Amendment proposed this day: 42, in clause 42, page 38, line 13, at end add ‘if the local authority has reason to believe enquiries are being impeded such that it cannot determine whether any action is necessary it shall record whether or not an application for an adult safeguarding access order was considered or made under section [ ].’. —(Paul Burstow.)

Question again proposed, That the amendment be made.

I remind the Committee that with this we are discussing the following:

Amendment 116, in clause 42, page 38, line 14, leave out subsection (3) and insert—

‘(3) “Abuse” includes—

(a) physical abuse;

(b) sexual abuse;

(c) psychological abuse;

(d) financial abuse, which includes—

(i) having money or other property stolen;

(ii) being defrauded;

(iii) being put under pressure in relation to money or other property; and

(iv) having money or other property misused;

(e) neglect and acts of omission;

(f) discriminatory abuse; and

(g) other, as guidance may specify.’.

Amendment 117, in clause 42, page 38, line 19, at end add—

‘(4) A relevant partner (as identified in section 6(7)) has a duty, where it has reasonable cause to suspect a person is an adult at risk of abuse or neglect, and the adult appears to be within the local authority’s area, to inform the local authority of that fact.’.

Amendment 118, in clause 42, page 38, line 19, at end insert—

‘(4) In the case of financial abuse, investigation may be instigated following a complaint from a person with power of attorney for an adult having needs for care and support.’.

New clause 3—Adult safeguarding access order—

‘(1) An authorised officer may apply to a justice of the peace for an order (an adult safeguarding access order) in relation to a person living in any premises within a local authority’s area.

(2) The purposes of an adult safeguarding access order are—

(a) to enable the authorised officer and any other person accompanying the officer to speak in private with a person suspected of being an adult at risk of abuse or neglect;

(b) to enable the authorised officer to assess the mental capacity of a person suspected of being an adult at risk of abuse;

(c) to enable the authorised officer to ascertain whether that person is making decisions freely; and

(d) to enable the authorised officer properly to assess whether the person is an adult at risk of abuse or neglect and to make a decision as required by section 41(2) on what, if any, action should be taken.

(3) While an adult safeguarding access order is in force, the authorised officer, a constable and any other specified person accompanying the officer in accordance with the order, may enter the premises specified in the order for the purposes set out in subsection (2).

(4) The justice of the peace may make an adult safeguarding access order if satisfied that—

(a) all reasonable and practicable steps have been taken to obtain access to a person suspected of being an adult at risk of abuse or neglect before seeking an order under this section;

(b) the authorised officer has had regard for the general duty in section 1 (Promoting individual well-being) in making a decision under subsection (1).

(c) the authorised officer has reasonable cause to suspect that a person is an adult who is experiencing or at risk of abuse or neglect;

(d) it is necessary for the authorised officer to gain access to the person in order to make the enquiries needed to inform the decision required by section 41(2) on what, if any, action should be taken;

(e) making an order is necessary in order to fulfil the purposes set out in subsection (2); and

(f) exercising the power of access conferred by the order will not result in the person being at greater risk of abuse or neglect.

(5) An adult safeguarding access order must—

(a) specify the premises to which it relates;

(b) provide that the authorised officer may be accompanied by a constable; and

(c) specify the period for which the order is to be in force.

(6) Other conditions may be attached to an adult safeguarding access order, for example—

(a) specifying restrictions on the time that the power of access conferred by the order may be exercised;

(b) providing for the authorised officer to be accompanied by another specified person; or

(c) requiring notice of the order to be given to the occupier of the premises and to the person suspected of being an adult at risk of abuse.

(7) A constable accompanying the authorised officer may use reasonable force if necessary in order to fulfil the purposes of an adult safeguarding access order set out in subsection (2).

(8) On entering the premises in accordance with an adult safeguarding access order the authorised officer must—

(a) state the object of the visit;

(b) produce evidence of the authorisation to enter the premises; and

(c) provide an explanation to the occupier of the premises of how to complain about how the power of access has been exercised.

(9) In this section “an authorised officer” means a person authorised by a local authority for the purposes of this section, but regulations may set restrictions on the persons or categories of persons who may be authorised.’.

New clause 4—Duty to report adults at risk of abuse—

‘(1) If a relevant partner of a local authority has reasonable cause to suspect that the local authority would be under a duty to make enquiries under section 42, it must inform the local authority of that fact.

(2) If the person that the relevant partner has reasonable cause to suspect would be the subject of enquiries under section 42 and appears to be within the area of a local authority other than the one of which it is a relevant partner, it must inform that other local authority.

