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New Clause 3 — Meaning of 'Carer' and 'Carers' Assessment'

Community Care (Delayed Discharges etc.) Bill – in the House of Commons at 2:33 pm on 15th January 2003.

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'(1) In this Part Xcarer", in relation to a qualifying hospital patient, means a person aged over 16 who—

(a) provided (prior to admission in hospital) or intends to provide a substantial amount of care to the qualifying hospital patient on a regular basis once they are discharged, and

(b) did not or will not provide this care—

(i) by virtue of a contract of employment or other contract with any person, or

(ii) as a volunteer for a voluntary organisation.

(2) In subsection (1), Xvoluntary organisation" has the same meaning as in the National Assistance Act 1948.

(3) The responsible authority shall inform any person where it appears to them that they may be entitled under section (1) of the Carers (Recognition and Services) Act 1995 and section (1) of the Carers and Disabled Children Act 2000 to request an assessment of their ability to provide and continue to provide care.

(4) The assessment of the patient's needs under section (3)(3)(a) must take account of the results of any assessment undertaken of the carer's ability to provide and continue to provide care for the patient under the Carers (Recognition and Services) Act 1995 or the Carers and Disabled Children Act 2000 or both those Acts.'.—[Mr. Burstow.]

Brought up, and read the First time.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

I beg to move, That the clause be read a Second time.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss the following:

New clause 9—Carers: duties—

'(1) Further to fulfilment of the requirements under section 2(2) and (3) it shall the duty of the responsible authority to—

(a) inform any person where it appears to them that they may be entitled under section (1) of the Carers (Recognition and Services) Act 1995 and section (1) of the Carers and Disabled Children Act 2000 to request an assessment of their ability to provide and continue to provide care;

(b) ensure that the assessment carried out under the above provisions provide sufficient information in the care plan, or to make arrangements that a provider of services to the patient can carry out an appropriate assessment, to satisfy Standards 3 and 4 of the National Minimum Care Standards for Care Homes and Standards 2 and 3 of the Draft National Minimum Care Standards for Domiciliary Care, as required by the Care Standards Act 2000.

(2) Where, for the purposes of satisfying the fitness for purpose of proposed accommodation under the Care Standards Act 2000, the assessment procedure exceeds three days, the delayed discharge period shall be disapplied.'.

Amendment No. 41A, in page 2, line 9, [Clause 2], after 'body', insert—

'to consult with the patient and his carer, if he has one, to ascertain their views and preferences, and—

(a) where informed consent is given, record that on the patient's file or

(b) in the case where a patient lacks the mental capacity to give such consent, record on the file what steps it has taken to ensure that the patient's best interests have been duly considered, and'.

Government amendment No. 27.

Amendment No. 5, in page 2, line 41, [Clause 3], at end insert—

'(3A) Before making a decision under subsection (3) the responsible authority must—

(a) consult the patient and his carer, if he has one;

(b) inform them of the cost of the proposed care plans; and

(c) obtain the consent of the patient and any carer and—

(i) where informal consent is given, record that on the patient's file, or

(ii) in the case where a patient lacks the mental capacity to give such consent, record on the file what steps it has taken to ensure that the patient's best interests have been duly considered.'.

Government amendments Nos. 28 to 30.

Amendment No. 3, in page 3, line 7, [Clause 3], at end insert—

'(6A) The responsible NHS body must consult the patient and—

(a) where informed consent is given, record that on the patient's file, or

(b) in the case where a patient lacks the mental capacity to give such consent, record on the file what steps it has taken to ensure that the patient's best interests have been duly considered, before deciding what services (if any) it will make available following discharge.'.

Amendment No.4, in page 3, line 7, [Clause 3], at end insert—

'(6A) The responsible NHS body must take into account the views of the patient's carer, if he has one, before deciding what services (if any) it will make available following discharge.'.

Amendment No. 2, in page 3, line 9, [Clause 3], at end insert—

'(7A) The responsible NHS body must give the patient and his carer, if he has one—

(a) notice of the day on which it proposes to discharge the patient and—

(i) where informed consent is given, record that on the patient's file, or

(ii) in the case where a patient lacks the mental capacity to give such consent, record on the file what steps it has taken to ensure that the patient's best interests have been duly considered, and

(b) information about their right to request a review if they disagree with the decision to discharge.'.

Government amendments Nos. 32 to 34, 36 and 37, 39 and 40.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

This is far the largest group of new clauses and amendments with which we shall deal, and it enables us to explore quite a few of the issues we touched on in Committee. I hope we shall receive further clarification from the Government today, not least on issues raised by our amendments and those tabled by Dr. Fox, which deal with some of Opposition Members' most fundamental criticisms of the Bill. We hope that even at this stage the Government will be minded to accept some of the amendments.

New clauses 3 and 9, and Government amendments Nos. 27, 30, 32, 39 and 40, address a number of concerns that I raised in Committee. As drafted, the Bill says nothing about the rights of carers. They are seen as innocent bystanders who are left to pick up the pieces resulting from the discharge process.

Research by Carers UK has repeatedly demonstrated poor hospital discharge practice. The new clauses are intended to ensure that carers do not bear the brunt of poor practice and are not victimised by over-zealous implementation of the Bill across the country. Research published about a year ago by Carers UK showed that anything between 70 and 77 per cent. of carers said that they had no choice about taking on caring responsibilities when the person for whom they cared left hospital. In other words, seven carers out of 10 were effectively dumped on and left to get on with it. That cannot be a satisfactory outcome of the way in which discharge is currently being handled in far too many hospitals across the country.

The guidance published by the Government over the years says that carers should be consulted about discharge planning and that they should play an integral role at each stage of a patient's progress. However, all too often that does not happen in practice. The new clauses deal with that lack of consultation and assessment of carers' needs.

Carers UK has followed up the research that it has done over the years and monitored how things have changed over time, so it is educational to look more closely at its research. For example, it has found that there has been a near doubling in the number of people being readmitted to hospital within two months of discharge—from 19 per cent. in 1999 to 43 per cent. in 2001. When the most recent survey by Carers UK asked why the rise had occurred, 45 per cent. of carers said that they felt that premature discharge was the cause of what might be considered a revolving door syndrome that meant that people returned to hospital as emergency readmissions.

The problem of premature discharge from hospital was highlighted by last year's Audit Commission report entitled XFully Equipped 2002—Assisting Independence". I referred to that report in Committee. The quotation that I shall read out now was referred to but the Minister did not then respond to the point that the Audit Commission was making. The report stated:

XIn the case of community equipment services in particular, social services departments were finding themselves under increasing pressure to cope with the demand of people being discharged earlier from acute hospitals. The policy to support the immediate needs of the NHS was putting pressure on other parts of social services' home-care budgets and driving up eligibility criteria for those who needed less intensive support to help them to stay at home—risking unnecessary hospital admissions and increasing demands on the NHS."

