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Lord Rix: My Lords, I intervene very briefly, and conscious that staff can be vulnerable in terms of their careers to false accusations, as service users are vulnerable in terms of their personal welfare to abuse by a small minority of staff. It is important that people should not be labelled as a potential risk without good reason. However, I believe that we have got this broadly right, and that the day-to-day experience of service users argues very strongly against further tipping the balance against them. I choke a little on the term "significant harm", whether in Clause 72, as suggested here, or, as the noble Lord, Lord Phillips of Sudbury, reminds us, in Clause 68 as at present.
I envisage an interview with a potential interviewee, who responds to a question about the effect he or she might have on the lives of customers by saying that there would not be very much harm. The risk of even a little harm seems to me to be too great a risk. Therefore, much as I have the highest regard for the noble Lord, Lord Phillips of Sudbury, for his work for Mencap, I cannot support this amendment.
Baroness Pitkeathley: My Lords, since our last debate on this subject I have reflected most seriously on the arguments brought to bear last week. I have also taken soundings of many people who work in social care and those who focus on the clients of social care agencies. The results of these discussions have reinforced the views that I expressed last time: that we must indeed aim for balance in our systems, but if perfect balance is not possible--I believe that we would all acknowledge that it may not be--we must err on the side of the vulnerable person.
I understand the arguments made by the noble Lord, Lord Phillips. If he will permit me to say so, they are lawyer's arguments and very valid ones. But I believe that it is not without significance that those of us who have spoken strongly against his views, and in favour of the rights of the vulnerable person, are largely those who have actually worked in delivering social care. We have seen at first hand the abuse suffered by vulnerable people and, more importantly, the problems not only of bringing to book the perpetrators of abuse but of ensuring that they are prevented from abusing again. It is my very firm opinion that sufficient safeguards exist in the proposed arrangements to mitigate against miscarriages of justice and, more importantly, that they will ensure that, as we have sadly failed hitherto to ensure that abusers do not abuse in one place, this time we shall be able to ensure that once found out or suspected, they will be unable to abuse in another institution or area (as happened in the past because the safeguards to prevent that have not been sufficiently strong).
We owe it to vulnerable people to ensure that follow-up systems protect them and that this time we put in place systems which they can trust, as opposed to those which have failed them so frequently in the past.
Baroness Masham of Ilton: My Lords, I feel very strongly that there should be better protection for both vulnerable adults and staff. That could be achieved by more senior staff working at the level of patients and vulnerable people. Senior staff are so often tucked away in offices involved in administration or attending meetings. People are much more important than paper. If there were better management working among patients and staff, there would be less risk of problems arising. Can the Minister say whether there is any hope of getting better standards at ground level? Sisters should never have been removed from ward level.
Lord Jenkin of Roding: My Lords, as one who took part in both Committee and Report stage debates on this issue, perhaps I may make my own position clear. I believe that it will be within the recollection of the House that when the noble Lord, Lord Phillips of Sudbury, moved his amendment in Committee I was more than overwhelmed. He made an extremely strong case. However, by the time he moved a further amendment on Report, I was able to listen to many of the arguments that we have heard again this afternoon from the noble Lord, Lord Warner, the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Rix. I must confess that I think that I have moved on this matter. I had been leaning quite heavily in favour of shifting the balance back a little in order to protect employees against the threat of bullying employers, which is the serious threat that must be considered here. But as I have heard further arguments, in particular from those who have had much greater direct experience of dealing with vulnerable adults and children, I now believe that it is better to leave the balance where it is.
I say this with some sadness to the noble Lord, Lord Phillips, because he has made his case with great eloquence, not least again today at Third Reading. Nevertheless, I believe that he has lost the argument. If he decides to test the opinion of the House, I am afraid that I shall not be able to support him.
Earl Howe: My Lords, I added my name to an identical amendment in the name of the noble Lord, Lord Phillips, on Report. I have not done so today, not because I do not think that the noble Lord has a good point to make--I think he has--but because, in the light of the full reply then given by the Minister and contributions from other noble Lords, I am persuaded that we should tread carefully here.
The issue that has been raised by the noble Lord is not whether there should or should not be a system of blacklisting. I believe that we are all agreed that such a system should be in place. The issue here is whether some people's names should reach the provisional list and others should not. The point of the provisional list
To allow some people to pass through that barrier without hindrance is to take a risk. The amendment invites the Secretary of State to make a judgment. However, I believe that I must ask the noble Lord, Lord Phillips--in a friendly and constructive spirit--whether he believes that the Secretary of State, at such an early stage in the process, would be in a position to make a judgment of this kind fairly. The justice or injustice of a referral will emerge only later in the process, when the Secretary of State comes to consider all the supporting observations and information.
Furthermore, I wonder whether the noble Lord's amendment will address the other concern that he raised, perfectly properly; namely, that the referral may be malicious. Malicious referrals are of course a real issue, but I question whether the amendment as drafted would provide a safeguard to anyone whose name has been maliciously referred.
The House will understand that I find myself torn here. The choice for noble Lords is between erring on the side of caution in one of two directions: either, as the Government recommend, guarding against the possibility of anyone moving on to take up new employment where they may harm a vulnerable adult, even though this risks trapping the innocent; or by protecting the civil liberties of the accused, even though this risks temporarily allowing through the net a guilty person. The balance is very fine. I await with interest what the Minister has to say.
Lord MacKenzie of Culkein: My Lords, I, too, rise to speak in opposition to the amendment. The noble Lord, Lord Phillips of Sudbury, undoubtedly has an arguable point here. It is a point with which I am familiar. On many occasions when representing staff employed in the National Health Service and in local government social services I have had to make a very similar point. I have represented staff appearing before some of the more notorious committees of inquiry set up under Section 84 of the National Health Service Act 1977. Given that background, why do my views diverge from those held by the noble Lord, Lord Phillips?
I have not spent all of my working life as a trade union official. I was a practising nurse; indeed, I am still a registered general nurse. In that capacity, I have seen bad practice and I find it difficult to justify such bad practice under any circumstances, however many excuses or rationalisations are brought forward. When representing staff as a trade union representative, it was my job to advocate such excuses and rationalisations and to seek to mitigate and deflect any blame. As I have said before in relation to the Bill, I justified those actions to myself by reasoning that the other side had failed to make its case and thus justice
I am still a trade union employee--for another 26 days or so. For that reason, I could easily declare an interest that would enable me to support this amendment, as does the Royal College of Nursing. The noble Lord, Lord Phillips, has mentioned that point. However, in considering the matter this afternoon, I must bring to bear both aspects of my working life. In the light of that, I shall speak in support of my nursing experience, which involved the work of protecting vulnerable people.
If the noble Lord's amendment were carried, it would put in place an additional hurdle in trying to reach an adequate definition of the word "significant". That would impose yet another subjective judgment and would place vulnerable people at a degree of additional risk. I accept that the matter is difficult, but in my judgment, my noble friend the Minister has the balance just right.
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