Community Care (Delayed Discharges etc.) Bill
Earl Howe (Conservative)
My Lords, in moving Amendment No. 1, I make no apology for returning to an issue which we debated in Committee and which is of great importance. Whatever else the Bill does for acute and geriatric patients, it should not apply to patients receiving mental health services.
That might at first seem an odd proposition. Over-extended stays in psychiatric wards are a real concern. That is not good for anyone. A recent survey by the Sainsbury Centre for Mental Health on the quality of care in acute psychiatric wards reached the disturbing conclusion that hospital care was "non-therapeutic". That verdict is reflected in patients' attitude. One will not find many mental health patients who enjoy being in hospital. For many, being an in-patient does nothing to address their underlying long-term needs. The shortage of medium-secure units and long-stay, low-secure accommodation means that patients are frequently placed in conditions with inappropriately high levels of security where the regime is fundamentally unhelpful to them.
I am therefore the first to acknowledge that psychiatric patients should be kept out of hospitals if at all possible. However, sometimes hospital admission cannot be avoided; for example, when a patient is so ill and so incapable of looking after himself that in order to avoid coming to serious harm he has to be looked after in a formal care setting. In a small minority of cases, the patient may be viewed as being a danger to other people.
Once such a patient is in hospital, his discharge requires considerable care. The potential for the person to harm himself or others is a judgment that cannot be made in a hurry. It certainly cannot be made when the patient is first admitted to hospital. Of course there must be joint working between health and social services. That kind of partnership working is becoming well established in many parts of the country. But it takes place against the backdrop of inadequate capacity in specialised community mental health services. The National Service Framework for Mental Health identified lack of capacity as the single largest cause of delayed discharge.
There are unique considerations in the field of mental health. If one creates legal duties that compel one part of the sector to penalise the other, one creates incentives and drivers that could very easily put service users at direct risk. The Minister knows that I am not at all enthusiastic about Part 1 of the Bill. As regards mental health there is an immediate concern about patient safety. I would have only slightly less difficulty with the notion of including psychiatric patients if there were greater capacity in hostels and supported accommodation, in rehabilitation services and in 24-hour staffed beds in inner cities. But there is a chronic lack of capacity in those areas. To require local authorities to provide care in short order to psychiatric patients is not just unfair on local authorities, it is also unfair on patients who find themselves pitched out of hospital and who cannot then access the services and support they need.
The pressure to reduce the number and length of hospital stays will mean inevitably that discharges from psychiatric wards are planned and carried out in too much of a hurry. The type of assessment required under Clause 3 is not comparable—in substance or in scale—to the comprehensive community care assessment that local authorities have to carry out for psychiatric patients under other legislation. A full-scale assessment would include provision for primary care, housing and support services of all kinds, including crisis resolution teams. That indeed should be done.
However, once the NHS knows it can free-up its blocked psychiatric beds without penalty by offloading the problem on to local government, it is bound to look for ways to achieve that. The temptation may be to use medication as a means of managing symptoms in order to achieve earlier discharge. That might not be the appropriate solution for some people. But, at the very least, if a patient is placed on medication his condition needs to stabilise before he is discharged and any side effects need to be monitored. None of that can be done in short order. Yet the Bill as it stands is an invitation to cut corners and rush matters through.
Therefore, even if there were not such a capacity problem in the areas I mentioned a moment ago, I would be firmly against extending the scope of the Bill to include mental health patients. If we recognise that well co-ordinated services are the key to helping those with mental illnesses, then the imposition of penalties and therefore tensions and barriers between different arms of those services would be taking us in precisely the wrong direction. We should decide now that for mental health patients this is simply a bridge too far in terms of the risk that it carriers. I beg to move.
Lord Clement-Jones (Liberal Democrat)
My Lords, I strongly support what the noble Earl, Lord Howe, said in his excellent exposition of the case for the amendment. There is a clear case for mental health services to be explicitly exempt from the proposed reimbursement regime and from being brought under the scope of the Bill by future regulation. We entirely agree with the noble Earl that it would be inappropriate to apply the scheme to the mental health sector, due to the different procedures from those operating in the acute sector for patient discharge and for working across health and social services to facilitate service users' onward journey.
Under the current draft regulations, the local authority will not be made liable for charges if the patient is awaiting another NHS or community care service, such as psychiatric or mental health after-care assessment, but cannot move on because the availability of those NHS services is blocked due to lack of social care provision. However, as the Explanatory Notes make clear, Ministers intend eventually to apply the reimbursement regime to other NHS services, including mental health services.
NHS mental health services now operate in an integrated structure between health and social care, with varying degrees of pooled budgets and legal responsibilities. It is not clear how the financial flows could operate in that context. The duty to levy financial penalties against local authorities would undermine the success of those arrangements. According to the Government's National Service Framework for Mental Health, it is lack of capacity in community mental health services, not inefficiencies in social services departments, that is the key cause of delayed discharges for psychiatric patients.
