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Earl Howe: My Lords, I was not suggesting that such factors did not matter but that they should not be the be all and end all of any assessment of how good

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or bad was the level of care in a particular establishment. Of course I acknowledge the noble Baroness's points.

Baroness Barker: My Lords, I am grateful for the noble Earl's clarification and am pleased that we agree.

The Government's aims are complex and if the regulations that follow the Bill are based on the report Fit For the Future, the Government will seek to base standards on principles such as choice, dignity and privacy. Setting such standards is not easy. Setting qualitative standards inevitably introduces subjectivity into monitoring. The Government have taken the right course but will require the support of us all in making such a difficult concept work.

Good standards change over time. What is accepted as best practice will cease to be. That is partly because the needs of older people change. The noble Lord, Lord Lipsey, mentioned projections about the older population. That population will in future be increasingly diverse. There will be greater numbers of older people from ethnic minority communities, who are lesbian or gay, or who come with a completely different expectation of good care. I urge the Government not only to make care standards explicit but to ensure that they are regularly updated.

The Bill makes clear that standards count for nothing if staff are not trained to understand and implement them. My experience of residential care is that good home owners value competent staff and that service users value highly staff who perform their duties in a caring fashion. In an industry in which the greatest cost is staff and operating margins--as the noble Lord, Lord Lipsey, said--are tight, the training budget is often the first to be cut. Good training costs a lot. If the new standards are to become reality, resources must be made available within the care sector economy to make sure that the Bill is about good care standards for the future, not a wish list for today.

6.23 p.m.

Lord Harris of Haringey: My Lords, the Bill covers diverse issues, many of which have been avidly discussed in various forums for a number of years. In my five years in the early 1980s as the chair of a social services committee, many of those issues kept arising and were the subject of considerable debate among those interested in social care.

The Bill will replace the Registered Homes Act 1984 and the provisions of the Children Act 1989 relating to the regulation of children's homes. Those Acts were important in developing a framework to protect standards in such establishments. The framework offered by the new national care standards commission is even more important because it will provide a national framework and national consistency.

There has been much debate in the health service about postcode prescribing and differential levels of service, meaning that the NHS is not always a national

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service. The same applies in other areas of social care. If different standards are applied by different regimes in different areas, that should concern your Lordships. The arrival of the NCSC will permit a national framework and that will be valuable.

Some people in local government have expressed concern that the work done by registration units will no longer be undertaken by local authorities. That concern is misplaced, in my view. Although extremely valuable and worthwhile work has been done by many registration units, it cannot be right for local authorities to be responsible for the registration of establishments that they manage; nor can it be right for local authorities to make decisions about registration or de-registration when the authorities are aware that they are financially responsible for a significant proportion of the residents--and thus for sorting out the consequences of decisions. I am not suggesting that some local authority registration units have made wrong decisions, but the possibility remains of a perception that the wrong decision has been made or that decisions have been taken due to other factors or interests. That is unhelpful. There should be clarity of the kind that can only be provided by an independent structure.

Concern has been expressed by the independent hospital sector about the way in which independent healthcare will come under the umbrella of the NCSC. In practice, there will be a clear blurring of the edges between hospital and nursing home care. That already exists in the NHS and the public's mind, and I believe it exists in practice. There is, therefore, considerable logic in bringing the independent hospital sector under the wing of the NCSC. We must make sure that the NCSC focuses on the clinical standards provided within the independent hospital service. We should have the same clinical expectations of private healthcare as we do of the National Health Service. We ought to examine the way in which those two areas are brought together.

I was interested in the argument of the noble Earl, Lord Howe--who clarified it in his exchange with the noble Baroness, Lady Barker--about how the NCSC might set standards. Despite the noble Earl's explanation, he was suggesting that there is almost a dichotomy between standards relating to space and those relating to the skills of those providing care. That assertion is not entirely legitimate. It is surely legitimate to want high standards relating to both space and skills. The noble Earl spoke also about standards invented by inspectors for inspectors, which I am sure was intended as a nice sound bite for "Today in Parliament" or the like, if this debate makes it that far. I believe that that was unfortunate. No one is talking about standards that are of interest only to inspectors. We must ensure that the standards are arrived at following considerable debate which involves both the users of the services concerned and those who care for them. I believe that that is a critical element.