In other words, the policy becomes self-defeating: ejecting people prematurely from the hospital only results in them returning for additional care.

I raised the matter with the Minister in Committee, but on checking the record I found that she did not deal with the point in that debate. I hope that she will be able to do so today. By introducing a system of fines to bear down on delayed discharge problems in the NHS, new perverse incentives will be created elsewhere in the system that will distort priorities. The district auditors and the Audit Commission have found that that is already happening: the delayed discharge targets are already causing hospitals to become the priority of social services departments at the expense of others.

There is nothing in the Bill to prevent that from happening. In fact the Bill promotes it. Many people wait in their homes for assessment by social services departments, and are often in desperate need of an appropriate package of care and support. It is bizarre to discover that the Bill means that the quickest way for them to get what they need will be to get themselves admitted to hospital. The fine will cause social services to focus on their need once they are occupying a hospital bed. However, because there is no fine attached to the fact that those people are not being assessed at home, that will not be prioritised.

That is the perverse incentive that the Bill will create.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne 2:45 pm, 15th January 2003

I am following the hon. Gentleman's argument closely. Does he accept the Alzheimer Society's contention that the point that he makes about carers applies even more strongly to those looking after people suffering from that disease? Almost by definition, such patients are unable to give any input about what should happen to them. Carers often feel under enormous pressure to allow an inappropriate discharge and subsequent placement.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

The hon. Gentleman makes a good point about mental incapacity, and the amendments in the name of the hon. Member for Woodspring in part deal with that. I shall return to matters connected with dementia later in my remarks.

I want to follow up an undertaking that the Minister gave in response to an amendment that I moved in Committee that dealt with the question of charging carers for services. I pursued this matter in the previous Parliament in connection with the Carers and Disabled Children Act 2000. It remains a concern for many carers.

In Committee, the Minister acknowledged that it would not be right for carers to end up footing the bill for equipment. She said that the Government would return to the matter on Report. It is not clear which of the Government amendments under consideration deals with that point. I should be grateful if the Minister will make clear which amendment deals with the question of charging carers.

In Committee, the Minister said that she would deal with matters to do with the regulations, several of which directly affect carers. It was useful that the Minister wrote to members of the Committee setting out in summary terms the issues that the Government indented to cover through regulation.

My first question is about clause 2(4)(a), which deals with

Xthe form and contents of notices" of likely need, and the manner in which they are to be given. The explanatory notes say:

XThe intention is that the regulations ensure that the notice given by the NHS body is brief, but still contains necessary information. The notice only need contain the patient's name and location, the name of the NHS contact, the date of admission if this has not yet occurred, and the likely date of discharge if known."

However, I hope that the Minister will reassure the House about whether carers and relatives will be notified at that stage. Neither the notes nor the Bill makes that clear. Will they be part of the process? I hope that the Minister will confirm that the regulations will recognise and acknowledge the role that carers play.

The notes also stated:

XNotice does not need to be a formal letter but will most likely consist of a fax or an email, either providing the necessary information or alerting social services to an update on a shared database".

The phrase Xshared database" reminded of last year's Audit Commission report entitled XForget Me Not", which stated:

XEffective information sharing between health and social care practitioners is a prerequisite to successful co-ordination."

No one would disagree. The report continued:

XJoint working and the single assessment process would be weakened without it. However, auditors found that shared case files, or easy access to each other's files, only existed in a tenth of areas, and partly so in only a further third . . . In other words, case notes were not shared in three-fifths of areas . . . Many agencies have developed. Or are in the process of developing, computerised patient or service user records. But auditors reported that health and social services IT systems were compatible in only a few areas."

When one goes on reading the report to see what that meant in practice, one realises that in 89 per cent. of the areas surveyed by the Audit Commission there was no compatibility between the systems—yet the Government are planning to predicate regulations on such an ability. I hope that the Minister will say a little more about that, too. How will the proposal work in practice given that the systems will hamper the sharing of information?

We on the Liberal Democrat Benches welcome amendments Nos. 27, 30, 32, 39 and 40 because they make provision for some of the concerns that Carers UK, my hon. Friend Mrs. Calton and I have been raising. However, the amendments seem to fall short of placing a duty on social services departments to inform carers of their entitlement to an assessment. Indeed, Government amendment No. 27 states that the carer must ask for the assessment. In other words, the onus is placed on the carer. Surely during the stressful time in hospital associated with the planning of discharge it would not be unreasonable to place a duty on social services departments to give the carer notice of the fact that they are entitled to such an assessment if they want one.

I look forward to the debate on the Opposition amendments on consent. The Liberal Democrats strongly support their purpose. The Bill is silent not only on carers but on patients; there is absolutely no mention of patients. The provisions reflect an obsession with getting patients out of their beds as quickly as possible—and not necessarily in their best interests. The amendments are about ensuring that the interests of the patient are brought back into play. Under the Bill, the patient is seen as a passive recipient of whatever care or services the NHS or social services departments choose to supply.

The issue of consent is particularly relevant to patients with dementia, to which Mr. Waterson referred. Indeed, when giving evidence last year during the Health Committee's excellent inquiry into delayed discharge, Professor Ian Philp, the national director of older people's services, made the following relevant point:

Xdementia is a principal cause of delayed discharge because of the complexity that having dementia plus a physical illness produces in terms of developing a good discharge plan."

He went on to make the point that 70 per cent. of occupants of ordinary nursing homes are elderly mentally infirm patients—people with dementia and other problems. There are serious pressures on services currently available to provide support for people with dementia and for their carers.

We know that from the Audit Commission report, XForget Me Not", in which there are some important findings on home care services, to which the hon. Gentleman also referred. Last year's report said:

XHome care is one of the key services for supporting older people with mental health problems at home, provided it is given flexibly and sensibly. However, auditors found home-care workers with additional training in mental health in only one in seven areas."

Only one in seven areas have people who are equipped with the skills to provide the services necessary to promote confidence in the fact that those with dementia will be safely discharged from hospital and will receive the support at home that they need. Surely that ought to concern the Government, although it does not appear to have been factored into the time scale for implementation of the Bill. Indeed, the Government have been hasty in introducing the legislation.

Is the Minister confident that matters have been remedied since the Audit Commission's finding just last year? Surely the patchiness of provision of services for people with dementia ought to be addressed. Even the extra resources, which are welcome and for which I and my hon. Friends voted, will not deliver from day one the extra EMI-trained staff to provide such home care and other much needed support.

Amendment No. 5, which was tabled by the hon. Member for Woodspring, would rightly ensure that patients and carers are informed about the costs of the proposed care. That raises some questions for the Minister. First, clause 3 sets up the process of partial assessments—what package of community care services ought to be provided for the carer. The assessment is not of the carer's financial circumstances, so how on earth can social services departments complete a financial assessment in the time scales proposed, especially given the intrusive nature of such assessments?

