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Members of the Committee will be aware that we are consulting on key areas which these crucial registration requirements need to cover in order to provide proper assurances of safety and quality of care to patients and service users. Requirement 10 of the draft registration requirements proposes that there should be a requirement on registered providers and managers to have effective systems in place for handling complaints, and that they should learn from complaints. Indeed, this proposed requirement has been agreed by both the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman, and sets out that providers should:

I therefore do not believe that it is necessary to amend the provisions to make regulations ensuring that the commission takes into account not just how the provider handles complaints but also how the provider learns from those complaints. Furthermore, because the registration requirements will apply across both publicly and privately funded care, this should help to improve the situation for those people that Amendment No. 53B seeks to help.

We recognise that there is an issue about the fairness of current arrangements for people who either choose to seek care independently or who do not qualify for state support and feel that their complaints have been inadequately addressed. The Government are actively considering ways in which some form of independent resolution may be achieved for those groups; I very much hope to have some answers in due course. We are also looking at options for ensuring that local complaints arrangements are as consistent as possible, whether they relate to publicly or privately funded services. So, to the extent that the final registration requirements—currently the subject of our consultation—cover this issue, the commission will already have the powers it needs to ensure that registered care providers are handling complaints properly, whatever the arrangements may be to provide that care.

Let us remind ourselves that where registered care providers fail to meet registration requirements, the commission will be able to use the full range of its enforcement powers, not just issuing a warning notice as proposed by Amendments Nos. 58 and 58A. The emphasis in the new system we are putting in place for resolving complaints locally will also assist organisations to identify their mistakes, to learn lessons from them and to ensure that similar mistakes are not repeated.



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The noble Baroness raised the capacity of the ombudsman to deal with some of these complaints. I quote from a letter from Ann Abraham, the Parliamentary Ombudsman for the UK and Health Service Ombudsman for England:

I have tried to answer some concerns of the Members of the Committee. I take the point about the care provided for those who may not qualify for state support, and am more than happy to look into that further. With the assurances I have given Members of the Committee today, I hope that they can, at least at this stage, consider withdrawing their amendments.

Baroness Masham of Ilton: Would it not be better to use the word “shall” instead of “should”? There is a big difference between those two words. That would make it stronger and make it happen.

Baroness Barker: While the Minister considers what the standard parliamentary answer to that kind of argument is, I shall make one or two relevant points. I do not wish to criticise the health ombudsman—in fact, I think she is a wonderful health ombudsman—but I think I am right in saying that the changes in Scotland to which she referred coincided with the introduction of the policy of free personal care. Therefore, in Scotland there was something that does not exist in England: a clear understanding of basic entitlements in health and social care. I point out to those who are unaware of it that we do not have a happy precedent, given that it has taken eight years for there to be some kind of resolution about what the criteria for NHS continuing care should be and consistent application of those criteria. I think we are underestimating the scale of the problem. I wish to highlight the point that a major element of the argument is costs in residential care. Regulating acute care, when one looks at what happens to a patient where there is a particular adverse incident, and looking at when a care home provider decides to up his or her fees and the person who is paying for himself takes issue with that are wholly different. That is a commercial transaction. It is worth reiterating that within this one regulator we are seeking to bring together things that are at present in separate systems, both of which are wanting. Putting them together may compound a lot of the problems. I urge the Minister not to underestimate the scale of the problems that will have to be dealt with.

Baroness Meacher: The Minister said quite a lot about regulations placing duties on providers to deal with complaints and to follow up recommendations

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and so on. Providers already have an obligation to deal with complaints properly and to follow up recommendations, but it does not happen. The whole point of this debate has been to say that complaints really matter in terms of public confidence in health and social care services. There needs to be a robust system—it seems to us that the only sensible robust system has to be with the CQC—to make sure that complaints are properly dealt with and that recommendations are properly followed up in good time. That is the other thing; these things can go on for years. I do not think I heard the Minister give an assurance that the CQC will be required to follow up and deal with complaints and recommendations from complaints. The Minister referred to the powers of the CQC to do that, but the purpose of this debate is to say that leaving it with the opportunity to do that is not sufficient. I think I heard the Minister say that he would think a little more about this, which was encouraging, and I would be grateful if he would give us an assurance that he will think further about this. I hope that he will take very seriously the point that we are making that there is a need in terms of public confidence to bite this one and make sure that the CQC deals with it.

Baroness Stern: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 pm

Baroness Stern moved Amendment No. 19:

“( ) the need to improve the range and quality of information provided by health care and social care services to users of those services about their rights,”

The noble Baroness said: I am grateful for the support from other noble Lords for these amendments, which are many and all relate in some way or another to putting human rights at the heart of the work of the Care Quality Commission. I will try to explain the perspective of the Joint Committee on Human Rights on this and why the Bill has such profound human rights significance.

