My Lords, the Minister, the noble Baroness, Lady Greengross, and I have a fair degree of form on this subject, going back over a number of years. Indeed, as I listened to the Minister introducing this matter to the House tonight, my mind wandered back to the dreaded days of the NHS Redress Bill, when the noble Lord, Lord Warner, sought to assure those of us who, in those days, sat on the other side of the Chamber that all would be well in the NHS and there was no need for a duty of candour because a new culture of openness was going to work its way through the NHS.
I have to say that things have changed because back then the professional bodies representing the staff of the NHS fought that duty of candour tooth and nail, so it is rather pleasing to have the news this week that they now have changed their minds and are willing to accept that they should uphold the duty of candour. They are moving to a point of discussing with their members not whether, but how, they do that.
I agree with the Minister that the CQC in its present form is a long way from CSCI and its predecessors in their various guises. It is properly constituted, far better resourced and has a focus to its work. Albeit that it works across a far bigger canvas than it ever did in the past, it is already performing to a much higher degree than before.
However, I return to the point the noble Baroness, Lady Greengross, and I made during the passage of the Care Bill. In that legislation, in relation to care homes and incidents where vulnerable adults may be thought to be at risk of abuse, this House fell short in its legislative function in that it did not give a power of entry to people or bodies who suspected that there might be abuse taking place. It is with that deficiency
in the law sitting in place that we have to judge all the regulations and guidance such as this that come before us and ask ourselves whether, if a person was being abused or maltreated in a care home, it would be detected.
Therefore, the noble Lord, Lord Hunt, is right to focus, as he has done, on the issues of complaints procedures and emergency planning. I accept that within the overall framework service providers are now required not only to provide their services but to report on outcomes for individuals and standard of care, but nonetheless, there is something slightly amiss. For me, it goes back to the issue of power of entry. It goes back to the point at which a concerned relative has the power to override things.
I would also like to ask the Minister for a point of clarification. It seems that Ministers are quite clear that the introduction of new basic standards rectifies what was clearly an unsatisfactory position whereby one could not prosecute a provider unless and until an improvement notice had been issued. That was clearly wrong, and a number of providers got off the hook on that technicality. Will the Minister clarify, if he can, that under these regulations a breach of fundamental standards is still not in and of itself a reason to trigger a prosecution and that a reason to trigger a prosecution is a breach of the regulations? I would like to know how the department sees that working in practice to cover the deficiency to which I alluded a moment ago.
Finally, I welcome the fit and proper person test. It is long overdue. It is a good job that it is coming to the statute book as quickly as it is.