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Earl Howe moved Amendment No. 88:

(b) during normal business hours in all other circumstances,").

The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 89, 90, 95, 97, 109 and 110. These amendments all relate to the ground rules which should apply to the conduct of inspections. Clause 28 is drafted in a way which is rather too accommodating to the inspectors and insufficiently accommodating to those who are to be inspected.

The vast majority of inspections will be carried out in a constructive and friendly spirit. They will provide opportunities for sharing good practice. Above all, they

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will need to be conducted in a manner which does not lose sight of their overriding objective, indeed the objective of the Bill; namely, to safeguard the well-being of the care home resident, the hospital patient or the child in the children's home, as the case may be.

That being so, we need to look carefully at the powers which the Bill confers on inspectors. Of course, some inspections will be far from easy, where inspectors will need to stand on their authority and where the power to insist on access to people and records will need to exercised in a robust way. But that does not give us an excuse to overlook either people's rights or common sensitivities.

In these amendments, I suggest that it is unacceptable, other than in an emergency, for an inspector to demand entry into a care home or other establishment during the night. It is not fair, in normal circumstances, to inflict such a disturbance on, for example, elderly residents. I suggest that inspectors should produce identification as a matter of routine. We should pay proper regard to the conduct of interviews. Most interviews with managers or staff will be non-confrontational but some will be the exact opposite. If I were on the receiving end of such an interview I should want it to be in private; I should want to have somebody independent sitting on my side of the table; and I should want to be sure that whatever I said was correctly noted down. That is precisely the right that I would have in a police station. I see no real difference of principle if what I say to a police inspector carries with it the possibility of criminal charges being laid against somebody.

I believe that Clause 28 should make it absolutely clear that there are some areas into which an inspector should not consider it his automatic right to enter. The point of my amendment to subsection 3(a) is to relay a concern expressed to me by more than one source. All too often inspectors cannot resist making pronouncements on matters which are not within their remit. The examples quoted to me are pharmacy issues, fire regulations and health and safety matters. All of these are important, but they are not strictly the province of an inspector of a residential home, or such like, and should be left to those who are trained and qualified to give the correct advice. I hope that the Minister will be sympathetic to the thrust of these amendments. I beg to move.

9 p.m.

Baroness Barker: I have every sympathy with the sentiment behind Amendment No. 88 standing in the name of the noble Earl, Lord Howe. Of all the amendments at which I looked, this was the one that caused me the greatest problem. The problem is that abuse and malpractice does not happen during normal working hours. The most blatant of abuse occurs at the time when the most intensely personal care is taking place, and that happens to be very early in the morning and very late at night when people are going to bed.

Secondly it is not good enough to talk about "in the event of an emergency". When we talk about good practice, very small things which are not emergencies

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but add up to the total quality of care in a home can be determined early in the morning. For example, I worked with one group of lay assessors who made very early visits. They looked at how long it took for hot water to come through the taps to fill baths, and so on. We have just been talking about the qualitative standards which are in Fit for the Future? I actually do believe that many of them will be best tested by out-of-hours inspections.

While I understand what has been said about privacy during interviews, I think that the wording of this particular amendment is misplaced. I hope that we can look at some of the spirit to which the noble Earl, Lord Howe, referred, but not use these particular words.

Baroness Pitkeathley: I rise very briefly to support what the noble Baroness, Lady Barker, on the Liberal Democrat Benches said. I understand entirely the spirit of the amendment of the noble Earl, Lord Howe, about invasion of privacy, and such like, but it is at those particular times of vulnerability that we have to be able to prove the standard is still maintained during those occasions. From that point of view, I oppose the amendment.

