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Lord Bradshaw: I, too, am pleased to support this exemption order. I have used the Docklands Light Railway and believe that it is almost a platinum model which many other railways would be wise to follow. When we consider disabled access and possibly a revision of the Rail Vehicle Accessibility Regulations, to which the Minister referred, we always have to have regard not only to the cost of doing the work but to whether, with limited money available, that money would best be spent here or in many other places where accessibility is a good deal worse. As I said, I think that the Docklands Light Railway is almost an

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exemplar and there would be no great difficulty in disabled people using the trains. Therefore, I am pleased to support what the Minister has said.

Lord Bassam of Brighton: I am grateful to both noble Lords. I do not really have a question or a point to which to respond. I am grateful for the keen interest that noble Lords take in these matters. The DLR is one of the most accessible rail networks in this country and it is generally to be congratulated on the high threshold that it establishes in terms of accessibility. It was developed some 20 years ago and obviously things have moved on, but this exemption order is important and we plan to match as closely as possible the very high thresholds and standards that have been established for the DLR.

On Question, Motion agreed to.

Local Involvement Networks (Duty of Services-Providers to Allow Entry) Regulations 2008

5.10 pm

Baroness Thornton rose to move, That the Grand Committee do report to the House that it has considered the Local Involvement Networks (Duty of Services-Providers to Allow Entry) Regulations 2008.

The noble Baroness said: It is my pleasure to introduce the regulations to be debated today which set out the duty on health and social care services providers to allow authorised representatives of local involvement networks—LINks—to enter and view their premises to assess whether appropriate health and social care services are being provided.

I begin by informing the Committee that a policy statement relating to LINks was passed to the Bill Committee and to the Health Select Committee back in March of last year. Further, these regulations were subject to a full public consultation process, which began before Report and Third Reading in the House of Lords of the Local Government and Public Involvement in Health Bill, which received Royal Assent in October last year. I thank the noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, both of whom contributed greatly to the Bill in the debates relating to LINks.

We believe it is of great importance for authorised representatives to be able to enter and assess certain health and social care services. Without this ability, there is a significant gap in their role of seeking the views of people using health and social care services. It would mean that they would only be able to do this before or after they use the services rather than at the time they are most concerned and engaged; in other words, when they are actually using the services.

Currently, a patient forum is established for every NHS trust, foundation trust and PCT in England. Each patient forum has on average eight members, meaning that there is a total of 4,000 forum members. It is necessary to change the patient and public involvement system because of the significant

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changes that are taking place in the nature of the health and social care system; for example, the changes to the configuration of primary care trusts, moving towards greater co-terminosity—a terrible word—with local authorities; PCTs’ changing role to focus on the commissioning of services; the move towards greater choice of service delivery; and increased joint commissioning across health and social care.

For those reasons, it is no longer appropriate to have a patient and public involvement system which is based on scrutiny of individual services. Therefore, we decided to undertake a strategic review of patient, user and public involvement in October 2005 to ensure that the arrangements for future involvement and engagement were as suitable as possible. We wish this new system to be able to consider both health and social care, so that PPI can be joined up across the entire user journey, and encourage the involvement of a far greater number of people in the health and social care systems.

Entering premises to observe the provision of health and social care services is just one of the activities a LINk can do to help it form an opinion about local care services and involve local people in the scrutiny and monitoring of those services. A LINk may well use a range of other mechanisms to involve people in a variety of aspects of commissioning and the provision of services. To enable LINks to gather the information they need about the services, there will be times when it is right for them to see and hear for themselves how those services are being provided. The draft regulations therefore impose a duty on health and social care services providers to allow authorised representatives of LINks to enter premises that they own or control to observe the services that are being provided.

However, we believe that some exemptions to this duty are essential to protect patient safety and dignity. Therefore, under the draft regulations, a services provider does not have to allow a LINk representative entry if that would compromise either the effective provision of a service or the privacy or dignity of a person. The draft regulations further stipulate that while an authorised LINk representative is on premises owned or controlled by a service provider, they must not compromise the provision of care services of any person, and if provision is compromised, the duty on the services provider then ceases. There are also some types of premises that it would be inappropriate for a LINk to have the right to enter and, therefore, the duty to allow entry does not apply. This is particularly important when it concerns the provision of care in non-communal areas of a care home; for example, people’s private bedrooms.

