Group 17 is the next group, which relates to entry to premises by the citizen voice body. The lead amendment in this group is amendment 3 and I call on the Minister to move the lead amendment. Vaughan Gething.

Amendment 3 (Vaughan Gething) moved.

Thank you, Llywydd. Following the Stage 2 debate, I met with opposition health spokespeople to discuss a number of issues, one of which, of course, was the question of access to premises, and we did have a constructive discussion. Officials have spoken to stakeholders who represent providers of health and social care, nurse directors of health boards and trusts, the Welsh Local Government Association and a representative from Care Forum Wales, and all were supportive of the code of practice approach.

I’m sure that we all recognise that people’s feedback gathered in real time by an independent and trusted body will provide an important insight and a valuable resource for service improvement. I have also written to the Health, Social Care and Sport Committee to provide assurance on a number of matters, including the code. As you will have noted, we have re-tabled, with a slight technical amendment, our Stage 2 amendment. It places a duty on Welsh Ministers to prepare and publish a code of practice about access to premises where health services and social services are provided. This amendment responds to recommendation 12 of the Health, Social Care and Sport Committee’s Stage 1 report, which called for a qualified right of access.

We considered, at length, many options on access before deciding the code of practice provided the right approach in relation to the functions of the citizen voice body. I will comment shortly on the Welsh Conservatives' amendment, but before doing so I want to put on record that I genuinely believe that everyone is trying to achieve the right result, even if we ultimately don't agree.  

I recognise that this is a key part of the Bill and it's essential that we get it right. Our intention is to create a framework that facilitates access to the citizen voice body for people receiving care. Other amendments we tabled at Stage 3, such as the duty of co-operation that requires NHS bodies and local authorities to make arrangements with the citizen voice body to co-operate, to support them in seeking the views of the public, also facilitates co-operation in relation to access to premises. The key objective is to ensure that the body can exercise its functions in a way that recognises the individual needs and circumstances of people receiving care and support in very different settings. A code of practice allows us to reflect how access might best be achieved for people in a range of scenarios and settings, from hospitals to supported living.

The amendment requires the Welsh Ministers to consult on the code, and it is important that we are guided by people who have experience of receiving care in these different settings. Given the requirement to consult, I don't wish to pre-empt its content, but I want to repeat the assertion that I made during Stage 2 that the starting presumption should be that access will be agreed. However, the code may, for example, recommend the factors the body ought to take into account when seeking access to premises; for example, to maximise the opportunity to talk to residents, family and visitors. It may also make recommendations about the need for those conducting visits to have appropriate training and checks.

The code will be supported by existing provision that gives considerable weight to it. For example, on the social services side, part 2 code of practice, issued under the Social Services and Well-being (Wales) Act 2014, states that local authorities must:

'Ensure that providers from whom they commission or procure services encourage and enable the involvement of all people in designing the shape of services and how they will operate to deliver personal outcomes, and that providers involve people in evaluation and review.'

There is therefore a duty on local authorities to ensure that commissioned services enable service users to be involved in shaping services. Now, whilst important, accessing premises is only one way in which the body can seek views. The body will also need to engage not only with current service users but also past users, prospective users and their families. So, accessing premises to seek views is one part of the wider picture.

The code will carry the necessary weight to ensure all parties—NHS bodies, local authorities and the citizen voice body—discharge their respective responsibilities. We have not in our assessment and engagement with stakeholders seen or heard evidence that they would not discharge their respective responsibilities appropriately.

Now, research by both Kent University and LSE, published in July 2018, demonstrated that 99.7 per cent of over 1,000 adult care homes in England reported that visiting could take place at any time. No evidence has been presented to me, or to us, to show that the position would be any different here in Wales. I ask Members to support the amendment, which provides a clear and comprehensive approach to ensure clarity for and certainty across health and social care.

I know that the Member will speak to her amendment, but I would like to set out my views. I have considered the amendment put forward. I appreciate the reference to the code of practice and take from that that the Member appreciates the benefits that a code may bring to this part of the Bill. Unfortunately, even though I don't have any doubt about the intent behind the amendment, I can't support it. The effect of the amendment is, unfortunately, unclear. I believe the intention is to give the citizen voice body a power to access, enter and view premises for the purposes of any of its functions. It appears that the intention is for this right of entry to be qualified by a code of practice prepared by Welsh Ministers, although that is not absolutely clear.

There are real problems with what the code provisions require Welsh Ministers to do. It is impossible, for example, to set out an exhaustive list of the circumstances in which the body may enter and view premises. This does not operate to the advantage of the body or, indeed, to users of health and social services. There will always be unforeseen circumstances which may arise, and the amendment could, therefore, potentially be restrictive.

