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We certainly see the ability of LINks members to be able to talk to staff, patients, users of care services, families and carers as an absolutely vital and integral part of their role. That will enable them to fulfil one of their core activities, obtaining the views and experiences of people about their local care services. Of course, the arrangements are very similar to those that currently exist under patients’ forums; they are certainly no less powerful. To ensure that this is something that LINks will not overlook, we shall reflect it in the LINks guidance to be published next year.

This is the only opportunity that I have in the context of this short debate to tell the House what the Government have decided to do about the gatekeeper role and the unannounced inspections with regard to enter and view. We had a lively debate about that in Committee, where it was raised as a key concern. The main worry seemed to be that installing a gatekeeper would remove LINks’ ability to conduct spot checks and services, because they would have to give a period of notice for their visits to allow the regulator to respond with suggestions that would streamline visiting efforts. We listened hard because the voices around the Chamber were very strong. A few people disagreed, but the majority were strongly in favour of us changing

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this. Over the summer we secured cross-government clearance to change our policy and not require LINks to write to the relevant regulator to inform it of the intention to conduct a visit. This would have been included in the draft regulations.

Consequently, as part of our consultation on the draft LINks regulations, we have publicly announced our decision to drop the gatekeeper role, which will allow LINks the freedom to visit appropriate premises at short notice and enhance their ability to highlight any concerns and raise them with the proper bodies. Given the extension into care, that is a really important provision. We shall ensure that more detail on how it would be considered reasonable and proportionate visiting practice will be included in LINks guidance to be published in the spring. We certainly endeavour to reassure Parliament that removing the gatekeeper role would not place a significant burden on health and social care providers—and I hope that that in part meets the anxieties that the noble Baroness, Lady Meacher, feels. As with what I said in response to the previous amendment in relation to ensuring that the visits were co-ordinated, we shall need to address that point in some shape and form, because it is important.

I shall try to reassure the noble Earl on government Amendment No. 210. The amendment provides that the power to make regulations imposing a duty on services providers to allow authorised representatives of LINks to enter and view their premises may restrict authorised representatives’ access to certain premises and to the viewing of certain activities. The noble Earl asked why we needed more restrictions. I know that he would accept that it is important to prevent the invasion of privacy or possible risk of harm. It will mean, for example, that we will be able to restrict authorised representatives’ access to certain premises such as staff accommodation and premises providing only children’s social care. We feel that this amendment is an essential safeguard to protect people’s rights to privacy and dignity. I think that the noble Earl will find that that is acceptable; it is certainly not a way in which to reduce access to places and people that need to be covered. I hope that he accepts my explanation.

Earl Howe: My Lords, first, I welcome very warmly the Minister’s change of heart on the issue of the gatekeeper role for the health and social care regulators. I am certain that that is a positive step, for all the reasons that we debated in Committee, and I thank her for the thought and sympathy that she has given to the arguments put forward.

On government Amendment No. 210, I am not sure that I totally accept the Minister’s explanation. Subsections (2)(b) and (2)(c)—and I should have made it clear that I was talking about those subsections earlier—seem to afford ample scope already for achieving the kinds of things that she was talking about. Nevertheless, I must take her answer at face value. Should the regulations turn out to be more restrictive than we expect, there will be an opportunity for noble Lords to challenge them.

6.45 pm

I am sorry that the Minister does not see merit in my amendments. She referred to Clause 229(4)(a), which refers to the purpose underlying the viewing or

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observation carried out by LINks while on the premises of services providers. I accept the point that the purpose of any viewing or observation carried out by LINks needs to be the carrying on of the activities in Clause 226(2). Incidentally, I take issue with the Minister for using the word “power” as regards the activities listed in Clause 226(2); that clause does not contain a power—indeed, that is one of the bones of contention that has divided us. But while the LINks representatives may have this as their purpose, there is no duty on the part of the services provider to facilitate the fulfilment of that purpose beyond allowing LINks to enter, view or observe. If LINks were to be denied the ability to ask questions of staff and service users, it would be no use LINks protesting that their purpose would be frustrated unless they did so; at the moment, the services provider would just be able to turn round and say, “I am sorry, that’s not our concern—we don’t have to allow you to do this”.

As for private providers, how many existing contracts with private and independent providers allow for patients’ forums to enter and view premises? I have a worry about this side of LINks’ activities. What confidence does the Minister have that LINks will be afforded the ability to enter and view private providers’ premises, given that we are constantly assured that the contracts with private providers are the means by which this facility will be afforded to them? I am not sure whether the Minister can answer that question now; if she cannot, I shall happily accept a letter from her.

Baroness Andrews: My Lords, I do not have the details of numbers that the noble Earl seeks, but I shall write to him on his point about the contracts currently held. We are aiming for consistency in this, but I shall write with detailed explanations of how we think that this is going to work.