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The noble Earl specifically highlighted the requirement that there should be two chairs in a room, one of which should have arms. It is an entirely reasonable expectation that there should be two chairs in a room that someone must use as his only bit of near-private space, and that one of those chairs should have arms. Those are the legitimate expectations of many of the service users, and perhaps we should not be too cynical about them.

I also welcome the requirement in Clause 20(3)(j) for the establishment of complaints procedures as a condition of registration. However, perhaps my noble friend will clarify when he replies whether it is intended that there should be a common complaints procedure across the independent sector. Is it intended that that complaints procedure should have a second independent review stage analogous to that which exists in the admittedly imperfect NHS complaints procedure? I believe it is important that there should be not only a local opportunity to review matters but an independent element. I should also like to see the remit of the Health Service Commissioner extended to cover the independent sector as recommended by the House of Commons Select Committee on Health, and supported by the ombudsman.

I turn briefly to the general social care council. That matter has been discussed for many years. Initially, I was extremely dubious about this proposition. It seemed to me that yet another group of middle-class professionals sought to wrap around themselves the cloak of professional indemnity. Those of us who have watched that in action in the legal, medical, dental or even nursing professions wonder whether this is in the interests of the users of the services concerned. I am reminded of Bernard Shaw's observation that,

    "All professions are conspiracies against the laity".

When one looks at how some professional councils have operated in the past, one realises the need for reform. I have some doubts about the provision. However, a number of elements of the proposal are extremely important and perhaps many of these doubts can be set aside. First, it is not the intention to create an exclusive band of professionals that excludes others who are engaged in the same kind of work, as happens in some of the medical professional councils. It is intended that this should be a social care not a social work council, and that must be right.

The other danger is that the professional organisations will end up protecting their own. It is very difficult for a disciplinary case to be proven. Certainly, it appears to the general public that the particular profession is protecting its own members and that individual professionals are trying their chums. I am well aware that all of the organisations concerned make big efforts not to be seen in those terms. I hope that my noble friend will make it clear--although it is not explicit in the Bill, I am sure that it is the intention of government--that there will be a very significant role for non-professionals in the council. I do not simply mean the involvement of people who are not social care professionals. Although I can see the case for a nursing professional or medical professional being a member of this body, I want it to

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be made clear that the majority of its members and leadership should be seen as representative in the broadest sense of those who are likely to use the service. I believe that to be an important principle.

Finally, I welcome the provisions which recognise that there should be protection of vulnerable adults as well as children. Abuse can take all forms, and those who perpetrate it need to be prevented from working in other establishments in future. Therefore, the Government's proposals on that are extremely welcome.

The Bill contains a diverse range of issues, and I believe that it takes the debate forward in many areas. For many years these matters have worried those who are concerned about the standards of social care. We have made step-by-step improvements in regulation and the setting of standards. I believe that this Bill takes the process forward, and I welcome it.

6.35 p.m.

Baroness David: My Lords, I apologise for having missed just over an hour of the middle of this debate. In particular, I apologise to my noble friend for missing his maiden speech. I was chairing the All-Party Children Group which listened to children talking about Article 12 of the UN convention. I hope that I shall be excused.

I should like to talk briefly about this very welcome Bill as it relates to children. In 1993 the Gulbenkian Foundation produced a valuable report entitled One Scandal Too Many which argued the case for comprehensive protection for children in all settings. Two years later I was a member of the foundation's commission, chaired by Sir William Utting, which produced a major report on children and violence. That contained many of the same recommendations for comprehensive protection. Sir William went on to produce his review of the safeguards for children living away from home entitled People Like Us.

Unfortunately, the scandals have not ceased. The inquiry into child abuse in North Wales comes to mind. We have not yet had the report, although it finished about two years ago. Up and down the country many police forces are engaged in investigations into the physical and sexual abuse of children in all kinds of institutions that purport to care for them. It must stop. We must ensure that this Bill provides an effective framework finally to stop this inexcusable violence against children. In particular, we must ensure that there are no loopholes.

I should like to ask the Minister for clear answers to what I hope are simple questions. First, can he assure us that, following implementation of the Bill, all children living away from home will be protected by consistent regulations from all forms of violence, including physical punishment and humiliating forms of discipline? I hope that the Minister is aware of Children are Unbeatable! which is an alliance of more than 250 organisations and many prominent individuals who campaign to give children the same protection from assault as adults enjoy under the law. It is absurd that children have less protection than us

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and that at the moment the degree of protection depends on the setting in which the child finds himself. We have sorted out protection in all schools at long last, but we must also get it right in all other child care settings.

