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Lords Chamber

Volume 736: debated on Tuesday 13 March 2012

House of Lords

Tuesday, 13 March 2012

Prayers—read by the Lord Bishop of Newcastle.

Health and Social Care Bill

Report (7th Day)

Relevant documents: 18th and 22nd Reports from the Constitution Committee

Amendment 240

Moved by

240: After Clause 207, insert the following new Clause—

“Power to regulate health care support workers in England

(1) The Nursing and Midwifery Order 2001 (S.I. 2002/253) shall be amended to provide that all health care support workers in England shall be regulated in accordance with the terms of that order.

(2) For the purposes of subsection (1), a health care support worker shall be an individual whose work is routinely delegated to them by a registered nurse or midwife or has a qualification in health and social care at level one (or higher) of the Qualifications and Credit Framework, in England.”

My Lords, I rise to speak to Amendment 240, tabled in my name, which relates to the mandatory training and statutory regulation of healthcare support workers. Before so doing, I thank the noble Earl, Lord Howe, and the noble Baroness, Lady Northover, for the time that they have given me in addressing this issue and for their very helpful responses.

The Bill is concerned with reorganising health service structures to improve the quality and safety of care and to improve the patient experience, building on the work of the noble Lord, Lord Darzi, in the last Government. The emphasis throughout the Bill is the role to be taken in the commissioning of services by general practitioners, but little attention has been paid to the other professions. Here I declare my interests as a retired nurse not on the Nursing and Midwifery Council register, a former tutor, manager and chair of the regulatory body for nurses, midwives and health visitors. I am also a lay member of the GMC, a former chairman of an NHS trust and a former trustee of the Kent Community Housing Trust.

I remind the House that nursing and midwifery form the largest individual professions in the NHS, currently with in excess of 600,000 names on the register. Moreover, some 400,000 members of the Royal College of Nursing support this amendment. It is concerned with the safe delivery of care to patients whether they are in hospital, in the community or within the NHS, local authority or independent sectors, along with nursing homes and charities.

I am grateful to all noble Lords who took part in the debates in Committee on the two amendments that I tabled then, the first of which asked the Government to produce guidelines on the ratios of registered to unregistered staff. I withdrew that amendment on the basis that further work would take place examining the research evidence. I am pleased to say that Ministers have taken this seriously and work is now in hand on the matter. I mention this as the ratio of nurses to unregistered staff is important in the points to which I now wish to draw the attention of noble Lords in making the case for healthcare support workers to be regulated against agreed standards and for this to be included in the Bill.

If this amendment is accepted, it would affect healthcare support workers—those who are limited to working under the direction of a registered nurse or midwife giving direct clinical care in hospitals, community settings and care homes. They would have accepted professional boundaries and would be entitled to practise, as set out on a list. There would be control of admission to and removal from the register. Professional standards of practice would be established, ensuring clarity for patients, the public and professionals, and individuals would be held accountable.

In a letter to me, the noble Earl said that the department is “unconvinced” that the regulation of support workers is necessary and that the Government’s policy is to set up a voluntary register. I am hoping to convince the Minister that having healthcare support workers subject to a voluntary register would not work satisfactorily in terms of protecting patients in the delivery of safe care. I pose two brief questions. First, what is the evidence to demonstrate that unsafe care is currently being delivered by healthcare support workers and the reasons for this? Secondly, is there evidence that will satisfy patients, the public and registered practitioners that the proposed voluntary register will ensure the safe delivery of care?

While a very large number of healthcare support workers deliver excellent care, most of them having received some basic training under adequate supervision and having gained experience, there is evidence that things can and do go dreadfully wrong, particularly where there is no appropriate training and poor supervision. Healthcare support workers are themselves calling for mandatory training and regulation.

We have only to refer to the most recent inquiries demonstrating unsatisfactory levels of care in Mid Staffordshire NHS Foundation Trust. The first report was very critical of healthcare support workers and the change in the staffing ratio of registered nurses to support workers. The second public inquiry is reporting on the confusion about supervision—not knowing who was in charge of care delivery. At Winterbourne View, a hospital delivering care to those with learning difficulties, charges were brought against support workers and guilty pleas have been made. The report published by the Local Government Ombudsman cited 10 instances of unacceptable care for the elderly. Moreover, prior to this there were inquiries at Maidstone and Tunbridge Wells NHS Trust and at Stoke Mandeville Hospital. While the failures in delivery of care were not due solely to the poor performance of healthcare support workers, that was found to be very largely a contributory cause. Failure in delivery of safe service care was due in the main to there being insufficient registered nurses to supervise the healthcare support workers and a lack of a set of standards for care training.

A survey of 2,500 support workers carried out by the Royal College of Nursing between the Committee and Report stages of this Bill demonstrated that tasks currently being undertaken by healthcare support workers call into question the safety of patient care. The list totals 56 examples, but I will illustrate just a few. Healthcare support workers were left in charge of wards and nursing homes, administration of drugs, including insulin and controlled drugs, the removal of wound drains and central lines, bladder scanning and washouts, catheterisations, especially in very ill patients, assessing patients pre-operatively and pre-chemotherapy treatment, changing tracheotomy tubes, inserting nasogastric tubes, giving feeds through those tubes, and suturing and plastering. These are just a few.

As recently as last Friday, I was chairing a national conference and was approached by a very senior nurse who told me of a family member, a young person of 17, who had applied for a job as a healthcare support worker. She received two days’ training. On the first day on the ward, she was allocated to do a bed bath. She was accompanied by another healthcare support worker to supervise her. She washed the patient’s face and hands and proceeded to complete the bath, but was told by the other healthcare assistant, “I only do hands and face here. We don’t bother to do anything else”. When questioned about the patient’s back and pressure areas, she was again told, “We do not do that here”. Very many of our workers are in that situation, both in the community and in hospitals.

A House of Commons Health Select Committee report says about the future of regulation:

“The Committee endorses mandatory statutory regulation of healthcare assistants and support workers and we believe that this is the only approach which maximises public protection. The Committee notes that the Government intends to give powers to the relevant regulators to establish voluntary registers for non-regulated professionals and workers, but would urge it to see healthcare assistants, support workers and assistant practitioners as exceptions to this approach who should be subject to mandatory statutory regulation. However, the NMC”—

that is, the Nursing and Midwifery Council—

“needs to make significant improvements in the conduct of its existing core functions (such as in how it manages fitness to practise cases) before powers to register these groups are handed to it”.

This is now work in progress.

It is not possible to provide evidence that a voluntary register would be satisfactory, but I can show why a voluntary register for healthcare support workers would not solve the problems that I have illustrated. A healthcare support worker works under the direction of a registered nurse or midwife, who delegates the task having judged the competency, knowledge and experience of that support worker. The list of tasks currently being undertaken is such that it is doubtful that adequate training has been given, and most fall outwith the tasks that a support worker should be expected to carry out.

As already stated, there is not yet a set of standards which would form an agreed list of tasks that healthcare support workers could work to. The Government have asked Skills for Health and Skills for Care to carry out this work. Are registered practitioners and university lecturers involved in this programme of development? I ask this question because I know that the former chief executive of the Nursing and Midwifery Council was asked by the Minister and the Department of Health to become a board member of Skills for Health and Skills for Care and to make the appropriate contributions for the regulating body. There is a need for his professional input in the interests of safety of patient care, not just courses teaching skills without the appropriate level of knowledge to accompany those skills—that is, the ability to recognise a change that indicates that further help is needed. I gave in Committee the example of the taking of blood pressure and the consequences of not knowing what a change in the reading might mean.

There is considerable scepticism over the possible introduction of a voluntary register for this group of workers, mainly because those who most need to register are the least likely to do so, especially with so many unemployed people taking any possible job on offer without proper scrutiny. A voluntary register provides no mechanism to stop people working—that is, a fitness-to-practise investigation. Plurality of employers and greater employee mobility could present problems for a voluntary register. It would be difficult to check where people moved to and to keep tabs on their whereabouts. There would be no single register and no single point of contact. There is already confusion for public and patients, and a voluntary register would add to that. There needs to be consistency. There are no current enforceable standards—I accept that preparations are being made to ensure that standards are set. Anyone could set up a voluntary register. Some could be kitemarked and some not. There are issues around how a voluntary register would work alongside the Independent Safeguarding Authority. Would it be fit for purpose in determining fitness to practise if presented with a person considered unfit for work?

Surely healthcare support workers deserve more than this. They are often subject to misuse and abuse. But we are where we are. Registered nurses are frequently placed in an impossible position because the numbers available in relation to the number of support workers to be supervised under their delegation make it difficult to ensure that safe practice is being delivered. That is especially so now with the cuts in registered nurses and midwives in the current economic situation and the Nicholson challenge of the £20 billion savings target.

Patients and the public need to be assured that they are the recipients of safe care delivered by appropriately qualified staff. The confusion that currently exists about who is who in the team causes anxiety to patients and relatives. Patients and relatives know when a doctor comes to see them that he or she is qualified and registered with the GMC to do the job. At the present time, they cannot be sure whether they are being treated by a registered nurse or a healthcare support worker unless the demarcation is easily identifiable to a patient, member of the family or the public.

The situation that we are faced with is a very serious one and urgent action needs to be taken. There is no short-cut remedy. What is needed is an ordered strategy that takes evidence on the requirements of safety, high-quality care and good patient experience in hospital, the community or the care home, providing holistic care and at the same time cost-effective results. The work that is being examined on the evidence relating to the proportion of registered nurses to support workers shows that care must take the lead. The professions of nursing and midwifery must be allowed to take a lead and assist in determining and demonstrating their worth as professionals, to regain the confidence of patients, the public and the Government, and in turn to determine the level of support workers that they need to deliver this high-quality, holistic care.

That can be done by involving the recently created Nursing and Care Quality Forum, created by the Prime Minister, involving the Royal College of Nursing, the Royal College of Midwives and other professional bodies and unions. Of course there are two new chief nursing sisters—one to be appointed this week to the national Commissioning Board and one already appointed as Chief Nursing Officer of public health—who will help to lead in this.

I have set out why I do not think that a voluntary register is an answer. I am looking for a commitment that the mandatory training for healthcare support workers will have a strong input from the profession in developing and validating the competencies and outcomes required for healthcare support workers. I also want a commitment to review that education and training to establish the benefits that it has had for patient safety. I beg to move.

My Lords, I wonder if I may be indulged again by the House by speaking from an unusual position. I speak against a background—dare I say to my noble friends on the Front Bench—that I have been suitably chastened on the way into the House by being told that yesterday was the first day on which Tory rebels outnumbered Liberal Democrat rebels. There was only one rebel: it was me. Here I stand trembling, yet again.

The spirit in which I approach this is slightly interrogative. I was not able to hear the earlier debate that the noble Baroness triggered, but I am puzzled about the Government’s position on this. I want to ask a few questions. I have no problem at all with tasks being delegated down to the appropriate level. I became Minister of Health 25 years ago, on the day that my noble friend Lady Cumberlege’s report into nurse prescribing was published. Ever since, I have thought that there were a lot of things being done on one level that could sensibly be done at another. I have no problem with the general principle of using healthcare support workers for things that might have been done by others in the past.

However, when it comes to things that are clinical, it is important that people should be trained and properly authorised and registered. That is the key point. Anyone who has been in hospital, as I have on a number of occasions in the past two or three years, will recognise that it is not always easy to work out who does what. I have no complaints about any of the people who looked after me, but it is quite clear that they are at different levels and that one would want to be confident that they all knew what they were doing. The noble Baroness referred to the importance of some of the work that healthcare workers do and we all know that one mistake in medication could have fatal consequences, for example. She referred to the various reports, which I will not rehearse, and she made a number of points that we ought at least to listen to with care.

However, as I said to the noble Baroness in a private discussion, I was a bit sceptical about this because the numbers are potentially huge and we do not want another example of a body being asked to take on more than it can do in too short a time. To some extent, I think that she has sought to meet that in her amendment by narrowing the definition of healthcare support workers to those who are in the clinical area, if I might use that shorthand. That is welcome. But I still think that there may be some problem with the scale of the task if it is imposed at one go. The noble Baroness is aware of my worries about that.

I am also less convinced that a voluntary register could not have a significant effect, with some provisos. First, we cannot have competing voluntary registers with people free to choose the one that they think is easiest. If there is to be a voluntary register, it must be officially sanctioned—I would be grateful for comments on that. If you have one, it might have a significant effect. It would be a brave health trust, once the system was established, that took on healthcare workers who were not registered because of the risk that would arise if something went wrong and the criticism that would ensue. So it might have an effect and I think that we should take account of that.

Even if the Government want a voluntary register and think that it could work, there is a parallel in the field of ombudsmen, which I know something about. That would be to have in the Bill a reserve power to take compulsory registration powers if that proves to be necessary. I am not sure whether that is there or not, but a fallback position might be to have the power to act if the Government’s preferred solution does not work and I would personally press that as a possibility to the Minister.

My Lords, first, I apologise for missing the first five minutes of the noble Baroness, Lady Emerson, moving the amendment. With the House’s permission, I shall briefly speak to the issues that she raised, to which I have referred in the House on many occasions, as many noble Lords and certainly the Minister will be aware.

I understand the arguments that have been made by my noble friend, but healthcare assistants—and they are mostly in clinical areas—have a strong desire to be recognised and accredited for the work that they do. They take a pride in what they do, as the noble Baroness, Lady Emerton, said, but patients do not understand what they do and therefore cannot have the discussion with them that says, “You are qualified, so I have confidence in you”.

I have had this discussion with the Minister on a number of occasions, and I am not sure why there is hesitancy in this area. I do not think there is an issue for trusts in being able to get healthcare workers who are qualified. We have a sector skills council for health, most of whose work is encouraging healthcare assistants and other people who work in hospitals to reach levels 1 and 2, so there is an equivalent provider out there that can do that, working with the hospitals.

The important thing is that the patient understands exactly what the healthcare worker does. The amendment of the noble Baroness, Lady Emerton, describes a healthcare support worker as an individual whose work is “routinely delegated to them”. That is crucial. It is not someone who does something off their own bat. My hospital employs many hundreds of healthcare workers, most of whom do a very good job. It is very important that the noble Earl knows that they are very conscientious when working with other practitioners, clinical or otherwise, who do not do what they are supposed to do. We have many healthcare workers who check that consultants’ arms are bare to the elbow. They are very conscientious and they want recognition that they are people who care about patients. They want to know that the value that they bring is recognised. It is no threat to the health service; speaking as a provider chair, I can say that it is a total advantage.

My Lords, we are once more discussing the important matter of the power to regulate healthcare support workers in England. I am pleased to have added my name to the amendment. I spoke about this at Second Reading and in Committee. I agree with the Royal College of Nursing that mandatory regulation and registration of these support workers is important in order to safeguard patients’ safety and to ensure standardised training so that there is a skilled and suitable workforce.

I have yet to meet anyone who understands the situation who disagrees about this, except some members of the Government. Nurses who have been struck off their register can then work as care assistants—again, putting patients at risk. The Government are considering a voluntary register, but this will not cover the undesirable people who get jobs as care assistants because they cannot get employment elsewhere. Clinical physiologists have found that self-regulation, which they have had since 2001, is not as effective as statutory regulation. Should we not learn from this?

We know of the tragic cases at the Mid Staffordshire NHS Foundation Trust, where the deaths of hundreds of patients were associated with bad care. It makes one wonder how Mid Staffs was approved for foundation status. We also know of the horrific bullying by care assistants at Winterbourne View care home at Bristol. Since Committee, we have heard of Malcolm Cramp, who was convicted of seven counts of ill treatment and sent to prison for abusing dementia patients at Brockshill Woodlands, a care home in Leicestershire. In another case, Sean Abbott, a caseworker, was jailed for a year for assaulting vulnerable residents at St Michael’s View care home in South Shields. Daphne Joseph, another person at that home, was given a nine-month suspended sentence when she admitted the ill treatment and neglect of a patient, who died. The judge at Newcastle said that she had not had enough training. He also said that she was operating,

“in a regime which was inadequate and not fit for purpose and in which there were too many patients, not enough planning, and too few staff, let alone trained staff”.

This concerning situation is happening up and down the country. Is it not time that better safeguards for patient safety were put in place? Statutory regulation and the registration of healthcare workers could help. Many of them are now undertaking procedures that only doctors and nurses did but they have little training to do it.

My name is attached to this amendment, which I believe is an extremely important one. I find myself in the somewhat unusual—indeed, unique—position of, for the first time, not being able to agree with the noble Lord, Lord Newton. We have had many debates in this Chamber in which the standards of care in our hospitals and nursing homes have been examined and, in too many places, found wanting. We have had many other reports showing the same thing. Many institutions and many care workers are outstanding but, as we know, there are too many places where patients are neglected and their basic needs not addressed.

Of course, all these failures cannot be put at the door of healthcare support workers. Where they occur, these failures are systemic and go right across the hospitals and homes. The employers, doctors, nurses and everyone in the institution should bear responsibility. However, all too often it is at the level of the healthcare support worker—who provides the basic care of feeding, washing, toileting and a host of other responsibilities and is often in closest contact with the patient—that we hear complaints from patients and their families. Healthcare support workers are at the end of the line and are too often left to themselves.

I fear that when we lost our SENs—our state-enrolled nurses, who did not need a university degree—in 2000, we lost a group of professionals who were trained and educated to do their job. If we are to regain the sense of professionalism and pride that my noble friend talked about that full registration would bring to a cohort of well trained and regulated young men and women, then we must move to full and proper registration. I do not believe that a voluntary register gives that degree of control. It certainly does not give sufficient recognition to the importance of the job. I hope that the Minister will agree.

My Lords, I apologise to the House for not being here at the start of this amendment. Unfortunately, I had to seek the help of the health service this morning for a touch of bronchitis. I apologise particularly to the noble Baroness, Lady Emerton, for not being here on time.

I strongly support the amendment. I have spoken on this matter on each occasion that the call for statutory regulation has been debated in this Bill. I also referred to this issue in the debate on front-line nursing which we held last December.

The Government argue that voluntary registration is sufficient unto the day. I beg to differ strongly. As a nurse, I cannot agree that the present state of affairs should continue, and I do not think that I am a lone voice. The health committee in another place, the Nursing and Midwifery Council and all the staff organisations representing healthcare assistants all support statutory regulation.

History has a habit of repeating itself—wheels turn full circle. In the 1930s, financial pressures brought about huge increases in the numbers of support workers, or assistant nurses, as they were called. There was no provision then for regulation. It took the work of two committees—the Athlone Committee in 1937 and the Horder Committee in the early years of World War II —to lead to legislation which allowed for registered and regulated status for assistant nurses. We had state-enrolled assistant nurses as a consequence, and I think that it was in the early 1960s that the word “assistant” was removed from the title.

By the 1980s, the role of nurses on the first and second parts of the register was blurred. As a consequence, and as part of the move away from hospital-based training into higher education, the enrolled nurse training for first-level nurses was discontinued. It was always a mistake to leave that vacuum when the enrolled nurse training ended—a matter referred to by my noble friend Lord Turnberg.

The outcome is entirely predictable. That wheel has, indeed, turned full circle. We have had, again, huge increases in support staff; we have, again, financial stringency; and, as in the 1930s, there are now campaigns for proper regulation and training for those who assist nurses. However, the roles have been blurred this time not between the enrolled nurse and the registered nurse but between the healthcare assistant and the registered nurse. That is the very issue that led to the ending of enrolled nurse training, but this time there is no fall-back—there is no fail-safe for the patient—because there is no standardised training; there is no legal obligation in the Bill to require standardised quality training; and there is no obligation for registration, regulation, accountability and, not least, a code of conduct for support staff. The amendment in the name of the noble Baroness, Lady Emerton, will do much to resolve that issue. Most importantly, it is about patient safety. The amendment is specific—it is not about all support workers working in the hospital service or care homes; it is about those staff to whom are delegated what are, by any standards, nursing duties of registered nurses. It is not good enough for the Government to keep saying that voluntary registration is sufficient and that everything else is a matter for employers.

That is the present situation and it is far from satisfactory. I suggest that it will get worse in the future. We all know that the ratios between nurses and healthcare support workers are often worse than the generally accepted 60:40. The financial squeeze will certainly mean further changes—and not for the better. Voluntary registration does not work. For a long time, for example, clinical physiologists have been trying to make the case to the Government that voluntary registration has failed, and the coalition Government have turned their face. The leaving-it-to-the-employer approach will leave the patient at risk, and neither the registered nurse nor the healthcare support worker is protected in these situations if something goes wrong. Increasingly, the employer will be exposed as well, as there may well be more cases such as that of Mid Staffordshire as a consequence of financial pressures and getting skill mixes wrong—not least when these decisions are made by human resources people with little or no proper nursing input.

In my submission, the patients are not always clear about who is providing care for them. My recent six months as a patient in two teaching hospitals confirmed that—virtually everyone in a uniform was a nurse to most patients. That is not surprising. Healthcare assistants routinely carry out observation rounds; they carry out clinical procedures such as cannulation and catheterisation; they give injections; and they undertake venapuncture to take blood. That is just to name some of the procedures that they might carry out. Patients would be very surprised if they were told that the staff carrying out these clinical procedures were neither regulated nor registered.

Regulation and standardised quality of training does not, in itself, guarantee that matters will not sometimes go wrong. That can—and does—happen in all regulated professions. However, statutory regulation and registration is the best way forward to give better surety to patient safety. I strongly support these amendments.

My Lords, I support the amendment of the noble Baroness, Lady Emerton, from two perspectives. One is as the chief executive of Diabetes UK, where we increasingly hear stories from patients about the care that they receive in hospitals. One in 15 of all patients in hospitals at the moment has diabetes. They may not be there as a result of their diabetes but they have it—it is, of course, a serious condition. There is strong evidence that poor care in hospitals exacerbates that condition rather than improves it. I shall just mention two issues: people lose control of their own insulin and glucose management and they develop pressure problems—particularly foot and leg problems, which can dramatically escalate and lead to amputation.

Patients increasingly tell us that one of the major problems that they face in receiving care as an in-patient is that readings, checks and procedures are undertaken by healthcare support workers who are insufficiently trained and knowledgeable to alert qualified staff to take action. Just yesterday, the All-Party Parliamentary Group on Diabetes heard the distressing story of a gentleman who had been admitted to hospital and who went into a hypo through insufficient management of his glucose levels as he lay in a hospital bed. The healthcare support worker said, “I thought you were a bit strange when I gave you your lunch”. If people with diabetes “go a bit strange”, any qualified nurse will know instinctively that this is serious and needs to be dealt with. It is unforgivable that patients in a healthcare establishment have worse control over their diabetes than when they are in their own homes. I am not laying that at the feet of healthcare support workers entirely but, increasingly, the care given to people in beds, day in and day out, is given by people who need to be accredited and qualified.

