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I shall make just a few points about definitions. The definition of “a person” in Part 1 may be a legal person—that is, an organisation or body—or, as I have been told, a natural person—that is, an individual. The Bill provides for the regulation of activities, and service providers will be required to register in respect of the activities listed in secondary legislation as “regulated activities”. There is no reason why “a person” cannot be an employment agency.

In our consultation on the framework for the registration of health and social care providers, we have proposed personal care and nursing care as regulated activities. Agencies which supply healthcare workers fall within the scope of the Care Quality Commission, even where they supply services to children, as those are not regulated by Ofsted.

We propose that anyone providing personal care or nursing care in people’s own homes—excluding, of course, relatives, friends or neighbours—should register with the commission. This therefore would include domiciliary care agencies. However, to avoid dual regulation, we propose that where workers are supplied to deliver personal or nursing care solely in settings where a person is already registered by the commission

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with regard to that activity, these types of agencies should not need to be registered. For example, where an agency supplies workers to a care home, the care home will already have to register and meet registration requirements. As I said earlier, we specifically asked about this in our consultation and we will consider the responses carefully before making a final decision.

There is one other issue on proposed subsection (b) of the amendment. Qualified social workers employed by local authorities are regulated professionally by the General Social Care Council. Where a local authority provides a regulated activity, such as a local authority-run care home, it is intended that the care home that provides the accommodation, together with personal or nursing care, will be regulated, as I said earlier. Finally, in complying with the registration requirements, the provider will have to ensure that workers are safe and competent under proposed registration requirement No. 15 in our consultation document.

As I promised earlier, if there is still a gap and if we are wiser after the consultation, I will look into this and bring forward any necessary amendments at Third Reading. I hope that the noble Earl will withdraw his amendment.

Earl Howe: My Lords, that was a very helpful reply from the Minister. Of course I understand that, at this point, before the consultation has finished, it is difficult for him to comment in detail on these issues. I am grateful to him for saying that he will look at the points that I have raised and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Cancellation of registration]:

Lord Darzi of Denham moved Amendments Nos. 17 and 18:

(a) no-one is registered under this Chapter as a service provider in respect of the activity, or(b) the registration of a person under this Chapter as a service provider in respect of the activity ceases to be subject to a registered manager condition.”“(d) any other offence which appears to the Commission to be relevant.”

On Question, amendments agreed to.

Clause 16 [Regulation of regulated activities]:

Earl Howe moved Amendment No. 19:

The noble Earl said: My Lords, I shall speak also to Amendment No. 73, which brings us to the important issue of complaints made by service users, and in particular by residents of care homes. We had a useful series of debates in Grand Committee on this subject. Clause 16 says that the Secretary of State may impose

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requirements in regulations that those delivering regulated activities will have to meet in order to be registered by the CQC. Among other things, the regulations may make provision,

In other words, as I understand this provision, a service provider would need to demonstrate that it had systems in place to enable service users to make a formal complaint, and systems that enabled the complaint to be looked into and resolved. I am more than happy with that idea. However, it does not go quite far enough.

We need to know that the CQC will not simply look at whether an establishment has a complaints procedure, but that it will also make sure that, if a complaint is made and a finding or recommendation emerges from the subsequent investigation—whether by the ombudsman or the provider itself—the recommendation is acted upon in an appropriate, timely and fair manner. In other words, it is not just the handling of the complaint that matters, but the handling of what comes out of the complaint. That point is of particular importance for the reasons given in Grand Committee by the noble Baroness, Lady Finlay, and my noble friend Lord Onslow. They highlighted the risk that someone in a care home, or receiving care in their own home, might be frightened to complain, in case their complaint rebounded on them in a vindictive fashion. The noble Countess, Lady Mar, told us about the very disturbing experience of her mother.

The way in which a provider handles the follow-up to a complaint is every bit as important as the way in which it handles the complaint. The CQC should concern itself with that as well. The noble Baroness, Lady Thornton, promised to circulate a flow chart showing how complaints in each type of care setting will be processed under the new system. However, I am not aware that she has yet done so. I look forward to receiving it, if that is still possible.

