Clause 2 — Notice of Patient's Possible Need for Community Care Services

Community Care (Delayed Discharges Etc.) Bill – in the House of Commons at 3:44 pm on 19th March 2003.

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Lords amendment: No. 6.

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

I beg to move, That this House
disagrees with the Lords in the said amendment.

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

These amendments raise the crucial issue of involving and informing patients and carers during the notification under clause 2. I am sure that those hon. Members who have taken a close interest in the Bill as it has gone through its stages will be aware that I am referring to the notification from the hospital to social services that starts the process of assessment that identifies to a social services department that the hospital believes that an individual may need community care services so that it is safe to discharge him from hospital. It is an important new responsibility on hospitals to ensure that they improve communication with social services departments.

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 to accept care or services. Those are fundamental duties that stem from the fact that they are public bodies exercising public functions. However, we noted the concerns of both Houses that there is no duty for the NHS to consult the patient prior to referring him to social services.

Government amendment No. 9, with which I hope the House will agree, will place a duty upon the NHS to consult the patient and, where appropriate, his carer before issuing a notice to the local authority of the patient's likely need for community care services on discharge under what will be section 2. That avoids wasting the time of the NHS and social services by initiating assessments that are not required, and ensures that patients are not involved in an assessment without their prior knowledge and that of their carers.

The Government amendment reinforces the existing good practice that has been built through experience and emphasised in guidance for section 47 assessments, the single assessment process and the recently published discharge workbook. All those processes are built on the premise that the patient should be kept informed and will be consulted at all stages of the assessment process. Even in the context of the Bill, how could the NHS body decide whether the patient is likely to need community care services in order to be safely discharged without consulting the patient? Lords amendment No. 9 puts the matter beyond doubt by writing the requirement into primary legislation.

The same applies to involving carers, although the requirement to consult the carer is slightly circumscribed in that the NHS body must consult the carer only if it knows who the carer is, and if it is reasonably practicable to do so. That is to avoid placing a blanket duty on the NHS body that it cannot meet without incurring further delay. The Government have concerns about amendment No. 6 because it is quite a different matter for the NHS to require consent before informing social services. That would be a new right that does not exist elsewhere in the NHS.

Although to us, discussing the matter in the Chamber, consent may seem a simple, straightforward matter, it may not seem so when presented to older people. They may be confused and fearful, possibly having just had a fall and having come into hospital by ambulance. They may not have any experience of social services or know what an assessment entails, and may not feel able to give consent. The amendment would mean that that had to happen before social services could be involved.

In situations where older people are not able formally to give or withhold consent, it is important that health and social care professionals can begin talking to the patient, explaining options, understanding their home situation and forming a view about what services they may need for a safe discharge. None of that could happen if the NHS could not notify social services without clear and informed consent to notification. A week or more could go by and the patient might nearly be ready for discharge before they felt ready to give a definite yes, which by that time would probably be a yes to social services providing services.

Many people have rightly argued for faster and more timely assessment. The difficulty with amendment No. 6 is that it could work against that. The Bill does not prevent a patient from refusing to co-operate with the NHS or social services in assessment; that is their human right. But it would be deeply counterproductive to give a person the right to prevent the NHS from taking the first step to inform local authorities that, for their own well-being and safety, there may be a need for social services. Most importantly, it would do nothing to ensure that people receive the appropriate care and support when they need it and in the right setting. To add the need for consent would require extra and unnecessary bureaucracy, requiring the NHS to gain, record and pass on the record of that consent to social services.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley 4:00 pm, 19th March 2003

Is my hon. Friend aware that since the National Health Service and Community Care Act 1990 came into force, many social services and health authorities have had in place systems whereby, as soon as a person is admitted to hospital, the relevant social services authority is notified that an assessment will be needed, so that the procedures can quickly be put in place? Does my hon. Friend agree that the amendment would cause considerable difficulties for authorities that already have sound, quick procedures that operate effectively?