The second perspective from which I want to speak is as the ill-fated chairman of the Care Quality Commission who set up the regulator for health and social care. I confess that one of my great regrets, when I resigned from that post, was not to be able to take forward work that I saw as absolutely vital. It had become abundantly clear to me, from the regulatory work in healthcare, that the key to quality was very dependent on the quality of nursing care. It is absolutely central to quality as a whole for people in healthcare. What has also become clear to me—and the evidence is borne out in many cases of poor care—is that it is not published standards or agreed levels of care that are important but the knowledge, education and skill of the nurses and healthcare support workers who are providing that care. It is about how they feel about the job and about their commitment to the job—not just seeing it as another job but seeing that improving things for patients is at the centre of what they do.

Had I stayed as chairman of the Care Quality Commission, I was intending—and I had already begun discussions with the Royal College of Nursing and others —to mount a major campaign to ensure that the nursing process, and with it, at its heart, the healthcare support worker, was improved and that formal registration and regulation of healthcare support workers was introduced. The Minister may well say that these improvements can be tackled through a voluntary register but, from my experience, I do not believe that this is the case. This is so important that a formal statutory register is absolutely required.

My Lords, I support the amendment. I note that one of the reasons given for not considering statutory regulation for this group is that there is a very high turnover of staff in this grade. This seems to me to be a symptom of an unsatisfactory situation and perhaps points to the poor job satisfaction and lack of prospects for healthcare workers. My noble friend has pointed to the problems with skill mix. I think that she was really talking about skill mix across the whole range of mental and physical healthcare settings and not just physical healthcare. Within that, she would have included people with learning disabilities.

It seems to me that there must be some minimum requirements for training and supervision. I know that the Government suggest that it is the responsibility of the employer, and perhaps also of the commissioner, to ensure that the service which is provided reaches minimum standards. Perhaps that requires that, in order for commissioners to contract with an employer, a service has to have been appropriately accredited. A service which has been accredited has of course been accredited for the whole service, not just for the work of individual staff, who are subject to their own regulatory authority.

This morning, I revisited the Royal College of Psychiatrists’ accreditation standards for adult in-patient wards for people with learning disabilities—I should remind noble Lords that I am a past president of the Royal College of Psychiatrists and a psychiatrist myself. The college’s general standards very helpfully include attending to recruitment and retention of staff, training, supervision, management of complaints and so on. It is helpful to think about the relationship between the necessary accreditation of services and the need to attend to the training and aspirations of all those staff who work in such services: retention and job satisfaction are key to this.

My Lords, I join with others in paying tribute to the noble Baroness, Lady Emerton, for her tenacity and commitment in keeping the issue of healthcare assistants before your Lordships’ House. She may not be my noble friend in the political sense, but she has been my friend in the professional sense for many years.

I am sorry, therefore, to disagree with her on this particular issue. Indeed, it seems that I am a lone voice disagreeing with her. I certainly want to emphasise that I do not disagree about the problem with regard to healthcare assistants which has been so thoroughly and persuasively set out by her and other noble Lords. But the Council for Healthcare Regulatory Excellence, the organisation which I chair, disagrees with her, as she knows, about statutory regulation being the solution to these problems. The CHRE has had the opportunity of speaking to many of your Lordships in two seminars organised by the Minister, so I do not need to take up time here repeating the arguments. I will say only that mechanisms already exist to deal with the difficulties which your Lordships have set out. These include ensuring that those supervising healthcare assistants take their supervisory responsibilities seriously. The Nursing and Midwifery Council is providing strong direction on this with its codes. Employers are required to ensure safe systems of work, which include giving support to healthcare professionals in delegating and supervising effectively. There is also the vetting and barring scheme, whose aim is to prevent unsuitable people from entering or remaining in the workforce.

Add to this the expense and relative slowness of statutory regulation and it seems to add up to a case showing that the increased public protection that we are all seeking can be achieved by applying existing mechanisms more firmly. We should consider other ways of making this large group of workers, low paid as they are and with a 30 per cent turnover, as we have been reminded every year, feel more acknowledged and valued. There may well be a role for a professional association with a voluntary register, but principally we must use existing processes effectively before we embark on statutory regulation.

With regard to voluntary registers, which have been mentioned so much this morning, or accredited registers, as proposed by the Bill, much work has already been done by the CHRE. We are using the term “assured registration” to distinguish it from the old notion of voluntary registers and to describe the process of organisations assuring the individuals on their register and then the CHRE accrediting the organisations and their registers, thus creating accredited registers. I remind your Lordships that the whole purpose of such a scheme is to enhance consumer protection. The standards to be met by organisations which hold accredited voluntary registers will include standards of competence, education and training, registration of complaints and information provision. I certainly do not want to argue that this is the same as statutory regulation, but for many professions it offers further safeguards for patients and public, and that is what we are all seeking.

My Lords, my noble friend Lady Emerton moves a very important amendment that comes to the very heart of this Bill. The purpose of this Health and Social Care Bill is to ensure ultimately that quality is driven throughout the healthcare system and that standards are driven to the very highest levels. It seems counterintuitive that such an important group of healthcare professionals as healthcare support workers is not subject to any mandatory training or mandatory continuing professional development or, indeed, any form of statutory regulation. I suspect that many of our fellow citizens would find that a very peculiar situation, which they would not automatically recognise, when going into the hospital environment.

I would like to ask the Minister two questions, specifically with regard to proposals for ensuring strong voluntary registration of this particular group and members of other disciplines who are responsible for the provision of healthcare. The first relates to the role that the Secretary of State might play with regard to standing rules and providing guidance to commissioning groups on the action they should take and the requirements they should make of qualified providers. Will it be the case that commissioners will be in a position to demand of a qualified provider that all of their healthcare staff, be it doctors, nurses, or other healthcare professionals, are members of some form of registered regulatory scheme, be it a regulatory scheme for certain healthcare professionals or voluntary schemes for others? Will it therefore be possible for clinical commissioning groups in the future to refuse to commission from a potential qualified provider if that provider was unable to demonstrate that all the staff it employed were registered appropriately?

My second concern relates to a plurality of registers for a single discipline of healthcare worker. That seems counterintuitive: surely, if there is going to be a voluntary register for healthcare support workers, there should be a single register, not multiple ones, because multiple registers would provide less confidence to the general public. The general public should know that there is a single regulatory body and that that body has responsibilities with regard to setting certain standards, with regard to ensuring that there is appropriate training and with regard to the possibility of receiving complaints and disbarring individuals from working in that professional area.

My Lords, I agree with those noble Lords who have said that this is a critical amendment. I do not understand how more than one register will ensure a uniform standard across the whole of the NHS. There is a real problem at the moment with healthcare assistants being used as substitutes, rather than having “delegated” tasks, as in the wording of this amendment.

I am concerned about relying overly on the employers themselves. We have seen in the nursing home sector that this has failed. Where there has been substandard care, nursing homes have not got rid of those staff about whom they have had questions and those who have been commissioning services from those areas have not been able even to close down nursing homes because they often have not known where else they could move the residents of that area. In the mainstream hospital sector, it is down to an individual nurse to decide what she delegates to a healthcare assistant. The beauty of having a statutory register is that there will be clear expectations of what healthcare assistants can and cannot do and the level to which they should be trained, with clarity of roles and values, which I believe will also increase their own self esteem, and their own sense of occasional involvement in their role in clinical care. It has been suggested that it would be in the interests of unions to have such a statutory register. I fear that there has even been confusion in the minds of some people between the role of a trade union and the role of a regulatory body. It will be very important that a register is completely separate to any type of union activity. When the Minister comes to answer, I would be grateful if he could explain how the standards to be set by a voluntary registration process will be overseen and monitored, and what levers the Government would have to improve and extend the criteria required by a voluntary register of those who are registered on it, in order to increase standards.

My Lords, I have added my name to this amendment, which has been moved by my noble friend Lady Emerton. The case for statutory registration, which I strongly support, has been made in a tempered way by my noble friend. Perhaps I may first try to address the lone voice of the noble Baroness, Lady Pitkeathley, because she must be concerned about being the lone voice. She said that we should allow the current regulations and procedures to take effect before making a decision. Currently, we have no procedures. There are proposals to put procedures in place both for training and possibly for registration, but we have nothing apart from that. I went to the seminars, although with respect I have to say that they were not very helpful. There are two points I want to make as a result.

When asked about the question of voluntary versus statutory registration, the response of the officers of the Council for Healthcare Regulatory Excellence—I wrote it down at the time—was that it is based on the “likely risks”; that is, if the risk is high there must be statutory registration, but if the risk is low it could be voluntary registration. Ample evidence has been provided by two former nurses in this House, my noble friend Lady Emerton and the noble Lord, Lord MacKenzie of Culkein, to show that we are talking about a high-risk situation. The second comment was that it was not within the power of the CHRE to decide whether registration should be statutory or voluntary. Of course it can take a view, and if that view is based on evidence, it would be taken seriously. However, the evidence presented by all the speakers in today’s debate is quite contrary. On both of those counts, the council’s arguments are weakened. I shall leave it at that.

I accept that we are talking about a huge workforce, one of 450,000 or perhaps more. It could be higher than that if healthcare support workers are employed in the community, in care homes and institutions for mental illness and care. So while I welcome the Government’s plans to introduce new minimum standards of training for healthcare support workers, they do not go far enough to ensure professional competence. While there would be an expectation that employers will both provide training and support a code of conduct, there will be no legal obligation to do so. I may be wrong and no doubt I will be corrected, but I believe that a mandatory, standardised approach to both training and regulation is essential in order to maximise public protection.

The noble Lord, Lord MacKenzie of Culkein, referred to the long list of activities in which healthcare support workers now engage. It is quite different from what I was used to. Nursing auxiliaries would undertake essential nursing care and sometimes domestic duties. Those support roles have now been extended, to the point of what the noble Lord, Lord MacKenzie, described as cannulation and catheterisation. As well as the issues of public safety and protection referred to by my noble friend Lady Emerton, there is a lack of clarification on areas of responsibility, delegation and accountability. Evidence shows that the responsibilities and tasks given to healthcare support workers vary across the country, and even within the same setting—for example, between different wards in the same hospital. In addition, the relationship between individual registered nurses and the healthcare support workers working alongside them can sometimes determine what duties they are asked to perform rather than recognition of their education, training, experience and competence. This variation across and within settings has led to a lack of clarity about roles and responsibilities.

Regulation and standardised training would give healthcare support workers much more clearly defined roles, and I agree with the Government’s intentions on this. This would help to ensure that support workers are only asked to perform tasks that are suitable for their competencies and would provide them with a code of conduct. They would be protected in circumstances where they are asked to undertake tasks for which they are not competent or about which they are unsure. I support that and I am glad that the Government, together with the professional organisations, are beginning to set out their intentions. No doubt the Minister will comment further on that.

I turn now to the issue of voluntary versus statutory registration. I believe that voluntary registration over the long term will lead to fundamental weaknesses. Those individuals and employers who most need to be regulated may not sign up to a voluntary register or could abuse the flexibility of its voluntary status. Through the proposed reforms in this Bill, an increased number of service providers is expected, and that might confuse the situation even more. There will be greater mobility in the workforce which could create the possibility for professionals to avoid reprimand following poor conduct by seeking employment with a different employer. Over the long term, voluntary registration will allow any organisation, employer, representative body or third party to establish a register. Some of those registers may well be successful and could, for example, achieve a “kitemark” standard. The noble Baroness, Lady Pitkeathley, referred to “assured registration”, but I do not know what that is. Is it a halfway house to statutory registration or is it half way down the road to inadequate voluntary registration? I presume that it would be a halfway house to statutory registration, which is a good idea.

There would also be the possibility of an individual gaining access to another voluntary register following their expulsion from one. Without national standards, it is not clear what the registers will take into account when accrediting an individual. These issues engender a lack of consistency. One single statutory register with clear terms of reference would not present such a problem. A mandatory register would also provide a single point of contact for potential employers when checking the employability of an individual, and differing levels and standards of registers would not exist.

I recognise, as did my noble friend Lady Emerton, that we are talking about the registration of a large workforce, and that prior to doing so training has to be provided for that large workforce. We need to consider the direction of travel: where we are, where we want to be and how we are going to achieve that. It is an important issue and I look forward to the Minister’s comments.

My Lords, I shall be extremely brief in supporting what my noble friend Lord Patel has said. I have listened with care to the debate. This is a huge workforce in which at the present time the standards of professional behaviour and competence are immensely variable, where the standard of education among the individuals performing these tasks is also extremely variable, and where it is clear that an improvement in standards not only of care but of responsibility and training is absolutely vital. The question we have to ask is how this can best be achieved.

I found the arguments of the noble Baroness, Lady Pitkeathley, very persuasive, and of course I understand the stance she is taking as the chairman of the Council for Healthcare Regulatory Excellence. It is soon to have its name changed, but a rose by any other name will smell as sweet. It will have responsibility for accrediting the voluntary registration of a large number of individuals working in the National Health Service. She is persuaded that a voluntary register for these healthcare support workers would be adequate and satisfactory. However, as my noble friend Lord Patel has asked, what will prevent those individuals who are responsible for or who own care homes taking on board and employing people who are not voluntarily registered? This is a crucial issue, as indeed is the point —it has not been effectively clarified to my satisfaction—about what sanctions may be applied to people who do not fulfil all the eligibility criteria that are to be established for that voluntary register. Having said that the noble Baroness, Lady Pitkeathley, was very persuasive, I am afraid that I find my noble friend Lady Emerton infinitely more persuasive.

For that reason, I have not the slightest doubt that I strongly support the amendment. It is not suggesting that a new register and national body for care assistants or a support workers’ national council needs to be established. The virtue of the amendment is that individual healthcare support workers in England would be regulated in accordance with the terms of the Nursing and Midwifery Order 2001, which is already a statutory order. It seems to be a neat solution to an extremely difficult problem. For that reason, I strongly support the amendment.

My Lords, I had not intended to speak in this debate, but I want to strike what might be a slightly discordant note at this point in the proceedings. I have a question for the noble Baroness, Lady Emerton, and the noble Earl in relation to clarification.

I will speak later in relation to social workers and that bit of social care which we seem to have forgotten. What has concerned me most in this debate is the total confusion between social care workers and healthcare workers. What really concerns me about the amendment is that it appears to be the health professional who must give instruction to those working in a variety of establishments. I declare an interest as someone who is responsible as a trustee for a large number of elderly and disability care homes. In some of those places, someone qualified in social care and not healthcare is in charge of the establishment. They are therefore responsible for ensuring that the programmes of care are designated with some healthcare professionals, because in nursing homes you need both working together.

I want to be absolutely sure that we do not arrange more confusion, which we will be discussing later today in relation to social care, and undermine even further those people who are looking after the real day-to-day care, not the medical health needs. You need people looking after medical health needs in these establishments, but you also need to worry about stimulation, relatives visiting, the psychological approach to the people in the home, how they will get to hospital and helping the hospital to understand what people with disabilities are saying. All of those things are crucial and need equal registration and care.

I am attracted to the voluntary register because it means that we can look at all these people who are working in the field who have their own professional positions but are different. I would like some clarification and for the House to understand that there is not just a medical group of people caring but a whole tranche of people out there in establishments and in the community looking after those needs, which I am sure noble Lords, if they were in that position, would also want to have looked after.

My Lords, this has been a good debate and I, too, congratulate the noble Baroness, Lady Emerton, on her initiative in bringing forward her amendment. I should remind the House that I chair an NHS foundation trust and, like my noble friend Lady Wall, we employ many hundreds of healthcare support workers. I agree with everything my noble friend said.

The noble Baroness, Lady Howarth, raised an important point. We are coming on to the issue of social care regulation and the House will know that I am very concerned about the transfer of social care regulation to what is essentially a health body. The noble Baroness, Lady Emerton, will want to respond, but it seems to me that what she has tried to do is to allow the House to have a specific debate on healthcare support workers. The amendment is very much a statement of principle and we will come on to social care workers in a later debate.

At heart, this debate is about standards of care in the NHS and the independent sector. We should start by acknowledging the huge advance that the nursing profession has made in the past 20 years. The noble Lord, Lord Newton, is no longer in his place, but I pay tribute to him and the noble Baroness, Lady Cumberlege, for the work that they did to enhance the role of nurses with nurse prescribing. We know that they have taken on much greater responsibility since they became, essentially, a graduate profession. The problem we have is that at the same time there has been mounting concern that basic standards of care have been lost sight of. The noble Baroness, Lady Emerton, referred to the first Francis report into Mid Staffordshire. It illustrated concerns about poor basic nursing care, denials of dignity, issues around nutrition and hydration and evidence of unacceptable standards of care. These concern support workers as well as qualified nurses.

There are big questions about nurse training and qualifications. I, for one, believe that there is a problem with universities and the emphasis that they give to academic and research-based training as opposed to practical training. These issues have still not been resolved satisfactorily. But there are also real issues about healthcare support workers and, as my noble friend Lord Turnberg said, the argument for statutory regulation has become quite persuasive. We have 200,000 healthcare support workers, give or take a few thousand. Most of them do a great job, but there are real concerns about the quality of work that is done by a few. As the noble Lord, Lord Patel, said, we have had the benefit of two seminars in the past week or two, which the noble Earl, Lord Howe, kindly arranged. Yesterday, we were told that it was all down to a risk-based assessment, but the people doing the basic care are these healthcare support workers. There is a real issue of risk.

The department has put forward a fivefold argument in favour of a voluntary approach. First, statutory regulation of nurses has not prevented problems. Secondly, the statutory regulation of healthcare support workers is not proportionate. The department refers to the rapid turnover of support staff. Thirdly, it is really a problem of contracting, poor management and poor supervision of healthcare support workers by professional nurses. Fourthly, the Council for Healthcare Regulatory Excellence, as we heard from my noble friend, will accredit voluntary registers. Fifthly, perhaps the noble Earl will offer some kind of review after a period of time. I will take those one by one.

I fully accept that the statutory regulation of nurses has not prevented every single problem that has arisen in the health service, but that is surely because there are some wider issues to do with training, to which I have already referred. But my goodness me, statutory regulation has none the less provided tremendous safeguards for patients over many years. On the question of proportionality, I respectfully disagree. The fact is that healthcare support workers seem to be taking on more and more responsibility up and down the country. The noble Earl will know that the efficiency saving challenge for the NHS is a tough one. There are some indications that this is squeezing nurse staffing ratios. Inevitably, if that happens, more responsibility will be placed on healthcare assistants. On proportionality, if the argument is that we do not need a statutory register because we can have all these voluntary registers, I would turn that around. If in fact the noble Earl is promising us a voluntary approach that will cover all healthcare support workers at least in the NHS, why on earth not have a statutory register? If you are going to go to all the effort of setting up the healthcare regulatory body, chaired by my noble friend, and of having a number of different voluntary registers— I presume that they will have sanctions because there will be no point in having them unless there are sanctions—what on earth is the point of stopping there, because all the work will have been done? I suspect that we will find that the impact of the voluntary approach is patchy. That is the big problem.

Let us take the issue of contracting, on which the noble Lord, Lord Kakkar, asked some very pertinent questions. Can we be assured that commissioners will insist that all providers ensure that their healthcare support workers are on the voluntary register? That is a very good point. But can the Minister go on to say that he will insist in the standing rules that all healthcare support workers are on the voluntary register? If he says that he will insist, then why not have a statutory register? If he will not insist, we will see a patchy response. Of course, none of that will cover the most vulnerable sector of all—nursing homes. We know that, for much of the time during a week, 24 hours a day, the residents of nursing homes are almost wholly dependent on healthcare support workers. This is surely the most vulnerable part of the system.

Finally, on turnover and proportionality, the noble Baroness, Lady Hollins, said it all. She said that rapid turnover was symptomatic of the problem that we have with healthcare support workers. I would argue that one of the great building blocks in boosting the training and status of healthcare support workers would be to introduce statutory regulation. For me, that is probably the most persuasive argument of all.

The noble Earl may offer some kind of review, but, frankly, the time for reviews and for voluntary action has gone. All that could have happened, but it has not, and we have an immediate problem of standards and patient safety. My noble friend Lord MacKenzie said that the amendment is proportionate and is about patient safety. It deserves support.

Before the noble Lord sits down, perhaps I may raise two points with him from his great experience of the health service. First, is it appropriate for the fundamental provision to be an amendment to a statutory order rather than for it to be done through primary legislation? Secondly, on delegation, the amendment states that,

“a health care support worker shall be an individual whose work is routinely delegated to them by a registered nurse or midwife”.

Could not a healthcare support worker have an independent assignment from the employer? In other words, it would be not be delegation from a registered nurse but direct employment on that basis. I would like help on that if possible.

My Lords, when I was in government, I was always very wary of interventions from the noble and learned Lord when he required help on an answer that I had given. I should probably let the noble Baroness, Lady Emerton, answer for herself, but perhaps I may make two points. First, the noble Baroness has been very inventive in using this Bill as a way of raising these concerns. As a number of clauses, to which we shall come shortly, relate to regulation, her amendment is quite in scope. Secondly, this is very much a debate on the principle. I have no doubt that, if the noble Baroness were to press the amendment to a vote and was successful, the noble Earl, Lord Howe, would come back at Third Reading or in the other place with a tidying-up amendment which dealt with the issues that the noble and learned Lord has raised, respecting the intent of the House but ensuring that the statute was as tight as it could be. It is probably not for me to answer for the noble Baroness.

My Lords, this has been another excellent debate about a critical issue: how we ensure that the staff who deliver NHS care have the training, support and appropriate regulation to enable them to do so. I pay tribute to the noble Baroness, Lady Emerton, for her advocacy of this cause, which is of course of central importance.

This amendment would require the Nursing and Midwifery Council to regulate healthcare support workers on a mandatory basis. I hope that I do not need to convince the noble Baroness that we have given this considerable thought. The Government’s view, like that of the noble Baroness, Lady Pitkeathley, is that compulsory statutory regulation is not the only way to achieve high-quality care. It is no substitute for good leadership at every level and the proper management of services, which is perhaps the most relevant issue in the context of the examples of poor care cited by the noble Baroness, Lady Young, to whom I listened with great attention.

Regulation can respond to concerns about the practice of professionals when they arise, but the regulator cannot be in the room all the time. On the other hand, employers are often in a position to act early, when concerns first arise and before harm occurs.

Let us remember that there are existing tiers of regulation that protect service users, particularly the vetting and barring scheme, through which unsuitable workers can be barred from working with vulnerable adults and children. I say to the noble Baroness, Lady Masham, in particular, that that includes where regulated nurses are struck off. If there are concerns that they may pose a risk, they should be referred to the Independent Safeguarding Authority. The Care Quality Commission also enforces standards for providers of health and social care services.

There is no difference between the noble Baroness, Lady Emerton, and the Government on the central issue. We recognise the need to drive up standards for support workers and to facilitate employers appropriately to employ, delegate to and supervise health and social care support workers. To this end, we have commissioned Skills for Health and Skills for Care to work with professional stakeholders on the development of a code of conduct and minimum induction and training standards for healthcare support workers and adult social care workers in England. The noble Baroness has expressed her doubts about that decision, but I noticed with interest that, in its recent addendum to its response the House of Commons Health Select Committee, the NMC stated clearly that it supports the Government’s announcement that Skills for Health and Skills for Care have been commissioned to do this work and to develop a delegation standard for nurses and midwives that will provide an effective framework for public protection.