The other unresolved concern in this area is covered by Amendment No. 73. Those who fund their own care in a care home are particularly vulnerable. If they are aggrieved, they will not be able to turn to the CQC. Nor will they be able to turn to the ombudsman. They are not covered by the Human Rights Act. Therefore, if they make a complaint and are to have it resolved properly, they are totally reliant on the integrity and honesty of the management of the home. In my view, the position is one that leaves this vulnerable group of individuals unacceptably exposed. Up to now, the Government’s answer has been that self-funders are people who have entered into a private contractual arrangement. If they do not like the care they are getting, they can move. The noble Baroness, Lady Thornton, did not resort to saying that, but other Ministers have done so. When we hear that line of argument, we all share the same concern: it is a lawyer’s answer. The fact is that many elderly people in care have neither the emotional strength nor the intellectual capacity to make a complaint, let alone carry it through to a conclusion, and to expect them to be able to exercise their legal rights by moving to another home is often equally unrealistic. They are unable to countenance even the thought of moving.

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These are often frail and vulnerable people who simply cannot cope with tasks that younger people take in their stride. I believe that there is a strong case for giving those people an avenue through which they or their family and friends could pursue a grievance if the care provider has not resolved it satisfactorily. It is not possible to think in terms of the CQC providing such an avenue because of the scope of its statutory remit. That is why I am suggesting that local authorities should act in this capacity. The local authority has a role in the case of all elderly vulnerable people in so far as it is obliged to carry out a statutory needs assessment for all such individuals on request. It has that role even if the person ends up by paying for all of his or her own care. I appreciate that there are significant resource implications that need to be thought through, but many self-funders will be living in homes which are also occupied by people whose care is commissioned and funded by the local authority. In respect of those homes, there is an argument for saying that it is in the interests of local authorities as responsible commissioners to become aware of areas of concern, however they arise and whoever it is that brings those concerns to their notice.

I hope that the Minister will at least think carefully about this proposal. I for one believe that it is too important an issue to be left hanging in the air. If we can resolve it during the passage of this Bill, we should certainly do so. I beg to move.

9 pm

Baroness Meacher: My Lords, I rise to support Amendments Nos. 19 and 73 and to speak to Amendment No. 20. My noble friend Lady Finlay has asked me to give her apologies to your Lordships’ House. She has put her name to these amendments, but unfortunately she has an engagement arranged a year ago that she is unable to break.

Amendment No. 19 envisages regulations providing for the CQC to ensure the implementation of recommendations coming out of complaints investigations. The noble Earl, Lord Howe, referred to this in relation to care homes. I want to say a few words about its relevance in relation to health trusts as well. I happen to be very well aware that health trusts can be relied on to undertake investigations into complaints; they could not get away with not doing that. But my experience of this is that they are far less reliable in terms of following up the recommendations coming out of those investigations, and yet without doubt it is those lessons which are far more important in fact than the investigations themselves. If you carry out the investigation and do nothing about the lessons, you will have achieved very little. In Committee I mentioned a particular case where a complaint had been made, an investigation undertaken and recommendations issued that a clozapine clinic should be established. In fact, nothing happened after that recommendation, with the net result that the patient contracted diabetes, which of course will affect him for the rest of his life. That is how serious it can be if these recommendations are not followed through with. They—not always, but often—throw up some serious issues.

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Considerable resources are devoted to these investigations. A lot of professionals’ time is devoted to thinking through the ramifications and the lessons that need to be learnt. It is therefore incredibly cost-ineffective if this is not done. As the noble Earl, Lord Howe, mentioned in speaking to Clause 16, the regulations already make provision for the handling of complaints and disputes. All this amendment does is to make sure that this piece of complaint handling—the following up of recommendations—is not neglected. I find it difficult to imagine that Ministers will not be more than happy to incorporate that small adjustment.