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

As we have seen from previous debates, my hon. Friend understands the real world in this matter and she has put her finger on the difficulty. We recognise the need to ensure that patients are consulted about a notification of their needs going to social services. That seems reasonable, and the Government amendment will ensure that that happens. However, we fear that the Lords amendment could put a spoke in the wheel of the sensible arrangements to which my hon. Friend refers, and that would not achieve what all of us want to see, which is a more timely and appropriate assessment for people in hospital in order to provide them with the necessary support. As I emphasised earlier, people will still have the right not to participate in that assessment and to refuse the services, but to place individuals and organisations in a position where they have to obtain full consent before a notification could even take place would not deliver the sort of improvements that we want.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

I want to persuade the House that it should not agree with the Minister but instead should agree with Lords amendment No. 6, and I shall explain why.

First, I welcome Lords amendment No. 9 because it provides a movement in the direction that I think hon. Members on both sides of the House wish to see, recognising the need for a process that ensures that carers and patients are consulted.

The crux of the debate is about whether consent puts a spoke in the wheel, or whether it should be a legitimate part of the Bill. Many hon. Members, and many people outside the House, are concerned that, by not referring at all to patients' rights in terms of being consulted or being able to exercise their right to informed consent, the Bill is not patient centred. In many ways, the Bill could be described, uncharitably perhaps, as regarding patients as passive recipients of a process of care, establishing a process and set of mechanisms whereby they are merely passed from one authority to another. I do not think that that is what it should be about.

In Lords amendment No. 6, my noble Friends in the other place sought, I think succinctly, to include in the Bill the much-needed right of carers to be consulted, which is important, not least in the light of research by Carers UK, which found, when it surveyed carers on their experiences of delayed discharge and the management of a person's discharge, that their views were taken into account less in 2002 than they had been in 1998. It is on that basis that I and my noble Friends came to the conclusion that simply relying on the hospital's discharge workbook would not be enough. It may well contain excellent practice or good practice, but we want clear law, not just guidance, to NHS and other practitioners.

The amendment seeks to place a proactive duty on the NHS and social services to offer assessments of care to carers, not just to wait for the carer to ask. That was an important concern that we had when the Bill left this place.

The other point that the amendment seeks to raise, which the Minister did not really address, concerns mental capacity. The Minister referred to that at least in passing by suggesting that professionals would be hamstrung if they were unable to obtain informed consent. Yet the reality is that the amendment would include in the Bill a requirement that, where a person lacks the mental capacity to give such consent, a record should be placed on the file of the steps taken to ensure the patient's best interests. That places on record within the NHS the process by which the clinicians came to a decision that it was in the person's best interest for social services to be involved and for other decisions to be made.

As we do not have in our law a recognition of mental incapacity in respect of a person's right to advocacy or surrogate decision making in terms of health care, this is a way of encouraging the Government to consider the matter now, because it is an integral part of making the Bill effective and patient centred. That is why we make the proposal.

To conclude, I want to touch on one other issue. I hope that, even at this late stage, the Government will be prepared to consider finding a way by which further amendments can be made to address this concern. That is what my noble Friends were seeking to achieve, and that was the opportunity that they presented. I regret that that opportunity has not been taken. There is a serious issue in relation to how we ensure that those who do not have capacity can have their wishes reflected on, acted on and properly documented, and how those who do have capacity can have a say on whether they wish social services to intervene and make an assessment of their needs. Surely that is their right, although, currently, the Bill does not reflect that. I hope that hon. Members will establish that right clearly in the Bill today, and not accept the Government's dissent from the amendment.

Photo of Glenda Jackson Glenda Jackson Labour, Hampstead and Highgate

I have listened to the arguments of my hon. Friend the Minister. Although I am not necessarily especially moved by the Lords amendments, I would like to mention some issues that have been raised with me by constituents in relation to health professionals and social services listening to carers, as well as the issue of mental capacity, which has been touched on.

I know that the Government have made major moves in relation to incorporating the opinions of carers when creating a truly effective care package for an individual. I hope, however, that they will consider a problem, which, although not massive, is real for the individuals and families concerned, and which has caused difficulties in my constituency. The problem is that, on some occasions, health service professionals and, in other instances, social services suddenly get very exercised about issues of confidentiality, which seems to me to be absolutely unacceptable.