The human rights framework has considerable importance in structuring the ethos of public life in this country. In saying that, I build on much that has already been said this afternoon. The European Convention on Human Rights played that role for many years, but the framework was, as the Government say, brought home by the Human Rights Act 1998. That Act signalled a change and brought into being a framework within which the state’s actions towards individuals should be shaped. I refer here not only to areas in which the state takes powers to coerce someone or deprive them of their liberty, such as in counterterrorism and criminal justice or in the detention of patients under Mental Health Act powers. This is about how the state, and those through whom it works, deals with human beings.

This view of human rights has led the Joint Committee on Human Rights to broaden its work and to undertake two major thematic inquiries: one

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into older people and healthcare, and one into the treatment of adults with learning difficulties. Both those inquiries were revelatory for committee members and brought us into contact with the meaning of human rights to a very broad range of people—those who are being cared for and those who work with those who are being cared for. I stress that the human rights framework is enormously important for those who care for people, because it enables them to see their work within an ethical framework through which they can articulate their values as caring professionals. It also enables them to stand up to anyone who tells them to cut corners and leave the old lady lying in a dirty bed, and to feel that they must blow the whistle when abuse needs to be exposed.

The human rights framework is also part of each individual’s relationship with the state. It means that we can expect that our right to life will be protected, that we should not be subjected to inhuman or degrading treatment, that our right to family life shall be respected, and a number of other rights. By simply listing those three, however, I hope it is clear to the Committee that the work of the Care Quality Commission will have human rights work at its heart.

I also resort to recounting a personal experience. Some years ago, I had an illness that kept me in hospital for quite a long time. I was in a wheelchair for six months. It was a profoundly educational experience. When I was recovering, I amused myself by writing about it. Articles appeared in the health pages of both the Times and the Guardian, if I remember rightly. My main thought was that my experience was parallel to that of my day job, in which I dealt with matters relating to prisons, prisoners and the protection of basic rights. Everyone needs the protection of those rights, and it became clear to me in hospital that I was one of those who needed them. First, there is huge potential for ill-treatment, neglect and abuse when one is a patient or someone who is being cared for. You are without power and you feel that you are without it. Your feeling of powerlessness is increased enormously by the potential humiliations that you can suffer through the invasion of personal privacy. If they do not have time to give you a shower, you cannot have a shower, so you feel dirty and smelly all day. You then wish that your visitors were not coming because you do not want them to see you in that state. It is very difficult to do anything about those things because you are completely dependent on your carers. If you try to do anything about it, what happens to you could get worse, rather than better.

Those are classic human rights situations where protection is called for. They are the issues behind the whole conceptual framework of human rights. I know that the Government are not at all convinced by those arguments. They have said, as the Minister said in response to the report of the Joint Committee on Human Rights, that the application of Section 6 of the Human Rights Act 1998—the duty to act compatibly with convention rights—will mean that the Care Quality Commission will automatically take into account convention rights, and that there is no need to do any more about it. The Government say that the broad regulation-making power in Clause 16,



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Finally, the Government say that the inclusion of express reference to the Convention rights in Clause 16 could lead to uncertainty as the scope of an obligation to make regulations to secure rights would not be easy to determine. The Government do not wish the Care Quality Commission to become a quasi-judicial body.

Perhaps I could ask the Minister whether the Government understand that Section 6 of the Human Rights Act 1998 requires the Care Quality Commission to act compatibly with convention rights—not merely to take them into account. Taking them into account is not the same thing as acting compatibly with them. Do the Government consider that the inclusion of obligations in respect of rights could create any greater uncertainty for the commission than the inclusion of obligations in relation to health and safety or welfare? Why would the inclusion of that obligation lead to the Care Quality Commission becoming quasi-judicial and why would that be so inappropriate? How would that differ from the role that the commission would play in relation to the protection of health and safety, and welfare?

In our discussions and in the Government’s response to the Joint Committee, I feel that there has been a failure on the part of the Government to understand the profoundly important relationship between health and social care and human rights. I very much hope that the Government will be able to think again about their view on this and that maybe we shall make some progress. I beg to move.

Lord Low of Dalston: I support this group of amendments moved by the noble Baroness, Lady Stern. Collectively, these amendments would ensure that not just the CQC but all registered providers really have to think about the human rights of people in their care and that the CQC can back that up through its inspection process. The noble Baroness has moved the amendment comprehensively, so I wish to make two points in general support. The first is a general point and, secondly, I will support in particular Amendment No. 19. On the general point, the Minister has stated that the whole establishment of the CQC and the implementation of the legislation will take place and be deeply implicated in an ethos of human rights; but I am not sure that the drafting of the Bill bears that out.

Clause 16, for example, which was referred to by the noble Baroness, Lady Stern, contains the regulation-making power. Clause 16(2) simply says that regulations “may” make provision with a view to various things that do not include rights. That is why Amendments Nos. 41 and 42 have been tabled. They seek to ensure that regulations “shall” make provision with a view to,

The other amendments in the group go through strengthening the legislation in respect of rights.