Moreover, assessment of a psychiatric patient's fitness for discharge and putting together an appropriate after-care package involves complex considerations, including self-harm, risk to others and appropriate accommodation, which can rarely be worked through in a three-day period. Furthermore, there is no provision in the Bill for involvement of specialist advocates and carers in the discharge planning process. There is a risk that pressure to reduce prolonged hospital admissions will concentrate resources on the acute sector of mental health services at the expense of community care provision. Pioneering community care projects around the country could lose their funding as councils divert money into different services to avoid the penalties.
There is also the danger that the Bill will put pressure on local authorities to accept discharged patients earlier than they should, without proper accommodation or essential support services in place. Medication may be used to manage symptoms to achieve earlier discharge without proper consideration being given to a range of therapeutic interventions. For all those reasons, we strongly support the amendment.
Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Department of Health; Labour)
My Lords, I first welcome the opportunity to debate mental health issues. Although I recognise that it would be inappropriate to extend the Bill's provisions to mental health patients at the same time as we intend to do for those who are receiving acute care, I cannot agree to the amendment, which would mean that mental health patients would be excluded for all time from the provisions. I am well aware of the pressures and issues that face those running mental health services and the impact that that has on the services' users.
The noble Earl, Lord Howe, is absolutely right to say that over-extended stops in mental health hospitals is a cause of real concern. I echo the point that he cited from the Sainsbury Centre for Mental Health—an organisation for which I once worked—describing some aspects of hospital care as non-therapeutic. None the less, many mental health patients continue to require treatment in hospitals. As a matter of general principle, the core of the Bill, which is to allow for effective and speedy discharge when it is safe, ought to extend to mental health patients at some point in future.
I want to make clear, as I did in Committee, that we intend in the first instance to prescribe acute care as the type of care that patients must be receiving to qualify, and then, later, to extend the Bill to other types of care where there is a problem with delay. Mental health is one of the types of care excluded from the Bill by draft regulations that have been circulated. We have chosen to take a pragmatic approach because we do not want to overload local authorities, which are preparing to implement the system as a whole.
There is no automatic decision to expand the scope of the Bill to cover mental health, but if we made that decision at some stage, I assure noble Lords that that would not happen without full and proper examination of whether it would be beneficial to mental health patients and the mental health sector as a whole. We should want to consider whether the level of reimbursement should be set differently to provide the right incentive for mental health patients, and whether the minimum compliance period should be extended to reflect the difficulties described by the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, which may arise when assessing mental health patients or providing services.
The Bill has been drafted to allow for expansion. It does not commit us to do so; nor does it restrict us to extending the reimbursement scheme in its current form, because Clause 8 enables us to make different provision for different cases. That will enable us to avoid the perverse incentives mentioned by both noble Lords. We do not have a timetable in mind for such an extension. The decision whether to apply reimbursement to the mental health sector will be taken after the system has had time to bed down in the acute sector.
However, it would be a mistake explicitly to exclude mental health patients from the Bill. It is much to be regretted when such patients have unduly to extend their stay in hospital because of issues such as those raised by the noble Earl, concerning community services. It is important that we retain the ability to extend the benefits of the Bill to mental health patients at some stage, if that is what is decided.
My department has received representations from many mental health professionals who are concerned that their patients should be included in the Bill's provisions as soon as possible, and who want them to benefit from the more timely provision of services that should result. Although we are not prepared to go down that route, we should enable ourselves later to extend the Bill's provisions to mental health patients. Would it be justified to say that we should ring-fence mental health from a scheme that will start with acute patients and can be extended to other parts of NHS service provision—to say that mental health patients should not receive those benefits? That would be unjustified.
I hope that I have given reassurances that if it were decided to extend the Bill to mental health patients, that would not be done without careful discussion and consultation with appropriate stakeholders—many of whom have argued that it should extend to mental health patients right from the start.
Lord Skelmersdale (Conservative)
My Lords, before the Minister sits down, much as I hate this way of releasing beds for other patients in hospitals and, therefore, dislike the Bill as a whole, he talked about extending it to mental health patients when it becomes an Act. I am inclined to agree with him. At some stage it would be a logical, sensible progression. However, the Minister also talked about full and proper examination of the facts before an order for the extension was laid. Will that examination of the facts include consultation with health professionals and the charities involved in this area?
Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Department of Health; Labour)
My Lords, it is a fair point. It would be a major step to extend the Bill to mental health patients. I can give the noble Lord an absolute assurance that no such step would be taken without full consultation with the groups that he mentioned.