In the case of someone who has a mental incapacity, it is very unusual in my borough of Camden for there not to be an extremely efficient, caring advocate, whether that is an official or someone who has simply taken it on themselves to become a carer for an elderly person without a family. If the issue of confidentiality is raised, however, and that involves the input of the individual carer—whether a family member or an advocate for someone with a mental incapacity—it slows the system down. Under the Bill, there can be fines—[Interruption.] I know that my hon. Friend the Minister does not like that word. None the less, financial penalties can be incurred if there is what is deemed to be a delay in the discharge. It may be that the issue of confidentiality is being exercised because people believe that that is in the best interests. Indeed, sometimes, they may erroneously believe that they will be infringing some kind of ethical, if not legal, embargo.

I understand the Government's arguments against the Lords amendment, but I ask them to consider this issue. I am happy to furnish my hon. Friend the Minister with anecdotal evidence from my constituency, as the Government should be aware of it. As I have said, not only can the process be delayed but real difficulties can be caused for families, for the individual for whom they are caring, and, most particularly, for those who suffer from a mental incapacity, in relation to their advocate. It is not unusual, in the first instance, for attempts to be made to sideline their contribution. Importantly, too, those people who are closely engaged with an individual can offer good ideas as to what would be the best possible care package for that person.

Although I will not vote for the Lords amendment, I hope that my hon. Friend will take on board the points that I have made, and I am happy to provide her with even more details if they can be of help.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne 4:15 pm, 19th March 2003

I shall be brief because we have much ground to cover. The basic challenge to any Opposition is the extent to which they should strive to improve a measure that is fundamentally unimprovable. However, the central objection has always been that the Bill is not patient centred. Almost everybody in the world, except Health Ministers, takes that view. It is a tribute to the sustained opposition from all quarters, not only parliamentary, that the Government have been dragged kicking and screaming towards at least nodding in the direction of patients.

The Minister claims that the amendment would grant a new right that does not exist in the NHS. She may be right. However, the Government are taking some draconian new powers, which do not yet exist, over the NHS and social services. It is only fair that those powers, which are misconceived and bound to trigger the law of unintended consequences, are counterbalanced by stronger rights for patients.

In an ideal world, consultation would mean an unhurried attempt to sit down with the patient, carer or both, discuss the options, ensure that the patient has all the available information, and reach a consensus. However, how can we guarantee that in the real world? The only way is to include the word "consent" in the Bill. There would thus be an absolute requirement to obtain the consent—hopefully informed—of a patient or carer before the shift to some other form of care.

In the majority of cases, obtaining consent should not present a problem. All too often, the patient clamours to get out of hospital into more appropriate care. However, in a small minority of cases, there will be a clash of views between the patient, the family, the carers and the aims of the health professionals. Those aims will be driven by the financial penalties—incentives, as the Minister calls them, fines as everybody else, including the Secretary of State refers to them—that the Bill imposes.

It would be churlish not to welcome the Government's deathbed conversion to the patient having some role. Until now, the patient has been regarded as a commodity, to be shunted back and forth in the system as rapidly as possible in a bizarre game of pass the parcel to ensure that whoever has the patient when the music stops pays a fine. For once, the Government are beginning to acknowledge that a patient plays a genuine role in the process.

It is only fair to record that Age Concern has welcomed the Government's comments about consultation, guidance and so on. However, Age Concern is not alone in the view that it expressed in its latest briefing, which states:

"Age Concern believes that it is essential that older people have the right to agree to their care package and that this requirement is explicitly spelt out on the face of the Bill."

That does not mean setting out a requirement in regulations or guidance.

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

Community care legislation has been in place for nearly 10 years. Expectations about agreement to care packages have also existed for that time. We are not discussing anything that is new or relates specifically to the issues that the Bill tackles.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

If that is a point in favour of patient consent and agreement between everyone, who am I to disagree? Of course, there should be agreement, and I said that the problem will affect only a minority of cases.

Age Concern's briefing, reflecting the point that Glenda Jackson made, continues:

"This is especially important with this Bill which will allow information to be passed from one authority to another (NHS to local authorities)."