This does not mean that LINks cannot enter when invited by residents; it just means that services providers are not under a duty to allow them entry. The duty would also not apply in respect of premises used as accommodation for employees of services providers. LINks will not have the right to enter premises or parts of premises at any time when health and social care services are not being provided. LINks will also not have the right to enter premises if, in the opinion of the services provider, the authorised representative, in seeking to enter and view premises,

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is not acting reasonably and proportionately. This safeguard has been put in place to ensure that the LINk’s ability to enter and view premises is in line with the principles of good regulation and the general intention that LINks should use their rights with discretion and judgment.

The duty does not apply to the observing of any activities which relate to the provision of social care services to children. There are already robust arrangements in place for the local delivery of children’s services. I must make clear that LINks will have an important role in listening to children and young people, taking account of their views, giving them a chance to influence the planning and running of health services, and giving services feedback on what children and young people think. This role applies to health services for children and young people and not to social care services. That is because there is a statutory duty on local authorities, through children’s trust arrangements, to take full account of the needs and views of children and young people.

We do not believe that all those involved in LINks should undertake the role of viewing services. That is why we will encourage LINks to make sure that those able to exercise the power to enter services should, first, have the right skills; secondly, have received the right training; thirdly, have had criminal records checks carried out and be cleared against the LINk’s own policy administered by the host organisation; and, fourthly, be able to demonstrate an understanding of patient confidentiality and the right level of sensitivity towards the role. Members of the LINk will determine who their authorised representatives will be to perform this role.

The draft regulations set out the additional persons who are to be services providers and who will, therefore, have to comply with the duty to allow authorised representatives of a LINk to enter and view the health and social care services delivered on the premises that they own or control, and to view activities carried out on those premises. These additional persons are: all those providing primary medical services, including GPs; all those providing primary dental services, including dentists; all those providing primary ophthalmic services, including opticians; all those providing primary pharmaceutical services, including pharmacists; and people who own or control premises where primary ophthalmic services or pharmaceutical services are provided.

In conclusion, I remind the Grand Committee that LINks will enable genuine involvement of a far greater number of people than is currently available. This will ensure that local communities have a stronger voice in the process of commissioning health and social care and enabling them to influence key decisions about the services that they use and pay for. The responses that we received from the public consultation on these regulations showed broad support for our proposals, which represent just one part of a wider set of arrangements that are designed to create a stronger voice for service users and members of the public at every level of the health and social care system. This involves developing systems that are led by what people want and that learn from

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experience, resulting in real improvements to people’s perceptions of services and their experience of care. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Local Involvement Networks (Duty of Services-Providers to Allow Entry) Regulations 2008. 11th Report from the Joint Committee on Statutory Instruments.—(Baroness Thornton.)

Earl Howe: I apologise to the Minister that I was not here when she rose to her feet, but I thank her for introducing and explaining these regulations, which in large measure seem to be as expected and, therefore, not unduly controversial. At the same time I have a number of concerns.

My first concern relates to the types of premises which the regulations cover. We see from Regulation 3(1) that the premises which a services provider must allow an authorised representative to enter are those which it owns or controls.

That rules out an obvious category of premises; namely, those which are owned by private providers. It is essential that there is no watering-down of accountability on the part of the private sector. During the passage of the Local Government and Public Involvement in Health Act, we were told that these premises would be the subject of directions which obliged commissioners of care to build into their contracts with private providers an obligation to allow representatives of LINks to enter and view services. The problem with this is twofold: first, without sight of those directions, it is difficult to know whether they are adequate. Secondly, it is not clear whether the directions will apply also to local authorities. Unless they do, we have to ask how care homes provided under contract to local authorities will be required to permit entry. I should be grateful if the Minister provided some clarity on those issues.