(3) If a local authority has reasonable cause to suspect that a person within its area at any time would be the subject of enquiries under section 42 and is living or proposing to live in the area of another local authority (including a local authority in Wales, Scotland or Northern Ireland), it must inform that other local authority.

(4) In this section “relevant partner”, in relation to a local authority, means—

(a) the local policing body and the chief officer of police for a police area any part of which falls within the area of the local authority;

(b) any other local authority with which the authority agrees that it would be appropriate to co-operate under this section;

(c) any provider of probation services that is required by arrangements under section 3(2) of the Offender Management Act 2007 to act as a relevant partner of the authority;

(d) any provider of regulated activities as listed in Schedule 1 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010;

(e) a local health board for an area any part of which falls within the area of the authority;

(f) an NHS trust providing services in the area of the authority; and

(g) such person, or a person of such description, as regulations may specify.’.

New clause 19—Corporate responsibility for neglect—

‘(1) This section applies where a person registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 (a “registered care provider”) in respect of the carrying on of a regulated activity (within the meaning of that Part) has reasonable cause to suspect that an adult in their care is experiencing, or is at risk of, abuse and neglect.

(2) The registered care provider must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom.

(3) Where abuse or neglect is suspected, the registered care provider is responsible for informing the Safeguarding Adults Board in its area and commits an offence if (without reasonable cause) it fails to do so.

(4) A registered care provider is guilty of an offence if the way in which its activities are managed or organised by its board or senior management neglects, or is a substantial element in, the existence and or possibility of abuse or neglect occurring.

(5) A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding five years, or to a fine, the range of which will be specified by regulations, or to both.’.

New clause 22—Duty of candour—

‘(1) Local authorities must take reasonable steps to create an open and honest culture that enables employees to report reasonable suspicions of abuse and neglect of individuals in the care of the local authority or a provider commissioned by the local authority.

(2) “Reasonable steps” include—

(a) ensuring that staff are aware of and trust processes open to them;

(b) provision of advice about the process;

(c) review of procedures; and

(d) regular communications to staff about the processes.’.

New clause 23—Offence of abuse of adult in care—

‘Any person who wilfully causes or permits an adult who has care and support needs to suffer physical or mental pain or injury or, having the care or custody of that adult, wilfully causes or permits the person or health of that adult to be injured, including through the neglect of their care and support or health needs, or wilfully causes or permits that person to be placed in a situation that endangers his or her person or health, including mental health, is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both.’.

New clause 24—Offence of corporate neglect—

‘In section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007, insert—

“1A Corporate neglect

(1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised—

(a) cause a person to suffer abuse or neglect;

(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the person who suffers abuse or neglect; and

(c) the offence under this subsection is called corporate neglect.’.

Welcome to this afternoon’s sitting, Mr Bayley. Before we adjourned for Foreign and Commonwealth Office questions, we were debating clause 42. It was a very liberal debate on a very liberal question about when liberty is to be protected and at what point the burden is such that the state should use its power for a good, which is to protect the individual from abuse. I will not dispute by one iota that the Minister has set out serious issues at the heart of the debate. Although I disagree with much of the conclusion, I think the analysis is absolutely right.

The Minister has had a bit of a hard ride—we probed, pushed and prodded—but he has been generous in engaging with the concern that members of the Committee have. I will respond mainly to new clause 3, although I will briefly touch on the others, if I may. The Minister is right to say that the issue is about the balance of risk, but is wrong when he comes down on the side of the status quo of not having a power of entry. I agree with the Minister that we are judging questions of human rights; we will be spending a lot of the rest of today doing just that.

The concept and legal framework of human rights is not only about checking state power—it is not simply a negative thing about stopping things—but about placing upon the state positive obligations, particularly under the European convention on human rights and under the Human Rights Act 1998, to take action to protect people. In other words, the state can use its power for good. That is why we are in this place; we are using the state’s power for things that we think are about the common good.

We should take the contribution of the hon. Member for Sheffield, Heeley seriously, given the 20 years of practical social work experience that she draws upon. She talked about creating cultures that are about doing  the right thing. The Minister agreed and stressed that the law and regulation are not sufficient to get great cultures, and I think that that is absolutely right.

The Minister rightly went on to say that we do need good regulations and law to underpin good culture. For me this is about a human rights-based approach to safeguarding. The Minister talked about the unintended consequences of new clauses. The new clauses and amendments are not only tabled by Members who are not in the Government. As was exposed during our consideration of the new clauses, the drafting of the legislation that set up the Care Quality Commission had within it a flawed clause—a Government clause—so I gently suggest that Governments can err as well, and there can be unintended consequences in the legislation that they put through. That is why I am probing, because this is one of those areas where a reluctance to act, for very good reasons, is wrong.

