons why that needs to happen. First, agencies will usually hold confidential records about service users. We believe that the registration authority will need to be able to ensure that an agency's premises are secure in order to prevent unauthorised persons gaining access to areas where such records are kept.
Additionally, agencies will often need to have space to meet in private. It is proposed, for example, that the national minimum standards for domiciliary care will include standards relating to the supervision of staff. That is likely to involve an annual interview between an individual member of staff and his supervisor. That would need to be in private and, therefore, an agency's premises would need to facilitate that. I understand the point raised by the noble Baroness, Lady Gardner, but
I am not at all sure that the provisions which she mentioned in relation to town planning or health and safety will meet the requirements which we believe are needed in relation to those offices.The effect of Amendment No. 51 will be to exclude registered agencies from the regulatory provisions relating to the numbers and types of persons required to work at an establishment or for the purposes of an agency. We regard the regulation of agencies as being as important and necessary as the regulation of establishments such as care homes. We cannot agree that the regulatory powers for agencies should be weaker than they are for establishments; for example, it is essential that the power exists to ensure that staff who deal with vulnerable children in fostering or adoption agencies hold relevant professional qualifications and have appropriate experience where the position demands it. Such a requirement forms part of the present inspection arrangements for adoption agencies. Certainly, we would not want regulation of those agencies by the commission to be any less comprehensive and rigorous than the current system. I can assure your Lordships that the regulations and standards set on staffing will be reasonable and based on consultation with all interested parties.
I turn to Amendment No. 52, which seeks to remove a critical power of the new commission to protect those who depend on regulated care services. This concerns the issue of financial viability. We believe that it is especially important that organisations which provide care should be financially sound and unlikely to put at risk the vulnerable people who depend on them to meet their everyday needs. That principle has been recognised in a judgment relating to fitness under the Registered Homes Act 1984, and we do not want to weaken the protection which current legislation affords us. By making it clear that the financial position of an establishment or agency will be made the subject of requirements, we are ensuring that would-be providers are thoroughly prepared to demonstrate that they have the means to run their business.
In answer to the point raised by the noble Earl, Lord Howe, the type of information which is sought now and which will be required in future relates to cash flow forecasts, business plans, audited accounts of previous trading, and so on. Of course, I accept that the routine inspection officer should be able to read those accounts. However, I am certain that the commission itself will be able to employ expert people who can advise on those issues.
I turn to Amendment No. 55. I support entirely the noble Lord's concern to ensure that a wide interpretation is taken of the meaning of "welfare". Equally, we must be careful not to define it in a way which might be limiting. However, we are currently considering whether the Bill is drafted in a way which ensures that "welfare" includes promotion of health in particular. If that is not the case, or if there is any doubt, we shall bring forward an amendment at
Report stage. I believe that the noble Earl, Lord Howe, will accept the same response in relation to his Amendment No. 56.I turn to Amendment No. 63, which relates to record-keeping. The principle of regulating record-keeping in nursing homes, private hospitals and residential homes is already well established under the Registered Homes Act 1984. There are extensive requirements on homes to maintain records concerning the conduct of the home, including the care, nutrition and health of residents, the recruitment and training of staff, and the health and safety precautions taken. It is essential to maintain those if a service is to be run effectively and monitored by the regulatory authority. I believe that record-keeping as evidence of the care provided--or not--has featured regularly in tribunal decisions about the fitness of a home.
I turn to Amendment No. 70. I doubt whether any Member of your Lordships' House would ever accuse the noble Lord, Lord Rix, of being "soulless". Those of us who had the pleasure of watching him for many years in the Whitehall farces believe that he has brought great joy to many people and he continues to do so in this House. I agree with the noble Lord's amendment and the sentiments which he expresses that the physical management of users in residential and other settings requires improvement. We know that there have been a number of worrying occurrences over recent years, culminating in the recent television programme "Macintyre Undercover", which have indicated that staff sometimes do not act in an appropriate way when caring for people who need protection from physical harm. Occasionally, techniques are used which are entirely inappropriate to users of care services.
Perhaps I may say to the noble Lord, Lord Rix, that the Department of Health is working with the British Institute of Learning Disabilities to consider the best ways to provide guidance for care providers on the appropriate use of physical intervention with people in their care. In addition, it is certainly our intention to make regulations regarding the appropriate use of physical constraint for adults where it is unavoidable. We had intended to make such regulations under Clause 20(1)(d)--the clause which we have just discussed--for securing the welfare of persons accommodated in homes. However, I can assure the noble Lord that we shall introduce a specific regulation-making power at Report stage if there is any doubt that that power is wide enough to extend to physical management. We shall certainly take away this matter and give it further consideration.
6.15 p.m.
Lord Rix: Perhaps I may thank the Minister, first, for his very kind words about my past life and my present occupation and say how grateful I am for the recognition of the need for regulations in regard to restraint. I am happy to accept those assurances and I know that Mencap, too, will be delighted.
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