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The Committee will recall the lengthy debates which took place during the passage of the Protection of Children Bill, where such matters were carefully examined. During the passage of that Bill, it was, I hope, demonstrated to reasonable satisfaction why it is important that there are proper mechanisms, not for dealing with criminal behaviour (because the criminal law deals with criminal behaviour), but for dealing with issues of professional misconduct which put vulnerable individuals at risk, often seriously; sometimes to the extent of abuse or exploitation.
During the course of that Bill, we anticipated that other legislation would ensue to address such matters in respect of vulnerable adults, recognising that adults can be as much exposed to exploitation as children. In the course of those discussions, we recognised that some staff change jobs quite frequently; that they may often go to considerable lengths to cover their tracks; and that quite often people in vulnerable positions who are extremely dependent on staff do not feel able to reveal what has happened to them while the member of staff concerned remains employed in a key position
On the other hand, experience has shown that some employers--that is, providers--go to considerable lengths to avoid facing up to the implications of the behaviour of an employee. Whether or not it is because of a lack of courage, or whether it is because they do not want the good name of their establishment or centre to be questioned, they transfer people to posts which may well work to the advantage of both the provider and the member of staff, but certainly do not necessarily work to the advantage and the benefit of vulnerable people where that worker may have access to them in quite different circumstances.
I stress that we are discussing misconduct, not criminal behaviour; and it is quite clear what the standards of professional misconduct are--they are clearly understood. Cases involving proof and those where issues comes to light after the person has resigned or moved on, where, had that person been in post, the provider would have considered the issue, and those where the person implicated has been transferred to another post, are important matters for which it would be quite wrong of the Committee to weaken the range of possibilities that a provider must make.
Of course there are safeguards; they are built into appeal mechanisms and the rights of employees, not only in respect of employment legislation--because employers must comply with employment legislation, which is extremely detailed--but also in the system dealing with professional misconduct and professional discipline. There are thus proper mechanisms for appeal and safeguards. There are also safeguards which recognise that, of course, from time to time a malicious complaint may be made. Therefore, those matters must be handled in a way which is fair to all concerned. However, at the end of the day it must be understood that the most vulnerable person is the user of services. Because that person is the most vulnerable and is most likely to be exploited or abused, we must ensure that we build in for that person a system which is sufficiently robust and rigorous to deal with the different ways in which staff can behave and the ways in which people can be exposed to unacceptable behaviour.
I hope very much that the amendments, well intended though they are, will not be carried because I believe that there must be a proper balance which ensures that dependent people are recognised and that every effort is made to deal with their particular needs.
Lord Hunt of Kings Heath: I believe that the noble Lord, Lord Clement-Jones, considers that I use the word "balance" rather a lot. I remember that when we debated the Protection of Children Act in your Lordships' House it was a word which I used frequently.
I believe that we have heard in today's debate various sides of that balance. It is genuinely difficult to draw the right balance between the necessary rights of individuals, to which noble Lords opposite have referred, and the necessary protection of vulnerable people. The provisions in the Bill attempt to draw the right balance alongside the additional safeguards that are drawn, first, by the role of the Secretary of State and then by the ability of a person to appeal to the tribunal. I believe it is important that when we debate those questions we bear in mind both that balance and the rights of individuals to appeal ultimately to a tribunal if they believe that they have been dealt with wrongly.
Perhaps I may deal, first, with Amendment No. 140. I very much accept the point that we do not want inappropriate or malicious references to the list. Of course not. However, if the list is to serve its purpose and be a true protection for vulnerable adults against people who would seek to do them harm, we need employers to refer cases to the Secretary of State where protection of vulnerable adults can be improved by such referrals.
It is lawful for an employer to dismiss a worker where, after investigation, the employer has a well-founded belief that the misconduct has been committed. The noble Earl, Lord Howe, asked for the meaning of "misconduct". My understanding is that it means any behaviour which risks harm to a vulnerable adult. Included within that could be omissions or negligent acts, such as failing to feed a particular vulnerable adult. Where, after investigation, the employer has a well-founded belief that misconduct has been committed, it would not be desirable to go beyond that by placing some additional formal requirement of proof on employers. The whole basis of the Bill is to ensure that the schemes reflect what employers already do in the workplace in cases of a dismissal for misconduct. We want to make sure that the scheme is workable for them. We do not want the scheme to put an undesirable burden on them.
Inclusion in the list will not be automatic for everyone who is referred. The Secretary of State will seek the views of the person to be referred. He must believe that the employer has acted reasonably and, in addition, consider that the individual is unsuitable to work with vulnerable adults before he will conclude that an individual should be included on the list. I fear that the amendment could restrict the intention of those provisions to increase the level of safety afforded to vulnerable adults. Such an increase in safety is the outcome that we wish to achieve and we must ensure that we do so for the sake of the service users.
I turn to Amendment No. 142. The noble Lord, Lord Clement-Jones, referred to the concerns of the NHS Confederation. In this instance, I do not agree with the points which have been made. Where an employer has transferred an individual, has suspended him or has temporarily transferred him away from caring for vulnerable adults, surely it is important that those cases should be referred to the list if we are to offer vulnerable adults the degree of protection which they deserve.
The noble Lord said that where there was suspicion about the actions of such a person, it was easier for an employer simply to move him away into a non-caring position. But it is not right to say that that solves the problem. The Bill contains those clauses in order to make sure that the employer deals with the issue with the ultimate protection of vulnerable people in mind.
I recognise that for employers who are facing up to those responsibilities, those issues will cause them concern and they will give considerable thought to how those matters will work out in practice. We shall ensure that appropriate guidance is published to enable them to understand what are their particular responsibilities.
In relation to the differences between Clause 71(2)(a) and Clause 71(2)(b), the noble Lord, Lord Phillips, asked whether there was a lower test. If a person has left the employment, although the employer may have suspicions relating to that individual, it may simply not be possible to carry out the thorough investigation which would be expected under Clause 71(2)(a), although there may be sufficient evidence to warrant a referral to the Secretary of State.
Lord Phillips of Sudbury: I am grateful to the Minister for giving way. He referred to the thorough investigation of the facts to take place under Clause 71(2)(a). Will he tell the Committee how that measure provides for a thorough investigation of the facts?
Lord Phillips of Sudbury: But does the Minister accept that the problem is that he may not have carried out a thorough investigation and that may be the reason that it would be grossly unjust for the employee concerned to be put on the provisional or permanent list?
Lord Hunt of Kings Heath: Safeguards exist. First, in relation to any decision made by the Secretary of State provisionally to list that person, papers will need to be referred by the employer. Those papers must fit into the criteria under Clause 71(7)(a) and Clause 71(7)(b) so that inadequately prepared cases are weeded out at that stage.
There is then the additional safeguard that the Secretary of State must be of the opinion that both paragraphs (7)(a) and (7)(b) are satisfied. There is a further safeguard in relation to the appeal which a person can make to a tribunal.
The noble Lord, Lord Phillips, asked about the issue of sanctions. He is quite right about that. If establishments regulated under the provisions of this Bill were found not to have appropriately referred
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