NHS employment

I beg to move amendment No. 139, in clause15,page10,line10,after ‘body’ insert

‘, a provider of services contracted by an NHS body, or single-handed provider,’.

With this it will be convenient to discuss the following amendments: No. 140, in clause15,page10,line10,after second ‘employment’, insert ‘, paid or unpaid,’.

No. 141, in clause15,page10,line19,at end add—

‘(h) Mental Health or Social Care Trust.’.

Again, these are probing amendments to try to get to the definitions of exactly who is covered within various health-related activities. We have dealt mostly with educational establishments until now, and these three amendments are designed to ensure that just about every health provider who should be included is included, and that that is clear in the Bill. Again, this is a bit of a grey area. I am sure that the Minister will be able to give those assurances, but we need them on the record.

Amendment No. 139 would add a further qualification of “NHS body”. The national health service is an increasingly complicated and fragmented body these days. We know that it relies on a good number of private, independent and not-for-profit providers from outside for operations and other services. There are shortcomings in the explanatory notes, because the note to clause 15 does not mention that. The only body it refers to is NHS Professionals.

My reading of subsection (2) as drafted is that the only people covered are those who are directly on the payroll of a hospital, primary care trust and so on. If that is so, what is the status of a private firm providing cataract operations and other providers of therapies, such as physiotherapy, in a hospital, domestic or surgery environment who are not directly on the payroll of a hospital or primary care trust but have been contracted by that hospital or primary care trust for a certain number of services? The amendment would also cover single-handed employers, so I am not seeking to cover only firms that provide those services and would be responsible for their own staff. There are occasions when operations and treatments are contracted out to a single-handed provider.

We know what certain single-handed GPs in the form of Dr. Harold Shipman can get up to. He did not just abuse his patients, he killed them. Obviously, that is one of the most extreme examples, but some single-handed providers contracted by certain health trusts are not GPs and would not be covered by the safeguards that GPs and others in the NHS have.

In the mental health field, freelance consultants tend to offer various cognitive behavioural therapies and other forms of talking therapy and counselling. They are not employed by an NHS trust, but are contracted by it—if they are lucky enough to be able to get hold of one—to provide those services. The clause does not appear to cover such individuals, and I think that it should. What is the difference when that private counsellor is contracted to a mental health trust by an employee of the trust and is providing identical services? Will the Minister justify why they should be treated differently?

Amendment No. 140 is a probing one; I am not calling for an enormous extension to the number of  people covered by the provisions, but a question mark hangs over unpaid workers. The NHS relies on a great many volunteers—leagues of friends and people who regularly offer their assistance to vulnerable people. That assistance can include counselling services and driving minibuses to take vulnerable people to and from their homes. We need to be assured that, without making it so onerous and prescriptive that people would not want to volunteer—we must be very cautious about that—there will be checks and balances.

I have qualified employment therefore as “paid or unpaid” because those people are retained effectively by a hospital or PCT, but strictly speaking are not employed. What facilities are available for the monitoring of volunteers and other unpaid people who offer their services, and who have frequent and continuing contact with vulnerable groups of people?

On amendment No. 141, I am sure that there is a perfectly clear explanation, but it is not in the Bill or the explanatory notes. Seven NHS bodies are defined but there is no reference to a mental health or social care trust. Perhaps by a definition somewhere in the Bill of which I am unaware, such bodies come under a special health authority—I do not know. Either way, they need to be included, because patients of those particular trusts are probably the most vulnerable people of all in the NHS. So the amendment is a probing one to see how a mental health trust, or a social care trust—many are increasingly becoming known as the latter, given the joint operation between social services and mental health trusts—will be covered in the Bill. One would expect them to be in the list in subsection (3), but they are not.

Does the hon. Gentleman agree that it is particularly important to ensure that social bodies are covered, given the media coverage last week of patients being abused on wards?

The hon. Lady makes a pertinent point. The report focused on the abuses in Cornwall and the most unacceptable practices towards people with learning disabilities. In response to the revelations in that report, we asked how the Bill would safeguard the interests of people who had been abused, and about the Government’s investigation on whether such abuse is more widespread than we know.

I was actually referring to the Mind report about women being sexually assaulted on mental health wards.

