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

I apologise to the Minister that I was not here when she rose to her feet, but I thank her for introducing and explaining these regulations, which in large measure seem to be as expected and, therefore, not unduly controversial. At the same time I have a number of concerns. My first concern relates to the types of premises which the regulations cover. We see from Regulation 3(1) that the premises to which a services provider must allow an authorised representative to enter are those which it owns or controls. That rules out an obvious category of premises; namely, those which are owned by private providers. It is essential that there is no watering-down of accountability on the part of the private sector. During the passage of the Local Government and Public Involvement in Health Act, we were told that these premises would be the subject of directions which obliged commissioners of care to build into their contracts with private providers an obligation to allow representatives of LINks to enter and view services. The problem with this is twofold: first, without sight of those directions, it is difficult to know whether they are adequate. Secondly, it is not clear whether the directions will apply also to local authorities. Unless they do, we have to ask how care homes provided under contract to local authorities will be required to permit entry. I should be grateful if the Minister provided some clarity on those issues. Under Regulation 3(2), the duty to allow entry does not apply if the presence of a LINks representative would compromise the effective provision of care services or the privacy or dignity of any person. These are the most worrying provisions in the SI. Who will judge whether the effective provision of care or someone’s privacy or dignity are being compromised? It is clear that it will be the services provider. The way is left wide open for the provider to take a completely one-sided and unjustified decision to exclude a LINks representative from a set of premises, without any immediate right of comeback. What might constitute a breach of dignity? One could argue that entering and viewing an establishment where patients are lying in bed dressed in hospital gowns is a breach of privacy and dignity. What is to stop a provider from arguing this? How would a LINks representative be able to rebut such an argument? Equally, it would be possible, let us say, for an A&E department to argue that the presence of a LINks representative compromised the effective provision of emergency care, for no reason other than that the department was busy. This provision, too, is surely wide open to abuse. The main reason why community health councils were so effective in monitoring A&E departments was that they had an unfettered right of access. That right was not abused. If a CHC member really got in the way of activities on the unit, they would withdraw voluntarily under their code of conduct. If CHCs had had to operate within the terms of these regulations, it is highly doubtful whether Casualty Watch would ever have been the force for good that it unquestionably was in exposing poor practice in A&E departments. It would be better to include the prohibition in paragraph (2)(a) not in regulations but in a code of conduct. We understand that such a code is in the course of being produced. It is a great pity that Ministers were not prepared to place a little more faith in people’s integrity and good will to do the right thing in the appropriate circumstances rather than rely on the law to erect a set of statutory barriers. Exactly the same point could be made about Regulation 3(2)(g), which provides that an authorised representative may be denied entry if, in the opinion of the services provider, they are not acting reasonably or proportionately. There is surely far too much scope there for spurious and subjective decision-making of a kind that would run counter to the entire rationale of the legislation; namely, that providers of services should be open to public inspection and not artificially shielded from adverse criticism. I regret the way that these parts of the regulations have been framed, especially given that there is no statutory right of appeal for the LINk representative if they are unfairly excluded. Category (c) of the definition of ““excluded premises”” refers to, "““premises which are occupied by one or more persons as their home””—" which is not problematic— "““and which at least one of those persons occupies under a tenancy or a licence””." At present, I am unclear what the significance of a tenancy or a licence is in this context, and it would be helpful if the Minister could explain. Equally, I am not wholly clear what count as non-communal areas of care homes for the purposes of Regulation 2. A kitchen in a care home is not a communal area, but it is clearly not part of someone’s private quarters. The same applies to offices. A ladies’ toilet is not communal, because it is not open to men, but there seems no reason why a LINks representative should not be allowed access to it. It struck me that ““communal”” is perhaps not as clear as it might be. Can the Minister explain why the regulations have been framed in this way and whether there is an intention to exclude parts of premises that are neither private nor shared by all residents? I do not understand the reason for Regulation 3(2)(f). Why should an authorised representative have no right of entry to a part of a hospital or care home which happens to be empty of patients or residents? It might be that a certain part of a set of premises was used on a regular basis by patients or residents, but at the particular time when the LINk was visiting that part of the building was empty of people. Why should the LINk be denied access to it? In some circumstances, premises are best viewed when not in use, particularly if one wants to avoid falling foul of health and safety issues. To sum up, I am sorry to say that much too much in these regulations, unwittingly or not, serves to protect unsafe institutions and to muzzle the whistleblower. I find that deeply regrettable. The LINks member, provided that he or she is properly authorised and trained, should have an automatic statutory right to enter, view, observe and monitor activities, as the PPI forums do at present. On that score, can the Minister bring us up to date? The activities of PPI forums are going to be switched off at the end of this month. I would doubt that many members of the public are aware that the system for protecting the interests of patients in the NHS is to be dismantled and replaced by a procurement process, which could in some cases be drawn out. The Minister will remember the amendment to the local government Bill designed to bring about a smooth transition between the abolition of PPI forums and the setting up of LINks. Can she say what arrangements are in place to keep patient and public involvement going prior to the formation of LINks and how many patient forum members have been invited to participate by local authorities during the transition?