Earl Howe (Conservative)
My Lords, I am grateful to the Minister for his reply, which was not unexpected, but I fear that I am not persuaded by it. The essence of a solution for unblocking beds in psychiatric wards is partnership working between health and social services and ensuring that we do not discharge patients before they are ready. I cannot accept that we should adopt a suck-it-and-see approach and wait to discover how the legislation works in practice. As it is, the Government are being extremely cavalier about the risks of applying a system of fines and reimbursement to the acute sector, never mind to any other.
But we can be sure of one thing: if Ministers have the legal scope to improve the delayed discharge statistics by extending the Bill to the mental health sector, sooner or later it will happen. No proper heed will be paid to the lack of capacity in community services, low-secure accommodation and so on. No doubt, consultation will take place, but I wonder how heavily those factors will weigh. Local authorities will be seen as the whipping boys, as they are at present.
If I sound cynical, I am sorry to say that I plead guilty. Despite everything the Minister has said, I am very much against leaving our options open on this matter. I submit that in mental health the problems created by the Bill are of a different order from those that may arise elsewhere. The Minister's reference to denying mental health patients the benefits of the Bill seems an extraordinary gloss that many of us would not recognise in what the Bill will actually do to such patients. The risks for patients and other people are simply too great. I should like to test the opinion of the House.
Lord Clement-Jones (Liberal Democrat)
moved Amendment No. 2:
Page 2, line 7, after "hospital" insert "including independent hospitals which provide health care for which NHS bodies or service providers have responsibility"
Lord Clement-Jones (Liberal Democrat)
My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 14. They are probing amendments, based on what the Minister said in Committee, not just about the position of independent hospitals in the UK in which NHS patients are being treated but also with regard to the fact that foreign hospitals under contract with the NHS could be entitled to charge social services departments for delayed discharge. I think that it was the noble Lord, Lord Lucas—I am sorry that he is not in his place today—who managed, in his inimitable way, to elicit that interesting fact from the Minister.
The situation arises because, as long as they are ordinarily resident in England or Wales, qualifying persons will place such a duty on whatever acute hospital they are in, as long as the care has been commissioned by the National Health Service. The logic of the Bill is that Clause 3, which places a duty on local authorities to pay the NHS, will apply. That is very much the logic of what the Minister said in Committee:
"I should answer the question whether the clause will apply when an NHS patient is sent abroad under the scheme that we have for that purpose. It could apply because the clause says that a qualifying hospital patient means,
'a person being accommodated at—
(a) a health service hospital; or (b) an independent hospital, in pursuance of arrangements made by an NHS body'". The Minister went on to say:
"On that basis, the clause could apply to an NHS patient sent abroad. In that context, the NHS body would be a primary care trust".—[Official Report, 17/2/03; col. 942.]
The Minister nods his head, so, clearly, I have not lost all my senses yet this afternoon and that is a correct interpretation of what he said.
The implications of that ministerial statement are, as, I am sure, the Minister realised at the time, fairly large. It would involve additional administration and costs. It would mean incorporating an independent hospital abroad into legislation for England and Wales to enable it—a foreign hospital, as we should not forget—to charge an English or Welsh local authority. How will that affect the commissioning of hospitals? How will it affect the administration of the Act? What guidance will be given to social services on how to deal with a notice from Baden-Wurttemberg or wherever an NHS patient is being treated? They may find that a patient whom they had not considered for surgery has had some kind of surgery that has gone wrong or involves community care. The Minister has not foreseen such a situation, and I look forward to hearing what he has to say. It is a matter of some concern to those of us on these Benches, and the Minister should explain in some detail how the system will work.
In drawing up the amendments, we were mindful of the position of hospices. At this juncture, however, we shall not replay the hospice issue; we will return to it at Third Reading. However, the issue underlying our probing amendments is so important that we wished to treat it by itself and get a reply on it from the Minister. I beg to move.
Lord Hunt of Kings Heath (Parliamentary Under-Secretary, Department of Health; Labour)
My Lords, this question caused great excitement in our debates in Committee. Although the interjection made by the noble Lord, Lord Lucas, was helpful, the noble Baroness, Lady Barker, also took part in the debate on this important issue. I shall deal first with hospices, before turning to independent hospitals and the position of NHS-funded treatment overseas.
As regards hospices, I shall be meeting the noble Baroness, Lady Finlay, to discuss the issue she raised in Committee. I am sure that that will inform any debate at Third Reading. Essentially, Amendment No. 2 repeats the point made in Clause 1(1). The qualifying patient may be accommodated in,
"an independent hospital in pursuance of arrangements made by an NHS body".
The key words are,
"in pursuance of arrangements made by an NHS body".
Hospices would be treated just as any other independent hospital. If the Bill applied to patients in hospices, patients would have to be in the hospice,
"in pursuance of arrangements made by an NHS body".
The Government intend the Bill to cover any patient whose care is arranged and funded at an independent hospital by the National Health Service.