There has been a plethora of worrying reports in the past week. One of them dealt with learning disabled people in Cornwall. Another was the Mind report, which has been sat on by the Department of Health for no good reason for the past eight months, since November 2005. It contains a catalogue of at least 100 cases—those are just the ones we know about—of rape and abuse of patients in mixed-sex mental health wards. The Government said some 10 years ago that they were firmly against such wards and that they were looking to phase them out, but mixed-sex wards remain prevalent in the national  health service—particularly in mental health trusts, and they have become increasingly prevalent in those trusts in the past 12 months because of the financial pressures in the NHS that are having a disproportionate impact on them.

I have visited a number of mental health establishments in the past few months and there are a number of examples of such establishments that now have mixed-sex wards whereas previously they at least had some division between men and women. In those establishments that still claim to have division of wards, the divisions amount to a flimsy curtain or screen. Such a ward cannot seriously be taken as a single-sex ward on any reasonable definition.

Two reports have come out in the past week; or rather, the existence of one of them has come out, though it has yet to be published—I hope that the Minister will publish it soon. Given what we know from them about the abuse that is happening, it is important that the legislation protects people in mental health establishments, who are the most vulnerable of all, and those with learning disabilities, both of which groups are currently being threatened. Will the Minister therefore confirm that such people will be covered by the Bill, and that the reason why mental health and social care trusts are not mentioned expressly is that they are covered either in the seven definitions of NHS bodies or elsewhere in the Bill?

When the hon. Gentleman said that Ministers were a little shaky on the earlier clause, it was he who failed to spot the specific reference to sheltered housing. I shall not hold that against him, however, because I acknowledge that he makes a legitimate point in amendment No. 139. The amendment concerns contracted-out staff who work for an organisation that provides services to the NHS. I shall go away and examine the point and present the Government’s view on Report. We should consider not just those who are directly employed by the NHS but those who provide services to the NHS through other organisations. I do not know whether we can apply the same rules, but the point is a legitimate one.

Amendment No. 140 is designed to clarify that the arrangements apply to both paid and unpaid staff. We have not sought to make the distinction in the clause or anywhere else in the Bill. We believe that “regulated activity” applies regardless of whether it is done formally or informally, so we do not believe that the amendment is necessary.

The first point that I shall make on amendment No. 141 is that we are united—across the House—in our outrage at what happened in Cornwall. At the beginning of the 21st century such occurrences are completely unacceptable, and the abuse and exploitation of people with learning disabilities in such settings is unforgivable. It was significantly systemic, as well as involving individual behaviour. We have a joint responsibility to put in place whatever systems and levers we can to minimise the risk of such abuse ever happening again. I do not use the word “eliminate” because no Minister can ever promise that, but it is our responsibility to minimise the risk of such actions and behaviour ever being allowed to happen again.

One of the priorities in my new responsibilities will be to examine these issues in the context of how people  with learning disabilities are treated more generally. My right hon. Friend the Minister of State at the Health Department will be looking at some of the issues that hon. Members raised about mental health services as well.

I turn to something that is specifically linked to that point. A care trust is used to described a partnership arrangement put in place by an NHS trust or primary care trust and a local authority social services authority. The status of the NHS trust or PCT concerned does not change in these circumstances, and both the trust and the local authority retain their original status, while changing the governance functions. There is no other legal significance, and staff operating under partnership arrangements will remain employed by the NHS trust, PCT or local authority concerned. I can reassure the hon. Member for East Worthing and Shoreham that these partnership arrangements are therefore adequately covered by paragraphs (a) and (g) as they stand. I give him a categoric assurance that the concerns he expressed about a partnership arrangement or a mental health trust will be covered fully by the Bill.

I am grateful to the Minister. On amendment No. 141, I purely wanted to know where the definition of those trusts would appear. The Minister seems adamant that they are covered in parts of subsection (3). It is useful to have that stated, given the debate we have just had.

The second point, that unpaid workers are fully covered, if I understand the Minister rightly, will have many implications for voluntary workers. I am not sure how extensive that coverage will be. Many of us have been at pains to try to keep occasional volunteers out of such a rigorous vetting system because they will be completely deterred otherwise. If he says that my amendment is unnecessary in that respect, we will take him at his word.

I am pleased, but alarmed, about the Minister’s acknowledgement that amendment No.139 might have some merit because it is not covered in the Bill. He knows, in his position as a Health Minister, just how much NHS work is now contracted out across the piece, not just short operations and episodes, but ongoing treatment, rehabilitation and mental health services, and everything else. Such things are provided by the independent sector, and in some cases by not-for-profit organisations.