The amendment also requires the code to set out an exhaustive list of the circumstances in which the citizen voice body may enter domestic premises or private rooms in care homes at the request of an individual. Again, that can't be right. It is not for the Welsh Ministers in a code of practice to set out an exhaustive list of the circumstances in which an individual may invite the citizen voice body into their home. Surely that is a matter for the individual themselves to determine.

I therefore ask Members to support the Government amendment and to reject the amendment in the name of Angela Burns.

As the Minister said, my amendment 45 relates to the right of entry or access to premises via the citizen voice body, and, again, it's based on the committee's recommendation 12 at Stage 1. It's also in line with the views of the current board of CHCs, who do not wish entry to premises to be consigned to a code of practice.

We would reject the Minister's amendment 3 on the basis that a duty to have regard to a code of practice does not go anywhere near addressing the strength of feeling by many stakeholders that the citizen voice body should retain the right of access, nor is it as strong as a right that is set out on the face of the Bill. You have to remember that we are suggesting that we disband the CHCs, replace them with a CVB, and the key asks are that it should be local—it should be run by and for local people—and that they should have a right to access, because having that right to access gives them the chance to pick up things that are sometimes missed. It allows them to be a critical friend; it also allows them to go into some situations and really follow through where people have started to raise concerns and then they find that there are multiple concerns. And we can probably all cite CHCs who've done just that and provided a great service to their local communities.

We also need to remember that, for example, Social Care Wales recommended the Welsh Government revisit their decision, explaining that the power of access fills the gaps of provider capture and situational capture, i.e., it's tilted in favour of the provider. And this is what is encountered during inspection powers. The older people's commissioner said that this function could be flexible, responsive, and act as an early warning system where concerns may be identified before an inspection by Healthcare Inspectorate Wales.

Leonard Cheshire highlighted the importance of a power due to its proactive nature and allowing standards to be measured before the duty of candour is triggered. Gelligaer Community Council, who were very helpful in their responses, and they spoke for a lot of community councils, strongly felt the new body should have the right of access to health and social care establishments. And they cited the Aneurin Bevan CHC as having a very good record of responding rapidly to reports, and through their relationship with the health board, through their positive relationship with health board, affecting changes.

And I do find it disappointing, Minister, that you seek to deny such an important role its full weight. You claimed, in you responses to committee, that inspectorate bodies already undertake this function against regulatory standards. But despite all of the evidence, that actually contradicts that assertion. It was also very disappointing at Stage 2 that you believed that both of the opposition amendments were drafted in such a way they could be interpreted as inspection functions because that is most certainly not what we were trying to do.

And I did listen to you when we met to discuss this prior to Stage 3, and I did listen very clearly to your concerns about the human rights considerations, and that's why I've submitted a redrafted amendment to try to encapsulate some of those concerns. And I heard you, at Stage 2, saying that you'd had constructive conversations with the CHCs about this right of entry, but they're adamant that it should be retained on the face of the Bill.

The advice I received in connection with the human rights elements highlights that any provision of a Bill must not contravene the ECHR to fall within legislative competence. In this instance, article 8 on the right to a private life. I've further been informed that the fact that a code of practice will set out qualifications that should ensure that article 8 is not breached is not enough to ensure a provision does not infringe article 8 and therefore be within competence. So, as such, the more qualifications given to the right of access on the face of the Bill, the less likely article 8 will be infringed. My amendment, therefore, I believe, achieves this requirement.

And I'd like to remind you that we are particularly mindful that, in evidence, the board CHCs reassured us that the powers wouldn't extend to health and social care services that were not directly provided from settings that are owned, managed or leased by health and care bodies. Furthermore, the board's legal advice notes that the human rights Act's considerations would not be triggered in these instances as they are seeking a right of access to communal areas, not private rooms. Therefore, the amendment, as drafted, seeks to take into account that the Bill must not contravene the European convention on human rights. So, we've ensured that that article 8 on the right to private life is not breached. So, in other words, if you want to go in and do an inspection on a care home because either it's part of your routine or because you've heard that somebody's got some concerns, you can request to go in, you can go in, you can go to the private areas, but if a resident or two residents at that care home also say to you, 'Please come into my private room, I want to talk about this, I'm raising concerns', then they would go in by invitation. So, it isn't about marching into a private room, a private home; it's about going in with invitation but going into the communal areas. And we believe that this amendment would absolutely encapsulate that and preserve it. And I would be grateful if you'd consider your position on the right of access and support this amendment, because this goes to the heart of the citizen voice body, the fact that they have that right to go out and to look at situations that are developing on behalf of the citizen.

Very briefly, we have felt that it's vital to give the new citizen voice body the power to enter premises where domiciliary care is provided, and although neither, actually, of these amendments reflect the strength that we would like this power to have, we will be supporting both the amendments in the hope that the Minister will continue to provide us with the assurance that we need that the code of practice will allow that to happen.

