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Clause 34 agreed to.

The Earl of Onslow moved Amendment No. 63:

The noble Earl said: I am afraid that the Committee has me instead of the noble Baroness, Lady Stern, moving the amendment, which it may find is rather a bad bargain, because she is completely on top of this topic. This amendment arises from concerns expressed by the Joint Committee on Human Rights, on which we both sit. It refers to the person who is not satisfied with how a complaint has been handled by the service provider. The amendment is clear, probably because it has been drafted by us rather than by draftsmen who make certain that no one can understand it without assistance, about four QCs and 300 guineas an hour.

The JCHR was concerned that the current position does not meet the concerns in its report, Human Rights of Older People in Health Care. In that report, the JCHR considered evidence that service users’ rights could be undermined where complaints were referred back to individual providers or, in the care sector, to the local government ombudsman. Similarly, the Bill maintains the distinction between private- and public-funded service users for the purposes of complaint. This is a distinction which Age Concern calls on the Government to end. It supports the amendments proposed during the Bill’s passage through the House of Commons, which provides for the establishment of an independent complaints body operating alongside the CQC.

When we took evidence for the report, we certainly heard about the fears of old people that they might be deprived of their tenancy in a care home because they had made a complaint and about how they feel vulnerable. This amendment is an attempt to do something about that. I believe that the noble Lord, Lord Darzi, and several Members of the Committee have expressed sympathy with this proposal, but that the Government feel that it is not necessary. I am not convinced. I beg to move.

Baroness Finlay of Llandaff: This amendment is important in principle. Many groups feel disenfranchised and unable to complain because they are frightened that their complaint will rebound against them. The noble Earl, Lord Onslow, has pointed out the problems

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for patients in care homes, but a lot of patients in receipt of care in the community feel that they cannot complain against the medical side—the GP, district nurses and so on—or the social worker, who may be the person doing the budget assessment to determine their care and care package. They are frightened of complaining. If they do complain, they fear that there may be a vindictive rebound against them.

In order to inspect the true quality of a service, how it handles its complaints can be extremely telling. Complaints that go through NHS trusts are, by and large, pretty well handled, but they are better handled in some trusts than in others. In the trusts where they are better handled, one also has the sense that the whole attitude is more patient-focused. The big principle behind this amendment is in terms of collecting important data on how patients or clients who feel that they have not been handled properly are able to express their voice.

4.30 pm

Baroness Thornton: I think we all agree that it is vital that complaints are dealt with effectively. Having listened carefully today and at Second Reading, I think that most noble Lords have also agreed that complaints are best dealt with and resolved locally, where there is familiarity with the issues and organisations involved.

The current second stage of the NHS complaints process, with external consideration by the Healthcare Commission, has lengthened the overall process for handling complaints. The Healthcare Commission’s series of reports, entitled Spotlight on Complaints, demonstrates that having an independent body with powers to review complaints can also discourage some organisations from doing a thorough job and resolving them at a local level. So several factors need to be taken into consideration. Neither the Healthcare Commission nor CSCI supports the idea of the Care Quality Commission having a role in dealing with individual complaints, and neither does the Health Service Ombudsman, who is gearing up to be the second stage complaints receiver. We therefore want to put the emphasis on ensuring that in the first instance all providers operate good complaints handling procedures, which encourage effective local resolution and enable providers to use information from complaints to improve service delivery, as the noble Baroness, Lady Finlay, said.

As part of contract monitoring, PCT and local authority commissioners should also monitor how well the providers from which they commission services respond to complaints and take appropriate action when the response falls below an acceptable standard. This information on complaints-handling can therefore be used to inform subsequent commissioning decisions. As I have said before, we believe that the best way in which the Care Quality Commission can support these aims is through the registration requirements, subject to the feedback from the ongoing consultation. I wondered how long it would take me to refer to the consultation document. The paragraph about responding to people’s comments and complaints specifies that there should be clear, simple arrangements for handling complaints and dealing with them.

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The Care Quality Commission will thus have a very important role in assessing how well providers are handling complaints. It will be able to use a variety of methods for checking whether providers are complying with requirements. It may use case tracking, as CSCI does, to see whether the service that an individual receives, or the way a complaint is handled, meets the individual needs of the people receiving care. There will of course be an independent view through the ombudsman—

The Earl of Onslow: But those people publicly funded in private healthcare will not be allowed to be appeal to the ombudsman—as I am informed by this important piece of paper, from which I am sapping up knowledge at rate of knots.

Baroness Thornton: I shall continue until I have an answer to that.

The goal should be to improve local arrangements for dealing with complaints, which should mean that there will be no need for independent consideration between the local level and the ombudsman. The response to our recent consultation on complaints reform, Making Experiences Count, generally supported that approach. There is one specific exception: the Care Quality Commission will continue to have a specific function regarding complaints about the use of powers and duties under the Mental Health Act, as currently carried out by the MHAC.