Lord Laming: Members of the Committee will see that I am not the noble Lord, Lord Rix. I wish to speak to Amendment No. 91 and also Amendments Nos. 92, 93, 94 and 96. I shall start with No. 91. Medically qualified and nurse inspectors have the option, in appropriate cases, of looking at personal medical records and of carrying out physical examinations. This option is, as the Bill stands, subject to the consent of the person concerned: that is, in the case of people who are able to give consent. Therefore, it is eminently reasonable. However, in the case of someone who, because of their disability, is not able to say or indicate either yes or no, there is no power to look at medical records or to examine the person. As a result, those who are most vulnerable have the least protection. If there have been rumours about improper restraint, the more able resident can authorise the doctor to look at their arms for bruises and check their medical records for explanations. With the more severely disabled resident the rumours cannot be followed up and, therefore, run away into the sand.

These amendments would allow the doctor or nurse to do their job properly unless the person refuses consent. In the case of checking medical records, this should not be controversial. In the case of physical examination, it is worth making clear that refusal to consent includes physical and not just verbal refusal; allowing someone without words to refuse examination.

I urge the Minister to take these amendments seriously as an attempt to secure equal protection for those who are the most vulnerable.

I turn to Amendment No. 93. This amendment would allow a third party to be present during examinations or interviews taking place as part of suspected abuse or malpractice cases. Not only may

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this be of general reassurance to the service user, for example, allowing someone of the same sex to be present while being examined by someone of the opposite sex, but it may actually be crucial to determining the facts of the case. People with learning disabilities may lack the communication skills to make their views known without support. They may need support to help think what they want to say, or more likely, may need encouragement to answer a question. Interviews must be made possible, otherwise the most vulnerable people will be denied an opportunity to speak for themselves in often very distressing situations.

I now turn to Amendment 94. In speaking to this amendment I am not suggesting that there should be a requirement on inspectors to consult service users' wider contacts as a matter of course; but in a small number of cases--perhaps where the service user has communication difficulties--it may be appropriate to seek the use of relatives or advocates who may have been in regular contact with both the service user and the establishment in question. It is designed to be a helpful amendment. Under no circumstances should it be used as a substitute for seeking service users' own views, or placing less credence on them.

Finally, I turn to Amendment No. 96. There is something of a clash of principles when it comes to checking on domiciliary services. On the one hand, people are in control of what happens in their own homes and there is something fundamentally wrong about inspectors snooping around someone's home. The other principle is that people are at their most vulnerable in their own homes and deserve protection--better protection than looking through the files at the offices of the domiciliary services agency can offer.

The bridge between these two principles seems to be the right of the householder to invite the inspector in or keep the inspector out. Given that safeguard, enabling inspectors to visit people at home on occasions seems entirely proper and a valuable extension of their ability to be supportive. We have precedents for such visits in, for example, the role of the Lord Chancellor's Visitors. Even without that, and allowing for the necessarily modest scale of such visits, the question is, "Why not?", not "Why?". I believe that the Minister may be able to assure the Committee that such visits are both possible and intended.

Lord Lucas: I have a question which I think goes along with these various amendments. I wonder whether under Clause 28(3)(b) and (c) there is a right for the person making the inspection to obtain these records even if they are not kept at the premises in question.

Lord Hunt of Kings Heath: Perhaps I may first speak to my amendment, Amendment No. 111, which is part of the group. The amendment ensures that the provisions relating to inspection offences and the requirement for an inspector to be duly authenticated apply to Clause 42 as well as to Clause 41. The clauses deal with the inspection of adoption and fostering

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services and it is essential that the provisions apply to both Clauses 41 and 42 to allow the inspectors to carry out their duties properly.

I turn to the other amendments in the group. They raise important issues about the nature of inspections and the balance, as the noble Earl, Lord Howe, put it, between the inspector and the inspected. The noble Earl raised a number of questions concerning the potential behaviour of those appointed as inspectors. One of the great advantages of the arrangements we shall put in place is that the commission will be able to ensure that those inspectors are given appropriate training, that there will be consistency and high standards in the way they operate, and that they will well understand the need for sensitivity, particularly to residents, in their approach to the way in which inspections are carried out.