It is often said that there will not be many cases. It has been suggested that we are talking about extreme cases, but that is not so. We are talking about cases where a third party is preventing access even to determine what the nature of the case is to conduct the clause 42 power. If the power prevents even one tragedy, and one extra day of abuse is reduced, I believe it is worth having. The new clause offers a proportionate mechanism, and the court would have to be satisfied about the application of that when it comes to it.

I am concerned about the consultation that the Minister has prayed in aid in his response. No one could have expected complete unanimity on something as contentious as this, but there was a clear preponderance of views among organisations, many of which represent service users and public bodies such as safeguarding boards, in favour of taking the opportunity to legislate in this area. Indeed, within that was the view of the Equality and Human Rights Commission, which has some locus when it comes to determining issues about the applicability and role of the Human Rights Act. My fear is that when it comes to power of entry, insufficient weight is being given to those without power and those without voice. They are the beneficiaries of the new clause, but they are sitting silently and cannot contribute. Those who can contribute are not beneficiaries.

I put two questions to my right hon. Friend. He says that if the measure saves only one person, it is worth it. Does he accept that, as is recognised in the new clause, in some circumstances the exercise of a power of entry might put someone at risk and result in the sort of retribution outlined in the new clause? Does he also accept that 70% of the individuals who responded to the consultation—I appreciate that a mix of people responded—were against the measure?

Let me try quickly to work through those fair points. I believe that primary legislation would contain all the necessary safeguards, because the new clause would explicitly require a court to satisfy itself that the well-being principle had been taken into account in exercising the function. That would include choosing the least restrictive option, ensuring that decisions about an individual are made with regard to their individual  circumstances and ensuring that the individual’s views, wishes and feelings are taken into account, while also protecting people from abuse and neglect. The Minister is right that those two things have to be constantly weighed against each other, but that is what a court is there for. Clause 1 provides the lens through which the new clause should be seen. I believe that that addresses the concerns expressed by the Minister and by Mind, which is why I added the principle to the new clause.

The Minister referred to the consultation, and mentioned the suggestion that the expert court—the court of attention—should exercise jurisdiction in this regard. I have sympathy for that, and there is arguably scope for a different approach in that area. I note that inherent jurisdiction is now being prayed in aid, but paragraph 13 in the consultation document set out a powerful and unequivocal case as to why that was not satisfactory. There was no suggestion that the Government were consulting on that; they declared their view, but they now appear to have set that view aside when it comes to my new clause.

The Minister said that there has been widespread ignorance about existing powers, and he promised to provide in guidance examples of scenarios in which existing laws might be used. It would help me if, before 4 February, when the Committee will vote on the new clauses, he would provide the Committee with a letter setting out the current state of the law, the existing powers, their precise locations and when they have been used. Such information would help us decide whether to vote for or against the new clauses, or not to press them.

I am happy to write as my right hon. Friend suggests, setting out what the existing provisions allow for and what the guidance might cover, even if we have not yet issued the guidance, which has to be done jointly with the Association of Directors of Adult Social Services and the Local Government Association. Whatever disagreement we have over the matter, it will be in everyone’s interest to have clear practical guidance with case studies to guide practitioners about the powers that they have and how to exercise them.

I agree. The Department of Health would be doing everyone a service if it undertook to provide that, and I look forward to seeing it. It also concerns my hon. Friends the Members for Truro and Falmouth and for Totnes, and we will all want to look closely at that information. Scotland has had legislation since 2007 and it has been evaluated. There is no suggestion that that, if anything more stridently drafted piece of legislation has had the unintended consequence and harm that the Minister fears could flow from the new clause. Will he ask his officials to take another look at those evaluations? I dare say that there will be something in there that I have missed and that will be useful to reflect on.

New clause 4 is about partner agencies. I take the Minister’s point about safeguarding boards and the provisions in schedule 2 and will leave that matter to rest for now.

On new clause 24, which deals with corporate accountability, the Minister rightly talked about fundamental standards. I wonder whether it would be  proper or possible to consult the Director of Public Prosecutions. I hope that it is possible and that the Minister will do this. It seems to me that, in making sure that we have language that can be used for a prosecution, it might be sensible to consult those who are in the business of doing that all the time for the Government and, indeed, in the public interest. Will the Minister make sure that that it is done to ensure that we get the language absolutely right so that it does not have a coach and horses driven through it by a well paid QC in a court at a later stage? Will the Minister give some indication on that?