Under Regulation 3(2), the duty to allow entry does not apply if the presence of a LINks representative would compromise the effective provision of care services or the privacy or dignity of any person. These are the most worrying provisions in the SI. Who will judge whether the effective provision of care or someone’s privacy or dignity are being compromised? It is clear that it will be the services provider. The way is left wide open for the provider to take a completely one-sided and unjustified decision to exclude a LINks representative from a set of premises, without any immediate right of comeback. What might constitute a breach of dignity? One could argue that entering and viewing an establishment where patients are lying in bed dressed in hospital gowns is a breach of privacy and dignity. What is to stop a provider from arguing this? How would a LINks representative be able to rebut such an argument?

Equally, it would be possible, let us say, for an A&E department to argue that the presence of a LINks representative compromised the effective provision of emergency care, for no reason other than that the department was busy. This provision, too, is surely wide open to abuse. The main reason why community health councils were so effective in monitoring A&E departments was that they had an

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unfettered right of access. That right was not abused. If a CHC member really got in the way of activities on the unit, they would withdraw voluntarily under their code of conduct. If CHCs had had to operate within the terms of these regulations, it is highly doubtful whether Casualty Watch would ever have been the force for good that it unquestionably was in exposing poor practice in A&E departments. It would be better to include the prohibition in paragraph (2)(a) not in regulations but in a code of conduct. We understand that such a code is in the course of being produced. It is a great pity that Ministers were not prepared to place a little more faith in people’s integrity and good will to do the right thing in the appropriate circumstances rather than rely on the law to erect a set of statutory barriers.

Exactly the same point could be made about Regulation 3(2)(g), which provides that an authorised representative may be denied entry if, in the opinion of the services provider, they are not acting reasonably or proportionately. There is surely far too much scope there for spurious and subjective decision-making of a kind that would run counter to the entire rationale of the legislation; namely, that providers of services should be open to public inspection and not artificially shielded from adverse criticism. I regret the way that these parts of the regulations have been framed, especially given that there is no statutory right of appeal for the LINk representative if they are unfairly excluded.

Category (c) of the definition of “excluded premises” refers to,

which is not problematic—

At present, I am unclear what the significance of a tenancy or a licence is in this context, and it would be helpful if the Minister could explain. Equally, I am not wholly clear what count as non-communal areas of care homes for the purposes of Regulation 2. A kitchen in a care home is not a communal area, but it is clearly not part of someone’s private quarters. The same applies to offices. A ladies’ toilet is not communal, because it is not open to men, but there seems no reason why a LINks representative should not be allowed access to it. It struck me that “communal” is perhaps not as clear as it might be. Can the Minister explain why the regulations have been framed in this way and whether there is an intention to exclude parts of premises that are neither private nor shared by all residents?

I do not understand the reason for Regulation 3(2)(f). Why should an authorised representative have no right of entry to a part of a hospital or care home which happens to be empty of patients or residents? It might be that a certain part of a set of premises was used on a regular basis by patients or residents, but at the particular time when the LINk was visiting that part of the building was empty of people. Why should

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the LINk be denied access to it? In some circumstances, premises are best viewed when not in use, particularly if one wants to avoid falling foul of health and safety issues.

To sum up, I am sorry to say that much too much in these regulations, unwittingly or not, serves to protect unsafe institutions and to muzzle the whistleblower. I find that deeply regrettable. The LINks member, provided that he or she is properly authorised and trained, should have an automatic statutory right to enter, view, observe and monitor activities, as the PPI forums do at present. On that score, can the Minister bring us up to date? The activities of PPI forums are going to be switched off at the end of this month. I would doubt that many members of the public are aware that the system for protecting the interests of patients in the NHS is to be dismantled and replaced by a procurement process, which could in some cases be drawn out. The Minister will remember the amendment to the local government Bill designed to bring about a smooth transition between the abolition of PPI forums and the setting up of LINks. Can she say what arrangements are in place to keep patient and public involvement going prior to the formation of LINks and how many patient forum members have been invited to participate by local authorities during the transition?

Baroness Neuberger: I thank the Minister for setting out clearly the provisions of this statutory instrument and for the compliment that she paid to the noble Earl and me for our involvement at an earlier stage—a much earlier stage—of all this. Broadly speaking, like him, I suppose that I am satisfied with much of the statutory instrument, but I have much the same concerns as he has, although we have not collaborated or talked to each other about this. I would like briefly to consider those concerns.