We confidently expect Skills for Health and Skills for Care to engage with nursing professionals, including educationalists, in taking this forward. There are registered nurses on the proposed membership of the steering group for the work that we have commissioned from Skills for Health and Skills for Care, and I am happy to suggest in response to the noble Baroness that a university lecturer should also be included. More generally, we would expect a broad programme of engagement as part of the work to take this forward. We expect the standards to be agreed ahead of the establishment of voluntary registers for healthcare support workers and adult social care workers, which could be operational from 2013 onwards; so, to be clear, those workers meeting the standards of training and conduct would be able to be included on an assured voluntary register. We will ensure that the delivery of training for health and care assistants who are entitled to be included on a voluntary register is professionally led, and I can confirm that, following this debate, I will be writing to Skills for Health and Skills for Care to make this absolutely crystal clear.

The noble Baroness and my noble friend Lord Newton expressed doubts about whether there would be a system for tracking people when they moved. There was also a question from my noble friend about whether there could be more than one register. Current arrangements for statutory regulation do not enable the regulatory bodies to track the movements of individuals; they rely on the self-reporting of changes of job. A voluntary register would be no less able to do that, and indeed could remove people who failed to notify the regulatory bodies of changes. I would say to the noble Lord, Lord Kakkar, and my noble friend Lord Newton that no decision has been made about whether there will be more than one register. As such, I hope I can provide reassurance first that having assured registers means that this is not an easy course of action, in the way that was suggested earlier, and secondly that the professional standards authority could take account of the existence of multiple registers in determining whether to accredit a further register.

Will my noble friend give way just briefly? I was at the other end of the Chamber, but I have shifted ends. Leaving aside the point about tracking, on the point about whether there will be one or more register I am conscious that, in the area of ombudsmen, there is experience of rival ombudsmen. Frankly, especially since it is in the choice of the provider not the customer, the providers go to the one who they think will give them the easiest ride. I do not want to see that situation here. Serious consideration needs to be given by whatever means to making sure that, if there is a voluntary register, it is one register and not a choice between a good one, a bad one and an indifferent one.

The key here lies in the standards and the training. If we have standards laid down that are uniform across the piece, I am not sure that having more than one register is a significant issue. As I said, this is something that the professional standards authority is bound to take account of when deciding whether to accredit another register.

The noble Lord, Lord MacKenzie, expressed the view that voluntary registration does not work. The Government’s proposals are for assured voluntary registration. We believe that the effective assurance of the standards of healthcare support workers can be delivered by an assured voluntary register that is underpinned by clear standards of conduct and training and supported by the Nursing and Midwifery Council’s updated guidance on delegation.

The noble Baroness, Lady Finlay, asked how standards will be monitored. We will expect the professional standards authority to assure that any standards set for a voluntary register are appropriate as part of its initial accreditation process. It will keep the operation of any register under review and we will expect it to set out any concerns that it has about standards. The authority will also have powers to remove the accreditation of registers if any of its concerns are not addressed in a timely fashion.

The noble Lord, Lord Patel, asked what criteria would apply in individual cases. In its council paper, Voluntary Registers—Proposed Model for the Accreditation Scheme, the CHRE has stated that all voluntary registers seeking accreditation will be required to complete a risk assessment tool that will assess the risks inherent in a profession’s practice and the means by which those risks are and could be managed. The authority will also keep under review the management of risks by an accredited register. That will be part of its role.

However, having listened to the concerns raised in this House, the Government have given further consideration to this whole issue. Once a system of assured voluntary registration has been established for this group and has been operational for three years, to enable it to demonstrate its effectiveness the Government will commission a strategic review of the relative benefits of assured voluntary registration compared with statutory regulation. The review will involve all relevant professional bodies and trade unions. Such a review would include consideration of any further measures needed to assure the safety of patients and the public, including consideration of the case for compulsory statutory regulation or—and I say this in particular to the noble Lords, Lord Kakkar and Lord Hunt—making standards of training mandatory for employers through the use of standing rules for the NHS Commissioning Board and standard contracts for providers.

The noble Lord, Lord Kakkar, raised what I thought was a very astute point about the NHS standard contract. I can confirm that, yes, the Secretary of State will have the power to include in the standard contract the fact that relevant workers must be on a particular voluntary register. We see this as a strong lever, and we would want to consider it very carefully before deciding to use it in a particular instance, but wherever there was clear and demonstrable evidence that doing so would ensure quality of care, we would give it very serious consideration.

I can confirm that the question of whether to move to statutory regulation will be viewed openly, with full consideration of the potential benefits that it might be able to bring. I can say to my noble friend Lord Newton once again that the power to introduce statutory regulation already exists, in Section 60 of the Health Act, if a decision were to be made to deploy it. The Law Commission is in fact consulting at the moment on an even broader regulation-making power in the future. In the mean time, we are committed to exploring the evidence base on ratios of qualified to non-qualified staff. I totally agree with the noble Baroness that this is a key point. We will look carefully at the evidence from ongoing work by King’s College.

I have tried to set out what one might term, picking up a phrase from the noble Lord, Lord Patel, the direction of travel here. I hope that the noble Baroness, Lady Emerton, will understand our commitment to seeing defined standards and improved skills in the healthcare support workforce. The noble Baroness, Lady Masham, asked whether it is not time to have better safeguards in place. Yes, it is. I agree with her. Where we part company is on what a set of new safeguards should be. I strongly feel that a combination of voluntary registration and training is the more appropriate and proportionate solution to what I agree is a problem that needs to be addressed. The work that we have commissioned takes us on that road.

I hope that I have been able to reassure noble Lords of our commitment to strengthening the assurance processes in place for health and social care support workers, and that, perhaps with reservations but nevertheless more confidently than before, the noble Baroness—

I have listened carefully to what the noble Earl has said and there are two areas that he has hardly mentioned—indeed, he has not mentioned one at all—but which he should perhaps refer to. What consideration has he given to the fact that, if you talk to healthcare assistants—and I mean literally hundreds of them—you find that they want this qualification and registration to illustrate the value that they have not just to themselves but also to colleagues around their hospitals? This is also the case for patients: if you do any survey of patients, they say that they want healthcare workers to be registered, so that they understand and have the assurance of that. I wonder how much consideration of those factors has gone into the deliberations that he is talking about.

I apologise to the noble Baroness for not covering that point. We are well aware of precisely that view among the workforce. With the creation of a voluntary register, the process that she refers to will gather its own momentum because people will see the opportunities open to them to accord themselves the status that they clearly crave. It is important, from the point of view of the patient, that hospitals—and, indeed, care homes—are employing people of a certain standard of accreditation and skill. I think, therefore, that this will be self-fuelling and I hope that, once the register is on offer, substantial numbers of healthcare support workers will be encouraged to join it.

I wonder whether the noble Earl could address the point made by the noble Baroness, Lady Howarth, about social workers as distinct from health workers in this group.

The noble Baroness, Lady Howarth, was, of course, quite right, because we have a mix of skills in so many settings. I did not share her view that, if I can put it this way, the skills of social workers were being belittled by the noble Baroness, Lady Emerton—not at all. She was, however, right to point out that the role of social workers can be just as critical for the well-being of patients and service users as the role of a healthcare assistant. We should not automatically think of these skills as medical skills; they are, in many cases, wider than that. We recognise that there are two distinct groups of workers here—that is the reason why we have asked Skills for Health and Skills for Care to work together to define standards of training. Despite the differences between the groups, there will be similarities; we want to tease out what those are and to define them accordingly. I hope that this is helpful. I hope, too, that the noble Baroness will be reassured and feel able to withdraw her amendment.

My Lords, first, I thank all noble Lords who have participated in the debate this morning. It has highlighted and pinpointed one of the essential needs that must be addressed very quickly in terms of the future of the health service. The noble Lord, Lord Hunt, said that he thought that I had probably put down the amendment as it was worded in order to raise a debate. He was right—I was concerned to get a debate raised on the whole issue. It is unfortunate that despite the Bill’s title—the Health and Social Care Bill—social care has not been included yet. We know, however, that social care will come, and I have been a great supporter of mentioning support workers as we have gone through the various briefings. I take the point made by my noble friend Lady Howarth that social workers are just as important as the healthcare support workers. However, I had to draw a line somewhere as to the title of the debate and how we moved it forward, and I thank noble Lords for their contributions.

I have listened very carefully to what has been said, including by the noble Earl, Lord Howe. If I have heard correctly, I think that he has given a reassurance and a commitment about how things might emerge in the next few months in terms of developing the care standards for the training. He has also given an assurance that there will be a review later on, after the establishment of the training, as to whether statutory regulation would be possible or whether voluntary registration had been satisfactory. The noble Earl knows that we have been waiting a very long time for the examination of the regulation of healthcare support workers. I will take away what he has said and I will read very carefully in Hansard what has been said—a lot has been said in nearly two hours of debate—but, for today, I will withdraw the amendment.

Amendment 240 withdrawn.

Clause 208 : Power to regulate social workers etc. in England

Amendment 241

Moved by

241: Clause 208, leave out Clause 208

My Lords, we now move on to another group on the regulation of healthcare workers, and social care workers as well. In debate in Committee, I made it clear that I was concerned about the decision of the Government to abolish the General Social Care Council and to transfer responsibility for regulation of social care workers to the Health Professions Council. I am concerned for two reasons. First, I know that the General Social Care Council had rather a bumpy ride to start with and was the subject of a review, which was critical of the way in which it performed. However, it is right to pay tribute to the tremendous work undertaken in the last two years under its current leadership and the chairmanship of Mrs Rosie Varley to improve and enhance the quality of the regulation by the council. It is very disappointing that the Government have decided that, just at the time when the GSCC is starting to prove itself, the whole thing is to be dismantled and the function transferred to the Health Professions Council.

I also do not understand why the Health Professions Council is considered to be the right regulator for social workers. There is a difference between social work and health work. We touched on that in the last debate. I agree with what the noble Earl, Lord Howe, said in response to the noble Baroness when he reflected on the value of social care workers but also on the difference in role. The Health Professions Council regulates a number of bodies, but they all have a health basis in the main. Therefore, it stretches the imagination to see how this body will effectively regulate social care workers in the future. The profession of social work is pretty fragile and having its own regulator is one of the building blocks for boosting the status, confidence and quality of the social work profession.

I oppose the abolition of the GSCC and the transfer of social worker regulation to the HPC in principle. If I am unsuccessful in persuading the Government, even at this stage, to change their mind, I suggest that a number of issues would help to reassure me and many social workers about the way in which the HPC will perform. This is why I have a number of amendments, which seek to ensure that there is an appropriate definition of “social worker”. I think that it would be appropriate, inside the HPC, to establish an office of chief social worker. I also think that the name of the HPC should recognise that it is regulating the social work profession. I have not yet had any rational answer as to why “Social Work”, or something of the sort, should not appear in the title of the HPC. We know that the reason is that the HPC has refused to have it. I think that the department is finding it difficult to tell the HPC that it is subject to parliamentary provision and that it is not enough, simply because it does not want “Social Work” in its title, not to agree to it. I refer the noble Earl, Lord Howe, to the Bill before us. It refers, in these clauses, to a number of orders, including health and social work orders. Therefore, there clearly cannot be an objection in principle to the use of “Social Work” in the title. It is totemic, but it is at least a way of showing the 100,000 individuals in the social work profession to be covered that in fact the HPC is not going to continue with a medical model of regulation.

My final point is this. I invite the noble Earl to state clearly that it is not his department’s intention that the HPC should eventually take over the regulation of nurses and doctors. He will know that a review is being undertaken of the Nursing and Midwifery Council and I gather that there are also proposals to change the governance of the General Medical Council. A number of people in the health service have told me that they think the eventual aim is for the HPC to regulate all the healthcare professions. The noble Earl would provide a great deal of reassurance if he would say that it is not his department’s long-term ambition to turn the HPC into the sole regulator of all the health and social care professions. I for one would be very concerned about that. I beg to move.

My Lords, I shall speak to Amendment 241C, which is tabled in my name. I also support the amendments tabled by the noble Lord, Lord Hunt. I was tempted to add my name to them, but I was a bit late yesterday. These amendments concern the implications of abolishing the General Social Care Council and the dilution or indeed the elimination of some of the functions carried out by that body. I thank the Minister for the briefing meeting that he held yesterday. At the tail end of this most unpopular of Bills, and after what I gather have been more than 100 meetings with Peers and others, I want to acknowledge the extraordinary work that the noble Earl has done throughout.

The social work profession is perhaps the most battered profession in this country and, if I may say so, the previous Government did not help in that. A certain Secretary of State for Education in the other place took what I thought was completely unreasonable action following the Baby P incident, which left the social work profession pretty much on its knees. The idea of having a chief social worker in this country who would act as a spokesperson for social work—someone who would promote and defend it—is enormously justified at a time when the profession, as I say, is on its knees. It is very difficult to appoint good people because of the reputation of the profession and because of the actions of that Secretary of State. He happens to be a friend of mine, but I think that he made a terrible error on that occasion.

Amendment 241C seeks to ensure that best interest assessors under the Mental Capacity Act continue to have their training regulated. I realise that the Government’s agenda is to reduce regulation wherever possible and I broadly support that objective, because we have had too much regulation in this country. But there are limits to that process and I believe that this is one issue over which the Government have in fact gone beyond a reasonable limit. Post-qualification training is currently regulated by the General Social Care Council, but under the Bill only the training of approved Mental Health Act practitioners will be regulated by the Health and Care Professions Council. Although the GSCC accepts that it could have done a better job with that regulatory power, to do away with it altogether seems to be the absolute opposite of the right answer.

Why is this important? It is because the issue here is often about the deprivation of liberty of elderly patients with dementia and those with severe learning difficulties. Civilised countries always take extra care in protecting individuals where their liberty is being taken from them. It is somewhat arbitrary that these groups happen to fall into the ambit of the Mental Capacity Act on the one hand and that of the Mental Health Act on the other. I am sure that in time those two pieces of legislation will be brought together, but in the mean time we have to manage the fact that people are being detained either under the Mental Health Act or the Mental Capacity Act and that very similar processes are under way in the two sets of circumstances. Mental Capacity Act clients in residential homes or nursing homes, for example, who do not have the capacity to make their own decisions about their lives, are in essentially the same position as psychiatric patients who are not able to make a rational decision about whether they need to be detained in hospital.

Psychiatric patients are assessed by approved Mental Health Act practitioners to determine whether they warrant that detention. In Mental Capacity Act cases, the professional is assessing whether a particular decision is in the best interests of the patient or resident, assuming that the patient does not have the capacity to make the decision for themselves. In both cases this is likely to involve assessing whether the individual can live safely at home. That is the whole point. People are assessing pretty much the same thing under the two different pieces of legislation. It is true that in some cases approved mental health practitioners have to assess the risk to others, but the issues are honestly very similar. Is there any logic, therefore, in regulating one and not the other? We know that abuse of these adults is commonplace. Relatives may of course be absolute angels in terms of protecting their family members, but they may not be, and the best interest assessor is there to protect vulnerable people when relatives let them down.

The words of Mr Justice Peter Jackson in his ruling in the London Borough of Hillingdon v Steven Neary and Mark Neary and the Equality and Human Rights Commission highlight the importance of the deprivation of liberty safeguards. The deprivation of liberty safeguards were designed to protect the human rights of some of our most vulnerable people. Employers and supervisory bodies have to be sure that the professionals they charge with undertaking this vital role are competent, compassionate and able to approach the situation from both a practice and legislative basis. With the closure of the GSCC, I urge the Minister to put in place a system at least as robust as the current one, and ideally more robust, to ensure that the providers of training for best interest assessors can clearly demonstrate their ability to produce and, importantly, assess potential best interest assessors. That would go a long way towards protecting some of these very vulnerable citizens.

I want to turn briefly to a number of the amendments tabled by the noble Lord, Lord Hunt. The first concerns student registration, which we discussed in detail at the briefing meeting yesterday. I shall not go into all the detail again. However, it has to be said that if it is justified to register social workers, it has to be justified to register social work students. That is because these people are unknown and untried. They go into vulnerable people’s homes on their own and they are probably more of a potential risk to their clients than qualified social workers. There is once again an issue of logic here, which I hope the noble Earl will take seriously.

A further concern is that, as I understand it, the Health and Care Professions Council will not introduce the satisfactorily assessed and supported year in employment as a requirement before someone can be accredited as a fully qualified social worker. This is another important safeguard, as people have to prove themselves over the course of a year’s work. There is no great administrative problem about this. It is simply a requirement so that employers meet certain standards. I would argue that it is not a bureaucratic nonsense; it is an important requirement.

Finally, there is to be no regulation of social care workers. The arguments that were rehearsed in the previous debate probably apply just as much to this one. The case for statutory regulation where vulnerable people and low-paid workers are concerned seems absolutely overwhelming. Again, I hope that the noble Earl might agree also to have a review of this area. At the minimum, is the process of voluntary regulation really working?

I fear that the Government have gone too far in dismantling the protections for vulnerable clients. Of course employers and universities have important responsibilities for their workers and clients, but I hope that even at this late stage the noble Earl might want to maintain some state responsibility for the protection of these most vulnerable clients when their liberty may be taken from them.

My Lords, if the noble Earl thought I was being unkind to the noble Baroness, Lady Emerton, he may think that I am being even more unkind when I come to address him. I want to make it absolutely clear that I was asking the noble Baroness whether she had seen the defect in her amendment. Delegated powers would go from health professionals to the social care professionals and not from the social care professional leaders in establishments down to social care providers. That was a significant defect which I think the noble Baroness herself noted, as did other noble Lords, during the course of the debate. That was all I was raising but it leads on to this debate about the social care profession and how it is valued when compared with other professions. That is why this debate, at this moment, is crucial to social workers.

I ask the Minister this question. Is it the Government’s intent to remove the profession of social work from the nation’s vocabulary? That may sound an unkind question, but social workers are beginning to feel that they do not belong anywhere. Their name is not in any of the Bills. Indeed, their professional organisation is being wiped out, as they see it. I will not repeat the points made my noble friend Lady Meacher about some of the protections around people practising and training with clients. They have to practise alone. They are not supervised day-to-day by having someone with them who is also registered in a proper way. All of these things undermine the profession.

When the Conservatives were in opposition, the Conservative Party set up an inquiry to look into social work, taking the view that it wanted to encourage and enhance the social work profession. I was very grateful and felt that it had made a real difference to the way that social workers were valued. In that inquiry, the Conservative Party acknowledged the difficult work that social workers undertake with disruptive families, the mentally ill, children, the disabled and those with learning difficulties—in fact most of the groups in our society that other people do not wish to have to deal with day to day. Those people can be intransigent, difficult and often stubborn and social workers have to develop new skills in order to move families on into change, particularly in the present environment. That moved on to the Munro review of child protection and the hope that social workers would gain more control over their lives and the way that they worked, lessening the bureaucracy and enabling them to do more.

However, to have their designated regulatory body removed and to be absorbed into what they see as a healthcare organisation will detract from all of that. The people you meet out there who are involved in social work worry about where they stand in terms of the whole of the social care sector. If you talk to them alone, you will find that they are pretty low, depressed and fragile and that affects the way that they carry out their work. It affects the enthusiasm and joy with which social work can be carried out.

I am having real difficulty. Perhaps the clerks will recognise that. I do not want to speak at length because what I have said is to the point. I will not go through the amendments. Other noble Lords will do that in detail. Of course, a principal social worker would make a difference. In a former position, the noble Lord, Lord Laming, made a huge difference to the social work profession. It felt that someone, somewhere, was there on its behalf. We have people in the Department of Health, but they are not given the strength and status that Herbert had when he stood in that position and made that difference.

There were difficulties with the regulator, but I have just spent eight years working in another organisation that had difficulties. If you work hard enough and long enough, you can get it right. It is not right to give up in the middle and to change things so fundamentally that people do not recognise that it has anything to do with them. Certainly, social workers are not recognising that the new regulator will have anything to do with them.

I am sorry to speak so strongly and so generally but, sooner or later, someone has to speak up for those people who are doing what I call the dirty work of the nation on behalf of all of us. It may be that my cold is not helping and I am not my usual gentle self, but I feel extraordinarily strongly that, unless the Government take it upon themselves to encourage and make social workers feel valued, understand their work and differentiate them from the medical care area, we will have fewer social workers of ability on the ground and they will make more mistakes. More mistakes will mean more difficulties for children and old people, never mind the field day that the press will have, and we will be on a downward spiral. I ask the noble Earl to look at the issue that the noble Lord, Lord Hunt, is raising and to do what he can to stop that from happening.

It is a great pleasure to follow the noble Baroness, Lady Howarth, who I deservedly call my noble friend. I very much hope that the Minister will give her the assurances that she seeks. With regard to my noble friend’s amendments on the General Social Care Council, I take the view that we are where we are, however much I wished that different decisions had been taken. Noble Lords will appreciate that, as the first chair of the General Social Care Council, I would say that, wouldn’t I?

However, I take this opportunity to pay tribute to the councils and staff of both the General Social Care Council and the Health Professions Council for the professional and mature way that they have approached the difficult situations in which they found themselves. Their behaviour has been an example to us all and particularly, as far as concerns the GSCC, the fact that high staff morale has been maintained throughout this process is nothing short of a miracle and a great tribute to its leadership.

I agree with other Lords who have called the social work profession fragile. It needs to be promoted and defended if we are to maintain and extend the recruitment that the noble Baroness, Lady Howarth, has reminded us is so important for those people who do the difficult work in our society—which is rarely recognised until the tabloid press attacks it. I must draw your Lordships’ attention to the College of Social Work, which has just been established, which will have the promotion and defence of this fragile profession as part of its remit. It has had a difficult start, as is well known, but I believe that it has the potential to promote and support the profession to which we are all so indebted.

My Lords, I have my name to two amendments in this group. They do not affect social work and therefore I have waited to intervene until the debate on social work had been completed.

I want to discuss two groups: clinical perfusion scientists and clinical physiologists. The clinical perfusion scientists are responsible for the single most invasive tool used in surgery today and are routinely responsible for the administration of potentially fatal controlled drugs. The numbers are small—there are only 350 clinical perfusionists—and they operate in a regulatory vacuum; they are the only non-regulated members of the cardiac surgical team. Yet their management routinely involves significant life-threatening risks to patients daily. Because they are not a regulated profession, in July 2009 the Department of Health produced a good practice guide to clinical perfusion in response to the Gritten report of 2005. It states that the Government fully recognise the need for clinical perfusionists to be regulated by statute and it draws attention to the fact that the document is an interim measure until they are subject to statutory regulation. Indeed, the document states that this has implications in law for their role in working with medicines.