What I can say is that an exhaustive process is under way between the Care Quality Commission and the Department of Health to ensure that we get this right. There has already been a consultation, and a further process will be under way. The whole intent is to get to the point that deals with my right hon. Friend’s concerns.

I thank the Minister for that and am reassured. On new clause 3, which deals with wilful neglect, I very much welcome the commitment about consultation. It suggests that this Bill will have sailed and become and Act before that becomes legislation, but I hope there will be a slot, perhaps in the next Session.

These are particularly wicked issues in terms of getting it right and being confident that we are doing so. I hope that, if the Minister’s view today prevails, as I suspect it will, he has got it right because the consequences of getting it wrong are absolutely tragic. For that reason, I wait to see the letter about new clause 3 and will be happy to withdraw the amendment.

Is it the Committee’s pleasure that the amendment be withdrawn?

Hon. Members:

Aye.

Welcome back to the Chair, Mr Bayley. We have had a full debate on these topics, which is absolutely right. I will say a few words about the amendments and new clause 22, and make a couple of comments on new clauses 3 and 19.

The Bill contains detail on the definition of financial abuse, which is not broad enough to cover all the aspects of abuse that we want to see addressed. The Minister has said that there will be guidance on that.

Norman Lamb indicated assent.

I can see the Minister nodding. I stress that, if he can make the guidance as full and as flexible as possible, I would be happy not to press amendment 116.

As hon. Members may remember, amendment 118 states that, if someone with the power of attorney suspects that the person for whom they have that power is being abused, the local authority should act on that. We have concerns that data protection might prevent local councils from responding to such concerns. I hope the guidance will consider those data protections laws.

Norman Lamb indicated assent.

I am disappointed that the Government have spoken against amendment 117, which would place a duty on all relevant partners—such as the police, the NHS and the probation service—if they suspect abuse, as there is such a duty in relation to suspected abuse of children.

I confess that I am not an expert on children’s legislation, but my officials have considered the matter. The shadow Minister asked whether there is an equivalent measure in children’s legislation that requires organisations to report. The answer is no, and the introduction of mandatory reporting is not being considered. I understand that the international evidence is that such action might result in a steep rise in unsubstantiated allegations. That is the advice I have received in response to her question this morning.

I am glad that the officials were working so hard during the lunch break.

For the sake of clarity, I have sought guidance from the children’s Minister, the hon. Member for Crewe and Nantwich (Mr Timpson) precisely on whether in law there is currently a requirement to report concerns about children, and I received a letter only yesterday stating that there is a requirement to do so. That is different from a doctrine of mandatory reporting. Clearly we are not here to discuss such things in detail, but the children’s Minister is clear that, as it relates to children’s services, there are requirements.

I am grateful to my hon. Friend for that helpful intervention. There is clearly a difference of opinion between Department of Health civil servants and what the children’s Minister has said. If the Minister wishes to clarify that, I would be happy to give way.

Given the apparent contradiction, I am happy to write to the hon. Lady after full and proper consultation with our colleagues in the Department for Education.

I am glad to hear the Minister say that because it is important. We want the same objective, which is that anyone who has cause to suspect abuse is under a duty to report that suspicion. If there is such a duty in relation to children’s services, there should be one in relation to adults. We need greater clarity on that.

I am also disappointed that the Minister does not think a duty of candour is required in law for local authorities, even though a duty of candour is being introduced for NHS bodies, because ultimately it is all about changing the culture.

To clarify, I have said that the statutory duty of candour we seek to introduce will apply across health and social care and will apply to local authorities where they are undertaking functions registered with the Care Quality Commission. The duty of candour set out in amendment 117 is not the same as the statutory duty of candour that most people talk about when they refer to such a duty. The statutory duty of candour, as  commonly understood, involves a criminal offence if there is a failure to be open with people. This amendment is more about just encouraging a culture of openness—which I very much support—but it does not achieve what the statutory duty of candour achieves.

Could the Minister specify the precise bit of the Bill that applies the duty of candour equally to councils as to the NHS? Maybe I have misread the Bill, but I would be grateful for clarification.

The statutory duty of candour will apply to any organisation that is registered with the Care Quality Commission, in terms of its provision of health or care services. We were clear that it should apply across health and social care, not just within the NHS.

I will check when we come to the duty of candour bit of the Bill—part 2—and I may probe a little more when we come to it if I feel that it is not quite as the Minister said. Not that I doubt him for a second.