My second question is about consistency in NHS continuing care. As the Audit Commission found, there are wide variations in how the Government's guidance on continuing NHS care provision is implemented. Over the past months there have been some very damning health ombudsman inquiry findings against strategic health authorities that have acted unlawfully in saying that someone is not entitled to free NHS continuing care and therefore must instead be means-tested by social services departments. As a result people have given up resources to which they are entitled, whether by selling their home or running down their bank balance. Given such evidence, will the Minister ensure, if and when the Bill is enacted, that we can be confident that there will be an assessment of a person's entitlement to such care from the outset?

In Berkshire, the strategic health authority has been told as a result of the health ombudsman inquiries to trawl through records of the past few years to find when people have been wrongly pushed down the social services route and subjected to means-testing rather than receiving free continuing NHS care. That is the case not just in Berkshire but in Dorset, Wigan and Cambridgeshire. Will the Minister ensure that strategic health authorities will conduct those trawls, which have been requested by the health ombudsman; otherwise many people will feel that the guidance issued by the Department and the way in which it has been interpreted by health authorities run contrary to the decisions of the courts and rob people of money? People are having to pay for what is fundamentally NHS care.

Clause 3(8) deals with the circumstances for the withdrawal or cessation of the effect of a notice, where someone is awaiting discharge from hospital. If that person is told that they are not entitled to free continuing NHS care and they appeal, will the Minister confirm that the clock-on fines imposed on the local authority will stop?

We hope that the Government will be able to offer answers to some of the issues raised by the amendments that I have highlighted. I hope that my hon. Friend the Member for Cheadle will be able briefly to address Government amendment No. 37 to which I have not spoken. Unless both carers and patients are covered by the Bill and their rights are properly protected, the measure will not be satisfactory and should not pass through this House.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I will speak to amendments Nos. 41A, 5, 3, 4 and 2, which deal with empowering patients and particularly carers. In many ways, as has been said, the amendments complement and add to the new clauses moved by Mr. Burstow.

It is right to say from the outset that it is extraordinary that throughout what the Opposition regard as a nasty and counterproductive measure there are no references to carers and patients or any powers and entitlements granted to them. Yet it is patients who are at the receiving end of the Bill, as are the carers, who are, as no one in the House would disagree, the unsung heroes of our society because of the tremendous work that they do in looking after loved ones and family members.

Clause 3 highlights the fact that all too often carers are ignored—taken for granted—and there is an assumption that they will do their duty and look after their relatives or those whom they care for. I consider that situation to be the wrong way round, which is why I believe it so important that these amendments and new clauses put on the face of the legislation protections and aids and assistance to patients and, particularly, to carers.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre 3:00 pm, 15th January 2003

Does the hon. Gentleman accept that some of the amendments that he is speaking to are completely unnecessary, that some of what he has said is an insult to the social work profession, and that we cannot simply lay down in the House what social care professionals should do in every aspect of their work? Will he celebrate with me the fact that we can rely on the professionalism and ability of social workers in local authorities?

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

Unusually, I am inclined to agree with the Liberal Democrats. I think that I am right in saying that Mr. Dawson was a social worker, so may I first say that, despite his cheap jibe, what I have said so far in no way criticises or attacks social workers, because they also have a very difficult job to do, and are often not given the credit for the work that they do? I think that carers' organisations and carers will be slightly surprised by the hon. Gentleman's comments, because they do feel aggrieved, and if he has bothered to take the time to read any of the briefings on the Bill from carers' organisations he will know that they do feel very aggrieved that the Bill makes no mention of carers or the role of carers.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

Does my hon. Friend agree that the point here is not the dedication of individual social workers but the pressures that social services departments will feel under? Indeed, the Bill is designed to make them feel those pressures, which will in turn distort the priorities that they might otherwise have in terms of care and packages for individual patients?

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

My hon. Friend has picked up an extremely relevant and important point. I wish the Government had better appreciated the implications of what the Bill seeks to do, because, as the Minister knows, it will be carers who bear the brunt of poor discharge procedures, and we believe that those will arise as a result of the Bill.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

No, I will not; I want to make some progress.

We tabled the amendments because between 1999 and 2001 readmissions of patients within two months of being discharged nearly doubled, from 19 per cent. to 43 per cent. The proportion of carers who felt that early discharge was at fault rose correspondingly from 23 per cent. to 45 per cent., and 77 per cent. of carers said that they were not given a choice about taking on caring responsibilities. That is why—

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I will not give way.

We need to have the new clause and the amendments on the face of the Bill to enshrine in law the proper procedures.

Photo of Andy Burnham Andy Burnham Labour, Leigh

Will the hon. Gentleman give way?

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I am sorry; I want to make some progress.

I want to deal in order with the amendments that the official Opposition have tabled. Amendment No. 5 is intended to ensure that the patient—and, where applicable, the carer—is aware of what will be provided on discharge, so that they know whether they would wish to accept that plan. The amendment also addresses issues where the patient lacks capacity. As clause 3(3) currently reads, there is no involvement with the patient, only agreement between the national health service and social services—

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

No, I will not.

The amendment would ensure that the patient and, just as important, their carer were fully aware of the cost of their continuing care and aware that they had consented to it. The importance of such knowledge and consent is emphasised by a case that my right hon. Friend Mr. Curry drew to my attention. He has a constituent who has been confronted with what I think the House would rightly agree is a grave injustice with regard to free care under the Coughlan case. A Mrs. Airey, who is the mother of my right hon. Friend's constituent and holds power of attorney, was suddenly sent a bill for #7,000 by the care home to which her mother had been transferred from hospital by social services in Yorkshire. She had made no agreement, written or verbal, to pay anything. When she replied that the contract with the care home had been made by social services, and that her mother could not be asked to pay, she received a telephone call last Sunday week from the home manager, who said that he had consulted social services and that her mother would not be able to continue in the home if she did not pay. Social services wrote last week to say that my right hon. Friend's constituent must pay Xto protect her mother's place in the home", and that she had made the contract with the home. Mrs. Airey is adamant that she had done no such thing. As the House will appreciate, there is now a major dispute as to who placed the contract and who is financially responsible for paying the bill.