Since the Gritten report in 2005, about a quarter of a million cardiac patients have had their hearts stopped for surgery by perfusionists, who use highly toxic substances and blood products. They feel that they need statutory regulation so that they can be supplementary prescribers, as there is a questionable legality at the moment around drug administration. They are in a unique position. It is this supplementary prescriber role that causes them much concern, because they would like to be assured that what they are doing falls fully within the Medicines Act. I hope that when the Minister responds he will be able to explain quite clearly precisely how, if they are not subject to a statutory register, everything they do complies fully with the Medicines Act.

As for assessing the risk and the need for a profession to be registered, the review of the Professions Supplementary to Medicines Act was debated in another place in 1999. The key test stated in that review is,

“whether there is the potential for harm arising either from invasive procedures or application of unsupervised judgement made by the professional which can substantially impact on patient/client health or welfare”.

In response to that test and in relation to clinical perfusionists, the right honourable Andrew Lansley, said:

“It seems to me that perfusionists entirely match that criterion”.

It seems odd, having had that debate and that being on the record, that clinical perfusionists are still trying desperately to argue that they should be subject to statutory regulation and feel that they are failing to achieve that.

The other group that I want to discuss is clinical physiologists. I suggest again that they fall within that criterion. They are a very skilled group of people who are often alone with patients, including children, in situations in which they are responsible for conducting sometimes complex investigations and interacting closely with whoever is the patient in front of them. For the past 10 years, they have had a voluntary register, which they feel is flawed and demonstrates the need for statutory regulation. As a group they will not gain either in status or financially by having a statutory register. They want it because they are concerned about patient safety. Their view is that there is currently no incentive to register; they are in short supply anyway and can get another job without too much difficulty.

As a group, they sent me an individual case study, which I found quite worrying. I will try to summarise for the House briefly, because this is Report. They cited a clinical physiologist who had been working unsupervised in a room alone with children and working one to one with them. Following a holiday to Amsterdam, he was found to be in possession of child pornography, prosecuted and placed on the sex offenders register. Among his papers, the police found that he was a clinical physiologist and alerted the appropriate group. They alerted the employers but discovered that even though he lost the job he was in, he was rapidly re-employed in another hospital, which they also alerted. They followed it up to find that he had changed his name and, under another name, again had sought employment. They are very concerned that this is one they know about but that there may be others they do not know about. The group does not see how its voluntary registration system gives patients and the public the protection that they ought to have.

My Lords, I support the amendments in the names of my noble friends and Amendment 254 in the name of the noble Lord, Lord Hunt of Kings Heath. Clinical physiologists have had voluntary self-regulation for years and they say that it is not as effective as statutory regulation. They have been trying to get statutory regulation since 2004. All clinical physiologists work independently, and while the overall standard of practice is high there is a significant level of risk to patients as practitioners provide services that directly affect the diagnosis and management of patients. Most patients are unaware that clinical physiologists are not statutorily regulated when they are undertaking invasive or high-risk procedures. The clinical physiologists say that there are about 10,000, of which only about half are voluntarily registered. This debate for clinical physiologists has been running on for too long. They are getting frustrated. They want better patient safety, which they feel statutory registration will help to provide. They feel that the Government could easily give them this. I ask the Government: why not? They are a significant and important group doing work with a high risk to patients.

My Lords, I, too, support these two amendments on the regulation of clinical physiologists, and I think that the case my noble friend Baroness Finlay made about clinical perfusionists is extremely strong.

Clinical physiologists work across a wide range of disciplines. Some work in cardiac investigations, some in respiratory investigations, some in gastrointestinal investigations, but my particular interest relates to clinical neurophysiologists, who carry out a wide range of different investigations involving patients.

Many years ago in my early days as a neurologist, I was involved in the interpretation of electro- encephalograms, and I also introduced into the north-east a technique of electromyography, which is a means of identifying and studying the electrical activity of muscles in health and disease. In all these activities, I was supported by well-trained clinical physiologists. In those early days, those individuals quite often became members of the EEG society, as it was called, of which I was a founder member.

Later, as the interests and the techniques broadened and became much more extensive and much more sophisticated, that organisation, which included doctors working in the field as well as the people called technicians, who were in a sense clinical physiologists, changed its name to the British Society for Clinical Neurophysiology, and the so-called technicians became part of a body called the Electrophysiological Technicians Association—the EPTA—an organisation that later became the Association of Neurophysiological Scientists. It is now very well trained. It works not only in EEG and EMG but in techniques including evoked potential recording, peripheral nerve studies—the measurement of nerve conduction velocity as an aid to diagnosis in disease—and techniques of magnetoencephalopathy. A whole series of new techniques has been developed in which these clinical scientists or clinical physiologists—technicians as they once were—are very deeply involved. They are sufficiently well organised in their professional bodies, which represent their interests, and in the voluntary registers, of which many of them are already members, that they fully deserve registration under the Health Professions Council. Such a statute is long overdue. For that reason, I strongly support the amendments.

My Lords, Amendments 253, 254 and 255 concern various clinical scientists, particularly clinical physiologists. In Committee, I declared an interest in that I have received skilled care from clinical physiologists for nearly five years in monitoring my pacemaker. From 2008 to 2010, when the previous Government were in office, I asked four Questions for Written Answer, pointing out that the Health Professions Council had recommended in 2004 that clinical scientists be included in its regulatory regime. This recommendation was accepted by the Secretary of State at the time. The Answers that I received respectively from my noble friends Lady Thornton and Lord Darzi said, in impeccable ministerial speak, “This will be done not this year, perhaps next year, but certainly some time”. However, the noble Earl, Lord Howe, suggested in Committee that it would be sufficient to continue the voluntary registration scheme that exists now.

Perhaps I may read a small extract from a note sent to me by the Registration Council for Clinical Physiologists, which compiles a voluntary register. The council states that it has,

“substantial evidence suggesting that voluntary self-regulation is not effective for clinical physiologists. Our register has no power of enforcement and is completely toothless because it cannot protect patients from continuing to be treated by practitioners who have not been registered and who are potentially unfit to practise. Where a complaint is made and upheld about a practitioner, he or she usually ‘disappears’ from the voluntary register, which means it is impossible for the RCCP to do further investigations, while the practitioners under investigation are able to find employment elsewhere”.

The noble Baroness, Lady Finlay, gave an example of precisely that. Surely that should not be allowed to continue, and I hope that the noble Earl will reconsider his position and agree that statutory registration is the way forward for this very important group of skilled health professionals.

My Lords, the amendments deal with two discrete areas. The first set of amendments relates to our proposal to establish a system of assured voluntary registration and seeks to extend compulsory statutory regulation to clinical perfusionists and clinical physiologists, and to make further amendments to legislation to account for this.

The second set relates to the transfer of the regulation of social workers in England from the General Social Care Council to the Health Professions Council, to the protection of the function of social workers, to the office of the chief social worker and to the approval of the training of best-interests assessors. Also included in this second group is a minor and technical government amendment intended to correct an inconsistency in drafting.

As for assured voluntary registration, the vast majority of workers give the very highest quality of care. However, a minority let patients down. This is a cause for concern for all of us and it is right that there is discussion about how we can ensure high standards of care. The Government’s view is that compulsory statutory regulation is not the only way of achieving this and can detract from the essential responsibility of employers to ensure that any person whom they appoint is suitably trained and competent for the role.

As I reminded the House earlier, there are already existing tiers of regulation that protect service users, including the standards set by the Care Quality Commission and the vetting and barring scheme. We also need to be clear that professional regulation is not a panacea. It is no substitute, as I said previously, for good leadership at every level and the proper management of services. It can also constrain innovation in some circumstances and even the availability of services.

Experience clearly demonstrates that a small number of workers who are subject to compulsory statutory regulation from time to time fail to ensure that their practice is up to date and delivered to the standard that we expect. In these circumstances, it is too often the case that regulation can react only after the event. The regulation of individuals will not prevent another Mid-Staffordshire, but strong and effective leadership of the workforce may do, and we believe that employers and managers who are closest to the point of risk must take responsibility for ensuring standards.

The Government believe that a system of assured voluntary registration will support commissioners, employers and supervisors to deliver their responsibility for assuring standards by providing independently assured standards of conduct and training for those on accredited registers. We believe that this approach will work well for clinical physiologists, clinical perfusionists and other groups of health and social care workers. Here, we are building on the work started under the previous Government.

The noble Baroness, Lady Finlay, is right that clinical perfusionists are not subject to statutory regulation, but I assure noble Lords that where failures or risks on the part of clinical perfusionists have been identified in the past, action has been taken action to address them. The Department of Health issued guidance in 1999 that the NHS should use only accredited clinical perfusionists, and further guidance in 2009 that clarified the systems and processes needed to ensure high-quality perfusion services. However, employers, commissioners and patients currently have no objective or independent way of determining how robust the accreditation arrangements are, as they not subject to independent scrutiny. In future, if the voluntary register is accredited by the PSA, they will be subject to such ongoing independent scrutiny.

The noble Baroness, Lady Finlay, asked me about the administration of drugs by perfusionists and compliance with the Medicines Act. Perfusionists cannot prescribe drugs, although they do of course administer perfusions. I would say in my defence to the noble Baroness that compliance with the Medicines Act is rather a technical legal point. If she will allow, I am happy to write to her on that legal position.

Both she and the noble Baroness, Lady Masham, indicated their view that voluntary registers already exist and do not work. Voluntary registers do exist, so standards for these professions exist as well. It has to be said that the Department of Health has little if any evidence of a general problem with the standards of practice for these groups, but, as I said previously, we currently have no objective way of saying to employers that if they rely on professionals who are on existing voluntary registers they can be sure that they are meeting appropriate standards. In future, where voluntary registers are accredited by the Professional Standards Authority, that will be possible.

For unregulated groups, the key to ensuring consistent care is good recruitment, good training, delegation and supervision by employers. We believe that our new system of assured voluntary registration would assist them in taking local responsibility for the quality of their staff.

Various noble Lords talked about the removal of unsatisfactory or dangerous people from the register. We would expect the professional standards authority’s criteria for accreditation to include having proportionate methods for removal from the register. It is not clear to me why an individual could not be removed from a register if there is clear evidence that they are failing to meet the conditions set down for registration and due process has been followed. Further, if an individual has been found in possession of child pornography, which was the example given by the noble Baroness, Lady Finlay, they should be referred to the Independent Safeguarding Authority, and they could be barred from working with vulnerable adults and children. There is no reason why that should not have happened in that instance. Employers should undertake identity checks, and that applies whether or not an individual is statutorily regulated.

Let me be clear: we are not ruling out compulsory statutory regulation for the groups mentioned in the amendments. As part of its process of assurance of accredited voluntary registers, the professional standards authority will continue, through its reviews, to monitor whether risks are being satisfactorily controlled within the context of the wider framework of public assurance. The authority will therefore be well placed to assess whether any further regulatory action is needed. I am sure it would advise the Government accordingly.

I will turn now to the amendments which relate to the social work profession in England, which is where the noble Lord, Lord Hunt, started us off. I want to assure noble Lords that the Government are committed to the development of the social work profession. We see strengthening the regulation of social workers in England playing a key part in the reform of the profession. In 2009, following the discovery of a backlog of conduct cases, a report by the Council for Healthcare Regulatory Excellence found potentially dangerous failings in the GSCC’s carrying out of its conduct function. The report recommended that the regulation of social workers in England move closer to the model of regulation used for healthcare professionals. Through the General Social Care Council under its new leadership, progress has been made in developing the organisation since 2009. However, there is still work to be done to bring it into line with the health profession’s regulators.

The noble Baroness, Lady Pitkeathley, made the point here. We do recognise that social workers in England need a strong voice. We support both the development of the College of Social Work and the recommendation of the Munro review for a chief social worker. The role of the college is to be the voice of the profession and lead on professional development, whereas the chief social worker will advise Government on the development of social work policy and practice. However, the role of a regulator is to assure the safety and quality of the individuals on its register. A direct role in supporting workforce development or promoting the profession is likely to present a conflict of interest for a regulator.

The reforms to the regulation of social workers in England form part of a wider package of reforms aimed at strengthening social work. Social workers in England will benefit from regulation by the HPC in a whole variety of ways. They will be regulated on the same basis as other professionals. They will benefit from a truly independent regulator. They will, for the first time, have a set of standards of proficiency, many of which will have been tailored specifically for their profession rather than covering the full range of jobs in social care. They will also be subject to a fitness-to-practise process, which will be able to consider their conduct and competence in the round and which will enable a more rehabilitative approach to be taken by the regulator. This is all in contrast with the GSCC which can only admonish, suspend or remove from its register. The HPC has established a professional liaison group, whose membership includes representatives of social workers, their employers and those involved in their education and training, which has developed draft standards of proficiency for social workers in England. The HPC is currently recruiting social workers as partners, subject to the passage of the Bill. These partners will have a role in the council’s approval of training and education, in considering fitness-to-practise cases and in assessing social workers’ continuing professional development. This will, in combination, help to ensure that the HPC is aware of the nature and proposed development of the social work profession and is able to reflect this in a sensitive way in the standards set for social workers.

The noble Lord, Lord Hunt, asked me whether I could confirm that the HPC will not be covering all professions in the future. I can confidently assure the noble Lord that there is no intention to bring all of the health professions within the scope of the HPC. I myself have received no hint of that within my department.

Will the noble Earl accept that, as the noble Lord, Lord Rea, said, clinical physiologists, and in particular clinical neurophysiologists, have been aware for years that they have produced a very satisfactory standard of voluntary regulation and registration? They have been talking about the possibility of achieving statutory regulation for years. It has been hinted at by Government after Government. They now feel very strongly that the failure of Governments to accept their need for statutory regulation is, in a sense, a kind of downgrading of the status of their respective professions alongside other professions of individuals who work with patients which are regulated by the Health Professions Council: physiotherapists, occupational therapists, and many more. They feel that it is in fact a mark of a lack of respect by the Government that they are being refused statutory registration.

I hope that it is in order to ask the noble Earl a question. When he was talking about the registration and regulation of clinical physiologists, he spent quite a long time saying how voluntary registration could be improved and how good and suitable it was, but he has not actually said why the Government have such a big objection to statutory regulation. I do not quite see why the Government are so unwilling to go ahead immediately with this.

My Lords, if the clinical physiologists feel as the noble Lord, Lord Walton, says they do, I would simply urge them to read what I have said about the merits of assured voluntary registration. It is true that this issue has been on the table for a number of years. The difference between the start of that debate and the point that we have now reached is that there is more than one option on the table. Assured voluntary registration did not exist 10 years ago, but it is now about to become a reality. We come back to the basic point that regulation in itself is not a panacea. Those who think it is need to examine those cases where failures of care and services have taken place. It is much more about upskilling people, making sure that employers are aware of their responsibilities and ensuring proper supervision in the care setting.

The noble Lord, Lord Walton, raises the point that the physiologists may well feel themselves to be treated as a second-rate profession. One of the finest things about the Bill is the way in which it extends the whole concept of treatment to people beyond those who are registered members of the medical profession, to those who belong to professions ancillary to medicine. I wonder whether the noble Earl might take into account the fact that we really need to move towards equal status between people who are involved in the profession, including in the commissioning groups, where some of those who will be on the governing bodies will be people who are not themselves doctors, but who are crucial to delivering an integrated medical outcome. I think the noble Lord, Lord Walton, has made the point that registration has become, in a sense, almost a recognition of status. I see that point.

I very much agree with my noble friend that we want to see a breaking down of silos, if I can put it that way, and a mutual respect and dependence appearing at commissioning level. I am not aware of any examples of clinical physiologists or perfusionists being involved in the commissioning of care. On the face of it, that seems unlikely, although not impossible; I would not rule it out. I take my noble friend’s point about our general wish to see a raising of quality not only in commissioning but also in the provision of care. It is a point well made.

The Minister has spoken about assured voluntary registration being available now. He has said that the Government will monitor it and, if gaps are revealed, would then reconsider statutory registration. It strikes me, first, that we need to know what the criteria are that would trigger moving from an assured voluntary register to a statutory register and, secondly, that these professional groups are in a Catch-22 situation. They have been seeking statutory regulation to drive up and maintain high standards of clinical care. They have been doing all that they can to maintain high standards of clinical care. If they carry on being able to maintain those high standards, gaps will not be revealed. The only way that gaps might be revealed is, in fact, if they drop their standards. It seems like a Catch-22 situation, but I think that I have probably misheard the Minister.

We are talking about controlling risk. The noble Baroness is right that the Government will retain an open mind about statutory regulation. I hope that that is clear. We have not closed the door to that by any means. However, clinical physiologists, for example, say that risks are apparent to them which some clinical physiologists pose to patients. We have never seen evidence of those risks. In the past, when the Health Professions Council made recommendations about regulation, it has not considered risks. However, we agree with the previous Administration that the extension of regulation should be based on risk. That is the key point. If it is shown that, notwithstanding everybody’s best efforts, assured voluntary registration has not been sufficient to protect patients then, of course, any responsible Government would wish to see a strengthening of the measures around registration.

I revert now to social workers, as I hope that I have covered the points raised. We can most effectively bring improvements to the regulation of social workers in England by transferring their regulation to the Health Professions Council. To answer the noble Lord, Lord Hunt, it may well be that the GSCC could have delivered improvements in the way that social workers are regulated. However, reforming the GSCC’s procedures to ensure that they were fit for purpose would have taken time and, I can tell the noble Lord, would have required very considerable resources. The cost involved, among other considerations, would have been prohibitive.

The Health Professions Council is an established and effective regulator. The proposed transfer of functions to it would bring a number of benefits to the regulation of social workers in England, and I have outlined those. The name “Health and Care Professions Council” was decided upon with reference to the views of the Social Work Regulation Oversight Group, of which both the chair of the Social Work Reform Board and the chief executive of the GSCC are members. As part of the process of renaming the Health Professions Council, the name “Health and Social Care Professions Council” was considered. However, following research commissioned by the Health Professions Council, it was decided that the name “Health and Care Professions Council” most effectively reflected the new remit of the council in a way that was clear to the public, registrants and employers, while maintaining name recognition for service users, employers and registrants. However, to ensure even further clarity for the public, the Health Professions Council’s new name will be supported by a strapline: “Regulating health, psychological and social work professionals”, so it is not as though “social work” has been omitted entirely from the heading of this organisation.

We also need to ensure that the regulation of social workers in England is flexible enough to enable the regulation of all the activities which a social worker may undertake, now and in the future, and to take account of developments in the profession. It is not, therefore, practical to protect the functions of social workers in England in legislation. Protection of title has ensured that the regulation of professionals can readily adapt to changing roles over time. It also prevents regulation being used in a protectionist way to keep certain functions as the preserve of a specific group of workers. Although we do not think it right to protect the functions of social workers in England for the purposes of professional regulation, we recognise that for the profession to flourish it needs a clear purpose. We are therefore pleased that the College of Social Work has committed to providing clarity on the role of social work in England.

I can give the noble Lord, Lord Hunt, and the noble Baronesses, Lady Meacher and Lady Howarth, some good news, to which I referred briefly, on the position of chief social worker. As they will be aware, the Government have accepted the recommendation that a chief social worker be appointed. We expect that the chief social worker will be in post by the end of this year. Our view is that the office should not be established in statute; this is the approach that we have taken with the Chief Nursing Officer and the Chief Medical Officer, and one that we believe has worked well. Of course, it is the Government’s expectation that the chief social worker will work closely with all key social work partners, including those mentioned in the noble Lord’s amendment. It is also vital that the role should be transparent, and we are therefore open to the suggestion that the chief social worker should lay an annual report in Parliament. However, we would wish to take a final view on that once the chief social worker had been appointed.

On social work students, raised by the noble Baroness, Lady Meacher, we are mindful that there should not be a gap in the assurance of the standards of social work students. We intend to provide for the transfer of the voluntary register of social work students to the Health and Care Professions Council pending a full consideration of the best approach to assuring the safety and standard of student social workers. The Health Professions Council has committed to undertaking a review of the risk in relation to students of all the professions it regulates, including social work students.

The noble Baroness also mentioned post-registration training. It is the role of the regulator to ensure that its registrants remain fit to practise and that the Health and Care Professions Council has a rigorous risk- based approach to ensure that appropriate continuing professional development is being undertaken. I would be happy to write to her with further details about that.

The noble Baroness, Lady Meacher, raised the important issue of best-interest assessors. I want to be clear that we very much value the important work that they do, working with some of the most vulnerable members of our society. As she will know, we have already set standards of those who are, or wish to become, best-interest assessors, including requiring that all best-interest assessors are members of a profession subject to compulsory statutory regulation and undertake training approved by the Secretary of State. Unlike the training of approved mental health professionals, the GSCC currently has no statutory role in approving the training of best-interest assessors. Therefore, we cannot simply transfer the role to the HPC as we have with approved mental health professionals. However, we are aware that the abolition of the General Social Care Council will impact on the current process for approving best-interest assessor courses. We are considering how it should work in the future, including the development of competencies for best-interest assessors, and whether the Health and Care Professions Council should take a role in approval of education and training of best-interest assessors. Until this consideration has been completed, it would not be appropriate to make changes to legislation. If I may, once again, I will write to the noble Baroness on that issue.

Before I finish, I speak to government Amendment 246A, which is, I can assure the House, a minor and technical drafting correction. I hope that I have been able to reassure noble Lords of our commitment to strengthening the assurance processes in place for health and social care workers, and that the noble Lord will feel able to withdraw his amendment.

My Lords, I thank the noble Earl for his lengthy response, particularly in relation to clinical psychologists and clinical perfusion scientists. I am sure that noble Lords will have noted with interest his remarks, and indeed we have had further discussions about it. The debate has shown that there is a weakness in the continuation of voluntary regulation that will not go away.

Turning to social work regulation, I must say that I am disappointed by the noble Earl’s response. Unless this is a Department of Health contribution to the review of public bodies and it is simply a way of getting the number it is responsible for down, I still do not understand the logic. There is no doubt—here I pay tribute to my noble friend for her sterling efforts, which have been continued by Mrs Rosie Varley—that the General Social Care Council was getting to grips with the issues identified in the review, so I cannot understand why it could not have continued. The advantages mentioned by the noble Earl in relation to the HPC could all have been developed by the GSCC. I come back to the points raised by the noble Baronesses, Lady Howarth and Lady Meacher, about the fragile confidence of the social work profession. Replacing its regulatory body with an all-singing, all-dancing essentially health body is not the best way to give it confidence.

On the title, I do not think that a strap-line is good enough. I simply point out to the Minister Clauses 216, 218, 219 and 220, which refer to the health and social work professions order. All the spurious arguments that have been made as to why this body cannot have social work in its title are given the lie by the fact that in this legislation the noble Earl is relying on that order. I would have thought that if the HPC was serious about wanting to develop confidence within the social work profession, it would have agreed to have the words “social work” in its title. However, I will not press Amendment 241A concerning the protection of the functions of social workers.

Amendment 241 withdrawn.

Amendments 241A and 241B not moved.