I speak briefly to Amendment No. 73, which seeks to ensure that self-funders in care homes have access to an independent complaints procedure. The noble Earl, Lord Howe, has, as always, spoken eloquently on this. I make a couple of points. First, in discussing this, a number of us are concerned that we should not establish new bureaucracy, new procedures and elaborate new approaches. The idea of tacking the complaints process for self-funders on to existing local authority procedures is as cost-effective as you can make it. While the noble Earl, Lord Howe, suggested that this may be very expensive, my fear is that it could be rather inexpensive because, even if there is a relatively independent complaints process, such vulnerable self-funders in homes will be disinclined to make complaints, as will their relatives. Only in the most dramatic circumstances will such complaints be made. For that reason, it is important to have this facility. What about somebody who is, as it were, semi-starved? I happened to have a relative in such a situation some years ago. The idea that you cannot do anything about that because you feel so vulnerable, particularly if the complaints process is not independent, is a pretty appalling state of affairs in our society. That is one point: this is about as cost-effective as you can get it.

Secondly, if Ministers are willing to accept this point, the regulations will need to make clear who can make such complaints. Tragically, the sort of people we are talking about will probably not be in a position to make the complaints themselves. Some of these people do not have any relatives to complain on their behalf. It may, indeed, be a CQC or LINk representative—or somebody of that kind—who sees something appalling happening and is the only person who can make a complaint on behalf of that resident. I put that concern on record.

I go on to speak to Amendment No. 20, which makes provision for regulations to,

It will also ensure that the CQC takes full account of the Disability Discrimination Act 1995. My perspective, as always, tends to be a mental health one, simply because that is where my experience lies. I have no doubt that this amendment has relevance to other groups of people with disabilities. Currently, people with severe mental illness die 10 years younger than the population at large. They are particularly at risk of contracting heart disease, hypertension, diabetes, breast cancer, respiratory problems and bowel cancer. I suggest that health trusts are failing on a massive scale to fulfil their duties under the Disability Discrimination Act.

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Unwittingly, general practices may also make it quite difficult for this group to receive the services that they need. Many people with severe mental illness require reasonable adjustments in order to gain access to services. For example, on a practical level, people who are taking sedative medication should not be required to telephone at 8 am to get an appointment. This is of some importance. Practices which fail to adapt their policies in this kind of practical way are probably creating health problems rather than helping with them. For example, some people will stop taking medication for their psychiatric disorder in order to ensure that they can get up in the morning and have their physical health dealt with.

Why is there apparently so little special provision for people with mental health problems? When you consider that about one person in six experiences mental health problems at some time in their life, it is important to question whether GPs have anything like adequate training in mental health. If GP trainees do not opt for a psychiatry job during their senior house officer years, they can qualify with little or no real exposure to the range of serious mental illnesses from which many of their patients will suffer, or to the minor mental health disorders from which 30 per cent or so of their patients will suffer.

In my experience, the physical care of patients in psychiatric hospitals has been badly neglected over the years. Some additional resources are finally now being devoted to this issue; they are certainly well overdue. Insufficient attention is still paid to problems such as obesity despite the fact that a great deal of psychotropic medication leads directly to increased weight unless great care is given to the issue. The health regulator should surely have a remit to require some progress to be made to reduce this gross inequality.

In the early stages of the CQC’s life it may have to focus on secondary health services rather than general practice and the proposed amendment allows for development over time. By leaving this issue to the realm of regulations we are avoiding imposing obligations on the Government which may prove impractical in the period immediately following the establishment of the CQC. I hope the Minister will see this as a fairly modest amendment but one of profound importance.

Baroness Barker: My Lords, I wish to make a point in relation to Amendment No. 73. The National Health Service and local authorities are often described as monolithic, lumbering entities, but they can move with the swiftness of a gazelle when they see a financial liability looming. It is important that whatever legislation we put in place is grounded in reality. For eight years the National Health Service and local authorities argued with all the power and might of Philadelphia lawyers to get out of the possible liability of NHS continuing care, and it is important that we recognise now that no local authority in its right mind would go near a self-funder and advise them if it thought there was the remotest possibility that in doing so it would somehow attract a liability for that person’s care.