I believe that an amendment like amendment No. 5, with the plans in the new clause and the other supplementary amendments, would overcome that sort of confusion and argument, because there would be greater clarity at the point of discharge.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I will give way, but then I shall make progress.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

I thank the hon. Gentleman for being so generous. He obviously has a different copy of the Bill from the one that I had. Perhaps he could point out where in the Bill it repeals legislation that already requires care plans to be in place and legislation that gives every carer the right to an individual assessment.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

The hon. Lady is missing the point because—

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

She is. If I could explain for a minute, perhaps the hon. Lady will understand. The trouble is that, regardless of the legislation that the hon. Lady is referring to, the Bill will, in effect, cause serious problems by putting pressure on local authorities to ensure that patients are often wrongly or inappropriately discharged from hospital and inappropriately placed in alternative forms of care, so as to avoid a fine under the Bill. That is why I, my hon. Friends and, I think, the Liberal Democrats believe that to protect against that occurrence and to minimise that possibility, the Bill, if it reaches the statute book, should have clearly defined rights and protections for carers and for patients, so as to seek to avoid an unpleasant and unfortunate by-product of a piece of legislation that is deeply flawed.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

No. I told Ms Munn that I would take one intervention and then would make progress.

Amendment No. 3 ensures that national health bodies will consult patients as well as local authorities before it is decided what services, if any, will be made available following their discharge from hospital. The amendment ensures that the patient is informed and consents to whatever NHS services are to be provided. It also aims to deal with those people who are unable to give such consent in the absence of mental incapacity legislation.

Amendment No. 4 would place a further duty on NHS bodies simply to ensure that the views of the carer are considered when making arrangements for health services following the discharge of a patient. The wording is deliberate. The NHS body must simply take into account the views of the carer. It need not necessarily agree or act on those views, but it will have a duty to take them into account.

Amendment No. 2 would introduce a new subsection to ensure that patients and carers are also aware of when they are likely to be discharged and can ask for a review. It also aims to deal with people who are unable to give consent due to mental incapacity.

The amendments and new clauses are needed in the Bill. For that reason, and given that we discussed the subject at considerable length in Committee, I hope that the Minister has had time to reflect and is now minded to accept this strengthening of the legislation. I am sure that she will not doubt, as I certainly do not, that carers and patients need to be protected under this part of the Bill.

Photo of Glenda Jackson Glenda Jackson Labour, Hampstead and Highgate

If memory serves me correctly, Mr. Burns has surely come somewhat late to concerns about carers. I cannot remember one piece of Conservative health service legislation between 1992 and 1997 that enshrined the rights of carers on the face of a Bill. In that five-year period, they may have introduced the possibility of the carer's needs being assessed, but no statutory duty was placed on local authorities and they did not have to deliver.

I frankly acknowledge to the Minister that my reason for speaking to this group of amendments is anecdotal, but some of my constituents have expressed concern to me. They perceive that, as carers for someone who is frail or, in one instance, suffers from dementia, pressure could conceivably be placed upon them, as social services could be fined under the Bill if the NHS facility that is caring for their loved one says that he or she is ready to leave hospital but no alternative facilities can be provided. Even though Camden is an excellent authority in that respect, there are difficulties with finding available facilities locally. That is the overriding concern of my constituents.

In some instances, the carer is as frail as the individual who is in hospital, as I pointed out when we discussed the Bill in the House before. One such case involves a wife whose husband was in hospital. She became ill and, even though he had recovered, there was no one at home who could care for him. No interim placement was available in the locality and the couple had no relatives who could visit him in the place where he was to be temporarily cared for.

Those are the sorts of issues that are causing concern among carers and patients. They believe that undue pressure will be placed on their local authority to move their loved one from an NHS facility. In some instances, they know that the loved one will be returned not to their home, because no one there is capable of caring for them, but to a facility outside the local area.

My constituents are also concerned about what will happen when someone is to be cared for at home but the home requires a great deal of work to make it feasible for the carer to care for them, or for a carer with additional domiciliary care to do so. There again, some of my constituents believe that unnecessary pressure will be placed on local authorities as a result of the fines in the Bill and that the authority will in turn put additional pressure on them.

I hope that my hon. Friend the Minister will be able to say something to calm the fears of my constituents.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne 3:15 pm, 15th January 2003

I speak in support of the majority of the amendments in the group, but in particular those tabled by my hon. Friends, especially my hon. Friend Dr. Fox—amendments Nos. 41A, 5, 3 and 4 on the consent of patients and their carers.

Those of us who were members of the Committee and who tried to improve the Bill were disappointed not least at this important—indeed, central—flaw in the legislation. The Bill is a consent-free zone. Patients are treated as a sort of commodity, or as counters to be moved around the board to the best advantage of the agencies involved. It does not ensure that they or their families or carers will be consulted, let alone have their views taken into account when it comes to the timing of their discharge and the sort of care that they will be discharged into.

We will return to that issue, but as hon. Members on both sides of the House said on Second Reading and in Committee, it is extraordinary that the Government want to introduce this sledgehammer measure at a time when there are encouraging signs throughout the country and in east Sussex in particular—part of which I represent—of closer working between the different agencies. There have been problems. I do not think that any sensible observer of that aspect of the care scene would argue otherwise. However, there is now much greater evidence of better organisation within the different bodies and of greater co-operation. For example, although there continues to be a problem with bed blocking and delayed discharges in my area, the figure is much lower than it was a year ago. Indeed, my local hospital, Eastbourne District General, recently opened a discharge suite that is designed to ease the transition of patients out of beds that they no longer need to occupy earlier in the day and to the form of care to which they are to move.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Does the hon. Gentleman regard those new levels of co-operation as a new Labour achievement? They were certainly not evident in any Tory legislation or policy during the 18 years for which the Tories were in power.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

The hon. Member for social workers, or whatever his constituency is, misses the point again. If the Government are going to try to take credit for solving the problem, they should certainly take the credit for creating it in the first place. In my part of east Sussex, the problem can solely be placed at the door of the Government.

There has been closer working between the agencies, in particular since control of the county council changed hands. The Tory administration has gone to great lengths to work more closely with the NHS and so forth. If blame is to be allocated locally—perhaps an element of consensus may spring up across the Chamber on this—the eight years during which the Liberal Democrats ran the county council contributed to the problem.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

Opposition Members have short memories. I was first introduced to the term Xbed blocking" during my social work training back in 1985–86, under a Government of the political persuasion of the current official Opposition. The problem has existed for many years. Why, after all this time, are the Conservatives so concerned about the fact that the Government have decided to do something about it, especially in areas where the progress made is not as it should be?

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

I have not had the benefit of social work training—I am sure that that is a massive failing on my part. Two things need to be said. First, there has always been bed blocking, although the title attached to it has changed over the years. However, my constituency experience during the past 10 years is that whereas it used to be largely a winter phenomenon, it has become an all-year-round phenomenon of substantial proportions. At different times in the past couple of years, my local hospital has had the equivalent of two or three wards full of people who should not be in hospital. It is one of the lasting monuments to the Labour Government that they have created waiting lists not only to get into hospital but to get out.