I turn now to patients who receive NHS-funded treatment in hospitals overseas. This issue needs to be put into perspective. A small number of patients—approximately 200—have been treated either in France or Germany as part of efforts to reduce the length of time that they may have to wait for treatment in the United Kingdom. We do not expect a dramatic expansion in numbers of people receiving treatment overseas due to limits on capacity in European hospitals to treat extra patients. However, we accept that some overseas treatment can be effective—when the patient agrees and the treatment offers value for money—in reducing the length of time that a patient waits for elective treatment.
Currently, patients treated abroad fall within the scope of the Bill, similar to NHS patients being treated by private providers. The reason is that the definition used of a "qualifying hospital patient" in Clause 1 includes people being treated at an independent hospital as defined in the Care Standards Act 2000. As noble Lords know, the Act does not specify that independent hospitals must be located in the UK.
I want to reassure noble Lords on how this might work. Patients selected for overseas treatment are carefully screened to check that there are no reasons, such as social care or housing needs, which would complicate their discharge. Furthermore, patients receive extra rehabilitation, which can be extended if required, as part of the in-patient stay. The overseas hospitals are all clear that patients should not be discharged until they are able to carry out daily life activities, unaided, in their own home. Therefore, patients treated overseas are unlikely to have social care needs on return to the UK. However, should the patient's condition change and community care needs become necessary, it is highly unlikely that an assessment could not wait until the patient returns to the UK. That would not therefore need to be done abroad.
As a point of good practice, the lead commissioners of Kent and Medway already advise local hospitals to alert social services that patients are going abroad under the scheme and inform them of their expected return date. Therefore, social services are involved from the beginning. The commissioners take NHS trusts through the possible situations that may arise so that they are prepared in advance.
On the basis of the operation of the scheme so far, the best information is that it is highly unlikely that a patient treated overseas will require an assessment of community care services before he returns home. The care taken should ensure that patients are more fully recovered before returning home. However, should the scenario arise, it would not be fair to separate this group of NHS acute patients from others. Each trust or PCT which is sending patients abroad retains the responsibility for co-ordinating patient discharge requirements, just as though the patient had been treated in the UK.
Turning to the issue of practicalities raised by the noble Lord, of course I recognise that it would be more complicated for social services to carry out an assessment overseas if that really were required. Therefore, the Government will obviously be considering whether to allow a longer minimum period for overseas assessment. That can be done through regulations under Clause 4. Clause 8 allows that regulations make different provision for different cases and circumstances.
I emphasise that the Bill does not mean that reimbursement charges will be paid to overseas hospitals. Any payment for delays caused by social services will go to the NHS trust or the primary care trust which had commissioned the treatment in the first instance.
In conclusion, I confirm what I said in Committee about the provisions of the Bill extending to patients treated overseas. Based on the experience of the 200 patients, the problems suggested by the noble Lord seem unlikely. The Bill as drafted extends to patients treated overseas because of the construction made in Clause 1.
Lord Clement-Jones (Liberal Democrat)
My Lords, I do not know whether to be reassured or surprised by the Minister's reply. He has erected a rickety structure around the proposition that patients treated abroad are brought within the ambit of the Bill. In a sense, that exemplifies the ramshackle nature of the Bill.
The Minister said that although a limited number of patients will be treated abroad, some of them could be affected. Moreover, the intention is that only patients who are not expected to have any complications will be treated overseas and that extra rehabilitation is provided for those patients. That means that those patients receiving treatment overseas will have treatment different from patients treated in independent hospitals in England and Wales. There is a special provision. Presumably, teams of lawyers will write contracts with the independent hospitals in Baden-Wurttemberg or wherever. They can carry on their activities unaided. Therefore, different discharge provisions apply to patients who leave those independent hospitals, as opposed to other independent hospitals.
A whole series of exceptions is building up in order to make the Bill work. That exemplifies a key issue expressed by Members on the Opposition Benches. Every time the Minister replies, even to an innocuous probing amendment such as this, contradictions in the Bill emerge. But the Minister relies on the fact that it is highly unlikely that these patients will not be fully recovered—and there will be another exception. Under the regulations, instead of ensuring that care is available after three days, a longer period of time may be specified. There will be another set of provisions which relate solely to those patients treated in hospitals abroad.
I have elicited enough information from the Minister, but it does not reassure me. It may give rise to a series of future amendments at another stage. In the mean time, with some perplexity, I beg leave to withdraw the amendment.
