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Lord Phillips of Sudbury: I should like to speak to the amendment in my name, which broadly deals with the circumstances referred to by the noble Earl, Lord Howe. The Government may think that my amendment will add confusion to complexity but the purport is very clear. It may be useful if I give one example. It is not uncommon that in some care homes, particularly perhaps smaller ones, a complaint as to the running of the home will come not from the provider--the proprietor--but from a member of staff. It is altogether possible that a member of staff who persists in claiming with regard to his employer that what is being done is not right could find himself dismissed. If he is dismissed within the qualifying one year in order for him to make a claim for unfair dismissal, he will have no remedy. One could therefore have a rather bizarre set of circumstances where someone who is dismissed unfairly is then compulsorily referred for the blacklisting procedure when in fact he has been trying to do the right and proper thing. As I understand it, the amendment proposed by the noble Earl, Lord Howe, and my
amendment address that circumstance. Even if the wording is not perfect, I should like to think that the Government would accept the intent.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): Perhaps I may say to the noble Earl, Lord Howe, and to the noble Lord, Lord Phillips, that I very much take on board the points they have made. If an owner in the specified service appears as a result of misconduct to have harmed or placed at risk of harm a vulnerable adult, it is important that there is provision for such a person to be referred to the list. It is clear that we need a provision whereby a member of staff can ensure that an employer or an owner who has misbehaved can be referred to the list. We need that added safeguard. We are at present considering how the national commission for care standards could enforce such a scheme. Our intent is to bring forward an amendment to allow the commission to make referrals to the Secretary of State in just such circumstances as both noble Lords have pointed out. On that basis, I hope that they will feel assured.
The noble Lord, Lord Rix, returned us to the question of day centres. In order for the provisions of this part of the Bill to bite fully on day centres, day centres themselves would have to be regulated by the commission. That would be necessary to ensure that the duty to refer is fully enforced and that centres do not employ banned persons. As I said in Committee last week, it may be that in time day centres are to be brought within the regulatory framework of the commission, although at this stage I cannot give an assurance on whether or when that may be. However, enabling a day centre to check whether a person it is proposing to employ is on the list is a different matter. It is exactly what we had in mind when taking the power in Clause 77(2)(c) to extend access to the list. Once the new system is operational, I can assure the Committee that we shall consider carefully whether enabling day centres to access the list in that way would be appropriate.
Lord Rix: The dread words "in time" came up again. I was pleased to hear that there was a possibility of access to the list. If there could be a commitment on that by the Government during the passage of the Bill through your Lordships' House, I should be content.
Lord Phillips of Sudbury: I am grateful for what the Minister said and shall be happy not to move my amendment on that basis.
Earl Howe: I echo the words of the noble Lord, Lord Phillips. It was a helpful reply. It is clearly a concern which must be addressed and I am grateful that the Government are doing that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 137 not moved.]
Earl Howe moved Amendment No. 138:
- Page 42, line 4, after ("whom") insert ("clinical or").
My amendment is intended to bring us back to the issue of healthcare at home, which we debated on an earlier set of amendments. I ask the Committee to treat this purely as a probing amendment because it is clear, from what the Minister said earlier, that it would not be appropriate to alter the definition of "domiciliary care agency" in the way that I sought.
The main issue is to ascertain which services the Government intend to set out in regulations as the basis for the definition. The mention of "prescribed services" in subsection (6)(c), as provided by an independent hospital, an independent clinic or NHS body, again suggests fairly wide coverage. Indeed, in a healthcare setting it is not unreasonable to regard most adult patients as being vulnerable in one way or another. If the definition is to include all adult patients in hospitals and clinics, it clearly has major implications in terms of the need to check all potential NHS employees against the proposed register on every relevant appointment or job move. I shall be interested to hear what the Minister has to say. I beg to move.
Baroness Barker: I rise to speak to Amendment No. 139. On these Benches, we too are concerned about the wide definition of who is a "vulnerable adult". Earlier in the debate I spoke about the terminology currently used in social services. In recent years there has been a tendency to go down the road of talking about services in terms of those to whom they are provided, rather than the nature of the service itself. "Adult services" is a wide term in current usage. Generally it does not include services to people with learning difficulties. In most social services departments, services for elderly people would be considered to be a separate although related matter.