Secondly, the Government appear to be convinced that the Bill is the solution, even though what they propose flies in the face of the conclusions reached by everyone else with any experience of the problems—not only Conservative Members of Parliament, but the Local Government Association, the Association of Directors of Social Services and the NHS. The Bill has not a friend in the world, apart from some Labour Members, and quite a few of them have expressed disquiet since the idea was stumbled across. It is another example of the Government's knee-jerk reaction to problems. All I can say to them is, XWelcome to Government." Normally, there are no simple solutions to complex problems.

If the hon. Lady is saying that the Bill is the answer—that some genius boffin at the Department of Health has produced a wonderful solution to the problem—why not pilot it? Why not follow the advice of bodies such as Age Concern and not implement the Bill across the board until 2004? Why not try it first in one or two areas? By all means choose those areas where the problem is perceived to be chronic. The Minister will concede, if she has not already done so in previous debates, that good progress is being made in east Sussex, but if there are pockets where the problem is extremely bad, why not pilot the provisions of the Bill in those areas and wait and see, rather than wasting the time, effort and resources of hard-pressed social services departments and NHS staff throughout the country?

Moving on to the practical details, I have already said that the Bill has no friends, but in an intervention on Mr. Burstow I mentioned what the Alzheimer's Society has to say. The society is extremely worried. It makes the point that

XThere are over 700,000 people with dementia in the UK", and that

XThree-quarters of people in long term care have Alzheimer's or another form of dementia."

In its briefing, the society rightly states:

XThe Bill makes no reference to issues of consent", and adds that

Xthe proposals place undue pressure on unpaid carers."

The concerns that were rightly expressed by my hon. Friend Mr. Burns and the hon. Member for Sutton and Cheam about carers generally apply in spades to carers of people with Alzheimer's or other forms of dementia. The Alzheimer's Society briefing continues:

XMany carers feel pressured into moving a person with dementia into a care home that they feel is unable to care appropriately for the needs of the person with dementia."

The briefing ends:

XThe Alzheimer's Society is concerned that the proposals will increase pressure on people with dementia and their carers to accept care that is inappropriate."

Photo of Andy Burnham Andy Burnham Labour, Leigh

The hon. Gentleman talks about what carers have to fear from the Bill. Surely carers in this country have far more to fear from a 20 per cent. cut in public spending, proposed by Opposition Front-Bench spokesmen just before Christmas? What would that do to social services budgets and what could carers expect as a result of such cuts?

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

The hon. Gentleman is behind the game. Despite the assurances of the Prime Minister, it has been made clear that no Opposition Member is suggesting a 20 per cent. across-the-board cut, or anything like it. I am talking about the Labour Government's loony proposal to charge fines—the Minister was careful not to use the word Xfines" in Committee; she used various other, somewhat cuddlier, expressions—

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

I am grateful to my right hon. Friend—I think that that was the word the Minister used. There would be charges to Xincentivise" people, although I doubt that any criminal who is fined regards himself as being incentivised. In any event, the game was blown when the Secretary of State used the old term Xfines" in the Chamber the other day. The Government are erecting a tremendous bureaucracy to fine social services departments—but may give back the fines because they are also setting up various appeal tribunals—to deal with a problem that in some places is visibly being tackled by the agencies themselves.

The next brief we received is from Help the Aged, which makes similar points. It says that the Bill

Xfails to recognise the involvement of the patient in determining their future care."

As I pointed out in Committee and on Second Reading, the Bill cuts right across the requirements of the NHS plan and the national service framework for older people. I do not know why Ministers publish all those worthy documents if they have no intention of paying any attention to them in legislation.

Age Concern provides a powerful voice for the sort of people who will be most adversely affected by the Bill and whom the Opposition parties are trying to help by amending the Bill. The organisation does not pull any punches, stating:

XWe believe that there is a stark omission from the Bill of the rights of the patient."

It refers to the finding of the Select Committee on Health inquiry into delayed discharges, that

Xit is essential that patients should as much as possible be partners in the discharge process."

There is no talk of partnership in the Bill—patients will not necessarily be told what is to happen to them, and neither they nor their carers will be asked about it. Age Concern talks about the need for the consent of the patient and their carer, for the provision of adequate and proper information, for consultation and advocacy, for the patient to have the right to dispute the discharge decision, and for details of what will happen to the patient when there is a dispute—a subject that we will discuss later.

I return to what I have said throughout our consideration of the Bill. Consent of the patient, let alone the carer, is entirely absent from the Bill. We can only assume that it is a wholly Treasury-driven measure. It has nothing to do with the care of patients. It is designed to save money. As I have also said, in the area that I represent the problem is very much one that has been created by government.

Photo of Alan Simpson Alan Simpson Labour, Nottingham South

We should all welcome the recognition of the problems that are faced by carers, however late it has come. We must also recognise that legitimate points are being raised by organisations representing older people as well as by organisations representing the interests of carers.

The specific concerns that I would like the Minister to address do not revolve around personnel issues in terms of a care package but relate to the circumstances in which people were admitted to hospital in the first instance and to the place to which they will be returned. Those points were made by my hon. Friend Glenda Jackson. I would welcome a reference from my hon. Friend the Minister to the way in which these matters fit in with our approach to a fuel poverty strategy that will tackle the root cause of many elderly people's admission to hospital. No matter how much personal care we build into a return package, fuel poverty will be the cause of further readmissions.

For a long time, many of us have been concerned about the revolving-door syndrome in terms of hospital admissions for older people. Much of the blocking of discharges relates not to the specific illness but to home conditions that may make it almost certain that the illness will recur. Will the Minister clarify whether she will be issuing fresh guidance about home circumstances. I think that the issue is covered in amendment No. 27, which refers to the need to identify Xany services" that

Xneed to be made available to the carer in order for it to be safe to discharge the patient".

We have been the first Government ever to introduce statutory targets for the elimination of fuel poverty in the home. Home warmth, home conditions and home safety are central to the health interests of older people and to safety when discharging older people from hospital to return to their homes. The amendments that were tabled in my name and in the names of other Members on a cross-party basis have not been selected, but perhaps the Minister will be kind enough to set out her proposals in the context of recognising that it is not only the human care package but the physical care package that needs to be considered in removing or addressing the bed-blocking problem?

I would hate us to find that we had merely moved the problem from one location to another. I would not want us to replace the revolving-door problem with a pass-the-patient problem that surfaced in temporary locations to which a discharged patient was moved, not least because the people concerned may have been asking for a long time what help they can get from the Government or the responsible agency to make their life-long home a safe place in which to live.

Photo of Patsy Calton Patsy Calton Liberal Democrat, Cheadle 3:30 pm, 15th January 2003

My hon. Friend Mr. Burstow and I support the remarks of Alan Simpson. We added our names to the amendments to which the hon. Gentleman referred, which sadly have not been selected. We would have liked them to be debated as well. We hope that the Minister will take notice of the hon. Gentleman's comments and take them up when she replies.