The hon. Lady was right. Problems with confidentiality may slow down the process. That is not a matter for us; it is for Ministers and civil servants to tackle so that there is no extra cause of delay. Age Concern concludes:

"We strongly urge MPs to keep this requirement on the face of the Bill."

I think that Age Concern is absolutely right.

The combined opposition to the Bill from within and outside Parliament has persuaded the Government to look at the rights of patients. They have not gone far enough down that road, however. They should go the whole hog and withdraw their opposition to this eminently sensible and fair Lords amendment.

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

With the leave of the House, I should like to respond to Mr. Waterson first. Most of his contribution was about consenting to a care package. He has, therefore, misunderstood the section of the Bill that we are discussing. The two amendments in question relate to the process whereby the NHS body, the hospital, notifies social services that someone might need community care services, thereby starting the process of assessment. We have not yet reached the question of the care package, although I hope that we shall do so when we discuss the next two groups of amendments. It would, therefore, have been better if the hon. Gentleman had saved some of his arguments for later.

I reiterate the point that I raised earlier about amendment No. 9, which is that it ensures that, even before that notification happens, the patient and carer will need to be consulted about the fact that the assessment process has started. That is an important step forward.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

I want to seek clarity on amendment No. 9, in which paragraph (b) refers to the circumstances in which carers should be consulted if it is "reasonably practicable" to do so. Will the Minister amplify what would be meant by "reasonably" in those circumstances, so that we can help those outside who will have to live with this amendment in future?

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

As I started to outline in my introduction, this provision is intended to avoid a situation in which an inability to find a carer—perhaps because a patient was not clear about who their carer was, for example, or because the carer was away or uncontactable at the relevant time—would put a brake on the ability to notify social services and start the assessment. In such circumstances, we would not want the notification of the assessment to stop.

The point of difference between us is whether we should make it a requirement for the patient to consent to the notification of social services to start the assessment. My hon. Friend Glenda Jackson raised some important issues about capacity—as did Mr. Burstow—and confidentiality, which seemed to go to the heart of the need to have in place a better way for those without capacity to have determined in advance who might take these decisions on their behalf. I am pleased that the Parliamentary Secretary, Lord Chancellor's Department, my hon. Friend Ms Winterton is on the Front Bench today to hear these concerns. Hon. Members will be aware that the Lord Chancellor's Department is currently working on draft legislation on incapacity, and I understand that my hon. Friend has also set up a mental incapacity forum to deal with some of these issues. The Government are, therefore, considering them in detail.

To return to the crux of the matter of obtaining consent, I would ask hon. Members to imagine the position in which we might place a hospital if, for example, someone had come in following an accident in which they had fallen over and were confused, and it was clear that they would almost certainly need community care services in order to be able to be discharged from hospital. Under amendment No. 6, the patient would have to give their informed consent before the social services could even be notified to start the process. My concern is that, for a variety of reasons, they might not be able to do that. In addition, all the bureaucracy involved in obtaining consent would, in such a case, increase the period of time between the patient being admitted and social services being informed of the possible need for care. That could reduce the time available to social services departments to plan and arrange a care package.

Nothing changes the fact that patients need not co-operate with assessments. They can refuse the package offered to them. Nevertheless, professionals must be involved at every stage to ensure that patients understand the consequences of refusing care, rather than a box being ticked for "consent given" or "consent not given".

While it is unlikely to add to the process of consulting patients, what is proposed in the amendment might add to both the problems involved and the time taken before health and social care professionals can start working together to assess people's needs and to ensure that the necessary services are available. I hope that Members will disagree with Lords amendment No. 6, and agree with Lords amendment No. 9.

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 328, Noes 198.

Division number 122

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Lords amendment disagreed to.

Lords amendment No. 9 agreed to.

Lords amendment: No. 14.

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

I beg to move, That this House
disagrees with the Lords in the said amendment.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to take Lords amendment No. 15 and Government motion to disagree thereto, Lords amendment No. 16 and Government motion to disagree thereto and Lords amendment No. 18 and Government motion to disagree thereto.

