Clause 6 — Dispute Resolution
Community Care (Delayed Discharges etc.) Bill
Mr Simon Burns (West Chelmsford, Conservative)
Because of pressure of time, I shall not detain the House for long.
Clause 6 deals with the appeals procedure. I think that seeking to delete it is the right way forward, but not because I believe that there should not be an appeals procedure. I believe that there should, because, given what the Government are doing with fines, there is an urgent need for it; I fear that, as a result of the breakdown of partnerships and working together, the arguing between the health service and social services over whether a fine will be paid will be so intense that an appeals procedure needs to be in place.
What I do not find attractive about the Government's proposal, as many of my right hon. and hon. Friends said in Committee, is that unfortunately the way in which they are going about it is to set up the procedure though the strategic health authorities, so that in effect the health service will be both judge and jury. That cannot be right, in the interests of fairness and justice.
What we have always argued, and what I remain committed to, is that there should be an appeals procedure, but that it should also include social service departments or local authorities on an equal footing with the health service, with an independent chairman—or chair, in the current politically correct language. The Bill would be greatly enhanced by that. Unfortunately, because of the lengthy discussions in Committee, it would not have been in order to re-table the amendment that we proposed in Committee, and regrettably this is the only way in which one can seek to persuade the Government to think again and adopt a more even-handed approach.
I am sure that the Minister will say that it would be nonsense to take the whole appeals procedure out of the Bill, and I would agree. But I should like to persuade her and the House that removing the clause from the Bill now would give the Government time to reflect further on our eminently sensible suggestions of an even-handed approach to an appeals procedure, so that they could reinstate in another place a clause that was more acceptable to my right hon. and hon. Friends and, I suspect, many social service departments, which see this as potentially a fix where justice will not be seen to be done.
For those reasons, I hope that the Government will accept the amendment, solely as a temporary measure while they reflect on introducing their own amendment. If they do not, my noble Friends in another place will be in a position to do so instead.
Mr Paul Burstow (Sutton and Cheam, Liberal Democrat)
We rehearsed a lot of these concerns and arguments in Committee before Christmas. The Liberal Democrats fundamentally share the Conservative position: the arrangements for setting up the dispute panels under strategic health authorities do not guarantee the independence of those panels. Indeed, I noticed that, in Committee, the Minister acknowledged the need to reconsider the independence issue. Simply keeping on saying that the chairmen should be independent does not make them independent. She said that she would consider how to secure such independence and
Xhow we guarantee that in the regulations which, like all regulations, will be subject to consultation."—[Official Report, Standing Committee D,
I want to dwell on that issue.
The notes that the Minister has circulated, which give a glimpse of what might be covered in the regulations under clause 6, raise a couple of issues, and I hope that she might be able to give us some further information on them. The first point relates to clause 6(2)(a) on the constitution of the panels. Paragraph 24 of the notes says:
XThe regulations can provide that local authority and PCT are represented in equal numbers and that representatives of any organisation involved in the dispute(s) to be discussed at any meeting of the panel are excluded from the panel."
Why has the Department used the word Xcan" in drafting that document? I hope that the Minister can assure us that the regulations will provide for equal numbers of members from local authorities and primary care trusts. It is important to get that confirmation from the Minister today, as that document gives us the opportunity to test further whether that is the intention behind the policy.
The second issue relates to paragraph 22 of the notes, which says:
XThe local authority which received a section 2 notice from the NHS will still need to put in place arrangements for an individual's on-going care within the time frame set out in the legislation, even if a dispute is in progress, or face a payment."
It is not unreasonable to say that someone who needs a package of care should have one arranged. However, if there is a dispute about whether a package of care is needed and that matter goes to the dispute panel, what happens if the panel upholds the social service department's position? Who will reimburse the social services department for the expenditure that it incurs to avoid the fine? If it chooses to pay the fine, will the money be repaid to the department? That is not clear in the details that the Minister has given to us, and it would be helpful if she could clarify that.
Having said all that, we wish to support the Conservative proposal to delete clause 6 simply because that clause will not be effective in ensuring that dispute resolution is fair and free of the bias that will exist if such issues are vested in the NHS.
Ms Glenda Jackson (Hampstead and Highgate, Labour)
I should like to make a brief contribution. I cannot support the argument to remove the clause that relates to appeals panels, nor do I share the somewhat cynical view, voiced by the hon. Members for West Chelmsford (Mr. Burns) and for Sutton and Cheam (Mr. Burstow), that strategic health authorities or primary care trusts are so single-minded and blinkered that they believe that they have to preserve their vested interests, if that is what they perceive their responsibilities to be, to the exclusion of all else. My experience of the individuals in my strategic health authority or, indeed, PCT is that they are more than aware that there has to be particularly close working with social services on such issues to ensure that the patient drives the reforms in the NHS.