Earl Howe: My Lords, I am most grateful. It is clear that we shall have to return to this issue at Third Reading, which is a slight pity. In the mean time, I hope that we may be able to arrive at an understanding. With that hope in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews moved Amendment No. 210:

“(za) providing for a duty to apply in relation to premises owned or controlled by a services-provider only if, or not to apply in relation to any such premises if, the premises are of a particular description;(zb) providing for a duty, so far as applying in relation to any premises, to apply in relation to activities carried on on the premises only if, or not to apply in relation to any such activities if, the activities are of a particular description;”

On Question, amendment agreed to.

[Amendments Nos. 210ZA and 210ZAA not moved.]

Baroness Neuberger moved Amendment No. 210ZB:

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(a) the Commission for Healthcare Audit and Inspection under section 66 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43),(b) the Commission for Social Care Inspection under section 88 of the Health and Social Care (Community Health and Standards) Act 2003,(c) the Mental Health Act Commission under section 121(5)(a) of the Mental Health Act 1983 (c. 20).

The noble Baroness said: My Lords, this amendment takes us back to long discussions which the noble Earl, Lord Howe, and I have had at various times with present patients’ forum members and voluntary organisations. I have since held some of those discussions—partly wearing my new hat in looking at the issue of volunteering for the Prime Minister.

At Second Reading, I raised the possibility that the default position should be that LINks members—appropriately trained, of course—should be part of the team carrying out Commission for Social Care Inspection and Healthcare Commission inspections. As the noble Earl has just said, that should apply across any kind of provision of service, whether in the statutory, private or voluntary sector. The noble Lord, Lord Hunt of Kings Heath, at that time said that he would take the suggestion back; I raised it again and we had widespread support for it in Committee, and the Minister agreed to look at it again. In her letter to me, which other noble Lords will have seen, she stated that this was not exactly the position that the regulators wanted and that they would be happier not,

She continued,

I think that there is a bit of a misunderstanding here. I do not think that any of us is suggesting that any member of a LINk should be able to join any CSCI or Healthcare Commission visit of inspection; rather we are suggesting that this should be the default position, with the assumption being that if there are suitable people involved in LINks—as there must be if the system is to work at all—they would be

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included. That would be the way forward. After all, this is what happens with the experts by experience system in CSCI. Indeed, Denise Platt has made it clear to me that the voluntary organisations—many of which will be involved in LINks at a local level—do the actual recruiting and then experts are trained and involved. I have met some of these experts by experience and I am enormously impressed by their knowledge and skill.

Similarly, there is some lay involvement in Healthcare Commission inspections and a serious growth more widely in expert patient groups. Both Denise Platt of CSCI and Anne Walker of the Healthcare Commission are broadly supportive of this. Neither wants any Tom, Dick or Harry, or Joan, Jane or Harriet for that matter, joining inspections. However, trained expert patients and service users going on inspections as the default position would give LINks a hugely greater sense of their own worth and influence—and, above and beyond that, be the right thing to do. We all accept that there will be times when the inspection is too rapidly arranged or there is a crisis, but if the default position is to be positive vis- -vis this role of accompanying inspections, it would do a great deal to make the many hundreds of people who have written to me in disquiet at the lack of powers and the lack of clarity of role for LINks feel better.

A lot of us were distressed by the letter in today’s Guardian signed by Sharon Grant and various others on behalf of some of the major voluntary organisations. It concerned what is happening with patient watchdogs. If we could make it the default position that members of LINks would accompany regulators’ inspections, it will reassure the people who are so disquieted. It would also show that we greatly value those who volunteer in health and social care in this watchdog role. It would be possible to train and support them as part of the role of supporting LINks networks generally. I ask the Minister to look again at whether this would be possible. It would make things a great deal better and ease much of the disquiet. I beg to move.

Baroness Andrews: My Lords, we debated this matter in part in Committee and during the summer we thought about what the noble Baroness seeks to do. She is a very powerful advocate for this. I shall have to disappoint her, although I hope not entirely. I understand the concerns that she raised. I committed to taking the proposal away. As she said, I addressed the point in my letter to noble Lords of 3 October. I am certainly aware that the regulators are not opposed to involving people in their inspection activity. Indeed, CSCI, as we know, already does so, using experts by experience, and the Healthcare Commission uses lay representation on a number of visits, so the practice is well established. That shows how much value they put on the volunteer with experience and people involved in the front line of the health service. That is extremely important.