We shall press amendment No. 37 to a Division, because it has the effect of ensuring that accommodation and personal care do not have to be free for more than six weeks. Effectively, that means that responsibility is thrown back to local authorities after six weeks. Liberal Democrats disagree with that approach. We believe that personal care should be free for as long as it is necessary. We have never pretended that it does not have to be paid for, but comments about charging that were made in Committee should be addressed.

In May 2000, the Audit Commission's document XCharging with Care" said that 94 per cent. of councils were charging for care compared with 72 per cent. in 1992–93. The charges were raising #225 million and funding 12 per cent. of the costs of care, compared with 8 per cent. in 1993–94. It is acknowledged that that income helps councils to maintain and improve services and target subsidies. It is also acknowledged that demand is increasing. Much is made also of the differences in the amount of care that people could expect to get for the same money throughout the country.

Councils have had the power to charge for social services care since the enactment of the National Assistance Act 1948. The current powers to charge were set out in the Health and Social Services and Social Security Adjudications Act 1983, which was introduced by a Conservative Government. It gave wide discretion to councils, but they had to be reasonable, and reasonably practicable, in what they brought in. In 1994, an advice note from the social services inspectorate provided further clarification, and a series of legal challenges established case law.

The Government's current funding formula assumes that a proportion of costs can be recovered through charges. A note from the Library makes it clear that, for the first time, in 1999–2000—under a Labour Government—the way in which the revenue support grant was distributed to local authorities took into account the fact that they have different capacities to cover costs by raising charges for domiciliary services. In other words, councils were expected to make charges if they could do so.

Until 2000, only 6 per cent. of councils—

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

Is the hon. Lady suggesting that distribution should not take into consideration councils' ability to raise charges, given that, as she said, that has been the legal position since 1948? Is she suggesting that we should not bear that in mind when we are distributing—in other words, that we should disadvantage those local authorities whose communities are poorer and less able to pay charges?

Photo of Patsy Calton Patsy Calton Liberal Democrat, Cheadle

I thank the Minister for her intervention, but I would have much more sympathy with her point of view if she acknowledged the level of unmet need throughout the country—in local authority areas considered affluent, and in those considered less affluent. The level of need is simply not being met because the indicators used are not sensitive enough to recognise it.

Against the background of grants allocated on the basis that charges would be made, and of reductions in grant to that end, 94 per cent. of councils were clearly not in a position to avoid charging.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

This time last year, my father needed care at home, and because of his level of disability at that time he was entitled to claim a higher rate of attendance allowance. Both my mother and father considered it only right that that allowance be used to contribute towards the services that they received, and it is clear that many people are in that position. Is the hon. Lady suggesting that that is not a legitimate way for the Government to proceed?

Photo of Patsy Calton Patsy Calton Liberal Democrat, Cheadle

I am grateful for that intervention, but I need to make progress as we want to press several of the amendments tabled to a vote. Obviously, there will be those who feel able to pay, but I am talking about the most disadvantaged, who are not able to do so.

Photo of Patsy Calton Patsy Calton Liberal Democrat, Cheadle

No. As I said, I intend to make progress. I have taken several interventions.

Successive Governments have been disingenuous on this front. It suited them to blame local councils, whereas in reality they were pulling the strings. We should remember that we are talking about services that involve assisting people in going to the toilet, using a bedpan, keeping the skin around catheters and stomas clean, changing incontinence pads, and keeping their skin clean because of their incontinence; assisting people with food; dealing with immobility; and medical treatments such the application of creams, lotions, eye drops and dressings. At the moment, people have to pay for all those things. Dressings, surgical appliances, prostheses, getting up and going to bed—all of those count within free personal care.

The Liberal Democrats have never suggested that such care could be provided without funding, and it was covered in our last costed manifesto. Given that it is a priority for us, it will undoubtedly be costed for the next manifesto as well.

In Scotland, all parties—Labour, the Conservatives, the Scottish National party and the Liberal Democrats—universally supported that move forward. It is a great pity that the Government have not used this opportunity to ensure that free personal care is provided for those who need it in England and Wales. Indeed, they have made it impossible for themselves to do so without further primary legislation.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

Opposition Members have made much of their concern for individuals and carers, but perhaps I should return to the very principle of the legislation, which they oppose. We introduced the Bill precisely because we recognise that the prime concern of many older people who are trapped in hospital—they tell us this when they come to our constituency surgeries—is that they want to get out, but that the facilities that they need to do so are not available. I am afraid that when it comes to concern about individuals and carers, talk is cheap for Opposition Members. As my hon. Friend Andy Burnham pointed out, it has to be cheap for the Conservative party, given their plans to cut the public spending that we are pledging.

As we shall see later, the Liberal Democrats seem to think that the problem can be solved with a few more plans. I am sorry, but every single older person who is trapped in hospital and wants to get out is an argument for a change to the system. Opposition Members can talk as much as they like about individuals, but if they are willing neither to invest nor to reform in order to make the necessary difference, that talk is hollow.

Photo of Andy Burnham Andy Burnham Labour, Leigh

When I intervened on Mr. Waterson, he responded that he was not aware that any Opposition Member was suggesting public spending cuts. I draw my hon. Friend's attention to a comment made by the Opposition's Treasury spokesman:

XI am digging through current spending, finding opportunities for cuts. It is too early to say how much but it could be up to 20 per cent."

That was what he told The Daily Telegraph on 28 December.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

My hon. Friend makes a very important point. That is why I say that talk is cheap for Opposition Members.

There has been much talk about carers and issues relating to consent. I should like to address some of those issues, and I hope to provide some reassurance. My hon. Friend Glenda Jackson said that the Government's attitude to carers was different from that of previous Governments. We are committed to supporting carers in the vital care that they provide. Between 1999–2000 and 2001–02, the number of carers' assessments carried out increased. The carers grant introduced by the Government in 1999 provided an extra #140 million over three years to increase the number of breaks for carers. It has now been extended to provide #85 million this year and #100 million next year, and will continue to 2006. During that time, it will more than double to #185 million to provide extended care and 130,000 further breaks for carers.

This is a Government who are willing to put resources behind concern about carers. However, I understand the concern that the Bill may not have taken into account some of the previous legislation that we introduced in relation to carers' rights. We tabled Government amendments Nos. 27, 28, 29, 30, 32, 33, 34, 39 and 40 to remedy an omission from the Bill that would have meant that carers and carers' services were not fully provided for. As the Bill is drafted, the financial incentive promptly to carry out an assessment and provide services will apply to individuals in hospital, but not to their carer.

It was never our intention that the services that need to be provided to the carer to ensure safe discharge should be considered a lesser priority than the services to be provided to the individual. As my hon. Friend the Member for Hampstead and Highgate rightly pointed out, there may well be important cases where services provided to a carer are crucial in order to enable the safe discharge from hospital. Carers' needs are important in ensuring that an individual receives the services that he needs when he needs them and in the most appropriate place.

