My Lords, I should say right away that, overall, I welcome the thrust of these regulations. I am going to raise a number of points covered by my amendment to the Motion. I do so on the basis of broadly accepting the point raised by the Minister in relation to the CQC’s role and the way in which it is performing. However, there is particular concern about residents in care homes and the impact of the regulations which I would like to put to the Minister. My real concern is in respect of the three areas mentioned in my amendment in that, far from enhancing quality and public safety, the regulations actually reduce current protections in relation to complaint systems, food and emergency procedures.
I listened with great care to the Minister. He prayed in aid the remarks of Sir Robert Francis, and I will come back to them in a moment, but can the Minister also confirm that, in a sense, the regulations are a victim of the Government’s desire for lighter touch regulation? The CQC clearly has a critical role in protecting some of the most vulnerable citizens in our country. This is not the moment for lighter touch regulation. On any count, knowledge of the complaints system is important, particularly in view of concerns about standards of care in the health service and in many care homes. The current regulation states that the registered person must,
“bring the complaints system to the attention of service users and persons acting on their behalf in a suitable manner and format”.
The regulation goes on to require that,
“service users and those acting on their behalf,
are provided,
“with support to bring a complaint or make a comment, where such assistance is necessary”.
My understanding is that the Minister’s department is briefing that the new regulations are more outcome-focused and less specific about processes. However, if being less specific about processes means not telling people about them, it meets that test, I suppose. I also understand that his department is briefing that having an accessible and open culture is the same as having a specific duty to inform people about the complaints procedure.
However, the point I should like to put to your Lordships is that most residents and relatives have little idea of what to expect from a care home. Surely it is a relief to relatives and advocates when they are informed about these rights. It makes it easy for them to raise questions about care, knowing that that the regulations have the force of law and the matter cannot simply be left to local discretion. Few people comparing the two sets of regulations on rigour about complaints could argue that the proposed replacement is an improvement.
If one considers the tragic case of Winterbourne View—which I suspect a number of noble Lords will refer to—and other reports and the reports of the Health Service Commissioner, they continually emphasise that many providers’ stances on complaints are not fit for purpose. We know in relation to NHS complaints that there are continuous problems about people wondering whether they really can use them effectively. Almost all recent major care scandals have had their roots in people not being listened to or not knowing that they can complain. That is the basis of my major concern about these regulations.
Having emergency procedures in place seems pretty important, too. I do not understand the logic of deleting this important regulation. It may be that the Minister will say that it is covered by the new Regulation 17, but that states merely that, as part of good governance, the provider must establish systems or processes which enable the registered person to,
“assess, monitor and mitigate the risks relating to the health, safety and welfare of service users and others who may be at risk which arise from the carrying on of the regulated activity”.
That could easily be interpreted by providers to mean the normal, day-to-day risk assessments that they are required to carry out. I remind the Minister that care
homes are pretty fragile organisations, often with very few qualified staff, and a significant proportion are without managers in place. That is why it would be much better to be absolutely explicit that emergency procedures should be in place.
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On the choice of food, I would have thought that it is pretty integral to the quality of life. I understand that the Department of Health is stressing that the new regulations have to be read in conjunction with proposed CQC guidance, which may in many respects be stronger in stating that care home residents must have their needs and preferences taken into account. That is better than the simple provision of two alternative meals, neither of which the resident likes. Frankly, if the food is neither desired nor suitable, it breaches other regulations. The way it is being described shows a limited concept of the importance of food and of having a choice in care, when many people forget to eat and may need sensitive encouragement and real choices to tempt them into nutritious and sufficient eating habits.
I refer the Minister to the evidence I have received from Action on Elder Abuse. It is not unsympathetic to where the broad thrust of the regulations is going, but it is concerned that the regulations are now very top-line, leaving the detail to be fleshed out in guidance, and that some requirements have been weakened as a result, particularly those relating to complaints procedures, food and emergency planning, which I have referred to.
The Minister says that the fundamental standards do not undermine the overall quality. He mentioned that services should not be degrading, nor should they significantly disregard needs. Of course, I very much understand that. However, there is a real concern that the department’s approach is based on the assumption that there will always be well informed inspectors who will be on the spot to sort things out on a regular basis. The Minister will know that there are many examples of homes that have not been inspected for some considerable time. The new CQC guidelines also give inspectors far more leeway about what they choose to inspect. He will also know—given that we debate this so many times—that when it comes to issues to do with being signposted to complaints systems or food choices, if they are not in the regulations they may well be seen by inspectors as optional, rather than mandatory. The Minister made a telling comment when he referred to what Sir Robert Francis said about trying to divorce the essential from the desirable. My argument is that being signposted to complaints procedures and food choice are elements of essential need.
I agree with the Minister about the CQC and its approach. I like the approach that the new board and the chief inspectors are taking. They are starting to build up confidence. However, I want to ask the Minister about CQC capacity. I noted with interest an interview a few weeks ago with David Behan, the CQC chief executive, in which he reported that the CQC has scaled back its inspection ambitions for 2014-15 in order to ease pressure on CQC staff. Is the Minister in a position to update the House on this issue of capacity and whether it is affecting the programme of
inspections? I am particularly interested in the issue of care homes and the regular nature of inspections of those homes.
On the duty of candour, the Minister has answered the first question I was going to ask about the criteria, and I fully accept his answer. He will know that the Secondary Legislation Scrutiny Committee rather took his department to task on the issue of having to bring forward two regulations, one in relation to the NHS and the duty of candour, which we are seeing tonight. I guess that another SI will be brought forward in the next few months. Given the different definitions there are likely to be, particularly in relation to safety incidents, the Secondary Legislation Scrutiny Committee has asked the department to ensure that the Explanatory Memorandum in relation to the second statutory instrument provides a very full explanation of the different definitions of a safety incident. Will the Minister confirm whether the department intends to do that?
Overall, I am sure that these regulations are going in the right direction, but there is concern in the care home sector around complaints, food choice and emergency procedures. I am particularly appreciative of the Relatives & Residents Association, which brought that to my attention. I hope very much that the department will be able to respond positively on those points. I beg to move.