I wish to ask my hon. Friend the Minister a question, and I hope that she can reassure me. It would be good if the chairmen of the panels were independent, but whomsoever serves on them, it is important that someone must speak for patients and carers. One of the problems that I have come across in my constituency is that—with the best will in the world—medical professionals often speak to an individual about their illness, or their care requirements once they leave hospital, in a language that is totally foreign to them. It is entirely understandable that they often speak in a form of professional shorthand. There must be brought to bear in the dispute panels an informed perspective of what is being discussed, from the perspective of the health professionals and of those who work within social services, but it is important that the individual or carer at the centre of the discussion should have someone who can speak a language that everyone understands and who can understand the concerns of the individual in the case. I hope that my hon. Friend the Minister will be able to reassure me on this.
Mr Nigel Waterson (Eastbourne, Conservative)
I find myself agreeing with much of what Glenda Jackson has just said. I hope that that will not cause too much damage to her socialist credentials. She is absolutely right. If nothing else, the Bill is consistent, and anyone with any optimism turning to a clause headed XDispute resolution" is going to be severely disappointed because all that the Bill is concerned about is arguments between two or more public authorities. The words Xpatient" and Xcarer" are simply missing again. This provision involves two faceless bureaucracies fighting it out in front of a panel. That disappointment is reflected in the comments of Age Concern, which states that
Xour concern remains that the Bill does not offer a speedy dispute resolution process for the patient, if they disagree with the discharge plan being offered."
No such process is being proposed here.
I want to raise a few points about the practicalities of the proposals, particularly in view of all the bureaucracy involved, and I endorse some of the points already made on that by Mr. Burstow. The proceedings of this panel have the smell of something that could go on for a long time, with all the arguments going on between the public authorities, so there is no prospect of any quick decisions being taken. There is certainly nothing here for the patient or carer who says that what is being proposed for them for today, tomorrow or next week is inappropriate, and who wants someone else to appeal to. I do not believe that that kind of time scale is being envisaged, although if the Minister thinks otherwise, she will no doubt say so.
Amendments were also tabled in Committee at the behest of Age Concern and Help the Aged about having a fast-track complaints process for just this kind of situation, but, as is so often the case nowadays, they did not get debated due to time constraints. Age Concern also reflects concerns that have been expressed by at least two hon. Members in this debate when it asks whether
Xa panel established by a strategic health authority can be independent in resolving disputes between the health service and social services."
It asks the Government
Xto clarify whether the proposed panel's decisions will be binding, or simply for advice only."
It was helpful, up to a point, to have the Minister write to us following the Standing Committee about the likely contents of some of the regulations under the Bill. It was helpful, but it raised a whole series of other questions. Her document talked about the constitution of the panels under clause 6(2)(a), saying:
here come the key words—
Who can imagine a more damning comment, albeit one buried in the small print, on this legislation? How can any reasonable person envisage a situation in which it would not be appropriate to get information from the patient, the family or any other carer? Will a patient or carer be allowed to address the panel? Will they be allowed to be represented? What sort of evidence will be required? What standards or burdens of proof will be required? How is all that going to be dealt with? If people are still unhappy at the end of these proceedings, will the process be subject to procedures such as judicial review or other complaints procedures within the NHS, or could those procedures take place in parallel with the new arrangements for a panel?
How many layers of dispute resolution are we talking about? Ostensibly, we are discussing a panel hearing, but the document on the likely regulations also says:
XThe regulations could provide, for example, that a panel should not be established to hear a particular case unless the staff involved . . ."—
again, that reflects the Bill's philosophy, which is that it is all to do with the staff and nothing to do with the patient—
Xcannot reach agreement on an informal basis".
There we have alternative dispute resolution, as the lawyers would call it—an informal way of trying to establish a solution to a dispute, although one would hope that that would happen automatically in the real world. The document goes on to talk about the dispute being resolved at
Xa higher management level between the relevant healthcare provider and the local authority."
Those seem to be steps to be addressed before the panel is even convened.
Finally, the document says:
XThe regulations will provide that neither party can take the dispute to court until they have attempted to resolve it via the panel."
What is Xattempted" supposed to mean? How far does the panel have to go in considering all the evidence and all the arguments to allow parties to go on to the next stage of a legal challenge? When we read the small print, we see that we are being asked to establish not only a new bureaucracy and a new panel to determine such matters, but, on the face of it, a series of hoops through which people have to leap, none of which will happen in a hurry.
Ms Jacqui Smith (Minister of State, Department of Health; Redditch, Labour)
I am pleased that Mr. Burns, in moving the amendment, recognised that it is right and responsible to have in place a system for dispute resolution, because, of course, disputes can already exist between health and social services. In fact, it is sometimes precisely because of such disputes that people are delayed inappropriately in hospital. Through the Bill, we are trying to ensure that the relative responsibilities of health and social services are clearly understood and that there is a process to ensure that individuals are not stuck in hospital, losing out because disputes cannot be sorted out.
I am not quite clear whether Mr. Waterson was suggesting that people should not try to settle disputes before they reach the panel. Of course, that is the obvious way to settle them. Many disputes are settled between the staff concerned in an individual case of discharge or by managers from health and social care. Disputes do not inevitably need to be discussed formally by a panel and the guidance will point out that, for reasons of time and resources, it is desirable to have a system under which two public bodies are encouraged to reach an amicable agreement rather than have constant recourse to the panel.
