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Earl Howe: That was an extremely useful clarification of the subsection. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 139 not moved.]

Clause 69 agreed to.

Clause 70 agreed to.

Clause 71 [Persons who provide care for vulnerable adults: duty to refer]:

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The noble Earl said: One of the main balances to be struck in this part of the Bill is the balance between the rights of vulnerable adults and the rights of those who care for such adults. I believe that there is dissent in the Committee about the need to provide a means of preventing those who harm vulnerable adults, or place them at risk of harm, from having the opportunity of doing so again. However, to be fair on all concerned the process by which a person's name is included on the Secretary of State's list must be clear, and leave as little room as possible for miscarriages of justice.

Subsections (2) and (3) of Clause 71 list the grounds on which a provider of care for vulnerable adults is required to refer a care worker to the Secretary of State. Subsection (2)(a), upon which other subsections in their different ways depend, states,

    "that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult".

The questions posed by the amendment are these. First, what is the meaning of misconduct? Secondly, what degree of proof and depth of deliberation are required for the grounds mentioned in the subsection to be fulfilled? It will be helpful to hear from the Minister what the term "misconduct" means. If it is defined, as it is at least in part, by whether a vulnerable adult was harmed or placed at risk of harm, it is important that we should know what sort of harm is meant. Does it include honest mistakes or innocent acts of omission? Is one such mistake sufficient? Most mistakes in a professional environment, and many instances of incompetence, are rectified by further training or professional support, not by punitive measures.

My other worry is that when things go wrong, it is often the result of many factors: pressure on staff, poor procedures or poor management, in situations where individual staff can be made scapegoats. What is to prevent that from happening? How will the system be able to guard against the referral that is malicious? What degree of proof is required? In certain cases it will be clear that an individual is guilty of a deliberate act that has harmed a vulnerable adult because he or she has been dismissed following a formal and conclusive in-house investigation. However, subsection (2) allows for other situations: for example, where the care worker has resigned or retired in circumstances which by the very nature will not have allowed for a balanced and conclusive investigation into the incident that has taken place.

Clause 71(2)(a) specifies that one set of conditions requiring referral is where a care worker has been suspended pending a decision on whether or not to dismiss him. It is not clear to me what the phrase "on such grounds" means in that subsection, or in subsection (2)(b) and (c). The word "such" refers us back to paragraph (a), which specifies grounds of misconduct, and so on. But the degree to which misconduct needs to be proved seems to vary between each of the subsections. In subsection (2)(a) the misconduct appears to mean proven misconduct. On

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the other hand, in subsection (2)(b) the need for proof of misconduct is nothing like so high because the circumstances are such that the provider,

    "would have considered dismissing [the person]",

had he not retired or resigned. The situation there envisaged is where the care worker has already left his job and cannot in consequence speak in his own defence. The wording,

    "would have considered dismissing him",

implies a situation where the provider cannot be sure whether misconduct has definitely taken place; or, if he believes that it has taken place, whether it is serious enough to justify dismissal.

As I have mentioned, in subsection (2)(d) the misconduct is by definition suspected, but not proven. I am far from happy with that. Does the Minister agree that the expression "on such grounds" needs clarification? As it stands it is too loose or too woolly to be interpreted with any degree of precision.

A further reason why I find this issue particularly troubling is subsection (7), which specifies that the Secretary of State, before confirming the inclusion of someone's name on the list, needs to be of the opinion,

    "that the provider reasonably considered the worker to be guilty of misconduct".

But at least some of the circumstances envisaged in subsections (2) and (3) fall a long way short of a conclusive verdict of guilt. So, besides being internally inconsistent, subsections (2) and (3) do not appear fully compatible with another very important part of the clause. With apologies to the Committee for having gone on so long, I beg to move.

Lord Clement-Jones: The noble Earl, Lord Howe, has spoken with great skill and force in connection with Amendment No. 140. Amendment No. 142, to which I speak, has a very similar set of concerns underlying it. The particular concerns that have been put to me are those of the NHS Confederation. They relate to subsections (2)(c) and (2)(d). Subsection (2)(c) says that employers should also refer to the Secretary of State where,

    "the provider has, on such grounds, transferred the worker to a position which is not a care position".