First, I am delighted that a change was made during the course of this legislation on the Floor of the House to allow LINks members to go in and view the premises in question. We achieved all-party agreement on that. All sides of the House agreed that this was a good thing. Rather like the noble Earl, I am concerned at the elements of restriction that seem to have crept into the statutory instrument. I would be grateful to the noble Baroness for her comments on that.

I, too, was worried about the definition of communal areas. One example is bathrooms. The noble Earl referred to ladies’ loos, but other areas are not used communally, but are communal areas. On the whole, people do not use bathrooms at the same time as other people, but bathrooms are communal areas because of their shared use. Are we saying that members of LINks can inspect bathrooms? The state of the equipment in bathrooms in care homes is very often a cause of complaint and concern. I would have thought that those are precisely the areas that LINks members would be able to look at in the same way that we expect CSCI inspectors to see them at the moment. I would like some clarity about communal and non-communal areas. We are not clear here.

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Like the noble Earl, I am particularly concerned about Regulation 3(2)(a). The statutory instrument states,

There is no clue about who decides that, and that is a real question. It is quite possible that a care home or a ward could be doing all sorts of things that members of a LINk who are authorised representatives would find reprehensible, but if they were told, “Sorry, you can’t come in here”, and that they could not go in to see that people were walking around naked because it would compromise their dignity, where is the capacity for authorised representatives to challenge the view given by the person running the care home? We have to raise that point. As it stands, it is an unsatisfactory situation.

My second point, relating to private provision, has been made well by the noble Earl. After all, something like 90 per cent of care homes are now private. If these regulations do not apply to those who own or run care homes, we need to know that. It is seriously worrying, and I thought that we had agreed that earlier.

The noble Earl raised most of the issues that I wanted to raise, but I wish to raise the matter of what authorised representatives will be able to do when they enter and view premises. Earlier on in this process, we were told that they cannot inspect. Are they able to ask members of staff about what is going on? Are they able to ask patients, users of services and residents about what is going on and how they feel? Without that, we are unclear about whether authorised representatives have enough capacity to find out the truth about what is going on. We need reassurance on that.

My final point is that, like the noble Earl, I would like to know what has happened about the transition between the patient forums and the new LINks system. We have heard remarkably little about it. This is an important part of it and we need greater clarity about how far we have got.

Baroness Thornton: I am grateful for the comments of the noble Earl and the noble Baroness who have been very helpful in driving this forward. I am delighted to be able to respond. I feel some responsibility for his not getting here on time because I promised that I would let him know when this business was to start, but my noble friend took only five minutes when he spoke before me.

I shall address the specific questions that were raised. The noble Earl asked about private care and what was the duty on independent providers to allow entry to authorised representatives. Local authorities, NHS trusts, SHAs and PCTs must ensure that their contracts with independent providers allow for LINks’ authorised representatives to enter and view and to observe the carrying on of activities on premises that are owned and controlled by the independent provider. The activities must be in line with arrangements under Section 221(2) of the Local Government and Public Involvement in Health Act.

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There was a question about how the power to enter and view would work. It will partly be about the way in which the LINks are trained so that they are aware of their powers. The behaviour required during a visit, which will be about treating the staff and patients with courtesy, ensuring that dignity and privacy are maintained at all times and being unobtrusive when it is appropriate—for instance, being prepared to wait when a procedure is being carried out or moving elsewhere to enable such a procedure—will be included in the code of ethics.

On the question of what access LINks will have—for example, to a kitchen—yes, there will be such access. In some cases, authorised representatives can visit premises where hospital accommodation is provided and so would be able to visit kitchens and toilets where they are part of the hospital accommodation. We believe it is very important that LINks representatives have access to everywhere that patients and the users of a service can go so that they can assess the experience. I hope that satisfies the Committee on that point.

On why LINks representatives should not enter premises when services are not being carried out, that is related to the fact that there are no activities. Their job is to observe the process and procedures and the experience of the patients. If somewhere is empty, they will not be able to observe the patient’s experience.

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