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

Although I am proposing that we disagree with the Lords in these amendments on the important issue of informing and involving patients and carers in the performance of the social services assessment and decisions about which services are to be provided, I hope that I can give hon. Members some reassurance that the Government have gone even further than the aspirations expressed in the Lords amendments in what we propose to do.

Amendments Nos. 14 and 15 propose that local authorities should consult patients and carers during the assessment of community care needs and obtain their consent to the care plan. Amendment No. 16 would further require the local authority to inform patients of the costs of this care.

It is clear in clause 3(11) that this assessment and care planning process is part of the section 47 assessment process and that it is therefore one stage, or part, of the single assessment process. By singling out this assessment and care planning process from all other section 47 assessments and care planning, we would differentiate the process under this Bill from all other processes of assessment and care planning. That would include processes outside the hospital and those applying to other patients in the hospital who do not happen to be "qualifying patients" according to the terms of the Bill.

We are very clear that there should be no difference in the type or standard of assessment to which a person is entitled, whether they are assessed in hospital or in their own home. I do not believe that that is what the amendments are designed to achieve. I would have thought that if it was necessary to reiterate these steps here—although they are set out already in statutory guidance for both section 47 assessments and the single assessment process—then it must be necessary for all assessments, not just for those in this Bill. We have always been clear that the Bill should not affect the underlying substantive law, and we would not want to agree an amendment that did just that.

Similarly, it has always been the case that care plans prepared as a result of a section 47 assessment should be agreed by the user. That point was made earlier by my hon. Friend Ms Munn. Providing information about costs of care services is covered specifically in the section 7 guidance to local authorities on the single assessment process. Furthermore, it was covered in the statutory guidance on section 47 assessment that was issued to accompany the National Health Service and Community Care Act 1990.

With respect to assessments carried out under section 47, case law is already clear that the local authority must make reasonable efforts to provide patients with their chosen options, as long as there are no resource implications to prevent that. In reality, it would not be possible for the local authority to do that without having first consulted the patient to ascertain how he or she feels about the various choices available.

The Bill makes no difference to a patient's rights with respect to consent. Patients have an existing right not to consent to receiving the services that social services has assessed them as needing. Clearly, neither the NHS nor social services has a right to force services upon a patient who does not want to receive them.

Of course, good practice will dictate that patients should be kept informed and that they should be consulted at all stages of the discharge process. The revised hospital discharge workbook has a chapter specifically on patient and carer involvement. We will expect both NHS and social services staff to follow it. The statutory guidance for the Bill will also make it plain that patients and their carers and family are to be kept fully informed and consulted throughout the discharge process.

It is a slightly different case in terms of a carer's assessment, which is actually triggered by a request from the individual carer. There can therefore be no question of consent to the assessment, since it is implicit in the request for an assessment that the person involved has consented. In terms of agreeing the carer's plan, the statutory guidance is clear—the plan must focus on what the carer wants to happen, and agreement, or any differences between carer and assessor, are recorded and a copy provided to the carer. Moving away from this arrangement, as suggested in the amendment, would differentiate carers' plans from others. The amendment would make these plans less responsive to the carer's wishes than other carers' assessments carried out under section 2 of the Carers and Disabled Children Act 2000.

However, as I suggested earlier, I understand that the first three amendments in this group are trying to strengthen the arrangements around assessment and care planning. I hope that I made it clear that, if that is needed, it should be all section 47 assessments, regardless of where or when they take place.

Section 47(4) of the National Health Service and Community Care Act 1990 contains a power for the Secretary of State to issue directions as to the manner in which assessment is carried out. I can confirm, therefore, that we will issue a direction under this power to make it clear that the local authority, having assessed the needs of the patient, should consult the patient before deciding which services to provide. Where possible, it should gain agreement to the care plan, and provide information about the costs of that care plan.

That direction would apply to all section 47 assessments. It would not create the divergence that these amendments would create, but I hope that it offers some reassurance to the House that these important issues are being addressed.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

Some of the issues that we are debating under this group of amendments are a re-run of those that we debated a few moments ago, so many of my previous arguments also apply. We are now talking about the care planning process, as opposed to whether consent should be passed on social services in the first place.