In relation to Amendments Nos. 88 and 109. I should say that the normal business hours of a 24-hour care establishment would not be nine to five. As the noble Baroness, Lady Barker, pointed out, these establishments provide care in the evenings and at weekends, day or night. If inspection visits were to be limited normally to nine to five, many of the key aspects in the routines of care homes and other establishments would not be observed.

It is essential that inspectors are able to observe the arrangements for getting residents out of bed in the morning, their breakfasting, evening meal and how they are put to bed by staff. As the noble Baroness, Lady Barker, said, unfortunate happenings are not infrequently encountered in visits outside normal business hours. It is the experience of many registering authorities that inspectors have visited residential homes at 6 a.m. and found all the residents out of bed and dressed, simply for the convenience of the day staff coming on shift. An important feature of the draft national minimum standards for residential care of older people is that they must have choice. This should extend to whether residents wish to rise early or late and what they would like to eat. They should not be denied choice for the sake of staffing convenience. The same points could be made about the evening routine. It will be equally important to check that night staff are awake and alert. That can only be accomplished with evening visits.

Importantly, the provision for inspectors to carry out inspections at any time is already in the existing Registered Homes Act 1984 and the Children Act 1989. For the reasons I have outlined and the need to ensure that inspections of statutory and private provision are consistent and effective under the commission, I hope that the Committee will agree that it is important that inspectors have the ability to do what is set out in the Bill.

I agree very much with the concern expressed in Amendment No. 89 that the registration authority's inspectors should act only in accordance with the discharge of the registration authority's statutory duties. However, this amendment is not necessary to achieve that. The registration authority will only be able to take actions necessary or expedient to the

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discharge of its functions. It follows that any person it authorises to work for it will automatically be under the same obligation. If an inspector has been authorised by the commission, he or she cannot do more than discharge its functions.

I can quite understand that there may be occasions--the noble Earl gave a particular example--when an inspector is thought to have acted beyond his powers or, in the case quoted by the noble Earl, in what might be considered to be an unreasonable way. In this case, the provider will have every right to complain to the commission about the inspector's behaviour. I make it absolutely clear that we shall issue directions to the commission to ensure that it has a satisfactory procedure in place for dealing with complaints about its staff and the way in which it exercises its functions.

I also take this opportunity to assure your Lordships that if a complainant is not satisfied with the commission's response, he or she will be able to take the complaint to the Parliamentary Commissioner for Administration as the commission will be a non-departmental public body.

As with Amendment No. 89, I thank noble Lords for suggesting Amendment No. 97, but I am not convinced that it would improve the protection of providers from bogus inspectors or could add anything in terms of preventing inspectors acting beyond their remit.

Turning to Amendment No. 90, I am sympathetic to the proposed change to the Bill's provision for interviewing managers of services. Indeed, there may be instances when it would be necessary to interview a manager in private--perhaps if he or she were unwilling to speak in front of the owner. Therefore, I want to take this away and give it further consideration.

On Amendments Nos. 91, 92, 93 and 94, I am sympathetic to the wish to strengthen the opportunities for residents of establishments to express their views to inspectors. Many noble Lords will have seen the recent television documentary, "Macintyre Undercover", which exposed ill-treatment of residents that had gone undetected by inspectors. In future we shall want to ensure that inspection methods are both sensitive, as I have said, and rigorous so that residents are enabled to express their views about their care in private and with the confidence that any concerns will be dealt with.

We have already commissioned work from the voluntary sector to help to improve communication between inspectors and people with learning disabilities, and to enable more service users to take an active role as lay participants in inspection.

We also intend that inspectors should actively involve relatives, friends and advocates of service users in the inspection process. Of course, staff in good homes will be, and have been, keen to enable this active flow of information. Any reluctance to help inspectors to acquire the fullest picture of what a home feels like to live in should, of course, prompt closer inspection. However, I am not convinced that the details of how those aspects of best practice can be built into

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inspection are best dealt with on the face of the Bill. They can be achieved through directions from the Secretary of State to the commission. I can assure the noble Lord that we shall give directions to the commission on those issues.