The amendments add the carer's assessment—upon request from the carer—and decision about provision of services to the carer to the duties of a local authority when it receives a notice under section 2. Amendment No. 27 states that a carer's assessment should be carried out either when it has been requested by a carer—in response to Mr. Burstow, I can say that we have issued section 7 guidance, alongside the Carers and Disabled Children Act 2000, which outlines carers' entitlement to be informed about their right to assessment—or when a carer has had an assessment in the previous year, in order to check whether the carer's needs have changed or to identify those services specifically necessary for the safe discharge of the person cared for.

The amendments therefore mean that if any carer's services necessary for a safe discharge are not in place by the end of the relevant day, the local authority will incur a charge in the same way as if community care services were not in place, and provide a strong incentive for local authorities to ensure that the needs of the carer are given priority when the patient discharge from hospital is being arranged.

I am pleased to say that the amendments are strongly supported by Carers UK, which rightly raised the concerns that I have outlined. It believes that they will do much to improve current practice with respect to carers and hospital discharge. The amendments will ensure that carers' needs are taken into account, looking holistically at what they realistically can and cannot manage, and that services are put in place to meet those needs prior to the patient's discharge from hospital.

The hon. Member for Sutton and Cheam raised a point that I made in Committee: that, although services are provided free to individuals, under the Bill as drafted equivalent services provided to a carer would not also be free. Amendment No. 36 rectifies that error, which has the effect that, although local authorities will no longer be able to charge individuals for the provision of certain community care services, they will still be able to charge their carers. It was never our intention that local authorities should remain able to charge carers for the same services that could be provided free of charge to the individuals themselves. The amendment will ensure that those services, whether provided to carers or to individuals, will be free in a similar way.

Given those Government amendments, I agree with my hon. Friend Mr. Dawson that new clause 3 is otiose. It seeks to overload the Bill with unnecessary definitions. The definitions in the first two subsections are taken into consideration by Government amendments. Subsections (3) and (4) place further duties on local authorities that are unnecessary and achieve nothing over and above what the Government have achieved through their amendments.

The Carers and Disabled Children Act 2000 already provides that carers are entitled to request assessment of their ability to provide care, and I can assure hon. Members that statutory guidance on the Act will state that carers are entitled to be informed that they have that right.

Similarly, section 1 of the Carers (Recognition and Services) Act 1995 already provides that the local authority is under a duty to take into account the results of any assessment of the carer's ability to provide care when deciding what community care services it will provide to the person cared for. It is unnecessary to repeat that duty here. The single assessment process and the hospital discharge workbook will also reinforce that good practice.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health) 3:45 pm, 15th January 2003

On the publication of the workbook, it has been almost two years since the Government first said that they were working on revising it. Is it the case that the Department has not done the necessary work to enable the workbook to be published sooner because it has been distracted by drafting this Bill?

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

No, that is not the case. Secondly, legislation that ensures that older people get out of hospital more quickly and get the care that they need when they need it is not a distraction. I consider it a rather important part of Government business.

The hon. Member for Sutton and Cheam repeated quite a few of the discussions that we had in Committee. First, on the concern about levels of readmission, may I emphasise for hon. Members the points that I made earlier? While the Government have had considerable success in reducing levels of delayed discharge, levels of readmission have remained pretty stable. We also know, for example, that more than a third of local areas have below average rates of delayed discharge and below average rates of emergency readmission. That shows that it is possible to perform well on both indicators. As I have said before, however, we take that potential risk seriously, which is why we will be covering it in the hospital discharge workbook and the statutory guidance that we will publish alongside the Bill. Both will make it clear that discharge must be properly planned, patients must not be discharged until it is safe to do so, hospitals will be judged, and, therefore, rewarded on the basis of their ability to control readmission rates, and, under new financial flows, acute trusts will not receive funding for patients who are readmitted to hospital within a certain period. A financial incentive therefore exists for those trusts to ensure that a patient is genuinely ready for discharge before leaving an acute hospital bed.

The hon. Member for Sutton and Cheam also raised concerns about whether patients in the community will be disadvantaged. Perhaps I could remind hon. Members of the context within which the Government propose to introduce this legislation: one of significant extra funding for older people's services. That will provide additional carer services, as I have spelled out, 500,000 more pieces of community equipment, 70,000 more social care intermediate care services, and 30,000 more home care services of five or more hours a week. If the hon. Gentleman's point is that, given the inheritance of the previous Government's spending on local authority social services, social services departments have had a difficult job, I agree. This Government, however, are significantly increasing investment in ensuring that social services departments can provide precisely the sort of community alternatives and support necessary for people to come safely out of hospital and to be where they tell us that they want to be—in their own home or in extra care supported accommodation. In that context, it is also right to ensure that the responsibilities of local authorities are carried out in a timely fashion and that older people are placed at the centre of care and not relegated to being trapped in hospital, a practice that Opposition Members would seem to want us to continue.

My hon. Friend Alan Simpson made some important points about the need to ensure that action is taken on fuel poverty for older people in particular, and that people have the kind of changes made to their homes that enable them to continue living in them and to keep well. I assure him that, for example, my Department's XKeep Warm Keep Well" campaign, in partnership with Help the Aged, Age Concern, National Energy Action, the Women's Royal Voluntary Service, the Department for Environment, Food and Rural Affairs and the Department for Work and Pensions, which was launched again this year, provides an advice line, a free winter guide and advice about financial assistance available, such as that offered by the warm front team, which helps people to heat and insulate their homes.

I also assure my hon. Friend that the Department of Health is, for the first time, investing more money in home improvement agencies precisely to make some of the changes to housing that will enable people to leave hospital more safely. We are also investing in intensive home care packages and extra care accommodation, which may well provide a safer and more secure environment for older people while allowing them to maintain their independence.

Let us consider consent and involvement. It is important to involve and inform patients and carers and obtain consent when appropriate. However, as my hon. Friend Ms Munn rightly pointed out, the Bill does not alter existing legal or good practice requirements for social services or the NHS to inform, involve and, when necessary, obtain patients' or carers' consent.

Amendment No. 41A proposes that local authorities should consult patients and carers before informing social services of a possible community care need and obtain their consent to that notification. When exercising their functions, the NHS and social services must give people all proper information to enable them to decide whether to accept care or services. Those fundamental duties stem from their status as public bodies that exercise public functions. Of course, good practice dictates that the patient should be kept informed and consulted at all stages of the assessment process. The statutory guidance for the Bill will also make it plain that patients, carers and families should be kept fully informed and consulted at every stage of the discharge process.