In our opinion, amendment 45 is one of the most important amendments we're discussing today. The ability to make unannounced visits into NHS facilities has enabled the CHCs to highlight failings that have impacted patient care. The fact that the Minister's vision for the CHCs' replacement did away with these visits was of huge concern to the majority of opposition politicians, patient advocacy groups and large sections of civic society.

Community health councils have played a vital role in ensuring patient safety, as witnessed recently in my own region with the Cwm Taf maternity scandal. I cannot underline strongly enough the importance of unannounced visits. Members must support amendment 45, otherwise we will be diminishing the citizen's voice in health and social care. Diolch.

When the board of community health councils and community health councils in Wales, the patient's voice in Wales, said they supported the passing of this Bill at Stage 2 in the law-making process, they said they were pleased to see the proposals that the Bill should be strengthened in areas, including visits and rights of access. They said the new body's rights of access to health and care settings should be set out clearly in the Bill, by introducing an amendment that said 'The citizens' voice body shall have the right to enter the premises for the purpose of exercising its functions. Such rights will be exercised and enforced in accordance with subsection 2.'

They said that Welsh Ministers must prepare and publish a code of practice about the circumstances in which the body may have access to premises for the seeking of the views of individuals in respect of health or social services, and the circumstances in which the body may enter excluded premises upon the invitation of members of the public for the purpose of seeking the views of those individuals in respect of health or social services, and where access to those premises or excluded premises is permitted or has been agreed, engagement with individuals that those premises are included premises for the purpose. This addresses, for example, the concerns raised by the Welsh Local Government Association in their e-mail to Members today.

Ahead of this Stage 3 debate on the Bill, they, the patient's voice in Wales, said their support for the changes continues to depend on the establishment of a new body that is properly equipped to undertake its new role on behalf of people living in all parts of Wales. They said that the citizen voice body should be able to access health and care settings so it can hear from people about health and care services and that it should do so responsibly. They said the statutory framework governing visits and rights of access for the new body must establish an operating framework that works on the presumption that the body is able to access health and care settings when it considers it needs to, unless there are specific circumstances where it would be unreasonable to do so. They said that this is how the community health councils currently operate and that it works well in the NHS. They said there's no reason why the same approach would not work with the new body. They said local authorities and NHS bodies must make sure, through their commissioning arrangements, that the body can access health and care settings operated by third-party providers such as private care homes, as well as NHS bodies, providing services across the border in England. They said the code should set out clear requirements for this.

If Members really want to give voice to their constituents, if they really want to put the content of society before its form, then they must support Angela Burns's redrafted amendment.

The Minister to reply to the debate.

Thank you. I do recognise this is an area where there are differences of view, but we are genuinely trying to accommodate people on all sides in recognising some of the complexities that exist.

And I recognise that Angela Burns has redrafted the amendment she tabled at Stage 2 because of the concerns about access to people's homes, but I still come back to the drafting that is still in here about an exhaustive list of circumstances, and it just isn't possible to draft in that way. It's always dangerous when you start to have a list of what you may or may not do. There will always be circumstances outside the list, even with the finest minds on the planet all in the same place at the same time. I say this from my past life, when being a lawyer—lots of the same lawyers will agree, and lots of the same lawyers will disagree, about exactly the same point and exactly the same wording. So, trying to get to the point where we have an exhaustive list in each those areas I think is not something that we should say is something that we could safely or properly draft and contemplate and provide to people; I think it would give a false level of assurance. The point about the code is we'll develop it together, with the citizen voice body, with others, including people in health and social care, on what the practical circumstances mean.

I'll take the intervention and then I'll finish; I can see the time and I'm keen to finish, and other Members are too.

I thank the Minister for taking the intervention. I don't want to prolong proceedings, but this was the issue that I had most concerns about, having had discussions with the Aneurin Bevan Community Health Council. I have to say, following discussions with the Government about the very issues he's just talked about, and with the community health council, I'm happy, following those discussions, particularly with the Aneurin Bevan Community Health Council today, to follow the Government's voting advice on this issue.

I think that's very positive, because it does show we're genuinely talking to and listening with people on all sides in the Chamber and outside to try to get this right, and to have a series of real examples about how the code should be applied. And, again, to reiterate my point, the code will start with the presumption that access will be agreed. This is not about unreasonably trying to trammel the ability of the new citizen voice body to undertake its functions, and I would ask Members to support the Government amendment in this group.

The question is that amendment 3 be agreed to. Does any Member object? [Objection.] We therefore proceed to a vote on amendment 3. Open the vote. Close the vote. In favour 37, no abstentions, 11 against. Therefore, amendment 3 is agreed.

Amendment 3: For: 37, Against: 11, Abstain: 0

Amendment has been agreed