The rationale for this specific provision is that patients subject to some form of compulsion may not have easy access to the usual means of making a complaint—as in the NHS and social care complaints procedures. However, the MHAC’s role here is less that of an appeals function and more about advising and helping patients to make complaints through the appropriate channels. We have every reason to think that that will continue to be the case when the Care Quality Commission takes over that specific role. We acknowledge that in social care there is a particular issue for people who arrange or purchase their own care independent of the local authority and that they do not have access to the statutory complaints procedure, with its independent resolution via the ombudsman if necessary. We are looking at the issue very seriously and I hope we will be able to make a substantive proposal in the very near future.

Baroness Tonge: I hope that I am not the only person here who is rather confused by all this. There is a problem with where the complaints go in the private sector, because people cannot use the ombudsman. There is a problem with the Care Quality Commission taking on a function by which it receives complaints from the general public. That should not happen—that is not what the body is there for. I am in a serious muddle as to how the Care Quality Commission, when it is formed, will link up with the complaints procedure in the health service, in local authority and private care homes, and in mental health services. The Committee probably deserves some sort of flow chart to show us exactly where a complaint goes when it starts with an individual patient or client. We need to

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know exactly how all those organisations will connect up and how it will benefit the patient.

Baroness Thornton: The noble Baroness has only to ask and it will be done. We have a flow chart and I shall ensure that it is circulated to Members of the Committee. We are very mindful of the issues around those who arrange or purchase their care independently and the need to address those issues. I am assured by my honourable friend the Minister that we will bring forward some proposals in the near future—I hope before the Bill has finished its progress through this House.

The Earl of Onslow: The Minister’s answer was, to me, opaque. It may be only my lack of little grey cells, but I lost her. I am seeing surreptitious nods from around the Committee Room, telling me that she was lost in a sea of verbiage.

The one thing that I do not think that she has addressed—and I was extremely pleased to get support from the noble Baroness, Lady Finlay—was the very serious problem of the elderly, who are in the evening of their lives and very vulnerable and may not even have relatives. We know the tragic stories of old people who are never visited, and so on, which is the result of keeping people alive longer. We know all the reasons—but, consequently, they become more and more vulnerable and more and more frightened. They are frightened to complain. I do not think that the Minister addressed that point at all. I may be doing her an injustice but, again, I notice little nods around the Room. Will she please, before Report, really look at the point of the vulnerable old being terrified of having their tenancy terminated?

Baroness Thornton: This issue has been discussed at Second Reading and in Committee. The point that I was trying to make—and I apologise if it was opaque—was that the Care Quality Commission’s job will be to set up the very best and most robust regulatory system to ensure that complaints are handled properly, including ensuring that those who are most vulnerable can have their voice heard. That is its job. We must therefore ensure that the regulatory framework that we agree further down the line does that.

The Earl of Onslow: The Minister is saying that the Care Quality Commission will set up all these things. We are suggesting that when people are not satisfied with the appeals they can go to the Care Quality Commission. We want them to have another way in. It is not just me saying that—the Joint Select Committee was seriously grown up about it and took a lot of evidence and care. We thought that this was very important.

Baroness Greengross: I am sorry to labour the point, but will the noble Baroness bear in mind that there has been a lot of discussion about individual complaints not being taken up directly by the commission? Unfortunately, sometimes we deal with actual abuse and the people involved are very fearful. The sort of person the noble Earl talked about,

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someone with no relatives, is in a most vulnerable position because it is easy to threaten such a person with further abuse. It is a question of power, and we must get this right. Apparently there is no clear way for individuals—and here I include individual members of staff who know that something is wrong—to make a complaint without fear of their job or their situation being worsened. It is important that we send a clear message on this.

The noble Baroness, Lady Tonge, and I have expressed our confusion because some of us understand that individuals cannot take their complaint directly either to the Care Quality Commission or the ombudsman. Who is going to take up such complaints? We need a clear explanation and guidance on exactly what will happen because this is a serious situation where people have almost total power over some of the most vulnerable in our society.

Baroness Tonge: I should like to emphasise that point. This is one of the problems that arises out of trying to combine health services, social services and mental health services under a single huge commission. A lot of the thinking seems to have come from the health side; many of us are worried that social services will either be ignored or it will be assumed that the same procedures that operate when a patient makes a complaint about the health service can also apply to social services, but they cannot. This is a big problem for the new commission, which is why I say again that this reorganisation is being undertaken far too soon and is going far too far.

The Countess of Mar: Perhaps it would help the noble Baroness if I give the example of what happened to my mother before she died in 1993. She had always been used to giving herself her own medicines. She was a highly intelligent lady who was able to finish the Times crossword the day before she died, so there was no problem with her mental functions. However, the male charge nurse caring for my mother decided that she was an alcoholic because she liked a glass of sherry before lunch, a glass of wine with dinner and a glass of brandy before going to bed. He concluded that she was incapable of administering her own drugs. Her dignity was taken away from her when she was told that she was not capable of taking her own medicines, and she simply fell apart. She rang me in a panic, so I went over and reminded the young man of who paid his salary. He gave my mother’s medicines back to her. However, my mother suffered at his hands every time he was on duty until she died, and indeed after she died because he insisted, although it was clear that she had died from natural causes, that there should be a post mortem in case she had taken an overdose.