Clause 209 : Training etc. of approved mental health professionals in England

Amendment 241C not moved.

Clause 210 : Orders regulating social care workers in England: further provision

Amendment 242 not moved.

Clause 211 : Abolition of the General Social Care Council

Amendment 243

Moved by

243: Clause 211, leave out Clause 211

Clause 212 : Regulation of social workers in England

Amendment 244 not moved.

Clause 213 : The Health and Care Professions Council

Amendments 245 and 246 not moved.

Clause 214 : Functions of the Council in relation to social work in England

Amendment 246A

Moved by

246A: Clause 214, page 212, line 38, leave out “, after sub-paragraph (c) insert—” and insert “—

(a) omit the “or” preceding paragraph (c), and(b) after that paragraph insert “; or””

Amendment 246A agreed.

Amendment 247 not moved.

Clause 215 : Appeals in cases involving social workers in England

Amendment 248 not moved.

My Lords, I remind the House that Questions will be at 2.30 pm. If necessary, we will interrupt an amendment at that point or just before.

Amendment 249

Moved by

249: After Clause 219, insert the following new Clause—

“Public health specialists

(1) In section 25(3) of the National Health Service Reform and Health Care Professions Act 2002, (regulatory bodies regulated by the Council for the regulation of health care professionals), after paragraph (j) insert—

“(k) those statutory bodies responsible for the regulation of public health specialists including those from backgrounds other than medicine, for whom a statutory register will be established by the Health Professions Council.”(2) In this Act “registered public health specialist” means a person recognised as such on a register maintained by those statutory bodies responsible for the regulation of public health specialists, including those from backgrounds other than medicine.”

My Lords, Amendment 249 is related to statutory registration. We have been talking about voluntary or statutory registration for the past three hours. I shall be happy if at any time the noble Earl interrupts to stop me trying to make a case for statutory registration for public health specialists because he has already made up his mind that he is likely to accept if not this amendment then statutory registration. I believe that the noble Baroness, Lady Northover, is trying to intervene.

My Lords, a great deal of attention has been paid to public health in this House and we very much welcome that and the efforts by the noble Lord, Lord Patel, and others. We recognise that public health specialists play a critical leadership role in protecting the public from harm. The Government recognise the strong support for a compulsory statutory regulation system for all public health specialists. I think that that is what the noble Lord was going to say. We agree that it is absolutely essential that all public health specialists, including those not currently subject to compulsory statutory regulation—

I was going to do so after I had heard the noble Baroness speak, because she interrupted my speech. I beg to move the amendment.

My Lords, it is important to amend the amendment, if only because it should say “backgrounds other than medicine” or dentistry.

I should like the noble Baroness to finish her sentence, because I think she was leading on to say professions other than in medicine or dentistry.

If noble Lords are happy, I will continue. I will be happy to answer any questions. All public health specialists, including those not currently subject—

I think that the noble Lord, Lord Patel, wanted an early indication as to whether the noble Baroness was going to accept the amendment and then allow the debate. He is not looking for a winding-up speech at this point.

Noble Lords will know that the Government have already announced their intention to regulate all public health specialists so that we address the anomaly whereby some were regulated and others were not. If that is the answer that the noble Lord was looking for, put briefly, I hope that he will welcome it.

I welcome those comments. As I understand it, the noble Baroness, Lady Northover, is saying that the Government intend through secondary legislation to establish statutory regulation of all public health specialists, including those not in medicine and dentistry. I am grateful for that. I beg leave to withdraw the amendment.

Amendment 249 withdrawn.

Clause 220 : Functions of the Secretary of State in relation to social care workers

Amendment 250 not moved.

Clause 221 : The Professional Standards Authority for Health and Social Care

Amendment 251 not moved.

Clause 222 : Functions of the Authority

Amendment 252 not moved.

Amendments 253 to 255 not moved.

Clause 233 : Quality standards

Amendment 255A not moved.

Clause 236 : Advice, guidance, information and recommendations

Amendment 256

Moved by

256: Clause 236, page 236, line 29, at end insert—

“( ) But provision made under subsection (8) may impose a requirement on a local authority, or a description of local authorities, only if the requirement relates to—

(a) the exercise by an authority of any of its functions under section 2B or 111 of, or paragraphs 1 to 7B or 13 of Schedule 1 to, the National Health Service Act 2006;(b) the exercise by an authority of any of its functions by virtue of section 6C(1) or (3) of that Act;(c) anything done by an authority in pursuance of arrangements under section 7A of that Act.”

My Lords, I shall speak also to Amendment 257. I have tabled the two amendments for the following reasons. The Bill makes provision for local authorities to fund public health drugs and treatments. It also enables provision to be made for the replication of the funding direction to require the NHS to make available funding for NICE-recommended drugs and treatments. However, as currently drafted, the provisions in Clause 236 to enable replication of the funding direction for NICE-recommended drugs and treatments currently exclude their application to local authorities. Subsections (8) and (9) make provision to enable replication in regulations of the effect of the funding direction that currently requires PCTs to make funding normally available for drugs and treatments that have been recommended by NICE technology appraisal guidance. The amendment would permit other bodies that fund public health services to finance these suggestions as PCTs are phased out of the system, creating a more uniform and streamlined system for patients to manoeuvre through the different health services offered.

As the Bill currently stands, it is impossible for regulations to require local authorities—which take on health functions under new paragraphs (a), (b) and (c) in my Amendment 256—to comply with NICE recommendations to fund such proposals. While these local authorities are likely to be responsible for the funding of such treatments under their public health functions, without codification of their ability to do so in the Bill, there will be no authority to take over the funding of such recommendations to which PCTs remain currently obligated, thus creating a gap in care as health functions are transferred between PCTs and local authorities.

Furthermore, as enshrined in the NHS constitution and its accompanying handbook, NHS organisations are also required by a direction from the Secretary of State to finance drugs and treatments suggested by NICE which are based on sound research evidence. Although the funding direction concerns mainly high-cost drugs or treatments used in NHS secondary care, there have been two or three NICE appraisals that concern public health drugs and treatments. For example, NICE has appraised and recommended a smoking cessation drug, Champix—noble Lords will know of my interest in smoking—which is currently covered by the funding direction. To ensure that this gap in funding does not occur, my amendments would extend the scope of the regulation-making power, enabling requirements to be placed on local authorities exercising their public health functions so that the effect of the funding direction which currently applies to NHS organisations could apply also to them. It is important to note that, while local authorities will have the ability to fund NICE recommendations, this extension relates only to matters dealing with public health. Moreover, regulations will be unable to place a requirement on local authorities to comply with or have regard to NICE recommendations relating to social care, putting limitations on the funding capabilities of local authorities.

The amendments would remove the exclusion of local authorities and enable provision to be made in regulations for the requirement to fund to apply to them in relation to NICE-recommended public health drugs and treatments. They would place a requirement on local authorities to exercise their public health functions and comply with NICE recommendations. It is important that patients can be guaranteed access to appropriate and cost-effective drugs irrespective of whether a service is commissioned by the NHS or by local authorities. That is what this amendment aims to do. I beg to move.

My Lords, I should declare an interest as honorary vice-president of the Local Government Association. I congratulate the noble Lord, Lord Ribeiro, on closing a lacuna and promoting integration, which has been a strong theme of our debates. He has spotted a difficulty and has dealt with it extremely competently. I trust that the Minister will be able to accept the amendment, which makes great sense and should contribute to the fulfilment of local authorities’ obligations in this sphere.

My Lords, I am grateful to my noble friend Lord Ribeiro for tabling these amendments, which address the important issue of ensuring that patients have consistent access to appropriate and cost-effective drugs, whether a service is commissioned by the NHS or by local authorities.

As the House will know, NICE’s technology appraisals provide important recommendations on the clinical and cost-effective use of medicines and other technologies in the NHS. The funding direction that applies to recommendations in NICE technology appraisals has helped to ensure equity of access to NICE-recommended drugs and treatments wherever patients live in England.

While technology appraisals are perhaps most commonly associated with specialist drugs or interventions used or initiated in NHS secondary care, they also make important recommendations about drugs and interventions for use in other care settings, including preventive interventions. In future, these are likely to fall within the scope of local authority commissioning responsibilities for public health. My noble friend mentioned the example of Champix. He is right: technology appraisals could address drugs to aid smoking cessation and treatments to tackle substance misuse.

I agree with my noble friend that extending a funding mandate to NICE-appraised drugs or treatments commissioned by local authorities would bring important benefits. It would guarantee patients access to appropriate and cost-effective drugs, whether a service was commissioned by the NHS or by local authorities. In doing so, it would protect patients’ existing rights as set out in the handbook to the NHS constitution, to which he rightly made reference. I am very pleased that I am able to support these amendments and I hope that your Lordships will feel able to support them as well.

My Lords, I thank my noble friend the Minister for accepting the amendments. I thank also the noble Lord, Lord Beecham, for his kind words.

Amendment 256 agreed.

Amendment 257 agreed.

Clause 244 : Failure by NICE to discharge any of its functions

Amendment 258

Moved by

258: Clause 244, page 239, line 29, at end insert—

“( ) For the purposes of this section, a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service in England or (as the case may be) with what otherwise appears to the Secretary of State to be the purpose for which it is conferred.”

Amendment 258 agreed.

Sitting suspended.

RAF: Fukushima Accident


Asked By

To ask Her Majesty’s Government what role the Royal Air Force Regiment played in the aftermath of the Fukushima Daiichi nuclear power plant accident.

My Lords, I am sure the whole House will wish to join me in offering sincere condolences to the families and friends of Signaller Ian Sartorius-Jones from 20th Armoured Brigade Headquarters and Signal Squadron; Lance Corporal Gajbahadur Gurung, attached to the 1st Battalion The Yorkshire Regiment; Senior Aircraftman Ryan Tomlin, from 2 Squadron Royal Air Force Regiment; Sergeant Nigel Coupe from the 1st Battalion The Duke of Lancaster’s Regiment; and Corporal Jake Hartley, Private Anthony Frampton, Private Christopher Kershaw, Private Daniel Wade and Private Daniel Wilford, all from the 3rd Battalion The Yorkshire Regiment, who have recently lost their lives in Afghanistan. The whole country owes them all a debt of gratitude for the sacrifice they have made. My thoughts are also with the wounded, and I pay tribute to the courage and fortitude in which they face their rehabilitation.

A three-man RAF Regiment radiation monitoring team, along with an MoD health physicist, deployed to the British embassy in Tokyo from 21 March to 21 April 2011. They conducted air and soil sampling around the embassy and local area and monitored equipment and vehicles for contamination to advise and reassure embassy staff. The team also devised plans to protect UK personnel working at the embassy in the event of a further release from Fukushima.

My Lords, I should like first to join these Benches in the tributes to all those who died in the IED massacre. Perhaps I may also express on behalf of this House our condolences to the relatives of those Afghans who were brutally killed in the recent horrific shooting.

My understanding is that the team that went to Tokyo was part of the chemical, biological, radiological and nuclear wing of the RAF Regiment. Is this not yet another excellent example of where service personnel are called on to help in a serious civilian situation of a non-military nature?

Turning now to the major role of the RAF Regiment, may I ask my noble friend whether the regiment is training Afghan forces in Afghanistan in their major role of airfield protection so that they are able to take over when we withdraw our main combat forces?

My Lords, I join my noble friend in remembering the Afghan civilians who were murdered the other day. I also agree with him that the RAF Regiment’s ability to deploy rapidly and assist in the way that it did is an excellent example of military aid to the civilian authority. The unique skills of the RAF Regiment go far wider than just on the battlefield. As for mentoring the Afghans, members of the RAF Regiment have mentored Afghan police from Helmand’s provincial response company, put them through basic and advanced training and deployed with them in a mentoring role over the past six months. Detailed planning for the redeployment of personnel from Afghanistan is ongoing, and it is too early to say when the RAF Regiment will return.

We would wish to join the Minister in offering our sincere condolences to the families and friends of the nine members of our Armed Forces who have recently lost their lives in Afghanistan while in the service of our country. Mere words cannot lessen the pain of separation but we want their families and friends to know that our thoughts are very much with them at the present time.

Could I ask the Minister whether the British nuclear industry has been able to learn any lessons from the knowledge gained from the RAF involvement in the aftermath of the Japanese nuclear power plant accident?

My Lords, safety is always our number one concern for the British nuclear power industry. Fukushima changed the energy debate around the world. Questions were rightly raised about the extent and safety of nuclear power—people wanted to know what happened and whether it could happen again. Our chief nuclear inspector, Dr Mike Weightman, undertook a full lessons-learnt analysis on behalf of the Department of Energy and Climate Change, and my noble friend Lord Marland reported the findings through a Written Ministerial Statement on 11 October last year. Copies of the Weightman report were placed in the House Library.

My Lords, the Royal Air Force Regiment is an example of good practice that is admired and to some extent envied by our US colleagues. In that regard, it contributes to the relationship that was so lauded in today’s edition of the Washington Post by President Obama and the Prime Minister. However, that same edition of the Post warned that the relationship could come under strain because of the defence expenditure reductions that have been made in this country. In his announcement of the SDSR outcome, the Prime Minister personally committed himself to an increase in defence expenditure in the years beyond 2015. Can the Minister say if that personal commitment remains today?

My Lords, the noble and gallant Lord is trying to put words into my mouth that I would rather not say with the Budget coming up next week.

My Lords, I am sure the Minister is aware that NATO has annual exercises in doing exactly what the Royal Air Force Regiment has done in this case. In the past those NATO exercises have had minimal involvement from the United Kingdom. Will the Minister be good enough to have a look at all of this again and see if we could play a more positive part in these annual exercises in future?

My Lords, my noble friend makes a very good point. I give him my word that I will take it back to the department and see what I can do.

My Lords, the RAF Regiment is the acknowledged military expert force for CBRN capability. Will my noble friend assure me that there are no plans to reduce its numbers either now, when its work for this country is absolutely critical, or in the foreseeable future?

My Lords, my noble friend makes a very good point. I also pay tribute to her for her very strong support for the RAF Regiment over many years. We have announced changes to the number of RAF Regiment field squadrons from 2015 onwards, at the end of operations in Afghanistan, and wider reductions in the overall size of the Royal Air Force that enable a rebalancing of its structure. Two force protection wing headquarters and two field squadrons will draw down over the coming years. However, even with this drawdown, we will continue to have a robust and effective force able to support all future operational requirements, including CBRN protection.

My Lords, is the noble Lord aware that some years ago, the noble Earl, Lord Attlee, and I spent some hours during the night with the Royal Air Force Regiment in Afghanistan observing its infantry and patrol tactics? It showed the very highest level of operational expertise, and the Government should in no way weaken the Royal Air Force Regiment.

My Lords, I very much take the noble Viscount’s point and quite agree that the RAF Regiment is playing a very important role. I was in Afghanistan the week before last and saw for myself the important role that it is carrying out.

Public Disorder: Compensation


Asked By

To ask Her Majesty’s Government what proportion of victims of the 2011 summer riots are still awaiting compensation, and what action they propose to take to deal with the situation.

My Lords, around 90 per cent of businesses and individuals affected by the riots were insured and the majority have received full or part payment. For those without insurance, the Government set up a claims bureau to manage their claims under the Riot (Damages) Act 1886. As of February 2012 over half of all valid uninsured claims have been settled.

My Lords, the position on dealing with the domestic claims seems to be pretty reasonable. On the business side, however, the position is not quite so healthy. In particular, is my noble friend aware that the Riot (Damages) Act 1886 requires the police to clear with the insurers that it was technically a riot before full payment can be made? To the best of my knowledge that has not happened yet. Secondly, there is no provision in the Act for payment for business interruption. Finally, the businesses that have suffered greatly have to seek planning permission for rebuilding. Can my noble friend ensure that the police act under the 1886 Act; that some help is found for those who have suffered from business interruption; and that local authorities are asked to speed up the planning process and not charge any of those who apply for such planning permission?

My Lords, my noble friend has asked quite a number of questions. Although I can assure him that we have urged the police authorities to ensure that compensation is paid as swiftly as possible to all those who are entitled, we want to make sure that it is paid only to those who are entitled. He is right to address the point that the 1886 Act—which, obviously, was passed some time ago—does not cover business interruption. That is why we think that there should be a review of the Act, and we will consider all options in due course. As I stressed earlier, we believe that some 90 per cent of those who suffered, whether businesses or otherwise, had insurance, and as likely as not that insurance would have included business interruption. The 1886 Act comes from another era when these matters were not considered. As for the planning point, I will take that on board and consult colleagues in the Department for Communities and Local Government.

My Lords, I declare an interest as a member of the Riots Communities and Victims Panel. The Minister has just told the House that 90 per cent of individuals making claims to insurance companies have been paid, and the Association of British Insurers has a similar figure—85 per cent—for small businesses, and yet only half of those claiming under the RDA have been paid. Can the Minister account for the difference? Does he think there is any truth in the rumour that the reason there is such a big difference is that police authorities are setting such a high standard for the evidential basis and the paperwork, which is way in excess of that required by commercial insurance companies? Does he think that that is causing the delay?

My Lords, the noble Baroness makes a valid point, and I pay tribute to the work that she did earlier on these matters. However, it is also important to look at the fact that those who were not insured were the sort of people who probably did not have adequate records about what they had in their shops—and I am thinking particularly of shops—and one therefore needs to conduct the loss-adjustment process very carefully. As she will know, people often make what one might describe as overgenerous claims when they do not have the appropriate records of what they had in their particular shop or business, and those things need to be looked at carefully. However, as I made clear in my response to my noble friend, it is important that we make sure that the police deal with these matters as quickly as possible. That is what we have been urging them to do and that is why we have set in motion a number of measures to speed up the process.

My Lords, can the Minister assure the House that in the review of the 1886 Act not only will great effort go into defining the categories of claimants and types of claim but anxious thought will be given to the most central and existential question of whether it should be police authorities that bear the full responsibility for such damages, bearing in mind that the society in which we now live differs very greatly from that of 1886?

My Lords, when I first answered this Question I was keen to emphasise that it was an 1886 Act. For that reason, the noble Lord is right to emphasise that we are in a very different world from 1886—it is now 125 years on from that date. All I can say about the review is that we will consider all options for reform. Perhaps I may give just one example. The 1886 Act, quite obviously, did not look at damage to motor vehicles, for the very simple reason that they did not exist in 1886.

My Lords, setting aside the issues about loss adjusters and suchlike, did not the Government announce in August that there would be £20 million to support small businesses and help them with minimum bureaucracy? Although these issues are being followed up, is it not very unsatisfactory that, in the mean time, this fund has not been dipped into sufficiently quickly? Exactly how much has been paid out under that fund?

My Lords, I cannot answer my noble friend’s point absolutely but I can say that the Government have made payments of over £71 million to police authorities in respect of both operational costs and riot damages claims. Obviously, as I have been trying to make clear in the course of this Question, we are concerned about the speed which this has been dealt with. That is why we have been urging the police authorities to deal with these matters as quickly as possible. I can give an assurance to my noble friend that, on top of that, my right honourable friend the policing Minister has seen representatives of both the policing authorities and the insurance companies to make sure that these matters are dealt with as quickly as possible.

Planning: Ancient Woodland


Asked By

To ask Her Majesty’s Government what plans they have to improve ancient woodland protection in the final version of the National Planning Policy Framework.

My Lords, ancient woodland and the substantial contribution it makes to our environment is very important to the coalition Government. We will reflect this importance in the final version of the National Planning Policy Framework, but noble Lords will understand that I cannot anticipate its content before it is published.

My Lords, I thank the Minister for that reply. However, there is a great deal of concern that the caveat placed on the value of economic development as a reason for granting planning permission could be seen as a worry, especially as it is sometimes quite difficult to put an economic value on ancient woodland, which is clearly irreplaceable. Secondly, has the Minister considered dipping into his own pocket and contributing to the Woodland Trust’s Jubilee Woods campaign? It includes a copse for parliamentarians. Perhaps I may add before the noble Lord, Lord Berkeley, laughs that I am sure that he will be contributing as well.

My Lords, the first point is that no economic value can be put on ancient woodland, because it is irreplaceable. The consultation draft framework maintained a strong protection but, as with current policy, it did not entirely close the door on any loss of ancient woodland. For example, a loss might be justified where a local highway authority wants to make a road junction improvement to save lives. However, as we are carefully considering all the responses on this policy, I am not going to speculate about the content of the final framework.

My Lords, will the Minister take note that the destruction of ancient woodland is not just a threat but a reality as, appallingly, we have lost 111 such areas in the past 10 years? Will he also take serious consideration of the wider picture of the potential loss to development of large areas of important woodland through council sell-offs, such as, indeed, the recent decision by Somerset County Council to sell a sizeable area of the Quantocks, a decision which many hope will be reversed—land which Wordsworth and Coleridge once roamed across and the public have had access to for a very long time?

My Lords, the noble Earl refers to incidents affecting ancient woodland. That was an incident of ancient woodland being taken but I suspect that it does not necessarily mean that the whole of the wood has been taken. When ancient woodland is sold, perhaps by a local authority, it does not alter the need to obtain planning consent for any development; and as noble Lords know, it is very difficult to get planning consent if it involves taking ancient woodland.

My Lords, trees and woodlands are enormously important to us and to the future of our world, and the tree planting scheme to mark the Diamond Jubilee is yet one more example of that. However, can the Minister assure me that within the National Planning Policy Framework there will be proper protection for undesignated trees and woodland areas and an encouragement to create more community-owned woodlands in this country?

My Lords, I am sure that there will be protection for undesignated woodland. However, the point is that there is very strong protection for ancient woodland because it cannot possibly be replaced or replicated.

My Lords, as the Minister will know, the provisional ancient woodland inventory of England and Wales was prepared by the Nature Conservancy Council and is now commonly referred to as the provisional ancient woodland register. Is he satisfied that the ancient woodland register, being provisional, is an adequate basis for the protection purportedly afforded ancient woodlands by paragraph 169 of the NPPF?

My Lords, the Minister has said that he will not speculate on the content of the final version. Can he tell us when our speculation will end, when it will be published and when we can judge for ourselves whether the final version of the NPPF gives equal weight to longer-term environmental and social concerns, as it undoubtedly will to more immediate demands for economic growth?

Like other noble Lords I have been waiting patiently for the noble Earl to respond to the other question from the noble Lord, Lord Redesdale, about whether he will contribute to the fund that has been established.

My Lords, in the present economic situation, would the Minister not agree that British woodlands and forests should be developed in the most commercial way possible while making allowances for ancient woodland? Does he also agree that such woodlands can be treated as quite small areas, rather like sites of special scientific interest?

My Lords, all noble Lords understand the environmental benefit of ancient woodland, but it has some commercial benefit as well. Interestingly, hardwood production in the UK amounts to half a million tonnes and total softwood production is 9.5 million tonnes.

My Lords, I should perhaps declare that I own a small tract of ancient woodland in south Suffolk. Given the increasing recognition of the revitalising influence of woodland in an increasingly denatured culture, are the Government sympathetic to trying to encourage the laying down of new deciduous woodland?