In relation to Amendment No. 95, in essence it seeks to formalise the contact between inspectors and persons present during an inspection in a way that would not be conducive to good relations between inspectors and operators of registered services. To my mind, to introduce the idea of independent representation for service users when an inspector is wanting to ask them for their views on the service being received suggests a completely different connotation from that intended. It seems to imply that the service user is making a formal statement, as if in a police interview, and needs representation to safeguard his or her interests.

That is the opposite of what this is all about. We want to enhance the resident's or patient's opportunity to speak openly and frankly. I am concerned that the amendment would have the opposite effect. Inspectors will want to gain an honest view from service users about the quality of care being provided and we cannot, and should not, want them to be inhibited from expressing their views by being prevented from speaking privately.

I return to a point I raised at the beginning. There are many ways in which skilled inspectors can put service users at ease and create informal opportunities for them to talk privately. We do not intend that the general process of gathering information should be carried out as if interviewing anyone for a job, but we want to ensure that inspectors can be firm if they consider that they are being prevented from talking privately by, for example, a manager hovering at someone's shoulder. Nor is it intended that employees, owners or managers should be grilled by inspectors. We want to ensure that staff can feel free to respond honestly to questions, which may include them being asked what induction and training they have had; how well they are supervised; whether or not they have access to the right equipment, and so on, that they need to do the job. Those are the kinds of issues that would be routinely covered on inspections.

In their turn, managers could be inhibited from talking freely about the resources that they have to meet the standards, or they may want to discuss a problem and seek advice from inspectors in private.

One could go further and say that, as it will be necessary for commission staff to inspect without notice, giving the right of representation could allow operators of registered services to hamper or even to obstruct the inspection by refusing to co-operate unless their independent representative were present.

The case is different if something untoward is discovered and an offence is suspected by the commission. In those circumstances--this may be the answer to the noble Earl, Lord Howe--the inspectors would apply a caution under the Police and Criminal Evidence Act and begin a formal interview which would

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then be recorded and may be used in evidence. But that is a different matter altogether. Of course, under those circumstances, persons cautioned have a right to remain silent, though it might harm their defence, and a right to representation. Again I say to the noble Earl that we intend inspectors to be properly trained to distinguish between those circumstances and act accordingly.

I have some anxieties in relation to Amendment No. 110. It would create a right to independent representation for any local authority employee in an inspector interview. In addition, the interviewee would then have the right to receive a written record of the interview. It is important that inspectors are able to do their job. Part of that job requires them to interview staff working for the local authority. It is important to remember the purpose of the interview. It will not usually be the case that the person being interviewed is the subject of a formal investigation. The interview will usually be part and parcel of the normal information-gathering exercise necessary for the inspector to report on the quality of care being offered. It is not likely that an employee will need independent representation to answer straightforward questions about his or her job. It would be difficult for the commission to do its job if the inspectors could not ask a member of staff of a local authority routine questions without that person being represented.

The concerns in relation to Amendment No. 96 are appreciated. The regulation and the domiciliary care process should not be limited to the head offices of domiciliary care agencies. I can assure the noble Lord that visiting service users and talking to their families and themselves will be a key feature of regulation of domiciliary care. Also, the commission will only ever undertake such visits and interviews with the consent of a service user, so there will be no need for any legal powers on the face of the Bill. The commission will be free to do that without specific enabling powers. But to ensure that the commission involves service users in the inspection of domiciliary care agencies, we intend to issue directions to the commission on that issue. We will make similar directions concerning the inspection of adoption and fostering agencies where it will be equally important to involve service users and recipients. In those cases, the commission will be required to interview a selection of the adult carers and also some of the children, where appropriate.

The answer to the noble Lord, Lord Lucas, is "no". The Bill requires certain records to be kept, but those can be inspected wherever they are. I hope that answers the noble Lord.

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