I listened with interest to the Minister's comments to the effect that the amendments that were tabled by my noble Friends and other noble Lords cover only one particular stage of the assessment process, and I welcome her suggestion that the Government will issue section 7 guidance to apply these matters to all stages of the assessment process under section 47. However, if the Government are now minded to do that, would it not have been easier to table an amendment to the Bill to place it beyond doubt that it was part of the law of the land and a requirement on parties to assessment processes, whether they be NHS bodies, social services departments or any others? Although I find the measure a helpful step forward, it does not sufficiently answer my concern, or that of my noble Friends, that the provisions that we should like to be included in the Bill are not yet there. The amendments are intended to ensure that the issues of consent and mental incapacity are addressed fully and clearly in the Bill. For that reason, we particularly want to press amendments Nos. 14 and 18 to a vote so as to test the opinion of this House before the Lords considers the matter again.

My other question relates to the section 7 guidance that is to be issued. In the other place, Lord Hunt said that it was intended that a clear guidance or direction should be issued to the national health service in respect of continuing care assessments, that it would be put in writing as part of the process and that it would have to take place before a section 2 notice could be issued. Can the Minister confirm that that is the case, and can she explain why the provision is not included in the Bill, where it would be much clearer to all of us?

I shall certainly wish for votes on amendment Nos. 14 and 18, and I hope that the Minister can respond to my queries.

Photo of Glenda Jackson Glenda Jackson Labour, Hampstead and Highgate 4:45 pm, 19th March 2003

The two issues that I should like to raise with my hon. Friend the Minister have essentially to do with consent. In my experience from my constituency, a carer will often find the health professional's definition to be simply incomprehensible. There is far too little movement in terms of the ability of health professionals to translate clinical assessments into the kind of English that most people would understand. That is particularly pertinent when the carer is also elderly.

The other issue concerns consent. It is not unusual for an elderly person who has been in hospital to be absolutely desperate to go home and absolutely to refuse any kind of alternative. That can often place an enormous burden on their carer, who, as I said, may be of an equal age. The individual concerned may be going back to a home that is completely inappropriate to their new needs. It is therefore not unusual for the idea of a temporary convalescent home—I still call them that, although I know that the situation has changed—to be presented so that the necessary adaptations to the family home can be undertaken. However, such homes can be a long way from where people live. Often, for the best of reasons to do with consent, the individual may place a terrible burden on their carer. Indeed, it is not unusual for the carer to end up in hospital.

I am not being quite as precise as I would like to be, but I hope that my hon. Friend the Minister has picked up what I mean. There can be a fine line. Without wanting there to be a kind of prison state, I would like, when consent is given by the social services and the NHS to what the patient wants, better explanations to be given to the individual and their carer of the possible repercussions if the only proposal that is acceptable to the individual is to go immediately from hospital to home.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I do not wish to detain the House for long, but I wish to speak to Lords amendment No. 16, which was successfully passed in the other place. It deals with clauses 2 and 3, which are to do with the determination of need for community care services on discharge. I am sure that hon. Members would agree that that is the nuts and bolts of this legislation. As you will be aware, Mr. Deputy Speaker, clause 2, under the heading of

"Notice of patient's possible need for community care services", gives the background rules, regulations and legislation. Clause 3, to which Lords amendment No. 16 refers, goes into greater detail on what has to be done during the process. The amendment seeks simply to add to the duties that the responsible authority must carry out. Clause 3(3)(a) says that the responsible authority must

"carry out an assessment of the patient's needs with a view to identifying any community care services that need to be made available".

Clause 3(3)(b) says that the authority must,

"after consulting the responsible NHS body, decide which of those services . . . the authority will make available for the patient."

This amendment specifies that, before making a decision under clause 3(3), the responsible authority should have certain duties to carry out to give more power and involvement to the patient and carer. There are straightforward common-sense things that I would assume that no one would disagree with—although I may be proved wrong. For example, there is the duty to

"consult the patient and his carer, if he has one"; the duty to

"inform them of the cost of the proposed care plans"; and the duty to

"obtain the consent of the patient".