Baroness Barker (Liberal Democrat)
moved Amendment No. 3:
Page 2, line 10, at end insert—
(c) has consulted with the patient (and in the case of a carer in relation to assessment under the Carers (Recognition and Services) Act 1995 (c. 12) and the Carers and Disabled Children Act 2000 (c. 16) to ascertain their views and preferences, informed them of the reason for the notification, and obtained their informed consent or in the case where a patient lacks the mental capacity to give such consent, has recorded on the file what steps have been taken to ensure that the patient's best interests have been duly considered"
Baroness Barker (Liberal Democrat)
My Lords, this long batch of amendments returns to an issue on which we spent a considerable amount of time in Committee; that is, the issue of consent. In introducing the amendments, it is important to begin by saying that the Bill omits any reference to consent, either on the part of a patient or a carer, when placing a duty on the NHS to refer a patient to social services. That is a flaw which features increasingly in community care legislation.
People have the right to refuse social services assistance other than in certain specific circumstances, such as individuals sectioned under the Mental Health Act. While most people will welcome the intervention of social services when they need them, and will welcome early intervention, there are those who will not do so. For whatever reason, certain people will want to make their own arrangements and they should have the right to refuse. Thus what lies behind the amendments, in particular Amendment No. 3, is to ensure that people, should they not wish to use them, have the right to refuse to be referred to social services.
We think that the issue of consent is extremely important. Nothing in Clause 2 indicates who is to make the decision that community care services are likely to be required, or even how such a decision is reached. Given that under the framework being set up by the Bill, hospitals are likely to prefer all patients to come under the responsibility of social services—bearing in mind the penalty system that is to come into force—it is probable that, without a specific recommendation that the views of an individual must be taken into account, all patients will be referred regardless of their wishes.
During our debates in Committee the noble Baroness, Lady Andrews, made a helpful concession about the need to consult with patients. I recognise that the provision was not included before. However, I doubt whether noble Lords are under any illusions about the key difference between consultation and the necessity to obtain consent. Fears were expressed from the Government Benches during our earlier debates that people would have to consent to the individual care package being offered to them. However, the amendments reflect our contention that people should give their consent to any arrangements made with social services on their behalf. In that we and the Government hold distinctly different views.
The notion of consent is important. Noble Lords on these Benches feel that going ahead without the express consent of a patient could contravene their right to confidentiality and could be seen as a breach of Article 8 of the European Convention on Human Rights, which as noble Lords know confirms respect for the right to private and family life, home and correspondence.
The second issue dealt with in my amendments and those standing in the name of the noble Earl, Lord Howe, is the right to carers' assessments. In Committee we discussed at length the need for an independent assessment of carers' needs and we recognise that the Bill has been changed during its passage through another place. In response to our probing in Committee, Ministers made much of the hospital discharge workbook and the good practice contained in it. While no one on this side of the House would dispute the fact that the workbook contains a great deal in the way of good practice, it does not constitute a statutory obligation or impose statutory guidance on the NHS. Indeed, I believe we had reached this point in our earlier discussions when the noble Lord, Lord Campbell of Alloway, made his welcome intervention on the issue of guidance and the NHS. Would that the noble Lord were in his place today to join in my arguments with his characteristic vigour.
We believe that the issue of consultation, together with assessment, is key to ensuring that what happens to older people and their carers is not just quick, but is also timely. It would reflect good practice. That is why we have taken certain elements of the Community Care and Health (Scotland) Act 2002 and the Carers and Direct Payments (Northern Ireland) Act 2002, both of which place duties to provide assessments for and make available information to carers.
Taken together, the amendments would add up to good practice while not presenting a threat either to the NHS or to local authorities. We believe, too, that the rights conferred by them would root out the bad practice which still exists, notwithstanding all the force of earlier legislation for carers passed by this Government and their predecessors. That is why we believe that the amendments would be of great benefit and that they should be included on the face of the Bill. I beg to move.
Earl Howe (Conservative)
My Lords, I should like to speak to Amendments Nos. 5, 6, 20, 31 and 32 tabled in my name, as well as to Amendment No. 3, to which, in the spirit of solidarity, I have added my name to that of the noble Baroness, Lady Barker.
Like the noble Baroness, I very much welcome the appearance in the Marshalled List of government Amendment No. 7 and I look forward to hearing what the Minister has to say about it. Until now the Minister has stuck to the line that an explicit legal requirement to consult the patient about a Clause 2 notice is unnecessary, but I am delighted that she has felt able to revise her view. However, I would say with respect that that change of view is essential.
This is an instance where one could argue with perfect cogency that existing legislation and good practice are quite sufficient to ensure that patients will be consulted as regards what will happen to them; ergo, there is no need to clog up the Bill by reinforcing those requirements. But that is the clinical argument which misses the point about the balance of the Bill as currently drafted and the messages it will send out. The Minister knows that one of the things I find distasteful about the Bill is that, amid all the process and procedure it will impose on NHS trusts and local authorities—as well as all the time constraints—the patient's right to speak is nowhere acknowledged. That balance is wrong.