When someone from our walk of life can suffer in such a way, let us consider the position of those who have no advocate, no one to stand up for them. They need an exceptionally strong support system. This is not like purchasing something in Currys and then going back to complain about it. This concerns physical comfort, well-being and peace of mind.

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Baroness Thornton: I do not think that there is any disagreement about the seriousness of this issue and how important it is to get it right. Perhaps I may refer to paragraph 10 on page 64 of the consultation document, which states,

Perhaps I may refer to a remark I made earlier: the commission will be able to use a variety of methods to check whether the complaints procedures are useful. Indeed, we expect that it will use many of the methods already being used by CSCI, such as case tracking, to see whether an individual has been served properly and the complaint properly articulated and handled.

Finally, I draw the Committee’s attention to the memorandum submitted to the Committee in another place, which I will circulate to those who may not have read it, from Ann Abraham, Parliamentary Ombudsman for the UK and Health Service Ombudsman for England. In that memorandum, she says that she fully supports these proposals and is gearing her organisation up to provide an independent second stage for complaints not satisfactorily resolved at a local level.

4.45 pm

The Earl of Onslow: It would not be unreasonable to say that I sensed unease in the Committee and not complete happiness about the Government’s response. I completely agree with the Minister that everyone wants the same thing. When she read out paragraph 10, she talked about what the procedure should be. But the amendment is about what happens when the person doing the complaining feels that the procedure has neither produced justice nor been done properly. Where do they go to make sure that the procedure is followed and justice is provided? I have banged on quite enough about this. The Committee knows my views and I hope that we will be hearing more from the noble Baroness, Lady Stern, rather than from me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 [Bodies required to be notified of certain matters]:

[Amendments Nos. 64 to 66 not moved.]

Clause 35 agreed to.

Clause 36 agreed to.

Clause 37 [Liquidators etc.]:

Baroness Barker moved Amendment No. 66A:

( ) an administrator of an agreement where a person has entered into an individual voluntary arrangement with his creditors.”

The noble Baroness said: This takes us back to the central issue of how one provides regulatory legislation for different-sized providers of care. These

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two amendments deal in a different way with what happens in cases of insolvency involving a small provider. Amendment No. 66A would make plain what happens when individuals who are providers of care go into individual voluntary arrangements with their creditors—when they have serious financial difficulties that are one step short of bankruptcy. There is no requirement on the part of the administrator appointed under the IVA to notify the commission of his appointment. The amendment suggests that administrators of individual voluntary arrangements should be put on exactly the same basis as trustees in cases of bankruptcy.

Amendment No. 66B deals with the situation arising from the death of a registered provider under Clause 38. It is envisaged that the person or representatives of the person who has died may carry on a regulated activity, albeit for a short time, to safeguard the needs of users. If a registered person running a small care home dies, those looking after their affairs can carry on that business for a short period of time so that vulnerable users do not have to be moved. This is a small and limited measure and I do not imagine that it would apply in many cases, but it could happen. The amendments are in the best interests of users because people in care homes are vulnerable and being moved without notice is known to be harmful to them. I beg to move.

Baroness Thornton: Clause 37 deals with what happens should an individual or company that is registered with the commission as a service provider become insolvent. It requires that, if a registered individual becomes bankrupt, the trustee of the bankruptcy must notify the commission of their appointment and may be required to appoint a registered manager to ensure that the regulated activity continues to be provided in line with the relevant requirements. Amendment No. 66A, as the noble Baroness outlined, proposes that similar provision is made in relation to the licensed insolvency practitioners who administer individual voluntary arrangements.

I agree with the noble Baroness that the commission would need to be notified that a registered individual might need to enter into an individual voluntary arrangement, as the health, safety and welfare of people receiving those services could be put at risk. However, I am not sure that Clause 37 is the best place to make provision for this. Individual voluntary arrangements are a means by which people who can no longer afford the repayments on a debt can arrange a refinancing package with their creditors. Such agreements can draw assets, such as the value of any share a person may have in a property or business. However, the supervisor does not take control of the individual’s business, as would be the case were they to declare themselves bankrupt. They would simply be acting as an intermediary between the individual and their creditors.

In most of these cases, the individual would continue trading, so could remain registered, or could choose to cease trading and cancel their registration in the normal manner. Were their financial situation to worsen and they declared themselves bankrupt, the existing provision in Clause 37 would have effect. I do not therefore believe that an amendment to Clause 37 is necessary.

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However, I hope I can reassure the noble Baroness that the Bill already allows for provision to be made to ensure that the commission will be aware if there is a danger of a registered individual becoming insolvent.

Clause 16 also allows for regulations to include requirements as to the financial position of a person registered as a service provider. These do not form part of the current consultation but will be covered by a consultation later this year. However, regulations currently in force under the Care Standards Act, on which the new ones will be based, cover matters such as financial viability and agreements with creditors. In particular, existing regulations include requirements for current bodies to be informed if a service provider is likely to become insolvent in the next six months. We envisage making similar provision under Clause 13. This addresses the intention behind Amendment No. 66A.

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