Both regulators are keen for the new health and social care regulator to involve patients and/or the public, as appropriate, in follow-up inspections carried out for the annual health check and in other site visits

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associated with service reviews. I am not sure that I accept that experts by experience is the default position with CSCI, as a lot of this comes down to the regulators’ need to use their own judgment. We have spoken to the Healthcare Commission and CSCI and we are not clear that they support routinely involving lay representatives in every visit they undertake, as it is not always appropriate to do so; rather, they seek lay involvement as and when it is appropriate, as I said. In the context of the Bill I understand that they have envisaged locally organised lay involvement, designed to suit the purpose of each inspection, via the new LINks. I believe that this is the best and most practical and proportionate way forward. However, I shall think about whether we can include something on this in guidance. Although I cannot endorse the proposal—it would be difficult to do so on behalf of the regulators without being absolutely certain what they are after—I shall consider whether we can indicate that we are at least partially in favour of it.

Lord Low of Dalston: My Lords, I cannot add a lot to the very expert deployment of the case by the noble Baroness, Lady Neuberger, from her long experience and knowledge of these issues. However, as my name is added to the amendment, I hope that noble Lords will allow me to apologise for inadvertently misstating a date when I spoke to Amendments Nos. 206 and 220. I referred to updating of guidance having been promised from 1984; I should, of course, have said 2004. I apologise for the rush of blood to the head that must have come at that moment, which led me to impute even more nefarious motives to the Government than they have.

Baroness Andrews: My Lords, the noble Lord is forgiven on all counts.

Baroness Neuberger: My Lords, I thank the Minister for what she said. I am delighted that she will take the measure away and see what can be done in guidance. Perhaps between now and Third Reading she and I could discuss where we go from here. If we cannot get a little more reassurance, we might wish to bring this back at Third Reading. That said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 210ZC and 210ZD not moved.]

Earl Howe moved Amendment No. 210ZE:

(a) it is done by a person who in pursuance of the transitional arrangements made under subsection (1) above is to carry on activities specified in section 226(2); and

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(b) it is done by that person in the carrying on, under those transitional arrangements, of activities so specified.

The noble Earl said: My Lords, we come to an issue which has exercised me and, I venture to say, a number of us, perhaps more than any other; and that is the very real prospect of a complete hiatus in patient and public involvement activities once this Bill comes into force. Why do we fear that? First, there is the strong evidence of precedent, when community health councils were abolished four years ago. At that time a large number of dedicated volunteers were so discouraged that they simply gave up and went home; and a great deal of corporate memory and skill was dissipated in the process. I have been told that exactly the same thing is now happening again with patients’ forums members. Looking ahead, we can see that there is almost zero likelihood that when patients’ forums and the commission are abolished on 31 March there will be anything resembling patient and public involvement activity going on in any part of the country. It is perfectly true that the department has taken a number of steps to kick start the setting up of hosts by local authorities. However, only a handful of local authorities are treating this exercise with any urgency, and even if by 31 March a number of hosts will have been appointed, it is abundantly clear that LINks will not be up and running for a considerable time after that. The whole business of procuring hosts, followed by the scoping and setting-up process for LINks, is going to take many months.

7 pm

Whatever we think of these reforms, one thing is surely clear: we have to do all that we possibly can to avoid what would amount to a wholesale suspension of patient and public involvement next year. The NHS needs to be monitored and held accountable by informed patients and their representatives. That is particularly pertinent at a time when proposals for a major reorganisation of the NHS are emerging from two reports of the noble Lord, Lord Darzi. A local perspective on both these sets of recommendations is vital.

There is a further issue. The Government have invested around £34 million of public money a year into the current system of patient and public involvement. The public and the taxpayer are entitled to see that investment protected as far as it possibly can be as we move across to the new arrangements. It is really not acceptable for the accumulated corporate memory and expertise that currently reside in patients’ forums to be squandered.

The amendment would put in the Bill an obligation on local authorities to put transitional arrangements in place for a six-month period. It focuses on the activities set out in Clause 226(2) and requires that these activities should be carried on immediately the Act comes into force. Guidance from the department would spell out how best these transitional arrangements might be made. That means that, while patients’ forums would be abolished on 31 March as originally intended, the continuance of effective patient and public involvement activity would be safeguarded.

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The guidance would put a range of options forward and local authorities would then choose the most appropriate one depending on their circumstances. Options would include temporarily co-opting willing patients’ forum members on to overview and scrutiny committees, supporting them as a sub-committee of the overview and scrutiny committee or as a stand-alone committee undertaking the activities. If a local authority manages to procure a contract with a host and set up a LINk that is effective and able to undertake the activities within the six-month period, this could constitute the transition arrangements until the end of the official transition period, when they would simply continue as the LINk. It would be important, however, for evidence to be supplied to the Department of Health for publication showing that the activities were in fact being undertaken.

If the amendment, or something like it, is accepted, it could go a long way towards making sure that there will be real continuity of activity and that the expertise of patients’ forum members, which is critical to the early success of LINks, is not lost to their local communities.

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