The Bill is all about speeding up discharges and getting patients out of the door as quickly as possible. We must not allow patients to become, or to risk becoming, the property of the system. Although the Minister may still insist that her amendment is unnecessary in strict terms, I say to her that that is why it is not.
As the noble Baroness, Lady Barker, emphasised so forcefully when introducing her amendment, there is still an important gap here; that of patient consent. I am sure the Minister is aware that no little controversy rages about the fuzziness of the rules surrounding the disclosure of confidential patient data between doctors and staff within the health service. That debate has not been concluded and no doubt has some way to run. However, I simply do not think that we should countenance a situation whereby a duty is imposed on the NHS to refer a patient to an authority outside the health service without at the same time ensuring that the patient's rights of confidentiality are respected. That is basic.
A national service framework provision on patient-centred care specifically relates to this area. But Clause 2 as currently drafted, combined with Amendment No. 7, show that the wording does not reflect the NSF provision which speaks of,
"enabling older people to make informed choices, involving them in all decisions about their needs and care".
One can argue that a Clause 2 notice does not involve detailed decisions relating to future care—it involves an initial decision as to whether a patient requires, or is likely to require, the assistance of social services—but the disclosure of confidential patient data follows automatically from a decision to notify. Once social services have been notified, it is then their legal duty to assess the patient and prepare a care package for him. It is impossible to ask a local authority to carry out such a duty without allowing it free access to the patient's medical history.
But these are private matters. I have said that we must not allow patients to become, or risk becoming, the property of the system. If we say to the NHS that it has carte blanche to disclose confidential medical details to social workers, that is exactly what we will be doing.
The Minister said that a Clause 2 notice formalises what already happens in many parts of the country. It would be instructive to hear from her what existing regulations or guidance allow a hospital to inform a local authority about a patient without that patient knowing about it. If that does happen, it should not. The fact that it may or does happen is no reason to enshrine the practice in legislation.
The Minister has made it clear that patients ought not be allowed a veto. I understand what underlies that viewpoint in the NHS. Patients have rights, but those rights are not all encompassing. We do not say that every citizen of this country has the right to receive from the NHS any medical treatment that he or she may demand, but we surely do say that patients have the right to refuse medical treatment. Why should not we also say that patients have the right to refuse the opportunity to become clients of social services?
Most people would not want to turn down that opportunity, but some might. Are we really saying that the requirement of the NHS to free-up blocked beds is so urgent, so overriding, that we cannot allow patients to exercise that choice? Surely not.
My amendments go further than those of the Minister in several respects, not only on the issue of the initial consent in Clause 2 but also on whether the patient is consulted about the care package eventually offered to him. As the noble Baroness, Lady Finlay, said so well in Committee, the NHS insists on consent—and, indeed, properly informed consent—in almost every other area of patient treatment, why not here as well?
If unamended, the Bill will mean that care packages have to be put together in a hurry; it will mean patients being forced or cowed into accepting things that they do not want. I do not believe that that is acceptable. Why, at the very least, do we not specify explicitly that the patient should be consulted about the care package and what that package is likely to involve for him?
Now that the Government have taken the welcome step of conceding the principle of consultation as regards Clause 2 notices, it is surely no giant leap to concede the principle of consultation during the later stages of the process. Many would regard that kind of consultation as being of equal importance. It will do something to guarantee that the patient is not treated as a parcel. The "like it or lump it Bill" is not an attractive tag to attach to this legislation, but if they are not careful the Government will find that that is exactly the tag it will acquire. I ask the Minister to go further than she has; I hope that she will.
Baroness Pitkeathley (Labour)
My Lords, it is important for carers as well as for patients that discharge planning starts upon, or preferably before, admission. Carer organisations have made this point time and again and it is good to note that so many noble Lords have taken the issue on board.
The Government's amendments provide adequate safeguards for carers. I have a slight concern about the word "reasonably" in Amendment No. 7, but the needs of carers are sufficiently covered in these amendments, especially when the requirements of other Acts of Parliament relating to carers and the guidance in the discharge workbook are taken into account.
The Bishop of Hereford (Bishop)
My Lords, I support this group of amendments. They go to the heart of what many old people and the organisations that represent them have found unacceptable in the Bill. To be admitted to an acute hospital is a traumatic experience. Elderly people will be confused, uncomfortable, ill at ease and bewildered by what has been going on. The sense that they are no longer in control of their own lives is inevitably there for patients in an acute hospital.
At the end of the episode of treatment, it is absolutely vital that people are properly consulted and give their consent. I agree with the noble Earl, Lord Howe, that Amendment No. 7 is to be welcomed but simply does not go far enough. Informed consent must be written on the face of the Bill.