Asked By

To ask Her Majesty’s Government what plans they have for providing humanitarian aid and security assistance to help relieve the unfolding crisis in Syria.

My Lords, we continue to fund humanitarian organisations working in the region to provide help to those in need and have already given £2 million to that effect. We have also increased core funding significantly to humanitarian agencies this year to cover their ongoing work. The stabilisation unit operated jointly by the Foreign and Commonwealth Office, the Department for International Development and the Ministry of Defence is looking at what future support Syria might need from the UK and the international community to make a political transition to an open, democratic and stable state. It has also organised the recent deployment of an expert team to the region to collect evidence of human rights violations and atrocities committed by the Syrian regime.

I thank my noble friend for that full reply. However, following reports on Australian television by the director of Human Rights Watch, Nadim Houry, confirming that the Syrian army is now sowing landmines along its borders directly in the path of fleeing refugees, threatening yet another atrocity, will the Government redouble their efforts to persuade other nations, particularly Russia, China and Turkey, to try to press Assad into allowing independent observers into Syria? As an extension to my noble friend’s Answer, will he give me more detail on timing in relation to deploying the stabilisation unit and security resources when the transitional period has started?

My noble friend is quite right. Access for independent observers or, indeed, access for humanitarian relief is the problem in this very dangerous situation. We have been working hard at the United Nations. My right honourable friend the Foreign and Commonwealth Secretary has been working extremely hard and taking the lead in trying to persuade Russia and China to take a more positive and co-operative attitude in all aspects, including, of course, getting a more effective UN resolution forward which would, we hope, increase the heat and pressure on Mr Bashar al-Assad. That is what is going on at the moment.

As for the mine situation, I have seen the reports of mines being laid. Syria is not—regrettably but perhaps not unsurprisingly—a signatory to the international prohibitions against land mines. This is yet one more area where we will increase to the maximum volume and ability our pressures on the Syrian regime to behave in a less uncivilised and more understanding way.

The Minister referred to the human rights mission that has been sent to the region. Would the Foreign Office classify decisions by the Syrian regime to prevent humanitarian access to the areas that need it most as a breach of international humanitarian law which may, one day, need to be prosecuted by the International Criminal Court?

That is certainly possible. The position vis-à-vis the International Criminal Court is that the commission of inquiry of the UN, as I think the noble Lord will know, clearly stated its concerns that crimes against humanity have been committed in Syria and that this may be a matter for the International Criminal Court. The United Kingdom will not rule out referral to the International Criminal Court, as suggested by Mrs Pillay, the human rights commissioner. The COI report does not specifically recommend a referral to the court, nor does the Human Rights Council have the power to refer cases. It would be for the UN Security Council to refer the situation in Syria to the ICC prosecutor. That is the formal position and I must stick closely to those words about it.

My Lords, is not the difficult thing that human rights abuses are being carried out every day? Does the noble Lord have any information about the appalling report that boys over the age of 11 are being arrested and face a very uncertain and horrible future in the city of Homs? Does he agree that, without the courageous reporting of people like the late Marie Colvin, we do not have the information on a day-by-day basis? We have it only retrospectively. What we need to know is what is happening while it is happening. Can the Minister give us any information about what our colleague, the noble Baroness, Lady Amos, has been able to say following her visit to President Assad?

I have to agree with almost all that the noble Baroness says. Our friend, the noble Baroness, Lady Amos, has, indeed, been there and did get some access to Baba Amr. She has reported back to the United Nations in very grim terms about what she found; practically every building had been destroyed. As for the other news we get— inevitably not directly because of the access problem and the fact that not a single journalist alive remains in the area—that may well be true. There are clearly horrific events and horrific murders and atrocities taking place. Not every one can be corroborated, but it is unquestioned that there are evil doings almost beyond the power of words being conducted in the name of the Syrian Government and perhaps on the opposition side as well. These are revolting events and in due course I hope all responsible will be held to account for them properly.

Can the Minister confirm that the Government still support the efforts by the former United Nations Secretary-General, Mr Kofi Annan, to bring a peaceful solution to the crisis in Syria? I am delighted to hear from the noble Lord that we are channelling our assistance through international organisations and humanitarian organisations. Does he agree that we should also be sure that any assistance given to Syria does not complicate the mission of Mr Kofi Annan?

My Lords, I am sure that that approach is right, but the difficulty is, as Mr Kofi Annan himself has found in his most recent discussions with Bashar al-Assad, that the Syrian President seems very reluctant to move from his present policy of giving certain reassurances while the violence and killing carry on. That is the difficulty. As the noble Lord knows, Mr Lavrov was there, accompanied by other senior Russian officials. They thought that they could get some undertakings from Bashar al-Assad; and, indeed, words were given. However, even while they were speaking, the killing was continuing. So I am afraid that at the moment, while one appreciates that there has to be a twin track of trying to get this man, this president, to desist from his all-out violence of the most atrocious kind, all efforts by Kofi Annan and others have so far not proved successful. This remains the line to go forward. We are working with the Russian and Chinese officials and ambassadors, and with the United Nations, to make them see that we must have a combined approach.

My Lords, does my noble friend agree that in bringing Russia to the table it is important to recognise that Saudi Arabia’s and Qatar’s attempts to arm the rebels will only prolong the conflict, not help to bring it to an end? Does he further agree that Russia’s long-standing animosity to Saudi Arabia, not least as regards Afghanistan, will not make it come to the table unless we reduce the arms and hostility going into the conflict from other players?

My noble friend may be right. The Arab League as a whole has taken a strong lead. Some members of the Arab League—my noble friend mentioned Qatar and Saudi Arabia—say that they want to go further and provide arms. We are not sure at this moment whether they are doing so. They may have a case for taking that action in particular areas. However, our general approach is the same as that of my noble friend. We believe that the best course is to try to get peaceful transition, to get both sides to desist from the killing, and particularly and obviously to get the Syrian Government to desist from their atrocious and murderous attacks on communities in Homs and other cities. That must be the approach. Pouring in arms on a large scale would certainly not help.

Companies Act 2006 (Amendment of Part 23) (Investment Companies) Regulations 2012

Industrial Training Levy (Engineering Construction Industry Training Board) Order 2012

Industrial Training Levy (Construction Industry Training Board) Order 2012

Postal Services Act 2011 (Disclosure of Information) Order 2012

Postal Services Act 2011 (Penalties) (Rules for Calculation of Turnover) Order 2012

Public Bodies (Abolition of the National Endowment for Science, Technology and the Arts) Order 2012

Employment Tribunals Act 1996 (Tribunal Composition) Order 2012

Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012

Apprenticeships (Alternative English Completion Conditions) Regulations 2012

Motion to Refer to Grand Committee

Moved By

Motion agreed.

Health and Social Care Bill

Report (7th Day) (Continued)

Schedule 19 : The Health and Social Care Information Centre

Amendment 258A

Moved by

258A: Schedule 19, page 424, line 17, leave out “the exercise of its functions” and insert “any function exercisable by it to be exercised”

My Lords, I shall speak also to the other 41 amendments in this group, some of which, I stress, are minor, technical or consequential.

Part 9 establishes the information centre in primary legislation, setting out its powers in relation to the collection, analysis, publication or dissemination of information. Several noble Lords, as well as the British Medical Association and the NHS Future Forum, have expressed a keen interest in the need to ensure an appropriate balance between the protection of patient information and the use and sharing of information to improve patient care. For example, I recall that the noble Baroness, Lady Wheeler, stressed the need to provide,

“safeguards that are strong enough to protect patients”.—[Official Report, 21/12/11; col. 1802.]

She is, of course, absolutely right. We are sensitive to these concerns.

Your Lordships have already approved amendments that raise the threshold required for the board and CCGs to disclose personal information. Government Amendments 268, 280 to 282, 284, 285 and 287 to 289, which are supported by the BMA, further strengthen the protections in the Bill in relation to confidential personal information. Government Amendment 268 would in effect restrict the bodies that are able to request the centre to collect confidential personal information to the principal bodies—that is Monitor, NICE and the CQC—or any other body prescribed in regulations. It also restricts the making of such requests to a person to whom information may be lawfully disclosed—for example, because they have obtained consent or have a power in statute to require such disclosure—or where the information may be lawfully disclosed to the centre.

Government Amendment 272 limits the circumstances in which the information centre may require provision to it of confidential personal information. Government Amendments 280, 281, 282, 284, 285, 287 and 288 clarify when dissemination by the information centre of information which identifies or enables the identity of an individual to be ascertained would be permitted, and when the information centre may be directed to disseminate or not to disseminate information. Government Amendment 289 would require the information centre to publish a code of practice for health or social care bodies or anyone providing publicly funded health or social care on how to deal with person-identifiable or other confidential information.

We believe these amendments strike the right balance between appropriately protecting an individual’s confidential personal information and ensuring that the wider benefits of safely and securely sharing information, which include improvements in the quality of services and treatments, can be realised. There are also a number of minor and technical amendments to improve the drafting of the clauses and to ensure that they can be effectively exercised in practice.

Government Amendments 291A to 291D and 297A to 297D are intended to provide a further degree of future-proofing to ensure that the exact requirements for the future development and delivery of informatics systems to support the health and care sector can be met. Last week, my right honourable friend the Secretary of State for Health highlighted our approach for delivering informatics systems in the future. We intend that the board and the Secretary of State will be supported in the management of informatics systems and services by a lean delivery organisation that will take over from NHS Connecting for Health from April 2013. We are currently looking at where these delivery functions will sit, with the information centre as an option to house some or all of this work. These amendments would enable provision to be made so that the centre could exercise the functions of the Secretary of State or the board in relation to delivering these systems. The amendments will also help to future-proof the legislation so that the provisions can support a more flexible, agile approach to delivering informatics systems in the future. I beg to move.

My Lords, I welcome and support the government amendments in this group. In Committee, I stressed our strong support for placing the Health and Social Care Information Centre on a firmer statutory footing and replacing the current special health authority. The centre, male-midwived by my noble friend Lord Warner, as he put it, was set up by the Labour Government and has enjoyed a large measure of success, particularly in developing the bedrock quality improvement initiatives in the NHS. I stressed then that if we are able to get the patient confidentiality issues right, the UK has a huge opportunity to lead the world in health research.

The government amendments go a long way towards meeting the concerns expressed by me and other noble Lords on safeguarding patient confidentiality and the need to place a greater emphasis on obtaining consent from the patient when this information is collected or published. The information centre now has to obtain consent before it publishes information that could identify a person.

The new clause in Amendment 268, in particular, which establishes what type of information is confidential and how the information centre must deal with information, is a major step forward, as is the new clause outlined in Amendment 289 requiring the information centre to develop a code of conduct on confidential information.

The noble Earl quoted me from Committee stressing the need for safeguards that are strong enough to protect patients. As that is the first time that I have ever been quoted by the Government, I think I can legitimately claim credit for the subsequent amendments. The extra safeguards to protect patients—for example, detailing when the Secretary of State can request information and who can request the information centre to collect information, and ensuring that consent must be obtained where the information is deemed confidential—are all vital to ensure public and patient confidence that information will be properly acquired, stored, used and published.

We also strongly support Amendment 268, limiting the range of bodies that can request that the information centre collect personal or confidential information to principal bodies, such as Monitor, CQC or NICE, which are able to make a mandatory request because they have obtained consent and have the power under statute.

On the code of conduct, I hope that the noble Earl will assure us that there will be widespread consultation on the development of a code. I should also be grateful if he could reassure the House that the code will provide further detail about the proposed mechanisms that the centre will need to obtain the consent of patients. It is obviously important that we get this issue right. What will be the process for obtaining consent where people are unable to provide it—for example, patients who are unable to make decisions for themselves under the Mental Capacity Act 2006?

Finally, the Government’s Statement in the House on 6 December on UK life sciences announced their intention to share much more patient information with the private and independent sectors in an anonymised form to aid medical research and development. I believe that there are to be discussions with the BMA and other appropriate organisations on that matter to ensure strict safeguards that will instil public confidence. We particularly want to be clear how the Government will judge to which companies they will make that information available and what criteria they will use in those circumstances. I should be grateful if the Minister could update the House on progress on that issue.

My Lords, I am very grateful to the noble Baroness for her broad welcome for this group of amendments. She is absolutely right: they improve the provisions for patient confidentiality and, at the same time, the sharing of information where that is appropriate. I also welcome her endorsement of our approach to the information centre, which, as she rightly said, was set up under the previous Government and, we believe, has proved its worth in the mean while.

She asked a number of questions. On the first one, relating to consultation, yes, we will work with a range of groups in developing the code and will publish proposals in due course. On her other questions about the mechanisms for consent and obtaining consent from patients who are unable to give it because of mental incapacity, I hope that she will allow me to write a letter to save the time of the House but also because I want to get my answers absolutely correct, and I fear that I would leave important things out if I tried to answer her now.

My Lords, before the noble Earl sits down, what about the point relating to UK life sciences and the information given to the private and independent sectors?

Amendment 258A agreed.

Clause 253: Powers to direct Information Centre to establish information systems

Amendments 259 to 261

Moved by

259: Clause 253, page 243, line 26, leave out second “and” and insert “or”

260: Clause 253, page 243, line 30, leave out from beginning to second “it” and insert “the Secretary of State considers that the information which could be obtained by complying with the direction is information which”

261: Clause 253, page 243, line 38, leave out from “if” to “it” in line 39 and insert “the Board considers that the information which could be obtained by complying with the direction is information which”

Amendments 259 to 261 agreed.

Clause 254: Powers to request Information Centre to establish information systems

Amendments 262 to 267

Moved by

262: Clause 254, page 244, line 11, leave out second “and” and insert “or”

263: Clause 254, page 244, line 13, leave out from beginning to “it” in line 14 and insert “A request may be made under subsection (1) by a person only if the person considers that the information which could be obtained by complying with the request is information which”

264: Clause 254, page 244, line 20, leave out from “Chapter” to “it” in line 23 and insert “a request under subsection (1) is a mandatory request if—

(a) it is made by a principal body, and(b) the body considers that the information which could be obtained by complying with the request is information which”

265: Clause 254, page 244, line 41, leave out “relevant” and insert “principal”

266: Clause 254, page 244, line 42, after “to” insert—

“(i) the code of practice prepared and published by the Centre under section (Code of practice on confidential information), and(ii) ”

267: Clause 254, page 244, line 44, leave out ““relevant” and insert ““principal”

Amendments 262 to 267 agreed.

Amendment 268

Moved by

268: After Clause 254, insert the following new Clause—

“Requests for collection under section 254: confidential information

(1) A request under section 254 is a confidential collection request if it is a request for the Information Centre to establish and operate a system for the collection of information which is in a form which—

(a) identifies any individual to whom the information relates who is not an individual who provides health care or adult social care, or(b) enables the identity of such an individual to be ascertained.(2) A person may make a confidential collection request under section 254 only if the request—

(a) is a mandatory request,(b) relates to information which the person making the request (“R”) may require to be disclosed to R or to the Information Centre by the person holding it, or(c) relates to information which may otherwise be lawfully disclosed to the Information Centre or to R by the person holding it.”

Amendment 268 agreed.

Clause 256: Information systems: supplementary

Amendments 269 to 271

Moved by

269: Clause 256, page 245, line 32, leave out “that” and insert “any”

270: Clause 256, page 245, line 36, leave out “collected pursuant to” and insert “obtained by complying with”

271: Clause 256, page 245, line 37, leave out “or information derived from such information,”

Amendments 269 to 271 agreed.

Clause 257: Powers to require and request provision of information

Amendments 272 to 274

Moved by

272: Clause 257, page 246, line 9, at end insert—

“(2A) But the Information Centre may not impose a requirement under subsection (1)(a) for the purpose of complying with a confidential collection request falling within section (Requests for collection under section 254: confidential information)(2)(c).

(2B) In such a case, the Information Centre may, however, request any person mentioned in subsection (2) to provide it with any information which the Centre considers it necessary or expedient for the Centre to have for the purpose of complying with the request.”

273: Clause 257, page 246, line 16, at end insert—

“( ) If the Information Centre considers it appropriate to do so, the Centre may make a payment to any person mentioned in subsection (2)(b) who has provided information to the Centre pursuant to a request made under subsection (2B) in respect of the costs to that person of doing so.”

274: Clause 257, page 246, line 18, leave out “subsection (1)” and insert “this section”

Amendments 272 to 274 agreed.

Clause 258: Publication of information

Amendments 275 to 278

Moved by

275: Clause 258, page 246, line 32, leave out “collects pursuant to” and insert “obtains by complying with”

276: Clause 258, page 247, line 9, leave out “collected pursuant to” and insert “obtained by complying with”

277: Clause 258, page 247, line 10, leave out “collects pursuant to” and insert “obtains by complying with”

278: Clause 258, page 247, line 18, leave out “collects pursuant to” and insert “obtains by complying with”

Amendments 275 to 278 agreed.

Clause 259: Other dissemination of information

Amendments 279 to 287

Moved by

279: Clause 259, page 247, line 39, leave out “collects pursuant to” and insert “obtains by complying with”

280: Clause 259, page 247, line 46, after “and” insert “—

(i) the relevant person has consented to the dissemination, or(ii) ”

281: Clause 259, page 248, line 2, at end insert—

“( ) the information is in a form which identifies any individual to whom the information relates who is not a relevant person or enables the identity of such an individual to be ascertained and the individual has consented to the dissemination;”

282: Clause 259, page 248, line 11, at end insert—

“(3A) The Information Centre may also disseminate, in such form and manner and at such times as it considers appropriate, any information which it collects pursuant to a direction under section 253 or a request under section 254 (whether or not it falls within subsection (2)) to any person to whom the information could have been lawfully disclosed by the person from whom the Centre collected the information.

(3B) The Information Centre may also disclose information which it obtains by complying with a direction under section 253 or a request under section 254 (whether or not it falls within subsection (2)) if—

(a) the information has previously been lawfully disclosed to the public,(b) the disclosure is made in accordance with any court order,(c) the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual,(d) the disclosure is made to any person in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person conferred under or by virtue of any provision of this or any other Act,(e) the disclosure is made in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or(f) the disclosure is made for the purpose of criminal proceedings (whether or not in the United Kingdom).(3C) Paragraphs (a), (b) and (f) of subsection (3B) have effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure.”

283: Clause 259, page 248, line 12, leave out subsections (4) and (5)

284: Clause 259, page 248, line 22, after “section” insert “or section (Dissemination: directions under section 253 and requests under section 254)”

285: Clause 259, page 248, line 23, leave out from “it)” to first “any” in line 24 and insert “under or by virtue of”

286: Clause 259, page 248, line 25, leave out subsection (7)

287: Clause 259, page 248, line 28, at end insert—

“( ) For the purposes of this section and section (Dissemination: directions under section 253 and requests under section 254) the provision by the Information Centre of information which it has obtained by complying with a direction under section 253 or a request under section 254 to the person who gave the direction or made the request is to be treated as dissemination by the Centre of that information to that person.”

Amendments 279 to 287 agreed.

Amendments 288 and 289

Moved by

288: After Clause 259, insert the following new Clause—

“Other dissemination: directions under section 253 and requests under section 254

(1) A direction under section 253 may require the Information Centre to disseminate information which it obtains by complying with the direction if the information falls within subsection (2).

(2) Information falls within this subsection if—

(a) the information is required to be published under section 258;(b) the information is in a form which identifies any relevant person to whom the information relates or enables the identity of such a relevant person to be ascertained and—(i) the relevant person has consented to the dissemination, or(ii) the person giving the direction, after taking into account the public interest as well as the interests of the relevant person, considers that it is appropriate for the information to be disseminated;(c) the information is in a form which identifies any individual to whom the information relates who is not a relevant person or enables the identity of such an individual to be ascertained and the individual has consented to the dissemination;(d) the Centre is prohibited from publishing the information only by virtue of it falling within section 258(2)(c) and the person giving the direction considers it would be in the public interest for the information to be disseminated.(3) A direction under section 253 may require the Information Centre to exercise—

(a) the power conferred by section 259(3A) in relation to information which it collects pursuant to the direction, or(b) any other power it has under or by virtue of any other provision of this Act (other than section 259(1) or (3B)) or any other Act to disseminate information which it obtains by complying with the direction. (4) A request under section 254 may request the Information Centre to exercise—

(a) the power conferred by section 259(1) or (3A) in relation to information which it obtains by complying with the request, or(b) any other power it has to disseminate such information under or by virtue of any other provision of this or any other Act.(5) A direction under section 253 may require, and a request under section 254 may request, the Information Centre not to exercise the power conferred by section 259(1) or (3A) in relation to information which it obtains by complying with the direction or request.

(6) Section 254(3) does not apply in relation to anything included in a mandatory request by virtue of subsection (4) or (5).

(7) A requirement imposed on, or a request made to, the Information Centre in accordance with this section to disseminate information may include a requirement or request about the persons to whom the information is to be disseminated and the form, manner and timing of dissemination.”

289: After Clause 259, insert the following new Clause—

“Code of practice on confidential information

(1) The Information Centre must prepare and publish a code in respect of the practice to be followed in relation to the collection, analysis, publication and other dissemination of confidential information concerning, or connected with, the provision of health services or of adult social care in England.

(2) For the purposes of this section “confidential information” is—

(a) information which is in a form which identifies any individual to whom the information relates or enables the identity of such an individual to be ascertained, or(b) any other information in respect of which the person who holds it owes an obligation of confidence.(3) Before publishing the code, the Information Centre must consult—

(a) the Secretary of State,(b) the Board, and(c) such other persons as the Centre considers appropriate.(4) The Information Centre must not publish the code without the approval of—

(a) the Secretary of State, and(b) the Board, so far as the code relates to information concerning, or connected with, the provision of NHS services.(5) The Information Centre must keep the code under review and may revise it as it considers appropriate (and a reference in this section to the code includes a reference to any revised code).

(6) A health or social care body must have regard to the code in exercising functions in connection with the provision of health services or of adult social care in England.

(7) A person, other than a public body, who provides health services, or adult social care in England, pursuant to arrangements made with a public body exercising functions in connection with the provision of such services or care must, in providing those services or that care, have regard to the code.”

Amendments 288 and 289 agreed.

Clause 260: Information Register

Amendment 290

Moved by

290: Clause 260, page 248, line 31, leave out “collected” and insert “obtained”

Amendment 290 agreed.

Clause 266: Additional functions

Amendment 290A

Moved by

290A: Clause 266, page 251, line 8, leave out “it has”

Amendment 290A agreed.

Clause 268: Failure by Information Centre to discharge any of its functions

Amendment 291

Moved by

291: Clause 268, page 251, line 39, at end insert—

“( ) For the purposes of this section, a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service in England or (as the case may be) with what otherwise appears to the Secretary of State to be the purpose for which it is conferred.”

Amendment 291 agreed.