It is incredibly important that self-funders have easy and swift access to some kind of support and I agree that it is preferable that that should be local to

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them. It is even more desirable that it is not a reactive service but a proactive one provided by people who come along and see someone, perhaps in a care home, whose capacity has perhaps declined since they first went in. If we want local authorities to do this, therefore, it is of the utmost importance that it is spelt out that they will not assume a liability for care by default; otherwise it will not happen. As the noble Earl, Lord Howe, said, at the moment local authorities have a statutory duty to assess, which they do not do in many cases. So they are not going to do this unless they are shielded from liability. That is my first point.

9.15 pm

My second point is that my former colleagues at Age Concern have noted during the progress of the Bill that the Government have talked about self-funders having access to an independent adjudicator if they have a complaint, but there is no detail about what the process will be, how people will access it and so on. We should have some detail about that. Notwithstanding the problems of the Human Rights Act and its inapplicability, it is important that we have some idea of how that will work and the timeframe for it. When the current investigatory powers of the Healthcare Commission are removed, that is one more element of protection that will be lost.

The capacity of the health service ombudsman to deal with complaints is in question. I know that the ombudsman has gone before Select Committees in the other place and stated on record that there are no delays, but older people are still reporting considerable delays in having their cases taken up by the ombudsman. It is important that we have a timescale. Older people in care homes do not have long to hang about and get their complaints looked at because their average lifespan is very short.

I thank the noble Earl, Lord Howe, for raising this matter again. We need to nail down those two issues to get something that will be at all workable.

Lord Campbell-Savours: My Lords, perhaps the noble Baroness has read something into the amendment that is not quite there. It does not say that the local authority would have one of its employees act as a person handling complaints. It simply says that a matter should be referred to a local authority. It would be quite possible for a local authority to have at its disposal a team of people acting voluntarily who would take on the responsibility of carrying out the task of dealing with complaints. There is not necessarily any expenditure implication for a local authority or body in this amendment, as I understand it; there is simply a responsibility for it to accept it. It can then deal with it in the way I have suggested.

Lord Low of Dalston: My Lords, I support Amendment No. 20, to which I have put my name. I shall speak briefly on it because time is getting on and the noble Baroness, Lady Meacher, has already moved it clearly and cogently.

The absence of public health from the Bill has been noted intermittently in our debates. Anna Walker, the chief executive of the Healthcare Commission, has

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bemoaned the fact that the registration requirements explicitly say that the commission cannot bite on public health issues, so the CQC is dealing with healthcare rather than health. Amendment No. 20 offers a gentle but necessary correction to that tendency.

As for disability discrimination, people exercising functions of a public nature are already prohibited from discriminating against disabled people under the Disability Discrimination Acts. The 1995 Act prohibits discrimination in the provision of goods and services, so Amendment No. 20 would not add a particularly onerous new burden on health authorities. It could, however, deal with some cases that are not covered by existing law. For example, it has been brought to my attention that people with mental health problems have particular difficulty when trying to volunteer in a health or social care setting. The Disability Discrimination Act would help to overcome that situation. Most importantly, it could enable the CQC to help providers to relate existing law and best practice to the daily reality of health and social care provision. The amendment would make things clearer and easier for both users and providers, and I am happy to support it.

Baroness Thornton: My Lords, we have had a number of useful debates about what requirements should be set under Clause 16. In Amendments Nos. 19, 20 and 73, the noble Earl, Lord Howe, the noble Baroness, Lady Meacher, and the noble Lord, Lord Low, have raised two issues that have attracted considerable debate: complaints, particularly the need for adequate arrangements for those who arrange their own care; and the importance of reducing health inequalities and discrimination.

Perhaps I may respond first to Amendment No. 73. As the noble Earl, Lord Howe has made clear, the amendment is intended to fill a gap that exists when those who do not qualify for state support make a complaint about a service and feel that it has not been addressed appropriately.

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