In representing those who try to offer the ministry of the Church in hospital, I am often frustrated by the new patient confidentiality arrangements. Parish clergy wish that they could gain access to lists of patients and all the other things that we used to be able to do but no longer can. That can be frustrating. I recognise that it is necessary to defend the rights of patients to privacy and their ability to decide about their own future. Age Concern has raised the question that this issue could potentially breach Article 8 of the European Convention in regard to respect for private and family life, home, correspondence and so on.
As the noble Earl said, not many people will want to refuse the opportunity of discussing what is going to happen with social services. Almost all will be grateful for the opportunity of at least knowing what options are open to them. But it is very important that consent is forthcoming. It is self-evident that the amendment would be a significant humanising of the Bill and would meet the objection made by so many people that the Bill does not treat elderly patients fully as human beings. The word "commodities" has been used. I know that the Minister does not like that word and resists it.
I strongly support this group of amendments. If we are to take the pastoral needs of elderly patients seriously, they must be allowed to give consent.
Baroness Andrews (Baronesses in Waiting, HM Household; Labour)
My Lords, I am grateful to noble Lords who have spoken in the debate. This is an important issue and I am grateful for the conditional welcome that has been given to the Government's Amendment No. 7. I shall speak first to Amendments Nos. 3, 5 and 6 and place Amendment No. 7 in that context.
The current position is that, in exercising their functions, the NHS and social services must give all proper information to a person so that he can make an informed decision about whether or not to accept care or services. These are fundamental duties which stem from the fact that they are public bodies. Technically, therefore, there is no need to make provision for consultation on the face of the Bill.
However, bearing in mind what the noble Earl, Lord Howe, said—that we have to be careful not to be too clinical and to lose our humanity in the process—we are happy to respond to the concerns expressed in Committee and we have brought forward the Government's amendment. It will place a duty on the NHS to consult the patient and, where appropriate, his carer, prior to issuing a notice to the local authority of the patient's likely need for community care services upon discharge under Clause 2. We are all keen to avoid wasting the time of the NHS and social services by initiating assessments which are not required or involving patients in assessment without their prior knowledge. The Government's amendment will avoid that and reinforce the existing good practice which dictates that the patient must be kept informed and consulted at all stages of the assessment process.
The noble Earl is right, this would have happened in any case, but we are happy to put it on the face of the Bill. We are confident that it will make a difference and we are grateful for the support it has received.
A point was raised about the nature of a Clause 2 notice and the question of confidentiality and privacy. In Committee, I stressed that a Clause 2 notice is a very basic notice which simply requires the basic details about a patient—name and address and so forth. With regard to whether this is likely to breach Article 8 of the ECHR, I am told that the matter has been checked and our advice is that no breach of Article 8 is implicit in the provision and we are confident, therefore, that we can protect the confidentiality of the patient.
I turn now to the issue of carers. I am grateful for the support of my noble friend Lady Pitkeathley. There is no one in this House who speaks with more authority about the work of carers and the implications that the Bill will have for them.
The requirement to consult a carer is slightly circumscribed in that the NHS body has to consult a carer only if it knows who the carer is and if it is reasonably practical to find out. This avoids any question of accidental or avoidable delay, which we want to minimise as much as possible in the Bill.
In addition, the Bill will be backed up by practical provisions. The guidance will emphasise the importance of consultation. The good practice workbook emphasises, in a whole chapter on patients and carers, what we mean by consultation and the importance of it. There is already a great deal of good practice in the process from which other local authorities can learn.
Noble Lords have rightly said that there is a difference between "consult" and "consent". It is important to be clear about the difference and to understand the implications of putting "consent" on the face of the Bill—which explain our difficulty with it. The Bill does not prevent a patient from refusing to co-operate with the NHS or social services in an assessment. That is the inviolable human right that patients have. But to give a person the right to prevent the NHS from taking the first step to inform local authorities that, in its judgment, for the well-being of the patient there may well be a role for social services on his or her discharge, would be counter-productive. It would do nothing to ensure that the patient would receive the most appropriate care available. It would require extra and unnecessary bureaucracy. It would not reduce delays.
I state again that, if the person involved does not want help from the social services—no matter how great his or her need, or for whatever reason—it cannot be forced upon him or her. Surely that is the most important point to bear in mind. There has to be a way of initiating contact with the social services which takes account of the patient's feelings. I believe that the requirement that we seek to add via Amendment No. 7 is sufficient to ensure that that proper balance is maintained.
I turn now to Amendments Nos. 15, 16, 20—to which the noble Earl spoke—and 23. The amendments propose that local authorities should consult with parents and carers during the assessment process. The problem that we have is that we are alarmed that such a provision would cut across the existing assessment process.