Secondly, can the Minister assure us that all children who live away from home will have well publicised and easy access to independent confidential advice, counselling, advocacy and complaints procedures with an independent element? Will the personal adviser proposed in the Children (Leaving Care) Bill fulfil that role? Thirdly, will there be consistent arrangements for regular and, where necessary, surprise inspection of all care settings for children, including an explicit obligation on inspectors to offer children and staff the opportunity to speak to them in confidence about issues of concern? I am particularly concerned that the safeguards in this Bill do not appear to cover the growing number of children who are in private foster care, despite Sir William Utting's clear recommendations.

Further, the exclusions in Clause 1 of the Bill appear to leave some residential establishments for children entirely unregulated. Can the Minister comment on those illogical gaps in protection? For example, holding centres for refugee children and families would be omitted. Refugee children can remain in one of these establishments for a matter of days or even weeks. The centres are not required to have regard to the welfare of the child, do not have a duty to assess their immediate needs and are not covered by the inspection requirements.

I turn to the proposal in Schedule 1 of the Bill that the national care standards commission will appoint a children's rights director. The White Paper referred to eight regional commissions each having a children's rights officer, which the noble Earl, Lord Howe, mentioned in his speech. Is that still planned? It is of course good to get the concept of children's rights into the Bill, but I have heard those appointments being promoted by the Secretary of State for Health as an alternative to appointing a statutory children's rights commissioner for England, for which many noble Lords on all sides of the House have been campaigning for a long time. That really is misleading.

Will the Minister make it clear once and for all that the functions of those children's rights directors or officers relate only to the 200,000 or so children in all forms of residential care and not to the other 11½ million children in England who all need an effective independent statutory institution to represent their rights and interests?

As there appears to be no speaker from Wales on the list and as the Bill extends to Wales, I make a single plea. Could the Bill include a permissive clause enabling the Welsh Assembly to develop, through secondary legislation, a proper children's rights commissioner, which I understand it is keen to do? We may have to go on campaigning for a proper English commissioner, but surely we should not frustrate Wales in its desire to have one.

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There is much to commend in the Bill. The inclusion of adoption agencies is right. But surely it is high time that the Adoption Act 1976 was updated? The situation where the adoptions were mostly of babies and the very young has changed dramatically. There have been great changes in family structures and in parenting patterns. The majority of adoption placements now occur from the care system. We need a modern adoption framework which makes the welfare of the child the paramount consideration and acknowledges the ever increasing importance of good adoption services for adoptive parents, adopted children and the birth family.

I am pleased that Part V of the Bill amends the Children Act 1989 to bring childminding and day care within the scope of the Bill. The early identification of children with special educational needs and early provision to meet their needs is crucial to children's later progress in the education system. Will Her Majesty's Chief Inspector of Schools provide information and advice to the Secretary of State on how childminders and day-care providers are succeeding in meeting objectives in that area? To which Secretary of State will he report--the Secretary of State for Health or for Education?

This is an extremely important and necessary Bill. It brings together the regulation and inspection system for early years child care and education and it signals an end to the confusion and duplication which two separate systems have created. There will be improvements in the quality of child care and early years education by ensuring that there are highly trained staff, and the status of social care workers will be raised. The general social care council will be responsible for the quality of the training all over the country. Child safety will no longer be a matter of geography, but one of consistency across the country.

I have made a few criticisms during my speech, but I end by saying that there is the possibility of a much brighter future for the most disadvantaged in our society and that it is up to all of us to see that that commitment is kept.

6.43 p.m.

Lord Phillips of Sudbury: My Lords, I too pay tribute to the maiden speaker. I have only one regret, which is that he has another of those Scottish names that I shall have to look up 53 times in Dod's before I get it right. I congratulate him.

I have four minutes in the gap, during which I want to champion an unpopular cause; that of those accused of misconduct under the terms of the Bill. I pay tribute to the work carried out on the subject by the noble Earl, Lord Howe, in the Protection of Children Act, because the provisions in that Bill were precisely the same in terms of keeping and maintaining a list of those unsuitable for working with vulnerable adults.

Although the Bill is wholly admirable in its intent and although I can honestly say that I have had the most intense personal experience of serious child abuse in my own life as well as professionally, because my

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firm acts for a number of organisations in that area, it is my thesis that unless we get that part of the Bill right, it will undermine it irreparably. Under no circumstances can the anxiety and indeed, the determination of Parliament and the public to do something much more effective about vulnerable old people and children be achieved while damaging simple justice to accused people.