Senior health and social services managers want to resolve matters, wherever possible, before spending time on dispute mechanisms, but we need a body that can arbitrate to achieve a satisfactory resolution if informal attempts to resolve problems are unsuccessful. In England, we think that the right body for that is the strategic health authority. The hon. Member for West Chelmsford repeated some of his concerns about whether that will create a bias to the NHS. I do not believe that it will. It is a practical response to the situation and the system.
Strategic health authorities are, as the House would expect, strategic bodies. They do not have operational responsibility and they will not be running the acute hospital trusts that may be involved in a dispute. They have a performance management function one step removed from the day-to-day workings of the NHS. There is no equivalent strategic body for councils, so it makes sense for strategic authorities to be the bodies with responsibility for setting up the panels. They also have an interest in ensuring that acute trusts and PCTs meet their obligations, but not through rewarding the NHS at the expense of local authorities.
I hope that I can reassure Members that the intention is that the panel will be composed of a local authority and an NHS representative with an independent chair. I have confidence in the integrity of the people who will be appointed to that panel. Being charged with such a function, the panels will of course have to act properly and in accordance with the rules of natural justice . The regulations will ensure that panel members are not from the bodies that are in dispute, and that the chair is independent of both NHS and local authority. There is no reason to suppose, therefore, that the panel will look more favourably on the NHS than on local councils.
The regulations will also cover situations in which not all the bodies in dispute are located in the same strategic health authority. They will probably follow a simple rule, such as the rule that a dispute should be heard by the panel of the strategic health authority in whose area the hospital is situated.
Several Members have asked about the particular rights of individuals. Clause 6 does not affect an individual's right to complain to either the NHS or social services about the care he or she has received, using the normal complaints procedures already established, or to take legal action in the courts. The panels are not being established to divert individuals from the complaints procedures—although when they or their families have information that may help to resolve a dispute, they may be involved.
Perhaps I can give some reassurance, at least to my hon. Friend Glenda Jackson, by describing some of the improved safeguards—especially those relating to advocacy, about which my hon. Friend was concerned. Individuals wanting to know whether they should receive fully funded continuing NHS care should be informed as part of the assessment process. As I said earlier, the single assessment process and all other guidance make it clear that that is the first question NHS and social services need to consider when assessing the ongoing needs of someone who, potentially, has a primary need for health care. If an individual wishes to dispute an NHS decision that he or she is not a case for fully funded NHS care, the decision should be made within two weeks, and the individual can remain in hospital while the continuing care panel considers the case.
If individuals wish to complain about the services offered by social services departments, that should be dealt with by the social services complaints system, which was established to enable individuals to make such representations. If they are not satisfied with the local authority's response, they can go to the local government ombudsman. If they are concerned about the whole care package and about whether it is safe for them to return home with that package, they should be able to raise that at an early stage with both NHS and social services representatives.
The current system requires all trusts to have patient advocacy liaison services to give exactly the kind of support demanded by my hon. Friend. People raising what will clearly be difficult issues may well need such support. The representatives I have mentioned may be able to change the package, or to reassure patients and their families about its adequacy. There may be further recourse to the complaints provision, which will depend on the nature of the concerns involved.
I hope I have reassured Members that our proposals are logical and sensible. I am not suggesting that the complaints procedure should be biased in favour of the health service; I am saying that the strategic health authority is the appropriate body to convene the complaints panel, which itself will be represented equally by the NHS and local authorities. It will also have an independent chair. Nothing about the panel will undermine what I agree is the important ability of individuals to raise concerns and complain when that is necessary.
Mr Simon Burns (West Chelmsford, Conservative)
I listened carefully to the Minister, and I appreciate that she is seeking to reassure the House, but I remain unreassured. I get the impression that she is talking about an idealised world, but things do not work out that way in the real world. We should improve the Bill now rather than repent when it is too late.
No one doubts that dispute panels are needed. Heaven knows, we will need them if the Bill becomes law. However, I am still worried about making them the responsibility of the strategic health authorities—in other words, the NHS, which has half of the vested interest in the problem. Even if every panel reached a judgment of Solomon in 100 per cent. of cases, the suspicion would remain among individuals and social services departments, if they did not like the decision that was reached, that a fair decision was impossible because of the way the panel was set up.
I do not believe that there is a major difference between us on this matter, but I do not understand why the Minister has not agreed to bring the local authorities in to work on an equal footing with the strategic health authorities on the panels, subject to the regulations to be issued by the Minister. No accusation that the Government had fixed the system—and made the NHS, through the strategic health authorities, the judge and jury in a dispute—would then have an iota of justification.
I should have thought that the Minister would welcome my advice. I am only trying to help to improve and enhance a rotten Bill. Despite my entreaties, it seems that the Minister is not going to budge. I am hurt about that, but it is an unfortunate fact. As a result, I intend to press the amendment to a Division. I invite my hon. Friends to join me in the Aye Lobby in an attempt to save the Minister from herself.