Clause 3(11) clearly ties assessments carried out in accordance with the duty in Clause 3(3) to assessments carried out under Section 47 of the National Health Service and Community Care Act 1990. We are very clear that there should be no difference in the type or standard of the assessment to which a person is entitled. We have spent a great deal of time on the single assessment process. The amendments would differentiate an assessment carried out in accordance with Clause 3(3) from other Section 47 assessments. We are concerned about this. We believe that it would introduce confusion into the Bill which might hold up assessments, cause duplicate assessments or cut across assessments. So we do have a problem.
A point which should reassure the noble Earl is that social services are public bodies exercising public functions. They are bound by fundamental duties which require them to give all the information necessary for someone to make an informed decision. That includes information about the cost of care. I know that the noble Earl is concerned about this. Local authorities have received statutory guidance to provide information about costs and as part of the care planning process for a number of years. But, more importantly, the single assessment process requires them to give all information including costs. That is important.
I turn now to some of the points made about the importance of consent in this context. The noble Earl used strong language, as did the right reverend Prelate the Bishop of Hereford, about patients being forced or cowed into choices that they did not want to make. It was suggested that they would be treated as parcels or commodities.
My noble friend said in Committee, and I reiterate, that nothing could be further from the intention or, we believe, from the practice which is presently in operation. The single assessment process which was introduced three years ago has at its heart the concerns that we have for the patient, the patient voice, what it is that we can understand when we listen to patients, and what they need.
The Bill is not about reducing or minimising the voice of the patient or what we provide according to what patients see as their need. I reiterate that because it has been stated several times in this Chamber that there is a problem. I stress that the Bill makes no difference to a patient's rights with respect to consent. Patients have a right not to consent to receive services and an absolute right not to have services forced upon them.
Amendments Nos. 30 and 31 seek to place an equivalent duty on the NHS to consult patients and carers and to gain a patient's consent to services being provided following his or her discharge. These amendments are not necessary. Just as with the treatment provided by the NHS in hospital, a patient also has the right to withhold consent to services provided by the NHS in another setting. The Bill does not alter the existing requirement of the NHS to gain consent.
Likewise, we believe that Amendment No. 32 is unnecessary. It requires the NHS to inform the patient and his or her carer of the proposed discharge date. We believe that this is a matter of detail which does not sit appropriately on the face of the Bill. Moreover, it is absolutely clear in the discharge workbook, and we shall make it clear in the statutory guidance, that the patient is to be provided with this information so that he or she and his or her family are in no doubt about the discharge date.
But the amendment would place an entirely new duty on the NHS to gain the patient's consent to discharge. We must address this very serious question. At present, no NHS patient has a right under existing law to prevent his discharge by withholding consent. It would surely be inappropriate for such a right to be given when we consider that it would effectively give a patient the legal right to remain in a hospital bed indefinitely.
The decision regarding the date of discharge must take into account all the medical and social facts. The guidance makes it plain that it must be taken in consultation with the patient and with all relevant parties.
I turn finally to government Amendments Nos. 22, 23A and 58. I apologise to the House for the fact that these amendments were laid late and there were mistakes in them. Noble Lord will have received a letter to that effect, but I reiterate that we are very sorry about the drafting errors and we hope that the amendments will clarify what is in the Bill.
The amendments add a definition of "carer" to Clause 9, which is in the part of the Bill dealing with interpretation. There have now been a number of amendments to the original Bill dealing with carers, and the term now appears in more than one clause. It was felt that the drafting would be simpler if reference was made in the body of the Bill simply to "carer" and if the term was then defined in the interpretation clause, rather than leaving it in Clauses 3 and 5. The other two amendments are consequential on this.
I hope, in view of the noble Earl's remarks, that he will not in fact be disappointed that we cannot accept some of his amendments. I hope that he will accept our views about the difficulties that they would cause and will feel able not to move them.
Baroness Barker (Liberal Democrat)
My Lords, I am somewhat disappointed. I believe that there is a fundamental difference between consultation and consent. When we talk about good practice, it is important to recognise, as the noble Baroness, Lady Pitkeathley, has done on many occasions, that there is an awful lot of bad practice, particularly in relation to carers. When patients and carers become one part of this equation, which is essentially a financial transaction, the pressure on them to accept practices which, in other circumstances, they would not accept—such as having information about them, however minimal, passed to social services—becomes extremely difficult for them to stand up to.
The Bill is, in many ways, incomplete. One of its great omissions is a thorough articulation of exactly what people's rights to confidentiality are. Had I chosen an example, I think I would have chosen the same one as the right reverend Prelate the Bishop of Hereford about the clergy's access to patients. It is no longer the case that clergy of any faith, any denomination, can have access to the information held about patients. I believe that that is right, and also that patients should not have any of their details, however minimal, passed on to another body without their consent.
I take the Minister's point about the defective drafting of one or two of the latter amendments, but I do not think that her argument applies in relation to Amendment No. 3. This is a fundamentally important issue, and I would therefore like to test the opinion of the House.