That is not new. It has been going on for a while and it is certainly taken into account when dealing with other pieces of legislation. In respect of all the children’s legislation we have had in recent years, we raised the question whether the private sector, to which work has been contracted out, is covered. The Minister has always been able to give us assurances that it is, which is what we want.

As I understand it, the specific issue that we are discussing is that when people move around in jobs while directly employed by the health service there will be no need to recheck them constantly. The point that we are making in this narrow context is that the  same principle ought to apply to those who are working in independent organisations that provide services to the NHS, be they in the third sector or the private sector. When I say that I will come back on this on Report, it is not about needing to come back on the question of those employed in independent sector organisations, because they would be covered anyway. The issue is that when they move around in terms of their employment status the same common-sense approach would be applied to those workers as to those employed directly by the NHS.

I am not entirely sure that I follow that. The Minister appeared to say earlier that he was not sure what measures in the Bill covered not people who move around opting in and out of working for the NHS but full-time independent providers, whether single-handed or part of private firms, who do NHS work but are not employed by an NHS body. Subsection (2) covers only people employed by an NHS body.

Thousands of people working for the NHS without being employed by it are providing operations and treatment to many vulnerable people and should surely be treated on exactly the same basis as directly employed NHS consultants, doctors, nurses, therapists, physiotherapists, mental health counsellors or whatever who deal with the same cohorts of vulnerable people. Surely there should be no differentiation between those on the payroll of the local hospital trust or PCT and those contracted through a firm or single-handedly to provide identical services to patients. What matters at the end of the day is not structures or who produces the employment dockets; it is patients and the treatment that they are getting, whether from a private and independent, a not-for-profit or a state-run, directly employed NHS source.

I am disappointed. I had hoped that I would be reassured by the Minister saying, “Yes, it’s a very good point. In this part of the Bill, of course all those independent providers will be covered.” He might be able to say that now, from the looks of it. If they are not, it should have been thought about earlier, and he needs urgently to convince us now or on Report that they are covered. If he wants to intervene to assure me now, that will be welcome.

The hon. Gentleman has an awful habit of making me believe that something I had thought was absolutely certain is not quite so certain, when in fact it is. Such people will be covered by the definition of “vulnerable adult” in clause 44(1)(d) and the definition of “regulated activity” in schedule 3 part 2. All the way through the Bill, I have said to him that I believe that health services provided by the independent sector to meet the needs of the national health service are covered in the mainstream part of the Bill.

I said in my contribution—I gave the hon. Gentleman the credit for raising an important issue; he is not very magnanimous on these occasions—that we are discussing whether people who move around in their employment within the independent sector should have to undergo repeated checks and monitoring or whether the same common-sense approach used with  directly employed national health service staff will not require them to be checked on a multiplicity of occasions.

That is the point that I made in my direct response to his amendment, which referred to the inconsistency between the rules applying to directly employed NHS staff and those applying to people commissioned from the independent sector to provide a service to the NHS. There is no question about it. I give him a final clarification that those working in the independent sector who are contracted to provide services to the national health service will be covered by the mainstream part of the Bill, and I can give him specific references.

I think that that intervention is over. I am grateful to the Minister. It is not a question of being magnanimous or taking the credit; all that I am concerned about is ensuring that vulnerable people will be covered.

I said that.

Well, the Minister did not say that. He started by saying that he would have a look at it and come back. After some in-flight refuelling, he has been able to say that actually, there are some definitions later in the Bill that will cover those people. That is what I wanted to know. It is the answer that I should have had in the first place, and the answer that he should have been able to give off pat if he really knew who the Bill covers.

It is pretty basic stuff. Vulnerable people should be covered whether they are treated by an NHS employee or by somebody who is not an NHS employee but a private, independent provider of the same treatment. That is the simple question that I asked at the outset. It was perfectly clear to all of us in the Conservative party, and the amendment is simple and straightforward. At last, and only because we have extended the debate slightly, we appear to have the answer that the amendment was designed to elicit and that I asked for some time ago. I am glad we have it now, and on that basis, unless the Minister changes his mind again, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 ordered to stand part of the Bill..

Clauses 16 and 17 ordered to stand part of the Bill.