Clause 270: Powers of Secretary of State or Board to give directions

Amendments 291A to 291D

Moved by

291A: Clause 270, page 252, line 16, at end insert—

“(d) requiring the Centre to exercise such systems delivery functions of the Secretary of State or (as the case may be) the Board as may be specified.”

291B: Clause 270, page 252, line 16, at end insert—

“( ) A function required to be exercised by a direction given by the Secretary of State or the Board by virtue of subsection (1) is subject to directions given by the Secretary of State or (as the case may be) the Board about the exercise of the function.”

291C: Clause 270, page 252, line 33, at end insert—

“( ) A power conferred on the Secretary of State under subsection (1)(d) must provide that a direction may include provision about payments by the Secretary of State to the Information Centre for things done in the exercise of the function in respect of which the direction is given.

( ) A power conferred on the Board under subsection (1)(d) must provide that a direction must permit the Information Centre to charge the Board a reasonable fee in respect of the cost of complying with the direction.

( ) A power conferred under subsection (1)(d) must provide that the giving of a direction does not prevent the Secretary of State or (as the case may be) the Board from exercising the function in respect of which the direction is given.”

291D: Clause 270, page 252, line 38, at end insert—

““systems delivery function”—

(a) in relation to the Secretary of State, means a function of the Secretary of State which is exercisable in relation to the development or operation of information or communications systems in connection with the provision of health services or of adult social care in England;(b) in relation to the Board, means a function of the Board which is exercisable in relation to the development or operation of information or communications systems in connection with the provision of NHS services.”

Amendments 291A to 291D agreed

Clause 277 : The National Patient Safety Agency

Amendment 292

Moved by

292: Clause 277, leave out Clause 277

My Lords, this returns us to a debate that we had in Committee on the future of the National Patient Safety Agency. I am a former chair of the National Patient Safety Agency, which was established following work by the former Chief Medical Officer, Liam Donaldson, looking at the experience of the airline industry, which over the years has developed a very effective system of learning from mistakes.

In the airline industry, airline pilots have the confidence to report near misses and other incidents because that is done on the basis of no recriminations. The evidence from those reports is put together to help the airline industry to become safer and it has been outstandingly successful over the years. That was the intention of the National Patient Safety Agency. It undertakes many roles but the core role is the national reporting and learning system which is aimed at carrying out the same process as in the airline industry.

I understand that, as the years go by, more and more incident reports are made by staff in the National Health Service from which patterns are learnt. The NPSA then issues various bulletins and safety warnings so that the health service learns from mistakes. With the abolition of the NPSA, what will happen to the national reporting and learning system? No doubt the noble Earl will be able to inform us of where they have got to. I understood that last year there were discussions about a transfer of operational management to Imperial College Healthcare NHS Trust. The point is that it comes under the auspices of the NHS Commissioning Board.

The issue here is whether that is sensible, given that the NHS Commissioning Board is a management body overseeing the National Health Service, where, in this system, you want to encourage staff to feel that they can report untoward incidents without any fear of repercussions. I would like to hear from the noble Earl, Lord Howe, how we will be assured of the independence of the process by which the reporting system and analysis are undertaken, and whether he considers that there might be ways in which it could be taken out of the umbrella of the NHS Commissioning Board. I, for one, would have thought that it might have a chilling effect on the willingness of NHS staff to report incidents in the future. I beg to move.

My Lords, I support my noble friend’s amendment. As a Minister, I, too, had responsibility for the NPSA and I was responsible when we introduced the reporting system. It is easy to forget how difficult it was to secure agreement across the NHS to that reporting system. There was a great deal of nervousness about it and it has certainly taken time to build up the confidence, across the country, that ensures that most service providers are now engaged with reporting these incidents. If we put that reporting system under a powerful body that is responsible for commissioning, there is a real danger about maintaining the support for the level of reporting that we have achieved. There is a risk that, without a few more safeguards in the arrangements, we may see a dropping off in the reporting of those incidents. Providers will be nervous about how commissioners will interpret the reporting of those incidents. That is the nub of the issue. I think we have a real problem about how we can carry on building on the good work done by the NPSA on that reporting system and ensuring that we continue to give confidence to the NHS to report these incidents in the service of the greater good. I am interested to hear what the Minister has to say about protecting the gains that we have made so far in this area.

My Lords, I speak in support of what has been said by the noble Lord, Lord Warner. There is real anxiety that people will be frightened to admit to and report errors, if they feel that that could threaten, in any way, the contracting of the service that they are working in. Who in the new system will be responsible for rolling out training that has come from the cataloguing and analysis of problems, and how will the lessons learnt in devolved nations be fed into the system for the UK as a whole. Indeed, how will lessons learnt in England be fed out to the devolved nations?

My Lords, I speak as somebody who has been involved with the National Patient Safety Agency for longer than the noble Lord, Lord Warner, as a Minister, or the noble Lord, Lord Hunt, as its chairman, as I chaired it for four years. What is important is that the National Patient Safety Agency, as it is currently, has been unable to be effective. It has not been effective because it is not mandatory to adopt, implement or use the learning produced from the reports it receives from all healthcare providers on systems failures that may cause harm to patients. I hope that the Minister will reassure us that whatever the new arrangements are, the learning produced from systems failures will be implemented, or will be expected to be implemented.

I do not know whether the Commissioning Board is the ideal place for it—I understand that it is taking over the group that looked after the analysis of the reports. Therefore, it will be its task to disseminate all the learning that comes from it. The actual collection of information or data will be outsourced on a contractual basis to Imperial College. Perhaps the Minister will comment on that. The important issues are that the information on systems failure is collected and that the lessons learnt are available to all those who commission and provide healthcare. They must be implemented.

My Lords, I hope it goes without saying—I think that all noble Lords would agree—that patient safety has to be the key priority for all those working in the health service. We cannot allow it to be an add-on or an afterthought. For that reason, the Bill puts safety at the heart of the NHS, not at arm’s length. Currently, the National Patient Safety Agency’s core function is to improve the safety of NHS care by promoting a culture of reporting and learning from adverse events. It does that, as the noble Lord, Lord Hunt, rightly mentioned, through its national reporting and learning system. As noble Lords are aware, it is our intention that Clause 22, or new Section 13Q, will give the NHS Commissioning Board responsibility for this function, including the collection of information about patient safety incidents, the analysis of that information and the sharing of the resulting learning with providers of NHS care—those who contract with clinical commissioning groups or directly with the board.

The noble Lord, Lord Hunt, asked whether it was sensible to do as we propose. Safety is, of course, a key domain of quality and we believe that the board, as the body legally responsible for ensuring continuous quality improvement in the NHS, will be best placed to drive a powerful safety agenda through the NHS. The board will use its leadership, expertise and oversight of the system, including oversight of the national reporting and learning system, to lead continuous quality and safety improvement. Its unique perspective would allow it to ensure that appropriate levers are used to drive safety improvement across the system, based on the needs of the NHS. Embedding safety across the system is vital to increase the pace of development, and it is the intention that the patient safety function will be conferred on the shadow body—the NHS Commissioning Board authority—in June of this year.

It is intended that the operational management of the NPSA’s national reporting and learning system will transfer on a temporary basis to Imperial College Healthcare NHS Trust on 1 April 2012. From April, Imperial College will manage the team responsible for the existing NRLS function for a temporary period of two years. During the two-year period a full tendering process will be developed by the NHS Commissioning Board that is intended to identify the future specification of requirements for a national system to capture and analyse patient safety incident data.

Within the board there will be a patient safety team of around 40 staff led by the director of patient safety and bringing together policy, insight, advice and guidance. The arm’s-length bodies review recommended the abolition of the National Patient Safety Agency. It made clear that the agency’s functions, while necessary within a system supporting wider quality and safety improvement, did not need to be performed at arm’s length. For me, one of the key arguments for making this change is that the National Patient Safety Agency did not have the authority or position to exploit fully the information gained from the national reporting and learning system. In contrast, the board will have the necessary authority and be positioned at the very heart of the system, and therefore be better placed to lead and drive improvements.

The noble Lords, Lord Hunt and Lord Warner, questioned whether the board was actually the right body. I understand the noble Lords’ concerns regarding the independence of the NRLS, but I feel as well that the board will prove to do an excellent job. In particular, it is worth remembering the board’s specific duty with regard to this in new Section 13Q.

As regards conflicts of interest, the NPSA is not being placed within the Commissioning Board as an ALB organisation; it is being abolished. We are putting safety at the heart of the NHS. The NHS Commissioning Board will assume responsibility for securing some functions of the patient safety division of the NPSA relating to reporting and learning from patient safety incidents so that we can embed patient safety into the health service through commissioning and the contracts that commissioners agree with providers. If incident reports suggest that commissioning is the problem, this would be picked up by the system.

The noble Baroness, Lady Finlay, asked me what the proposals will mean in the context of the devolved Administrations. There is provision in the Bill for the NHS Commissioning Board to make information on reporting and learning available to others as it deems appropriate. Such information may be shared with devolved Administrations, and the board will have powers to enter into agreements with them to provide services.

The noble Lord, Lord Patel, asked who would be responsible for making the information available and acted upon. The board will have responsibility for provision of all appropriate guidance and advice. It is for the board to determine how best to ensure that this information is made available, particularly in the NHS. Clinical commissioning groups must have regard to that advice and ensure, through their contracts with providers or otherwise, that appropriate steps are taken to reduce risks and secure the safety of patients. The board would have to ensure that the advice and guidance that it provides is effective. The Bill also provides the board with the ability to deliver any of these functions through those that it considers best placed to maximise safety.

Patients rightly expect that any service provided through NHS funding will be safe, and making the board responsible for the key functions on safety will place responsibility for the safety of care where it should be—at the centre of the NHS. In saying that, however, I pay tribute to the positive contribution made by the National Patient Safety Agency and to make clear that its abolition is not at all to belittle its functions. It is, rather, a consequence of ensuring that vital functions are carried out in the best place in the new system. I believe that this is at the heart of the NHS—with the board—rather than at arm’s length.

I hope that I have sufficiently reassured the noble Lord, Lord Hunt, and that he will feel able to withdraw his amendment.

My Lords, I must say I am very uneasy because I think that the arm’s-length bodies review completely missed the point. It was my understanding that the NPSA itself was not charged with improving safety. The whole point about setting it up was to have an independent body to which people in the NHS could report adverse incidents. Information would then be used in different ways, first in the issuing of safety bulletins and reports on a pattern of safety incidents, which would improve safety in the health service. It was always the expectation that responsibility for safety rested with the health service and the regulator, CQC.

It is a fundamental confusion of roles to suggest that the body that collects this information should also be responsible for performance-managing safety. The moment you mix them up, people will be inhibited from reporting safety incidents. That is our key concern on this. Putting the reporting mechanism under the auspices of the Commissioning Board, albeit to be contracted out, will have a chilling impact on people who report. I think the architecture is wrong. I suspect incidents will fall in future. It would have been best to keep the roles separate and independent. I think I will test the opinion of the House on this.

Amendment 292A

Moved by

292A: Before Clause 280, insert the following new Clause—

“Human Rights Act 1988: provision of certain personal care and health care services to be public function

(1) A person who is commissioned to provide—

(a) personal care to an individual living in their own home, or(b) a health care service,shall be taken to be exercising a function of a public nature in providing such a service.(2) In subsection (1)(a) “personal care” in relation to England has the same meaning as in paragraph 2 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and in relation to Scotland has the same meaning as “personal care and personal support” as defined in section 2(28) of the Regulation of Care (Scotland) Act 2001 and section 1(1)(c) and Schedule 1 to the Community Care and Health (Scotland) Act 2001.

(3) In subsection (1)(a) and (b) “functions of a public nature” has the same meaning as in section 6(3) of the Human Rights Act 1998 (acts of public authorities).”

My Lords, if I am a very frail, vulnerable, sick person in need of support or care, and I go into a residential home, my human rights will be protected. In this case, that means the right to dignity, respect, and privacy if I am having intimate care. If I have exactly the same needs and exactly the same services provided for me in my own home, my human rights are not protected. But I am the same person. My human rights now depend on whether I am down the road in a residential home or have the same services in my own home. That cannot be right. This amendment is designed to close the loophole in the law that allows this. It means that if a public body has arranged or contracted the service, it is a public function within the meaning of Section 6(3)(b) of the Human Rights Act, so it brings certainty that I will get my human rights protected. These are not controversial rights—it is just decent care.

We know that almost half a million older people receive essential care in their own homes, commissioned by their local authority in England, excluding the other devolved areas. Approximately 84 per cent of these people lack the protection of the Human Rights Act because their care is provided, as we now know, by private or third sector organisations. We received compelling evidence of the extent of human rights breaches in home care settings in the findings of the Equality and Human Rights Commission’s formal inquiry into the human rights of older people receiving home care. As the lead commissioner on ageing, I was part of that inquiry.

This amendment is supported by many organisations. Among them are Age UK, the British Institute for Human Rights, Disability Rights UK, the Equality and Diversity Forum, Justice, Liberty, Mencap, the Scottish Human Rights Commission and the Northern Ireland Human Rights Commission. In its report Implementation of the Right of Disabled People to Independent Living, published on 1 March 2012, the Joint Committee on Human Rights recommended that the Health and Social Care Bill should be amended in this way.

My understanding, however, is that while the Government have no argument with the view that the Human Rights Act should apply to private and third sector organisations providing publicly commissioned home care, it seems that they consider that the law provides this coverage already and that this amendment is therefore unnecessary. I share the commission’s view that private providers of services, under arrangements made with the relevant statutory bodies under the NHS Act as amended by the Bill, will not necessarily continue to be carrying out a function of a public nature. The Equality and Human Rights Commission feels that the Department of Health’s analysis of current case law is a bit overoptimistic. Were this question to be determined by a court, the outcome could not be predicted with any certainty.

I want to thank the Minister for giving a huge amount of his time and consideration to these issues. I know that he is wholeheartedly in support of the principles behind my amendment. It is plain that he has an undoubted commitment to avoiding human rights abuses in health and care settings. However, the fact remains that any relevant assurances that he might give us, while very welcome, must fall short of providing the urgent legal clarity about the scope of the Act that I believe to be very important. They would not provide service users with clear legal redress for human rights abuses or breaches, or give providers an immediate legal incentive to apply human rights standards to service delivery.

I am not suggesting that legislative provisions are the only guarantee of human rights protection, but I would argue that they are an important part of the solution. I recognise that, going forward, the Government’s policy agenda could—and, I hope, will—provide opportunities to embed more effectively a human rights approach in health and social care. Seeking change in service culture and practice of services is very important. However, while these policy opportunities are very worthy of consideration, closing this legal loophole would put down a clear legal benchmark that would positively help to build cultural change in the health and social care sector. Such policies that the Government now have, however well-intentioned, are not a substitute for clear legal obligations under the Human Rights Act. Those would give individuals the right of redress against service providers for human rights breaches.

The Government might also have reservations that making express reference to human rights in a health context could cast doubt on other areas beyond health or social care where public services are provided by private bodies. However, I do not agree that a reference solely in health and social care would cast such doubts on other policy areas. Thinking about the operation of such a reference in reverse, it would be difficult to see how a specific reference in justice or education legislation could reasonably affect social care or healthcare.

In closing, I must reiterate that I feel that the law is not certain. In my view, the current legal position is evidently unsatisfactory. There may good arguments to support the view that providers should consider themselves bound by the Act and the duty. There are also legal arguments against that position. There is no way to predict what view a court might adopt. Support for this amendment will clarify beyond doubt the fact that a person commissioned to provide home-based social care or healthcare is performing a public function with the responsibilities that are within such a function and within the meaning of the Human Rights Act and the Equality Act. I hope that the Minister will find it possible to support this amendment. I beg to move.

My Lords, I wish to support Amendment 292A, tabled by my noble friend Lady Greengross. As I am sure your Lordships will appreciate, I approach this issue from the perspective of people with a learning disability and would argue that the provisions of the Human Rights Act should be universally applied and not dependent as to whether an individual receives personal care in a residential setting or in their own home. Such a disparity is both unfair and unjustified, and it is right that we take the necessary steps to clarify matters.

For example, let me remind your Lordships of the appalling abuse highlighted by the BBC’s “Panorama” programme in May of last year. Winterbourne View, near Bristol, was a privately owned assessment and treatment centre where residents with a learning disability were subject to an horrendous culture of ongoing bullying combined with physical and psychological abuse.

I make reference to the abuse at Winterbourne View because, following an amendment in 2008 to the then Health and Social Care Bill, which is now the Act, the law was changed to ensure that care homes in the private and third sectors, when providing care that is publicly commissioned, were within the scope of the Human Rights Act. This was the correct step to take and ensures that all legislation, regulations and guidance regarding personal care which is publicly commissioned and provided for in residential settings is underpinned by the tenets of the Human Rights Act.

For those who face the ongoing consequences of prejudice and discrimination every day of their lives—such as people with a learning disability—the Human Rights Act can have benefits that go well beyond the preconceptions of those who are eager to dismiss it as a dangerous irrelevance. However, while the individuals concerned who suffered abuse in Winterbourne View or any other residential setting are able to turn to the Human Rights Act in seeking recourse for what occurred, if a similar type of abuse happened while they were receiving publicly funded personal care within the parameters of their own home, it may be assumed by victims, local authorities and others that they would not be able to do so due to the lack of clarity. This is self-evidently a completely unacceptable state of affairs and we should not be willing to tolerate such an absurd inconsistency. I would also add that if the CQC had the resources to undertake a greater number of unannounced inspections in all residential settings, it would be easier to identify abuse at an even earlier stage.

When applying the Human Rights Act the principle question must be, “To what extent has an individual’s human rights been violated?”. It should not be, “Under what type of roof did the alleged abuse take place?”. In my view, abuse is abuse is abuse, and it is as simple as that. Respecting an individual’s human rights should be universally applied and not subject to arbitrary levels of determination, such as the situation in which we currently find ourselves.

The Government claim that the loophole does not exist and so there is no need for the matter to be clarified in the way that the amendment requires. What is not in doubt is that, under the current circumstances, it is explicit under statute that when receiving publicly funded personal care services in residential settings, an individual’s human rights can be upheld via the Human Rights Act. However, when that care is received in their own homes, the situation is much more ambiguous and less certain. Therefore, I remain hopeful that the support of Ministers for this amendment will be willingly and freely given.

My Lords, I have put my name to this amendment because it seems very clear to me that we do need legislation to clarify the uncertain state of the law relating to the provision of health and social care services commissioned from the private and voluntary sectors. We know how we got to this point. Despite the intention of the then Government that responsibility under the Human Rights Act should generally follow the outsourcing of state functions, in the case of YL v Birmingham City Council the House of Lords held that a private company providing residential care under a contract with a local authority was not carrying out a public function for the purposes of the Human Rights Act. This human rights loophole was closed by Section 145 of the Health and Social Care Act 2008, but only for residential care services. The YL case did not directly deal with the question of health or home care services contracted out by the NHS or local authorities, so neither did the Health and Social Care Act 2008 in seeking to undo the YL decision. Thus there remains a lacuna in the law which needs to be addressed.

During the debates on this Bill in Committee, and in a subsequent letter to Peers, the noble Earl, Lord Howe, raised no objections to the Human Rights Act applying to home care provided by private and third sector organisations. Indeed, his letter maintained that publicly commissioned home care is already covered by the Act.

Similar considerations apply in relation to healthcare, because the current Health and Social Care Bill will mean more independent providers being commissioned to provide NHS services. In correspondence with the Joint Committee on Human Rights, the Government raised no policy objections to the Human Rights Act extending to outsourced NHS services. Indeed, here too the Government have indicated that providing outsourced NHS services already qualifies as a public function under the Human Rights Act, so there is no need for the law to be clarified.

The Equality and Human Rights Commission, after exhaustive legal analysis, has concluded that the matter is by no means so clear-cut. I have a detailed legal briefing here, but your Lordships will be relieved to hear that I do not intend to read it out.

There speaks a lawyer. Suffice it to say that everything about the matter is extremely complex and open to question, interpretation or qualification. The YL case took many by surprise. It was hardly clear-cut—the Law Lords were split three to two. They used a factor-based approach to determining whether an organisation other than a public authority is performing functions of a public nature. However, it is fair to say that each and every one of the factors employed is hedged about with qualifications.

In support of its view on outsourced NHS services, the Department of Health cites the Weaver case, where the Court of Appeal decided—once more by a majority—that a registered social landlord was performing a public function when allocating and managing social housing. However, some legal commentators thought that this was a surprising decision too, because it sits oddly with the YL case. This again emphasises the ambiguity of the case law and indicates that the outcome of future cases cannot easily be predicted. Indeed, an opinion obtained by the EHRC from senior counsel suggests that the reverse is the case. After detailed legal analysis of the statutory framework and case law, counsel concluded that each aspect of the Law Lords’ negative reasoning regarding residential care in the YL case applies equally to the provision by private care providers of home care services.

We do not have to take a view on whether the commission is right and the Government wrong. If the Government have no problem with the policy position which it is sought to reinforce, it is enough that there is a doubt. Why not put the matter beyond doubt and avoid all the uncertainties of the case law by putting this amendment in the Bill? The Government say that they would not wish to cast doubt on other areas beyond health where public services are provided by private bodies by making express provision in this area, but all this amendment is seeking to do is to finish plugging the gap opened up by the YL decision and not completely addressed by the Health and Social Care Act 2008.

At that time it was not so clear that there was a human rights problem in relation to non-residential services, but following a welter of reports from the Health Service Ombudsman, the CQC, the Patients Association and the EHRC, we now know that there is. The Equality and Human Rights Commission’s inquiry into older people and human rights in home care revealed disturbing evidence of older people being exposed to ill treatment that raised human rights concerns. There has also been shocking evidence of serious breaches of the human rights of older people receiving NHS care. The JCHR advised the Government two years ago that they should take the first legislative opportunity to clarify matters in relation to health services. Knowing what we now know, there should not be any further delay in clarifying the scope of the Human Rights Act in relation to health and social care services. The Government really have no excuse for not acting.

My Lords, I declare an interest as a member the British Institute of Human Rights advisory board, and I apologise for my failing voice. I simply want to add to the very eloquent testimony we have heard so far that surely common sense suggests that an organisation which carries out a public service function that is mandated by a public body and takes public money for that function should be bound by the responsibilities of public service. If it is not, fellow citizens whose rights are abused—and as we have heard from the noble Lord, Lord Low, and others, this is not uncommon, particularly in old-age care—will have a lesser right of redress. Furthermore, and almost more importantly for the prevention of abuse, providers of this level of care will have little incentive to train individual carers in those notions of dignity and respect that we call human rights.

We have the Government’s response on the record in a letter to the noble Lord, Lord Lester, on 27 February, that all providers of publicly funded health and social care services should consider themselves bound by the Human Rights Act. The Government think that a court would find that the provision of publicly funded personal care at home is a function of a public nature. This is not the same as being legally binding and, perhaps more importantly, the references to “personal care only”—that is to say the all-important Article 8 right to private and family life—are not in the picture at all. So I hope that the Government will accept this amendment.

