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Lord Rix: In speaking to my Amendments Nos. 258, 260, 265, 271, 276 and 280, I am pleased that that definition of a care worker has now been extended to include a range of services and assistance whether provided by voluntary or paid staff. The Minister deserves credit for listening to our concerns, and I warmly congratulate him on so doing. However, I should be even more delighted if he would confirm that the new definition of care worker will also include independent advocates. They are trusted to represent the interests of people with learning disability and to that end enjoy privileged access to them. Their responsibilities do not usually include personal care, but they may well spend substantial periods of time alone with their advocacy partner. I should be very interested to hear what the Minister has to say in response to that.
Lord Astor of Hever: The interpretation of "care workers" is liberal in its definitions and goes some way towards broadening the scope of protection for vulnerable adults, since it criminalises practices that have been proscribed merely by professional guidance regulation. This is an advantageous development, as such regulation has in the past failed to safeguard the wellbeing of many clients and patients. However, a persistent contributory factor in that problem has been not only inadequate regulation, but in some professions an absence of regulation. I am concerned that the interpretation of the clause may perpetuate this situation by failing to include in its scope some practices and professions that have been regulated either inadequately or not at all. Left as it is, Clause 48 would allow the continuation of grave danger to some vulnerable adults in receipt of care, as their needs for equal protection would be ignored by virtue of the nature of the care that they have sought. Our amendments would rectify this by incorporating practices and settings of care standards that are not currently included, but through which an equal risk of abuse is posed to vulnerable adults.
Health and social care professionals have a great deal of trust from their patients or clients, a high level of responsibility towards them and significant power over them. When care providers become sexually involved with current patients they are overstepping their professional boundaries. It is crucial that Clause 48 is sufficiently comprehensive to condemn any abuse of such responsibility and power—not only that which occurs within mainstream care. Our amendments include independent practices and practitioners, training, educational and occupational services and interpretations of care beyond just the "personal". They would ensure that services such as counselling, psychotherapy and complementary therapies are included, that those professionals practising from their own homes are not above the law, and that modern care environments and provisions, such as day centres, are accounted for. POPAN, funded by the Department of Health, reports that 55 per cent of calls to its helpline concern abuse by counsellors and complementary therapists.
I turn to our amendments proposing the inclusion of advocacy services, which also have little or no regulation, but are, unfortunately, as likely to involve abuse as other practices. I raise the matter in light of the fact that advocacy is to be made a legal right to some groups of vulnerable adults with the introduction of the new mental health Bill. The Government's heightened recognition of the benefits of advocacy services is welcome, but that must be qualified by measures to ensure that these services are safe and bound by the same safeguards as other services.
Does the Minister intend that services such as advocacy and supervision will be covered by his Amendment No. 274? People seeking redress through these offences, at least in part due to their already having survived abuse, are very likely to need, and indeed, to benefit from support both during and after legal proceedings. Without that, I fear that many vulnerable adults would be discouraged from pursuing legal action and that the potential effectiveness of the Bill will not be achieved. It is on that basis that I suggest that independent specialist advocacy services be available to all persons using Clauses 33 to 51 and that support, if desired, is available both during and after cases are heard.
I move on to Amendments Nos. 261 and 262. Could the Minister expand on his decision to expand Clause 23 by inserting the term "residential home care", but only to insert the terms "community home" and "voluntary home" in Clause 48? Does the Minister agree that, as with children, the abuse of vulnerable adults can also take place in any residential care home? We propose that our Amendment No. 262 provides a more foolproof safeguard against abuse which takes place in any residential care home. If the offences of Clauses 43 to 48 were to be broadened by removing the word "regular", that would be consistent with the purpose of the Government to protect vulnerable people from sexual abuse without infringing on their right to a private sex life.
As the Minister stated in his letter to me, it is possible for the abuse of a vulnerable adult by a care worker to take place upon their first contact. In recognising that, the Government have clearly acknowledged that contact does not need to be regular for abuse to take place. A vulnerable adult may be abused on his or her first contact with the care worker and never see him or her again. That does not make that abuse any less grave or damaging.
It is inconsistent to deny some victims of abuse protection or redress merely because they may not have enough contact with their abuser in the eyes of the law. If one contact is sufficient for abuse to take place, one contact should be sufficient for prosecution. Are the Government really prepared to condone abuse if it cannot be proved that further regular contact with the carer is likely to take place? If the term "regular" remains part of the clause, a vulnerable adult abused by, for example, a nurse whose care he or she received for only one morning would not be protected by the Bill.