Those duties are an important improvement to the legislation and I hope that the Minister, having had time to reflect since the amendment was passed in the other place, will come round to the logic and advantages of accepting it. If she is not prepared to accept it, I will ask, Mr. Deputy Speaker, whether I may press it to a Division. I hope that it will not come to that. Even at this late stage, I hope that common sense will prevail and that the Minister will think again.

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

I have a slight feeling that hon. Members are looking a gift horse in the mouth. Most of what Mr. Burns was arguing for represented good practice that would be desirable in the assessment of the provision of services. However, if the duties that he spoke about were put into the Bill, they would apply only to assessments that came under this legislation—in other words, to assessments relating to the services necessary for people to be safely discharged from hospital.

The argument that I obviously failed to get over in my introduction was that, if those things are important in relation to one part of a section 47 assessment, they are important in relation to all section 47 assessments. That is why I said that we would issue legally binding directions which would make it clear that the local authority, having assessed the patient's needs, should consult the patient before deciding which services to provide, gain agreement to the care plan where possible and provide information about the cost of the care plan. That would apply to all section 47 assessments and would also cover the point made by my hon. Friend Glenda Jackson, who was rightly concerned about the extent to which both carers and patients could engage in and understand the assessment process and the services provided.

The directions will make much more explicit what is expected and the process that should be undertaken.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

The Minister seems to be arguing that it would not be possible to apply those important consent and consultation changes to all aspects of the assessment process. Surely the long title of the Bill has been drafted so widely that it would allow the Government to make precisely the amendments that the Minister intends to introduce under a section 7 direction. Would not it be better to include such provisions in the Bill?

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

I was talking not about section 7, but about legally binding directions. We have already argued about whether our proposals would make the procedure more flexible—I think that they would. For example, they would enable us to introduce other changes in the future; but if the provisions were in the Bill such changes would necessarily be more difficult to make, due to the times at which we can change primary legislation.

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

I shall give way in a moment, but I want to deal with the point made by Mr. Burstow about continuing care criteria, in case I do not have the chance to do so later.

I can confirm that we shall issue a direction requiring a continuing care assessment before the section 2 notice is issued and that regulations will require that to be confirmed in a section 2 notice. That direction will be legally binding and will have the same force as if it was a provision under the Bill, but it will be easier to change in the light of experience. It will place an important legal responsibility on the NHS to carry out continuing care assessments before the local authority is notified. I know that the hon. Gentleman has been concerned about that point.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

Will the Minister give us some clarification about Lords amendment No. 16 so that there are no mistakes or misunderstandings? Did she say that the legally binding direction for the guidance would categorically and comprehensively include all the elements of Lords amendment No. 16? Will the amendment thus be irrelevant, because the Minister is dealing with the matter under legally binding guidance? Yes or no?

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

I spelt out what the guidance would cover. If the hon. Gentleman is actually pushing me on the issue of consent, I also said that the Bill makes no difference to patients' rights in respect of consent. Patients already have the right not to consent to services that social services departments have assessed them as needing. Neither the NHS nor social services departments has the right to force services on a patient who does not want them.

Our proposals for continuing care would strengthen responsibility during the whole assessment process, before social services were even involved. I hope, therefore, that hon. Members will agree to reject the amendment.

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 321, Noes 202.

Division number 123

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Question accordingly agreed to.

Lords amendment disagreed to.

It being less than two hours before the moment of interruption, Mr. Deputy Speaker put the remaining Questions necessary to dispose of business at that hour, pursuant to Orders [28 June 2001 and 29 October 2002].

Lords amendment No. 15 disagreed to.

Lords amendment: No. 16.

Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Jacqui Smith.]

The House divided: Ayes 321, Noes 203.

Division number 124

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Question accordingly agreed to.

Lords amendment disagreed to.

Lords amendment: No. 18.

Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Jacqui Smith.]

The House divided: Ayes 320, Noes 203.

Division number 125

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Question accordingly agreed to.

Lords amendment disagreed to.

Lords amendment: No. 23.

Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Jacqui Smith.]

The House divided: Ayes 322, Noes 206.

Division number 126

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Question accordingly agreed to.

Lords amendment disagreed to.

Lords amendments Nos. 17, 19, 40, 42, and 44 to 46 agreed to.