I put it to the House that if we allow a system such as the Bill contains, which does not adequately protect those accused of misconduct, it will have the effect of discouraging good people from going into those areas of care. It may even have the perverse effect of discouraging people from coming forward to complain when they should about those running homes of various types improperly.

The procedure before which a person is found "guilty of misconduct" under Clause 71(7) does not involve a finding of fact by the Secretary of State; a consideration of the merits by the Secretary of State; or a quasi-judicial consideration by the Secretary of State. It involves merely the finding by him on the basis of his opinion. I repeat that that opinion is not at all the result of a rigorous finding of facts. It is not quasi-judicial, nor is it based on a consideration of the merits. It derives solely from the complaining provider of services.

I need hardly tell anyone in this House who knows anything about that world that it is riven with difficulties and with personal relationships that are often tense. It is riven with 1,001 circumstances where one could imagine someone making a complaint under the provisions under the shadow of the legislation, knowing that what then follows may see the person concerned resigning and possibly having their career destroyed.

Someone's career would be smashed by their going on the list. It is no good saying that there is a right of appeal. In what section of our national life are we content to see someone found guilty and convicted--this is a conviction; the phrase is "guilty of misconduct"--on the basis of no hearing, a private procedure, no regard of merits and no rigorous investigation of facts? Nowhere else; and we cannot do it here.

However difficult it is to contend with the need for an open, merits-based, rigorous investigation of facts, we must do it because the price to innocent people put on that list will not be rectified by the right of appeal provided in the Bill.

6.48 p.m.

Lord Craig of Radley: My Lords, with your Lordships' permission I should like to touch on one point of fact. In the explanatory notes and in the course of the debate, reference has been made to Royal Charters granted to private healthcare establishments. I speak as Chairman of Council of the King Edward VII Hospital for Officers, often affectionately referred to as "Sister Agnes", after the founder of the hospital in 1899, Miss Agnes Keyser.

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Sister Agnes has been privileged to have had a Royal Charter for almost 70 years. We greatly value the benefit of that status for our charitable work. We have been able over the years to help literally thousands of entitled individuals with the costs of their time as a patient in the hospital. We continue to this day to help many who would otherwise be unable to gain quick access to and benefit from the finest treatment and nursing care available anywhere. However, we do not see our Royal Charter status as a reason or excuse not to do everything we can to ensure that our standards of treatment and care are beyond reproach. We do not operate for profit. Some years ago we sought inspection by the local health authority. When that was judged to be unnecessary in our case, we invited the King's Fund, now entitled the Health Quality Service, to inspect us. This involved every aspect of the hospital's activity, both clinical and administrative. We were formally accredited by the King's Fund following its inspection. In September this year we were reinspected by the Health Quality Service.

We volunteered for that review. After a most rigorous and detailed inspection of every aspect of our work, including our intensive care unit, our accreditation has been continued. The high standard of all aspects of our nursing care was specifically singled out for commendation by the Health Quality Service inspectors.

I believe that in the absence of a regulatory regime it is in the interests of patients and the good name of the hospital which they may use to submit to regular high quality, independent audit. We at Sister Agnes Hospital will continue voluntarily to do so. For those reasons, I welcome the proposals to regulate more closely the independent healthcare sector, but no doubt as the Bill progresses to Royal Assent there will be sensible improvements to its treatment of private hospitals. However, there should be no loss of charitable privilege which a Royal Charter bestows.

6.51 p.m.

Lord Hunt of Kings Heath: My Lords, we have had a high-quality, serious and informed debate. As the noble Baroness, Lady Barker, suggested, all noble Lords who have spoken are agreed that overall the legislative package before your Lordships is crucial to raising standards and leading to more consistent regulation throughout the services. There has been some debate about the means by which we should ensure consistent regulation, and I shall deal with that in a moment, but there is no question of its importance. The noble Lord, Lord Rix, graphically described some of the incidents arising out of recent inquiries which have pointed to inadequacies in the current regulatory arrangements. Therefore, there is no doubt that we must improve on what we have. We must have a high-quality regulatory machinery which provides consistency throughout the country.

However, as was said by the noble and gallant Lord, Lord Craig of Radley, and the noble Baronesses, Lady Crawley and Lady McFarlane, in our discussion of inadequate standards we must acknowledge that in many of the sectors under discussion there is to be

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found high-quality care provided by high-quality people. As I respond to the debate, tending to dwell on some of the concerns, I want the House to know that I recognise that in many sectors people are doing good work, sometimes in difficult circumstances.