The revised hospital discharge workbook includes a chapter specifically on patient and carer involvement. We expect the NHS and social services staff to follow it. However, the Bill does not alter the existing right of the NHS to notify social services of a person's need of such services. I do not believe that giving people a veto over the ability of the NHS to notify social services will help us either to provide the sort of care that people need to leave hospital safely or to plan better the care that especially older people require. The Committee accepted that that early notification of social services would help everybody to plan such care better.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

Will the Minister confirm whether the regulations under clause 2(4)(a) that deal with notification include carers? Will carers and patients be notified?

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

I assure the hon. Gentleman that we believe that the need to involve carers is crucial. That will be spelt out in the statutory guidance and the hospital discharge workbook. However, it may not be possible to give carers the same legal right as patients when patient confidentiality is involved.

Photo of Glenda Jackson Glenda Jackson Labour, Hampstead and Highgate

Could a carer or a patient veto a plan that cannot be provided locally? If there is no carer and the patient is incapable of making a decision, will there be an advocate? There should be an advocate for an individual who cannot make decisions. Will the advocate be informed of the plan?

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

My hon. Friend raises several issues. Circumstances in which people cannot get the care that they need locally are partly due to existing provision and investment. A key purpose of the measure is to ensure investment in providing local alternatives. Of course, carers' rights to ask for an assessment of their needs, and to have that taken into consideration when the care plan for the older person is prepared, remain in place. In fact, as I suggested, the position will be improved by some of the Government amendments.

Of course, individuals' rights to raise concerns about the package put together by a social services department remain through the complaints system as well. Therefore, while I am not sure I can give my hon. Friend all the reassurance that she wants, I can reiterate that nothing in the Bill removes rights that currently exist, and in fact the Government amendments will improve the position of carers with respect to their role in discharge. 4 pm

Photo of John Bercow John Bercow Conservative, Buckingham

Will the regulations covering the form and content of notices be subject to the affirmative procedure of the House or to its negative counterpart?

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

As I said in the letter that I wrote to members of the Committee, in all of those cases they will be subject to the negative procedure. We had quite a lengthy discussion about this matter in Committee.

I move on to Opposition amendments Nos. 2, 3, 4 and 5.

Amendment No. 2 is unnecessary. It would require the NHS to inform the patient and carer of the proposed discharge date. This of course should be covered in guidance and is not something that it is necessary to state in the Bill. Throughout guidance to the NHS, since Patient and Public Involvement in the NHS, published in 1999, and including the new hospital discharge workbook, we have made it clear that that sort of information should be provided to both patients and carers. Any guidance for the Bill will make it clear that the patient is to be provided with information and advice throughout the discharge process.

Amendment No. 3 seeks to place on the NHS a duty to gain a patient's consent to services being provided following discharge. Just as with any treatment provided by the NHS, a patient has the right to withhold consent to services that the NHS plans to provide when the patient leaves hospital. The Bill does not alter the existing requirement for the NHS to gain this consent when discussing with the patient his or her future care.

Amendment No. 4 seeks to place on the NHS a duty to involve carers. I have covered that in the points that I have made so far.

The proposals in amendment No. 5 are already standard practice, most recently emphasised in statutory guidance on the single assessment process and fair access to care services. The amendment proposes that social services must inform patients of the cost of care plans—presumably, the cost to the individual. Social services must already, in exercising their functions, give all proper information to the person so that he or she can make an informed decision as to whether or not to accept services. That includes information about the costs of any care that they will receive. That has been part of statutory guidance to councils since at least the 1991 community care changes.

I have outlined where existing legislation remains to safeguard the position with respect to the consent and the rights of both patients and carers, and I have outlined how the Government action being taken today will improve the position of carers. I hope that I have provided some reassurance to hon. Members. I have also outlined the position with respect to both the hospital discharge book and the statutory guidance to be published alongside the Bill, and the emphasis that that will place on ensuring that patients and carers are fully consulted.

The hon. Member for Sutton and Cheam raised specific points about continuing care that I think we covered in Committee. As to his question whether someone involved in a dispute over the right to continuing care would be able to remain in hospital, I think I gave that assurance in Committee. I would add that of course, as we have made very clear, the first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care, and clearly if they are there will be no responsibility on the social services department. If patients want to dispute that, they can appeal to the continuing care panel. We are currently producing directions to strategic health authorities to outline the need to ensure that they produce continuing care criteria and that any such decision is taken very quickly, within two weeks.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

I want to ask the Minister two questions. First, can she confirm therefore whether there will be a charge, or fine, to the local authority during the appeal process on continuing care? Secondly, can she confirm whether the Department will follow the health service ombudsman's requirements for individual health authorities to carry out trawls to find those people who have been wrongfully denied access to free continuing care?

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

On the first question, the Bill makes it clear that a charge would apply only if there were no social services provision in place; therefore, if health service provision were also not in place, a fine would not exist.

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

The hon. Gentleman has succeeded.

Clearly, to reinforce a point that I made earlier, people also have the right to stay in hospital while decisions about the continuing care criteria are made.

On the question about health service ombudsman cases, my understanding is that those final judgments have not yet been produced. Clearly, it would be important to take those judgments into consideration as strategic health authorities determine their continuing care criteria.

Government amendment No. 37 will make it clear that personal care may not be provided free for more than six weeks. As my hon. Friend the Member for Sheffield, Heeley made clear in her contribution, this is a matter of choice. As a Government, we have made a choice to spend significant new resources on improving the equality and range of care services provided to older people, providing services that deliver what most older people say that they want: independence, support in their own homes, services tailored to their needs and not to remain in hospital unnecessarily when they can be cared for elsewhere.

When I suggested that this is about choice, the hon. Member for Sutton and Cheam said from a sedentary position that the Liberal Democrats have made a different choice from that of the Government, so he has a responsibility to explain to his constituents that they would not therefore benefit from what we have decided to spend the extra #1 billion on: 130,000 additional carer services, 500,000 more pieces of community equipment, 70,000 more intermediate care places, 30,000 more home care places, 6,000 more residential care places supported by councils and nearly 7,000 extra care housing places.

I am afraid that government is about making choices. The Government have chosen to extend choice, opportunity and services. The Bill will ensure that that extra investment is spent for the benefit of older people, so that they receive the right care at the right time and in the right place.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

Having listened very carefully to what the Minister has had to say in response to this group of amendments, I wish to say briefly that it is our clear view that the Government have not addressed our main concern: the onus should be on social services departments to ensure that assessments are given to carers; they should not have to ask for them. We do not accept the Government's argument, so we wish to press the motion to a Division and, later, to vote on Government amendment No. 37.

Question put, That the clause be read a Second time:—

The House divided: Ayes 195, Noes 334.

Division number 50 Community Care (Delayed Discharges etc.) Bill — New Clause 3 — Meaning of 'Carer' and 'Carers' Assessment'

Aye: 195 MPs

No: 334 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.