We took the debate about new clause 3 and the power of entry very seriously. All members of the Committee understood the balance of risk, and we were very aware of the different concerns raised. I particularly listened to what the Minister said about the concerns of mental health charities. However, I agree with the right hon. Member for Sutton and Cheam that the charities’ initial concern when the consultation came out was in relation to the Mental Health Act 2007, and people forcing an entry and forcing treatment upon people. I understand mental health charities’ concerns about what that would mean for those users. However, the new clause was tightly defined to make it clear that it was not about that. I hear what the Minister says about writing back. I hope that he will write to all members of the Committee about the existing provision in the law. We may wish to return to this matter on Report. We will keep it under review.

My hon. Friend the Member for Blaenau Gwent will speak to new clause 19 in a moment. I absolutely do not doubt the Minister’s intent to make sure that private companies and corporations can be prosecuted and held to account. When we were in government, we tried to make a difference on that. The Minister has highlighted a loophole that needs to be closed and that is right. My two concerns are that, first, the CQC has a hell of a lot on its plate. We are about to come to the provider failure regime and market failure regime. The CQC has to do that on top of inspecting all hospitals, all social care providers and all GPs. Is it really going to take forward prosecuting private companies? Should not families or the police be able to do that? Should there not also be the ability not just to fine people, but for individuals to go to jail if they are found to be neglectful?

I do not want to say any more than that this stage, because perhaps the Minister will intervene on my right hon. Friend—my hon. Friend the Member for Blaenau Gwent; I only were he was a “right hon.” officially. Those are my remaining concerns. The Government’s proposal is some improvement, but I am concerned that it does not go far enough. On that point, you will be glad to hear, Mr Bayley, I will sit down.

It is my job to try to permit debate to happen as fully as Committee members want. However, we are in a bit of procedural difficulty now. I put Mr Burstow’s motion that amendment 42 be withdrawn to the Committee, because I thought that the group of amendments had been fully debated this morning. It is clear that a number of Committee members want to discuss those amendments further. The neat and tidy way to allow that would be for me to ask the Committee to agree to strike from the record the decision taken on Paul Burstow’s amendment, to allow the other matters to be discussed, and then to have him ask leave to withdraw the amendment when the debate on this matter is finished.

The Government and Opposition Whips are happy, therefore, we will treat it as if Mr Burstow had sat down and we had not put the question.

On new clause 19, first, I thank the Minister for his update on the new strengthened role for the CQC. I hope that that is a success. I understand that it has a lot more to get its teeth into in future, as my hon. Friend said.

I am grateful to the hon. Gentleman for giving way before he finishes his first sentence. The CQC clearly has a lot on its plate. However, the power of prosecution, which can be exercised, as opposed to not being exercised in the past because of the problem of having to serve a notice, will aid the CQC in driving up standards. If people understand there is that accountability, that will drive improvements in behaviour.

In response to the shadow Minister’s point about a risk that if the responsibility is given to the police they may not, in some way, take it seriously, because they have a lot on their plate as well, it makes sense to give the power to the specialist regulator, to aid them in their duties to drive up standards in social care.

I hear what the Minister says, but up until now the CQC has done not very well—that is the polite way of putting it—with the responsibilities, albeit that the Minister says that there are good reasons for that. I want the Minister, please, to give further thought to a corporate neglect offence, including the penalty of jail, which would send the strongest possible signal that care providers should focus on high quality care and act as a proper deterrent to poor care.

I thank the hon. Gentleman for generously giving way again. I wanted to alert him to the fact that we are also introducing, alongside the power of prosecution, a fit and proper person test, which is also powerful and is needed, so that the director of a company that has completely failed its residents, or a domiciliary care company, for example, can in future face the possibility of the prosecution of the corporate body and of individual directors, if there is culpability, or an unlimited fine. The directors also face risking not being able to work in the sector again, because the CQC will have to be satisfied that those individuals are fit and proper persons. In earlier discussions with me, Opposition Members demanded the introduction of such a test. We are now doing that. I hope that the hon. Gentleman is encouraged by that.

I am encouraged, because we need to apply belt and braces in instances such as Operation Jasmine in Gwent. I am pleased that the Minister said that. However, having said that, I still think that we need a prison penalty for directors of care companies who do not properly fulfil their duties. I will not push new clause 19 to a vote, but I should be grateful if the Minister gave it further thought to see whether that is possible, because we must hammer home this important issue.

I think that we have now completed the debate on this group of amendments and that all Committee members who put their names to the amendments have shown that they have no wish to press those to a vote.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.

Clause 43 ordered to stand part of the Bill.