The noble Earl, Lord Howe, suggested that the Bill is a framework Bill with much of the detail to be described in regulations and in the closely related national minimum standards which will inform the regulation and inspection process. I do not apologise for the Bill's dependence on regulations. My experience in this area was as director for the National Association of Health Authorities and Trusts when it produced the first guidelines on how health authorities ought to approach their regulatory function. A frustration in producing the guidelines was that the current Act did not keep pace with market changes. As the noble Baroness, Lady Barker, said, standards change. I believe that through the regulations in the Bill we shall be able to respond to future developments in services and technology. We can ensure that future anomalies or gaps can be tackled immediately.

However, I assure your Lordships that in relation to the regulations which apply in particular to the required standards we shall consult widely with all those who may be affected. Our aim is for that consultation to take place in the summer. The conclusions will be known by April 2001, thus giving a year before the commission comes into operation. The noble Lord, Lord Laming, cautioned us against undue haste. In framing the regulations and the national minimum standards, it is important to take time to consult widely and seek as much input as possible from those likely to be affected.

A number of questions were asked about the change from the original intention of eight regional commissions to one national commission. I thank the noble Lord, Lord Clement-Jones, for his wholehearted support of that change. The fact is that we have changed our minds. I believe that it is right to do so and to own up to it. On reflection, we believe that a single commission will ensure greater consistency across the country. After all, that has been one of the great motivators in making the changes. One commission instead of eight will avoid duplication, minimise the potential for arbitrary and confusing operational differences and provide the Government with one overview of the provision and quality of care services in England.

However, I take the point that whatever the commission does it must be well grounded in practice at local level. We will expect it to have in place arrangements for keeping in touch with what is happening on the ground, and I agree with the noble Earl, Lord Listowel, that we want members of the commission to make close contact with what is happening at ground level. I accept the stricture of the noble Baroness, Lady Barker, that we do not want a bureaucratic tick-box approach to regulation and inspection. Her comments about the complaints system, advocacy services and the role of lay assessors was important and we shall consider them when considering more closely how the commission will

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operate. I want to assure noble Lords that I am certain that the commission, in providing the greater national uniformity and consistency that we wish to see, must know about the impact of its decisions on local services.

I turn to a second aspect of the decision to move from eight regional areas to one national commission. It relates specifically to the regulation of independent healthcare. The original comments about a single custom-built body for the regulation of the independent healthcare sector were made on the basis of the Government's original intention to have eight regional care commissions. We did not believe that regulation of the independent healthcare sector within those eight regional commissions would be sensible. We believed that it would be difficult for those commissions to have the necessary expertise to regulate the healthcare sector. That was our experience when regulation was devolved to health authority level.

However, with the establishment now of one commission for the whole of the country, we think it makes much more sense to ensure that it embraces private healthcare regulation. It will enable a seamless approach to regulation as a whole to be taken and our experience of splitting legislation previously between health and local government shows the problems that can arise in relation to boundaries. That was a point well made by my noble friend Lord Harris. However, I recognise that healthcare regulation needs particular skills and we will ensure that those skills are available within the context of one commission.

Different care regimes will be subjected to specific requirements suited to the specific situation of that regime, such as independent healthcare. Those bodies will be inspected by qualified and experienced inspectors in a particular field. In relation to healthcare, we will also ensure that it has its own division with its own director, with inspections made by appropriate professional staff. It would not be responsible for care homes or domiciliary workers.

Perhaps I can say to the noble Lord, Lord Clement-Jones, and in particular to the noble Baroness, Lady Nicholson, who has put much thought and care into these issues, that I believe this new regulatory machinery will have teeth in relation to the independent healthcare sector. It is going to be a tough regulatory system. The commission will have high quality inspections. We will want to shift the focus of regulation towards standards of care rather than being mainly concerned with premises. I will touch on the issue of premises in relation to care homes later.

It will have a proper complaints procedure, in answer to my noble friend Lord Harris. One of the conditions of registration will be the provision of a proper complaints procedure, with independent scrutiny. We want those independent hospitals to be accountable to their customers for the services that they provide. Already Clause 20 allows provision to be

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made for appropriate quality and for the meeting of appropriate standards. Clause 21 refers to the national minimum standards that should be set.

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