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Earl Howe moved Amendment No. 111:

The noble Earl said: My Lords, we come now to another critical issue affecting the balance that has to be struck between the rights of vulnerable adults and the rights of care workers. In addition to Amendment No. 111, I shall speak also to Amendments Nos. 112, 115 and 116.

In Clauses 72 and 73, the Bill envisages a number of situations in which a referral of someone's name to the Secretary of State must occur. Some of those situations, if I may be permitted to summarise, are ones where the provider has reached a definite conclusion that the care worker is guilty of misconduct which harmed, or placed at risk of harm, a vulnerable adult.

The consequence of reaching that conclusion is that the worker is dismissed or moved to another posting that has nothing to do with looking after people. Should the worker have resigned or retired in the mean time, it is envisaged that the employer, on the strength of what he has heard, will be able to conclude that he would definitely have dismissed him if the worker had still been around.

In other words, we are dealing here with the clear-cut case. I do not have a problem with the requirement to refer in such circumstances. But the Bill also envisages other sets of circumstances where matters are nothing like so clear cut. The employer is required to refer someone who, since the incident took place, has retired or resigned and whom he would have "considered" dismissing on grounds of relevant

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misconduct had the worker still been around. That provision requires the employer to jump a hurdle that is a great deal lower than the ones to which I referred a moment ago. He does not have to reach the conclusion that he would have definitely dismissed the person; only that he would have "considered" dismissing him.

First, we need to know what "considered" means in this context. It clearly ought not to mean "briefly contemplated". But assuming it means something stronger than that, what does the phrase imply? It implies that, at best, the provider is uncertain whether or not he would actually have dismissed the person had that individual still been around; in other words, the Bill is saying that even though there may be doubt in the provider's mind that the person harmed a vulnerable adult or placed such an adult at risk of harm in a manner sufficient to be classified as misconduct, there is nevertheless a duty on the provider to refer that person to the Secretary of State.

I am most uneasy--indeed, worried--about that provision. It does not seem at all right that a provisional listing could take place, with all that that means in terms of stigma, when an employer has not concluded that a person was worthy of dismissal for what he did. For that reason, why should we not require the employer at least to come forward and state that he would have dismissed the person had he been able to do so? I simply ask the Minister whether the right balance has been struck in this respect. I beg to move.

Lord Phillips of Sudbury: My Lords, on behalf of these Benches, I should like to identify myself and my noble friends completely with what the noble Earl has just said. We are talking about an important phrase in an important section of the Bill; indeed, I do not think that I can add anything more than that.

Lord Warner: My Lords, I rise to express another point of view. I do so as a former director of social services and as someone who has had to deal with his own share of disturbing cases where one has to adjudicate on claims of abuse by staff against children and vulnerable adults. In all these very difficult disciplinary matters, the case against the accused, so to speak, has to be proved to a civil standard of proof, on the balance of probabilities, before a person can be dismissed. It takes time to put these cases through the disciplinary process. Sometimes the accused person actually resigns very quickly, before the disciplinary case can be mounted. The case is not then pursued.

Under the new arrangements, such cases should be notified to the Department of Health. I sympathise with the noble Earl's arguments, but, as I understand his amendment, employers would effectively be prevented from notifying these people to the Department of Health, unless they have actually taken the case through the disciplinary process--or to a point where they can be confident on the balance of probabilities that they would have dismissed the person. There are many cases where it is highly likely that the employer would have dismissed the person, but where the case did not proceed through the

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disciplinary process because the bird had flown the coop. Those are precisely the kind of cases that should be placed on the list. Therefore, in all these cases we have to consider where the balance of doubt should rest. I suggest that it must rest in favour of the vulnerable people, not the member of staff.

Lord Hunt of Kings Heath: My Lords, the noble Baroness, Lady Barker, often teases me about the use of the word "balance". However, as the noble Earl, Lord Howe, suggested, getting the balance right is crucially important in these debates. I certainly share the desire to avoid creating the kind of situation where an employer is under an obligation to refer a person to the list in circumstances where dismissal is not a practical option. But the noble Earl's amendment would seriously restrict the type of case that could be referred to the list; and, indeed, it could create a serious loophole.

The amendments before us really cover the types of cases where an allegation has come to light that satisfies the criteria. However, before the employer has had the opportunity to complete his investigation, the individual either resigns or retires. Although the employer should undertake all investigations open to him, it may not be possible to conclude his enquiries. In circumstances where the employer has only been able to obtain one side of the story, it is difficult for him to conclude that he would have dismissed the individual. He could only conclude that he would have "considered dismissing" the individual. It is not a matter of the employer briefly contemplating dismissal, as suggested by the noble Earl; indeed, dismissal would have to be a serious option. In such circumstances, the tests that are applied to other cases referred to the Department of Health would still be applied. If there is insufficient evidence in the information sent by the employer to the Department of Health to justify provisional listing, obviously the person concerned could not be listed.

The problem here is that excluding such classes of case from the legislation would leave a serious loophole, which may enable an abuser to leave his employment as soon as an allegation was made and before the employer had had an opportunity to complete the investigation. Such a person could fly the coop and be free to take up employment where he or she could once more put vulnerable adults at risk. For that reason I do not think that it is possible to accept the amendment.

10 p.m.

Lord Jenkin of Roding: My Lords, before the noble Lord sits down, it would be extremely helpful if he could give us some idea of the time lapse before such a person--against whom a suspicion had been aroused which was then notified to the Secretary of State under this clause--would be able to prove his innocence, as it were. How long would he remain on the list? Obviously there will be a great variety of cases, but are we talking about weeks, months or a year or more?

Lord Hunt of Kings Heath: My Lords, it clearly could be months in the sense that if the person was

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referred to the Department of Health and if it was considered that that person met the criteria for provisional listing--either on the information the employer provides in the first instance, or after the department's officials considering the matter have sought further information--that person would be provisionally listed. There then follows a process whereby permanent listing is considered and where the Secretary of State invites observations from the worker, if he can be found, and from the provider. When the Secretary of State has considered that information, he would determine whether that person should be permanently excluded. I would hope that that process would be undertaken within a fairly short time, certainly within a matter of months.

Earl Howe: My Lords, this has been a helpful exchange although I have to say that I am left feeling as uneasy as I did when I first rose to speak. I understand completely that there are situations where, as I think the noble Lord, Lord Warner, put it, the bird has flown the coop and it is necessary for the employer to reach a judgment about the conduct of that person in his or her absence. The point I sought to make is that it seems inherently unsatisfactory that a referral could be made where there is doubt about a person's guilt or innocence. Why not require the employer to reach a definite conclusion; in other words, require him to conclude on the available evidence, even if the evidence is one-sided, that he would have dismissed the individual?

I realise that provisional listing is not at all the same thing as having one's name confirmed on the list and that the tests for having one's name confirmed on the list are set out in subsections (5) to (8). I note that one of those tests is that the Secretary of State must first be of the opinion,

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

relevant misconduct. I am not sure how compatible that wording is with the words that my amendments have highlighted, but it implies that the employer must not then be in doubt about the person's guilt or innocence. I do not know whether I have read too much into that wording but that is how it appears to me.

Nevertheless, I shall read carefully what the Minister has said and, indeed, what the noble Lord, Lord Warner, has said with all his years of experience, as I greatly respect his views. Between now and Third Reading I shall consider the matter further. Meanwhile I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 112 not moved.]

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