9 p.m.
Lord Hylton: I want briefly to support what my noble friend Lord Rix said about lay advocates in various institutions. I do so from the experience of NIACRO in Northern Ireland and I have the honour to be the president of that organisation. We have been providing advocacy for teenagers in youth custody centres in Northern Ireland over a number of years and what my noble friend said is right.
Lord Falconer of Thoroton: The noble Lord is right to say that the clause is central to the other clauses relating to care workers as it defines to whom, where and when these offences will apply. We listened carefully to what was said at Second Reading and in our meetings and we believe that changes are required. They appear in our Amendments Nos. 262, 264, 270, 274, 281, 282 and 284. I shall deal first with them and then with the particular points raised.
Amendment No. 261 adds "community home, voluntary home" to the list of residential accommodation covered in subsection (2), there defined in Amendments Nos. 282 and 284. It is done for the sake of completeness. What is already covered is a care home which is described as providing accommodation together with nursing or personal care for any of the following persons. Subsection (b) specifies persons who have had a mental disorder. It is therefore wide already. We are worried about the point that we might include all homes, and that is why we have added "community home, voluntary home". We believe that that is sufficient.
Amendments Nos. 264 and 270 take account of concerns expressed to us by stakeholders that it was possible that a care worker could abuse his position of trust on the first time of meeting someone with a mental disorder or learning disability. The wording now allows for the case where A performs functions which are likely to bring someone into regular face-to-face contact. That change is also carried into Amendment No. 274.
The government Amendment No. 274 replaces the whole of subsection (4) with a formulation based solely on the relationship of care defined widely as "care, assistance or services" and removes the residence requirement which may have unwittingly excluded, for example, homeless people residing in a hostel from its protection and all the examples of day-care services that have been provided. Members of the Committee will see that that will encompass most of the relationships they were concerned to encompass under the protection of these clauses and the amendments they proposed.
The last of the government amendments, Amendment No. 281, makes a minor alteration to the definition of "care home".
I turn to the amendments spoken to by noble Lords. Amendments Nos. 258, 260, 279 and 280 seek to make specific reference to the inclusion of advocates in those who provide care. Our hope is that noble Lords will be satisfied because I am satisfied that Amendment No. 274, which refers to care, assistance or services, embraces that particular category. The case made by Members around the Chamber is a powerful one and we intend to cover that in Amendment No. 274. I hope noble Lords will think that we have done that adequately.
Amendments Nos. 265, 271 and 276 propose the removal of the requirement that face-to-face contact should occur on a regular basis. One of the earlier amendments I referred to seeks to deal with a situation where there is abuse on the first occasion. I believe that government Amendments Nos. 264 and 270 go some way to meeting the concerns expressed. However, to go as far as noble Lords require, particularly in the light of Amendment No. 274, is to go too far because it means that if any service is provided—if you serve someone in a shop, for instance—that would give rise to the relationship. We believe that that goes too far in relation to the creation of a criminal offence. Equally, it would cover a situation where a taxi driver carried the victim on one occasion only. Again, we think that is going too far. We fully understand the concerns. We have gone as far as we think it sensible to go, but we think that those particular provisions go too far.
The noble Baroness, Lady Noakes, and the noble Lords, Lord Astor of Hever and Lord Campbell of Alloway, would add to the list of residential establishments. I am being corrected that it was not the noble Baroness; she put her name to the amendment. I apologise for including her, but that is why I did it. As regards using the words "any other residential establishment" I believe I have covered that already.
Amendments Nos. 267, 268, 269 and 283 seek to make specific reference to the inclusion of independent practitioners to those who provide care. Again, I believe that is covered adequately by Amendment No. 274 in the wide definition of services. Amendment No. 432, which is also in this group, to which I do not believe the noble Lord, Lord Adebowale, has spoken, seeks to add an order-making power to enable the Secretary of State to add to the definitions of care worker in Clause 48. I believe we have gone far enough
not to need that power. The wide nature of Amendment No. 274 meets the particular point made. We have now defined it in such a way as to be as inclusive as possible.
I have dealt with the face-to-face and the regular arrangement. Types of services provided are again dealt with in Amendment No. 274. I very much sympathise with the kind of situations noble Lords seek to cover. However, with the exception of the one-off situation, where I am not prepared to go as far as noble Lords would go, they are broadly all sufficiently covered by the amendments proposed. I confirm that the independent advocate is covered by our amendment.
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