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Amendment No. 23 is also necessary to insert “rights”, and Amendment No. 28 has been tabled in general terms to provide:

Amendment No. 72 prescribes the content of standards and Amendment No. 76 would provide that respect for rights may be a quality indicator in periodic reviews. I submit that there is quite a lot in the drafting of the Bill to indicate that it needs quite a lot of strengthening before we can be confident that it will be implemented in an ethos and culture of human rights.

Secondly, I support Amendment No. 19 in particular, as it is an area of which I have particular knowledge, but also as proxy for the whole group. The JCHR has suggested that the CQC should perform its functions in a way that encourages health and social care providers to improve the information given to service users about their rights. In commenting on the JCHR’s recommendations, the Minister in another place relied on the fact that the commission, NHS bodies and local authorities are all public authorities for the purposes of the Human Rights Act and that the courts have a role in enforcing rights, such as access to information. Therefore, we can rely on the fact that the Human Rights Act applies to these public bodies and that the courts will be there to enforce human rights where necessary.

In its 15th report at paragraph 3.25, the JCHR characterised the Minister’s response to its recommendations as simply standing pat on the status quo and said that it regarded it as “complacent”. It referred to its report on the human rights of older people in healthcare, which,

and to the fact that it had subsequently made similar findings in relation to adults with learning disabilities. It pointed out:

7 pm

I can illustrate this matter from an area within my own knowledge by reference to a provision in the UN Convention on the Rights of Disabled People, which the UK has signed and I am sure shortly will ratify. Article 21, “Freedom of expression and opinion, and access to information”, says that states parties must provide,

I draw two morals from that.

First, if there is not a binding legal obligation on the UK Government to ensure disabled people’s rights to information, there very soon will be in the light of the UN convention. That being the case, it is, at the very least, highly desirable, if not absolutely essential, that this obligation should be reflected—the

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Minister may say anticipated, but why not since we are promised ratification by the end of this year—in the Bill in relation to disabled people’s rights to information from providers of health and social care.

The second moral I draw is that, as the JCHR says, it is absolutely essential to go further than the status quo if the situation is to be in any way satisfactory as regards the provision of information to disabled people. For health services alone, a recent survey of blind and partially sighted people in the UK showed that 95 per cent of respondents had never received health advice leaflets or information from their local surgery in their preferred format; 96 per cent had never received letters from their GP, results of tests or other correspondence in their preferred format; and 95 per cent had never received medicines labelled in large print.

That is the situation for disabled people, but I am in no doubt whatever that the situation in relation to the provision of information to other elderly and vulnerable people, and to people with learning disabilities will not be found to be materially different. Therefore, I speak in support of Amendment No. 19 in particular, but as an illustration of the need for this group of amendments as a whole.

Baroness Wilkins: I strongly support this group of amendments, which is so vital to creating a genuine culture and respect for human rights across health and social care. They have been superbly covered by the noble Baroness, Lady Stern, and the noble Lord, Lord Low. I strongly support the need to make human rights central to the work of the new Care Quality Commission. As RADAR puts it:

The core principles behind human rights are autonomy, dignity and equality, and it is these which must guide and inspire the new commission in its work. Indeed, we recently voted in support of measures to make sure that health and social care providers ensure that service users are empowered with information about their human rights and that rights are respected throughout the hospital discharge process, when we passed the Disabled Persons (Independent Living) Bill, introduced by the noble Lord, Lord Ashley of Stoke.

Building a human rights culture across health and social care will require all the measures set out in these amendments, and more. So widespread is the level of ignorance and disrespect for basic human rights standards, we should take this opportunity to enact the JCHR recommendations without delay.

Baroness Greengross: I particularly support the comments of the noble Baroness, Lady Stern. It is relevant to quote to the Committee the results of a poll announced today by Age Concern. I declare an interest as vice president of Age Concern and as its former chief executive. The poll showed that people of all ages and incomes are deeply concerned about the quality of the personal care that they will get in old age. According to the poll, eight out of 10 people

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in Britain are concerned about the quality of care that they or their loved ones will get in later life. Four out of 10 people are not even confident that they will be treated with dignity or respect, despite a high-profile government campaign to address that.

When the media are taking on board something like that, it is in the Government’s interest to make a definite claim to support the human rights of people in care or needing care and to put that on the face of the Bill. That would show commitment and would reverse the distrust or apprehension that so many elderly people feel. If the poll were repeated with disabled people, who may be younger, we would have precisely the same result.

The Government must make some sort of commitment urgently. In this respect, human rights mean dignity. We need the sort of care that leads to less malnutrition, respects privacy and stops people being evicted, as the noble Baroness, Lady Murphy, described so eloquently, from what has become their home, because when that happens they get even more frail and vulnerable and need that protection even more.

Lord Campbell-Savours: This group of amendments emphasises the need for human rights considerations in these matters. My mind goes back to one of the homes that I visited, to which I referred before, which is not very far from this institution. I described it as a place in which I would not be prepared to place an animal. I presume that the home cleared the inspection hurdles as being a satisfactory place.


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