It is a question of the definition of a "vulnerable adult". We all have a general understanding of what the Government are trying to do, but the purpose of the amendment is to make it explicit. Much of what we have tried to do elsewhere in the Bill, in terms of getting the balance right on matters such as registration and inspection, depends very much on the nature of those vulnerable people to whom the services are being given. It is part of a whole. We need to view the recipients of the service, the nature and regulation of the service and the inspection of it as part of a whole.
It is, therefore, important that we have an explicit and agreed understanding of what the term "vulnerable adult" means. That is the purpose of the amendment.
Lord Phillips of Sudbury: I wish to add to what was said by the two previous speakers and to ask the Minister whether he would be so kind, if not tonight then perhaps in correspondence, to explain the interpretation of "personal care", as set out in Clause 96(3). The provision states:
- "In this Act, the expression 'personal care' ... extends to advice and encouragement, but does not include any prescribed activity".
The particular elucidation that I seek from the Minister is of the words,
- "but does not include any prescribed activity",
9.15 p.m.
Lord Hunt of Kings Heath: I am grateful to the Committee for raising a number of matters. I deal first with the points raised by the noble Earl, Lord Howe, and in particular that related to our intention in respect of healthcare staff. We have decided that healthcare staff will be covered only if they are concerned with the delivery of certain specified services to be set out in regulations. We have in mind making regulations under the provisions of Clause 69 to bring within the scope of the scheme acute and community settings for learning disabilities, psychiatric (including psychotherapy) services and dedicated elderly services. In this way those services which are accessed mostly by vulnerable adults will be covered. In the first instance we do not intend that more general services, such as accident and emergency provision, should be covered. Clause 69 provides the Secretary of State with sufficient powers to extend the scope of the protection of vulnerable adults to other health-related services by the making of regulations.
Our intention is to ensure that employees of NHS statutory bodies--which will include all NHS trusts, acute community, combined and primary care trusts once established, health authorities and special authorities and, similarly, independent hospitals and independent clinics--who provide the prescribed services are covered. In the NHS settings it will be possible to enforce compliance since the Secretary of State under Section 12 of the Health Act 1999 has the power of direction in relation to the exercise of functions in health authorities, special health authorities, primary care trusts and other NHS trusts.
The noble Earl did not refer to general practitioners. He will be aware that they are in a slightly different position as independent self-employed contractors, and as such they will not be covered by the list. Clearly, there are a number of ways in which their performance and behaviour can be regulated. So far as concern private healthcare settings, we shall take a similar approach to the NHS arrangements, in that the services to be covered by the list will be set out in regulations. Private healthcare providers will be accountable to the regulator, the national care standards commission, which will ensure that registered services have proper arrangements in place to deal with suspected cases of abuse by employees. The Bill attempts to align those people whom the NHS treats with those whose situation is in a sense most akin to the definition of "vulnerable adult" contained in Clause 69(6).
As to Amendment No. 139, the scheme that we seek to introduce does not cover all elderly people; nor is it intended so to do. Some elderly people would, rightfully, resent the terminology "vulnerable adult". But this is a scheme that will include services in which all the people who receive care can be regarded as vulnerable. Those services are regulated so that the scheme can be enforced--hence the description of "vulnerable adults" in Clause 69, which itself relates back to those services to be regulated by the national care standards commission. It is important to recognise that the provisions related to vulnerable adults in this part of the Bill relate back to the services to be regulated by the commission in respect of adults.
If we are to provide protection for vulnerable adults, we need a clear focus on the settings where it is truly needed. In that way we can ensure that adults who everyone agrees are vulnerable receive the level of protection they deserve against people who are unsuitable to look after them. To base the scheme on specific services where all the adults being looked after can be regarded as vulnerable means that we can introduce a practical and workable scheme. The important point is that we do not want to dilute the measure so that it makes the scheme less effective.
The noble Lord, Lord Phillips of Sudbury, asked me specific questions. I shall accept his invitation to write to him on those points.
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