My Lords, in my view, the Human Rights Act applies already to the matters raised in this amendment. The reason for that is fairly straightforward. As your Lordships know, when the Human Rights Act was passed, many functions previously exercised by public authorities were by that time exercised by private individuals and companies. Therefore, the Human Rights Act contained the provision that public authorities should include those in respect of whom certain of their functions are functions of a public nature. That was deliberately adopted to deal with the situation where the public service was in fact given by a private individual or a private company that was not itself a public authority. For the purpose of enforcing the Human Rights Act, bodies that had as any of their functions a public function were responsible in respect of it as if they were a public body.

The case of YL has been referred to. That was not a health case but a case under the National Assistance Act where the local authority had put the lady into a private home. A majority of the House of Lords held that that was not a public function in respect of the private home. It was of course a public function in respect of the local authority, Birmingham City Council, but not in respect of the private home. The Government of the day decided to reverse that decision, not because they thought that the principles of the Human Rights Act should be altered but because they believed that the outcome in that case was wrong. That is what has happened in relation to that type of case, leaving untouched the general principles settled in the Human Rights Act itself.

At the time, the then Government decided to have a consultation on whether the Human Rights Act needed to be amended in some way to deal with these situations. The result of that consultation, so far as I understand, was that nothing needed to be done. The Government put forward an amendment in respect of the YL decision, whose introduction in this House was, I think, in the hands of the noble Baroness, Lady Thornton. In accordance with what the Government thought about the matter she said:

“Therefore, it remains the Government’s view that, in general, the provision of publicly arranged health and social care should be considered a function of a public nature. The Government will therefore continue to treat those exercising such functions as being subject to the Human Rights Act”—

and ever since that has been the position. She went on:

“I reiterate one important point from the letters. It remains the Government’s firm view that independent providers of NHS care under the National Health Service Act are, as the law currently stands, exercising a function of a public nature”.—[Official Report, 22/05/08; col. GC 632.]

That is to say that independent providers operating under the health service were carrying out a function of a public nature, and therefore the protection of the Human Rights Act applied.

In YL, Lord Bingham of Cornhill, who was one of the minority, expressed the matter in this way: he thought the answer to the question in that case was clear. Unfortunately, not everybody sitting in the case thought the same, but that was his answer. He said:

“When the 1998 Act was passed, it was very well known that a number of functions formerly carried out by public authorities were now carried out by private bodies. Section 6(3)(b) of the 1998 Act was clearly drafted with this well-known fact in mind. The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case”,

which here is covered,

“by Section 6(3)(b)”.

In his opinion, that was the case in YL. Parliament has gone along with that in the amendment and has said that the minority in the YL case were correct. In particular, it has been affirmed that this applies to the Public Health Act.

Some of the situations that have been mentioned by those who support the amendment have occurred in private residential homes. That does not mean that the Act does not apply; it means that for some reason the Act was not observed in these homes. Sadly, that can happen anywhere in relation to the Human Rights Act. It does not mean that it does not apply; it just means that it has not been carried out.

This amendment is supposed to clarify the law. Your Lordships will notice that its heading states that it applies to certain parts of the health service: it is not in any way a universal provision. The heading states:

“Human Rights Act 1998: provision of certain personal care and health care services to be public function”.

It refers to certain services, not all. I submit that that applies to all in the light of the statute as I have explained it.

As I say, the amendment seeks to clarify the law and close a loophole. Unfortunately, when you start to investigate particular cases of this kind, you are apt to get into areas of risk. What happens if a lady who is getting personal care is staying with her daughter and is not in her own private home? This amendment would not apply to that situation. This is a very difficult area. Those who originally framed the Human Rights Act bore that in mind, and the Act was very carefully framed by the Labour Government of that day. My noble and learned friend Lord Irvine of Lairg was extremely careful in selecting the language that was used. As I said, in 2008, when the amendment was made in respect of the National Assistance Act, the position in relation to the health service was very clearly restated. I submit that this amendment is unnecessary, undesirable and risks not covering the whole of the National Health Service provision, as, indeed, it does not attempt to do.

My Lords, it is a privilege to act as junior counsel to a leader as distinguished as the noble and learned Lord, Lord Mackay of Clashfern. His speech makes it unnecessary for me to speak for long. I respectfully agree with everything that he has said but wish to add a few further points. I am very sorry to disappoint so many of my friends from civil society and their representatives whose eloquent speeches we have heard today. However, I do not think that there is a loophole and, if there were, I do not think that this amendment would remove uncertainty; it would, in fact, increase it.

I am particularly glad to say this in the presence of the noble Lord, Lord Wills. He will remember that he was Minister when I was trying, as a GOAT in the Brown Government—noble Lords will know what that means—to persuade his colleagues that we should do something about the YL problem by way of further legislation. Unfortunately, the previous Government were unable to muster support for that and the present coalition Government have given that general problem to the Commission on a Bill of Rights, on which I serve, as one of the issues to consider in the context of whether there should be a Bill of Rights for the United Kingdom. Therefore, the general problem is on the agenda of that commission. When it reports by the end of this year, the Government can then take stock of what to do about it.

As the noble Lord, Lord Low, indicated in his completely accurate account of some of the background, the origin of the problem lies in the majority decision of the Law Lords in the YL case. I believe that the majority in that case asked themselves the wrong question. Instead of asking how to apply the test in Section 6 of the Human Rights Act to cover private care homes, they said to themselves—and made clear—that it was somehow unfair to place greater obligations upon public sector bodies than private sector bodies. I think that was completely the wrong question and they were very bold in deciding not to follow Lord Bingham and the noble and learned Baroness, Lady Hale, whose speeches I found completely convincing in logic but also, more importantly, completely in harmony with the intentions of the legislation when it was enacted in 1998.

In the wake of that, as the noble and learned Lord, Lord Mackay, has said, regulations were passed to deal with the particular problem. However, the general problem of what to do about YL goes way beyond the health service and health service providers. It is the problem of the reach of the Human Rights Act in imposing obligations on bodies that are private in form but provide services of a public nature. The problem is how to define what is meant by that. The framers of the Human Rights Act—as the noble Lord, Lord Warner, will remember because he was one of the key advisers in the making of the Act—decided that, rather than having lists and dealing with specific examples, there should be general language that would be flexible and capable of being interpreted by the courts on a case-by-case basis. It is most unfortunate that that failed by the majority decision in YL.

This is a very important problem that goes way beyond this Bill and will need to be addressed by Parliament at some point. My first difficulty with the amendment is the point that has been raised by the noble and learned Lord, Lord Mackay, which is the reference to,

“certain personal care and health care services”.

I do not know what that means. What are the certain ones and what are those that are not covered by that? The other difficulty is that the amendment refers to something called a “health care service”. I do not know what that means, because “health care service” is defined nowhere in this vast Bill. So the amendment has, in seeking to remove ambiguities, created two further ambiguities that would, if the amendment were to be passed, have to be determined by the courts in addition to the proper interpretation of YL.

In the YL case, the then Government argued strongly for the interpretation that Lord Bingham and the noble and learned Baroness, Lady Hale, gave. Both the previous and present Governments have said that they believe that the minority view in YL is the correct view. We now need to translate their general position when this commission has, in due course, considered it properly, which it has not yet had the chance to do. Can the Minister give a clear Pepper v Hart statement? I say that in trepidation because the noble and learned Lord, Lord Mackay of Clashfern, was the dissenter in Pepper v Hart. He thought that it was quite wrong for judges or others to be looking at what Ministers said in parliamentary debates, and there is a great deal to be said for that point of view. Nevertheless, it is the law. Rather than seeking to put an amendment which is too specific, too narrowly confined and itself contains two ambiguities on to the statute book, we could treat the Pepper v Hart statement as giving further guidance to the courts if and when the problem should arise in this particular context. I believe that to be quite sufficient. If we were to pass the amendment, we would create the very legal uncertainty that the noble Baroness, Lady Greengross, and the noble Lords, Lord Low and Lord Rix, rightly said should not be a feature of our legal system.

For all those reasons, I very much hope that the mover and supporters of the amendment will be satisfied if the Minister can give an unequivocal statement.

My Lords, in supporting the amendment, I hope that it might be helpful to your Lordships’ House if I were to provide more background from the previous Government, for whom I shared ministerial responsibility in this area, as the noble Lord, Lord Lester, alluded to. I am privileged to follow him on this, because I have found so often in our past relationships that we share many common objectives but do not always agree on the best way of getting to them.

As we have heard, the problem that the amendment seeks to address arose unexpectedly from a decision in the House of Lords, narrowly decided by a majority of three to two, which removed from vulnerable people basic protections that until then had been widely assumed to be entrenched. The arguments for addressing this problem have been compellingly outlined by other noble Lords who have spoken in this debate. These arguments were clear to the previous Government. As the Minister responsible for human rights, I felt that the YL decision did not reflect what Parliament had intended. I will not go into that because the noble and learned Lord, Lord Mackay, has set out cogently exactly why that is the case. I felt that it would be necessary to legislate to put that beyond dispute.

However, as always, it was necessary within government to agree on the scope of any change and to find an appropriate legislative vehicle. As your Lordships well know, this can often take some considerable time. In 2008, the Health and Social Care Bill, as it then was, was the first opportunity that the previous Government could find to make some progress in putting right the consequences of the YL case. I will come back to this, but here I agree with the noble Lord, Lord Lester, that this was only a start and did not address the more fundamental problem that the case had thrown up. The change in the 2008 Act was narrow in scope. As we have heard, the changes were limited to residential care services. They did not address the status of health services or home care services that were contracted out by the NHS or local authorities, and contracting out is only likely to increase under the legislation being brought in by this Government. The previous Government ran out of time in making a settled decision on how best to go further. Sadly the noble Lord, Lord Lester, had decided to stop being a GOAT, even before that process was concluded.

Therefore, in the light of all this and the YL judgment, I am not sure why the noble Earl seems to believe that all care from all providers is now covered beyond dispute by the Human Rights Act. I should be grateful if the Minister could set out in detail why he believes that advice to the opposite effect—including, as I understand it, from counsel to the HRC—is wrong. Why is that advice wrong?

The Government also appear to be concerned that accepting the amendment might cause legal uncertainty in other areas outside health and social care. I understand these arguments. I heard them many times when I was in government, but such bureaucratic caution could be extended to arguing against ever legislating for anything. However, in this particular case, if the Government are seriously worried, I suggest to the noble Earl that they may be too late. The 2008 Act has already opened that door. The Government’s suggestion that all these services are already covered, whatever the legal status of that commitment by the Government, has opened the door still wider. The Minister would therefore be unwise to rely on their line of argument, if that is what he is tempted to do in resisting the amendment.

Can the noble Lord explain what is meant by “certain personal care”, which is unclear, and what is meant by a “health care service”, which is not defined in the Bill? He is saying that we need it clarified. I do not understand how that can be done.

I am very sorry; the microphone was not working for the beginning of that. If the noble Lord was asking a specific question that he actually wants me to answer, I would be very grateful if he could repeat it.

I am asking whether the noble Lord has any answer to my point and that of the noble and learned Lord, Lord Mackay, about how the references to certain personal care and a healthcare service, which is not defined anywhere in the Bill, will resolve uncertainty rather than create greater uncertainty.

I understand that fundamental point. That does not argue against the Minister rejecting this amendment in principle. If he believes that that point in itself will create uncertainty, it is very open to the Government to redraft the amendment and specify it more precisely. I would be very content to support this amendment if the Minister said precisely that—that he would accept the amendment, subject to revising and clarifying that particular point. There will always be some areas of ambiguity in any legislation. That is why the courts exist and that is how the noble and learned Lords in this place have made their careers. That does not concern me very much. I would be perfectly content if the Minister stood up and said he was content to accept an amendment along these lines, subject to clarifying what the noble Lord and the noble and learned Lord have already identified as an issue.

I also understand that the Government are worried that they may be pre-empting the role of the Care Quality Commission and that this amendment may be unnecessary because of the protections that have been offered by that. Of course it has a role to play but that role should never substitute for the fundamental protections offered to the individual by human rights legislation.

As we have already heard, there is a serious problem of flagrant human rights abuses of older people. They need the protections offered by the Human Rights Act, but it is not just a question of the sort of brutal abuses that we have already heard described today. There are protections against those anyway, but I ask the Minister to consider this: the protection of the Human Rights Act offers fundamental dignity and respect to elderly and often very vulnerable people. I think here of the case of an elderly couple who had been together for 60 years or so but were about to be separated by a local authority. From memory, one of them had dementia and the local authority wanted to provide care for that partner in a specialist facility for dementia care, while the other partner went into more mainstream residential care. They had no protection against that. They were not being refused care. They certainly were not being abused in any of the ways that we have heard about already, but they wanted to spend their remaining years together. The Human Rights Act was the only protection that they had. The case was taken to court. They won and were able to spend their last years together. That is the sort of dignity and respect that elderly, vulnerable people are owed. That is the protection that the Human Rights Act offers them, and that is what this amendment seeks to extend.

Even then, there is a further benefit from extending the protection of the Human Rights Act in the way that this amendment wants to do. Important work that was carried out for the EHRC two or three years ago by the noble Baroness, Lady O’Loan, and Professor Klug at the EHRC showed how basic human rights principles of dignity and respect can help transform the culture of public service delivery. The Government could signal the importance that they attach to this by accepting this amendment today.

Throughout the long passage of this Bill, the Minister has been notable for his willingness to listen to and engage with argument and, where he has felt able, to change course. I hope that he will not now seek refuge by pushing this off to the forthcoming White Paper on social care. If media whispers are to be believed, No. 10 does not want that to see the light of day any time soon. Even if it appears, there is no guarantee that this issue will be satisfactorily addressed. Even if it is, it could then be years and years before any appropriate legislative vehicle could be found to make the necessary changes.

I also hope that the noble Earl will resist the seductive invitation from the noble Lord, Lord Lester, to leave this to the Commission on the Bill of Rights. Distinguished as it is, and diligent as its endeavours have been, if we believe the Daily Telegraph, it is already split three ways on many of the issues that it has to address. I hope that the Minister will consider that he would not be wise to leave this important decision to a commission whose outcome is, at best, not yet certain.

Believe me, I try extremely hard not to do so, but I noticed that the noble Lord did not deny the account given in the Daily Telegraph. I hope that it is wrong.

For the record, I deny the account given in the Mail, in the Telegraph, by Dr Pinto-Duschinsky on the BBC, and anywhere else.

I am extremely glad to hear that. I hope that the journalists concerned have noted that important denial, which I am grateful to hear from the noble Lord.

If this issue is delayed, we could be looking at years and years when vulnerable elderly people will be denied that fundamental protection. When I was Human Rights Minister, I was certain that we needed to go further than the Health and Social Care Act 2008 in tackling this problem. We ran out of time. The Government now have the time and the vehicle to do what I wish that the previous Government had been able to do. I hope that the Government will seize this opportunity and accept the amendment.

Having listened to the debate, I differ a bit from the noble Lord, Lord Wills. I have heard enough from the two distinguished lawyers who spoke beforehand to come to the view that my noble friend would be very unwise to rush down this path without more time than whatever there is—less than a week—before the intended Third Reading of the Bill to sort out the issue.

As always, my head has been left spinning by the lawyerly contributions from my noble and learned friend here and my noble friend down there. I just want to raise a couple of innocent layman’s questions that may even be a bit naive but which relate to the point that the noble Lord, Lord Lester, raised: what is the definition of all this?

I observe that the heading of the new clause does not talk about provision at the request of a public body, just provision of certain services, implicitly by anybody, whether or not commissioned by a public body. The first sentence reads:

“A person who is commissioned to provide”,

these services, undefined. Private people commission private services from private bodies in many areas—private hospitals, private residential care homes, private chiropodists, private this, that and the other. As far as I can see, the amendment extends the definition of public body to bodies that are not public by any reasonable definition and are not commissioned by public bodies to provide a service. That seems to me to be the natural construction. This is at least as much a question for the noble Baroness, Lady Greengross, as for the Minister, but that is how I read it. If that is its purport, it is not sensible and we should not rush into it.

My Lords, these Benches strongly support the amendment tabled by the noble Baroness, Lady Greengross, and the noble Lords, Lord Low and Lord Rix, to which I have added my name. It is frustrating that we appear to have moved no further forward from Committee, when the noble Baroness, a plethora of respected organisations representing older people, mental health, disability and human rights organisations, as well as the Equality and Human Rights Commission, were saying that there was a real problem which needed to be addressed by primary legislation. There are powerful arguments for amending the Bill in line with the amendment. They have again been ably made by noble Lords and I do not need to go over them again.

I believe that my noble friend Lord Wills addressed key points raised by the noble and learned Lord, Lord Mackay, and other noble Lords—as far as I was able to follow as a non-lawyer—and indeed acknowledged that this was unfinished business on the part of the previous Government. We amended the Health and Social Care Act 2008 to address this issue in respect of residential care. What has changed dramatically since then is that well over two-thirds of home care services are now provided by the private and voluntary sectors and this Bill is likely to increase the proportion of contracted-out provision still further.

The Government’s view, expressed in Committee, that any further legislation would cause uncertainty in other areas outside health and social care is a strange one. In this light, the obvious counter-argument is that the 2008 Act has already opened the door and, in my view, that factor only strengthens the case for the loophole to be closed off. Analysis by key human rights lawyers, counsel for the Equality and Human Rights Commission, key charities and civil liberties organisations have all endorsed this approach and stressed that case law does not support the Government’s view. As we have heard only recently, the Joint Committee on Human Rights’ report on independent living again called for the current Bill to be amended to extend the public function definition to the provision of care at home. For me, that is the key point. All these organisations still argue strongly that there is a loophole that needs to be addressed.

Moreover, the Government’s argument, again in Committee, that the YL v Birmingham City Council judgment has not been challenged to demonstrate that home care services are not covered by the Act or existing legislation is also weak, in my view, and does not inspire confidence in what might happen in the future. My understanding is that the subject of the YL judgment was residential care and the scope of the 2008 Act is therefore limited to that.

I hope that the noble Earl will have good news for us that the Government have rethought this issue and recognise the very real problem and concern that exist for the future. I hope that he will accept this amendment. We all agree about the importance of taking a human rights approach to care provision, with dignity and respect for older people embedded. The current loophole in the provision of personal care in the home by third or voluntary sector providers is of deep concern to thousands of recipients of home care. We need to ensure that this key opportunity to achieve clarity in this matter in the current Bill is not missed.

My Lords, we have heard many excellent speeches in this debate, not least from the noble Baroness, Lady Greengross. I know that the noble Baroness and all those supporting her are motivated by a determination to ensure that everyone who uses publicly funded health and social care services is protected from abuses of their human rights. I want to make it clear that I absolutely share that determination.

It is crucial that we ensure that vulnerable people are protected, no matter what age they are, no matter whether they have a disability, and no matter where they happen to live or where they happen to be at any given time. The requirement for people to have their human rights protected and respected is not negotiable. This is absolutely fundamental in a civilised and democratic society. The question we have before us today is how best to achieve that, and whether the proposed amendment would help or hinder us in doing so.

Amendment 292A is intended to provide certainty about the coverage of the Human Rights Act with respect to healthcare and home care providers. I understand the noble Baroness’s arguments for her amendment, and I completely agree about the importance of the Human Rights Act and the public sector equality duty. It may provide reassurance if I state clearly and unequivocally that the Government’s view is that all providers of publicly funded health and care services should indeed consider themselves bound by the Act and the duty. This is the position that we expect private and third sector providers to follow and the position that we would argue for if a case were to be brought; and we think there are good arguments with which a court would agree.

Of course, legislative provision is far from the only mechanism we have for ensuring protection for those using healthcare and domiciliary care services and for improving the quality of that care. In fact, we would argue that in order to ensure that users of those services are protected from the kinds of tragic abuses that the noble Baroness and others have spoken about so eloquently, we need to focus efforts on changing the culture and practice of services which provide poor care. We are working hard on several fronts to drive improvements in the way that people, including older people, experience health and social care services. We know that this is essential, and much of it predates the excellent EHRC report that resulted from the inquiry led by the noble Baroness, Lady Greengross.

To offer just a couple of examples of the work that we are doing to this end, we have made the Care Quality Commission responsible for assuring quality of care from April. The CQC will undertake a programme of inspections of 200 home care providers that will specifically look at supporting home care workers, the care and welfare of those receiving home care, and the involvement of people in planning and managing their own care. The new disclosure on barring service will replace the vetting and barring scheme in November this year and will make it easier for home care employers to check the suitability of their staff by providing a seamless service and introducing portable criminal record checks.

We know that legislation has a role, which is why we intend to put adult protection on a firm statutory basis for the first time ever by requiring local authorities to convene and manage local safeguarding adult boards, by legislating for their key roles and responsibilities, and by requiring them to be in touch with and accountable to local communities. We expect to see much better sharing of information and action that will help to drive up the safety and quality of services. The forthcoming White Paper on social care, which we intend to publish later this spring, will set out the broader strategic context not only on safeguarding adults but on improving quality in care services overall. The Government also intend to respond to the Law Commission report on adult social care law by creating a single statute for social care supported by statutory principles which place the well-being of individuals at the centre of the decisions made about people.

To return to the amendment itself, I am afraid that, despite the persuasive case put by the noble Baroness and others, I am not able to support it, and I hope that noble Lords will allow me to set out why. The problem is that while, on the face of it, this amendment simply provides helpful certainty about the coverage of the Human Rights Act with respect to health and homecare providers, in reality it has very serious and unhelpful implications for the wider interpretation of the Act. This may sound like a rather dry, legal argument, but it is an extremely important one with very practical consequences. By stating expressly that providers of healthcare and homecare services were covered by the Act, we would cast doubt on whether all the areas beyond health and social care were covered by it. However we framed it—whether we made it an avoidance of doubt provision or a deeming provision—we would weaken the applicability of the general test, suggesting that a narrow interpretation of the Act was appropriate and raising doubt about the Act’s applicability to all those bodies that had not been specified explicitly in the legislation.

We would also encounter the significant problem, referred to by my noble and learned friend Lord Mackay, of how to ensure that a specific provision of this type did not have the unintended consequence of making the situation less clear with respect to healthcare and homecare services. When noble Lords think of the wide range of services that fall under the banner of homecare services, I am sure they will appreciate the difficulty of drafting legislation that covers all relevant services and avoids any potential loopholes. My noble friend Lord Lester made a similar point. We can see how the proposed amendment, as drafted, makes the situation unclear. It is not clear how it applies to a person receiving care in the home of a family member—a point made by my noble and learned friend—or whether it applies to services provided under direct payment arrangements rather than being commissioned by a local authority or NHS body.

It is for those reasons that the Human Rights Act is quite deliberately designed to make broad provision that applies to all public bodies across the whole range of services. As my noble friend Lord Lester said, the Act is very carefully put together. Any amendment of the Act must be done by looking at it in the round, otherwise we risk destabilising its careful construction. That brings me to another point mentioned by my noble friend Lord Lester.