The noble Earl, with considerable forensic skill, examined the words "on such grounds". That is precisely the area of concern.

The Department of Health has, I understand, confirmed that the subsection would apply not only to cases in which the transfer is as a result of the decision of a formal disciplinary procedure, but also to cases where workers are transferred to non-care positions where there are concerns, but not proof, about their behaviour.

The NHS Confederation has put to me two concerns about that paragraph. First, in the service there are many instances where the transfer of a member of staff is the solution that best meets the circumstances. In crude terms, there might not be sufficient evidence to proceed with a disciplinary hearing, but agreement can be reached with the individual or his or her trades

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union for transfer to other duties. If such a course of action would require referral to the Secretary of State, there is little likelihood of getting the agreement of the individual or the union to the transfer. Such a situation would be of no benefit to anyone, least of all the vulnerable adults who need protection. Paradoxically, those whom the proposal is designed to protect could be more at risk.

Secondly, real questions of natural justice arise over a referral to the Secretary of State in cases in which there has not been any formal hearing. We shall deal with this later under the amendments proposed by my noble friend Lord Phillips. The department apparently says that this should not be an issue, because the Secretary of State will do his own investigation and seek the views of the individual and organisations concerned and then make a decision. We believe that this could lead to protracted hearings, potential conflicts and unsatisfactory outcomes.

In summary, the Bill as drafted will restrict the ability of employers to resolve potential problem situations, will potentially leave vulnerable adults at greater risk and be open to challenge by affected individuals on grounds of natural justice. We have therefore proposed the deletion of both paragraphs (c) and (d).

I should at this point also refer to representations that have been made to me by the Royal College of Nursing, which also has considerable concerns about the impact of the Bill. It is particularly concerned that there may be malicious referrals. As the noble Earl said, it is likely that the allegations need not have been proved. The Royal College also wants to see a requirement that in any case where a care worker to be referred to the Secretary of State is on the statutory register of nurses, there should be a statutory duty on the provider making the referral to refer the care worker to the registration authority--that is, the UKCC or any body that succeeds it.

It is concerned that these measures are not adequate to ensure a fair, rigorous and thorough system for placing people on the list and that it may lead to people being wrongly placed on the list, thus blighting their career and livelihood. Like us, the RCN in particular wants to see a much more rigorous system for scrutinising and assessing referrals.

9.30 p.m.

Lord Phillips of Sudbury: I want to make one point in enlargement of the concern of the noble Earl, Lord Howe, about the phrase,

    "would have considered dismissing him",

in Clause 71(2)(b). It occurs also in subsection (3) in circumstances where information becomes available to a provider after a worker has left his or her employ.

It seems to me that the way Clause 71(2)(b) is drafted means that where a worker has resigned or retired the test to be applied by the provider as to whether to refer to the Secretary of State is lower than

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that applicable if the worker is in employment when the consideration goes ahead. I say that because if the words,

    "or would have considered dismissing him",

are left out of the subsection, the test can then be said to be parallel to that in Clause 71(2)(a). By stating that where the worker has resigned or retired in circumstances such that the provider would have dismissed him,

    "or would have considered dismissing him",

we are creating a new and even lower test upon which the question of referring to the Secretary of State must be decided by the provider.

I say to the Government that as yet no one has referred to the statutory duty that Clause 71 places on providers. It is not something that they may do; it is something that they must do. I should be grateful if the Minister would tell the Committee what the Government believe will be the consequence to a provider of failing to refer a care worker in circumstances where they, the national commission or anyone else consider that they made a wrong judgment.

There are no sanctions in the Bill--at least, I do not believe that there are--for a failure to refer, but what do the Government believe might be the civil liability of a provider if afterwards the child of, say, a vulnerable adult goes back to the provider and says, "On what I have heard, you should have referred the case. It is a case in which you would have considered it missing had you had that information available and considered the facts at the time"? A vast number of people will be caught up in this crucial clause and it is important to know what the Government believe will happen in civil law.

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