My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Hunt of Kings Heath.)
moved Amendment No. 1:
Page 1, line 5, at end insert—
""delayed discharge" means a delay in transfer occurring when—
(a) the patient is eligible for discharge from a general and acute hospital bed to another care setting, subject to a single assessment process; and
(b) a multi-disciplinary team decision has been made that the patient is ready for, and safe to, discharge or transfer to another care setting, but the patient is still occupying such a bed;
"eligible for discharge" means judged fit for discharge in accordance with—
(a) a clinical recommendation; and
(b) discharge procedures adopted by NHS trusts in accordance with guidance issued by the Secretary of State or the Assembly;"
It is always a pleasure to speak to Amendment No. 1 at the Committee stage of any Bill because of the close attention that noble Lords pay to the proceedings at such a time. That is particularly the case when dealing with an important Bill such as this because I suspect that many of your Lordships will be back in the Chamber for Divisions, both in Committee and on Report.
In moving Amendment No. 1, I shall speak also to Amendment No. 2. The Bill should clearly define the mischief that it intends to remedy. The whole edifice of the Bill rests on the question of discharge. Yet, although qualifying patients and the delayed discharge periods are defined, nowhere in the Bill or, so far as I can see, in the Hospital Discharge Workbook is there any legal definition of "discharge" or "delayed discharge". The definitions set out in Amendment No. 1 are designed to generate some certainty about this issue.
Currently some 5,000 patients of all ages are delayed in acute hospital beds when they are ready to leave hospital, although the figures appear to be steadily reducing. There is general consensus that it is bad for older people to be delayed in acute hospital beds once they are ready to leave: they may lose the confidence needed to regain independence when they return home; and they have an increased risk of infection and of losing mobility during an extended stay in hospital. Once they are well enough to leave the hospital environment, most people would rather be in a more homely environment with their own possessions around them.
However, the definition itself is crucial to the patient's onward journey. David Gilroy, the Deputy Chief Inspector of the Social Services Inspectorate, gave the following definition to the Health Committee inquiry:
"The approach the Department takes is to define a delayed transfer of care as occurring when a patient is ready for transfer from an acute hospital bed but is still occupying such a bed. A patient is ready for transfer when: (a) a clinical decision has been made that the patient is ready for transfer; (b) a multi-disciplinary team decision has been made that the patient is ready for transfer; and (c) the patient is safe to discharge or transfer".
He went on to tell the Select Committee:
"The stuff about (a) or (b) is because sometimes the clinical decision is taken as a part of the multi-disciplinary team approach and then (b) is satisfied. Where a consultant makes a separate decision not joined up with the multi-disciplinary team approach, both have to be satisfied. That is what that is about".
In other words, it needs to be made clear on the face of the Bill whether a person's readiness for discharge is a matter for co-decision through multi-disciplinary assessment or whether it is a straightforward clinical decision.
As drafted, the Bill's emphasis on "safeness for discharge" is a purely clinical judgment, and it appears that the Government are going back on their own definition. By including a definition of both "eligibility" and "delayed discharge", linked to statutory guidance, the amendment seeks to ensure that discharge and the patient's onward journey through the social care system are a matter of co-decision. It seeks to move away from the notion of "frictional" delays, which, by health Ministers' own admissions, will vary from locality to locality, as will the definitions. At Second Reading it was pointed out by many noble Lords that discharge can often be interpreted in different ways in different localities, and that can, indeed, lead to hardship. That is why a common definition is needed under the Bill.
Amendment No. 2 is a probing amendment designed to clarify the relationship between this legislation and arrangements for joint management systems as care trusts under the Health and Social Care Act. Introducing a mechanism whereby one part of the care sector has a legal obligation to impose financial penalties on the other inevitably raises boundary problems where there are integrated structures.
Similar problems arise in respect of partnerships and pooled budgets under the Health Act 1999 flexibilities. In those situations, it appears to be the legal position that social services are responsible for the reimbursement under Clause 4 but, with the PCT's agreement, may delegate that responsibility to a pooled budget. However, 16 pooled budgets are now in operation around the country and they have been set up explicitly to deal with delayed discharge issues. If, as seems clear from the Explanatory Notes, the fines are taken out of the pooled budget, will the extra investment in social services go back into the pooled budget?
In the case where a PCT which has been redesignated as a care trust has all social services functions—or, at least, the functions which cover provision of all services for older people and adults—delegated to the care trust, would the care trust be responsible for any necessary reimbursement of the acute trust? Furthermore, what happens where the delayed discharge qualifying patient in the acute hospital setting is the responsibility of a PCT which has been redesignated as a care trust and where the patient may be receiving what is essentially primary care as an in-patient?
In many ways, the "frequently asked questions", which accompany the Bill, attempt the impossible—that is, to answer the questions relating to the Bill. Those questions make clear that it is impossible for a local system to agree not to implement the charging scheme or for an NHS trust not to claim the reimbursements. Once the legislation commences, all partners must act on the legal duties.
That rigidity of implementation risks undoing all that has been achieved by progressive legislation over the past few years in breaking down barriers between health and social services and encouraging a culture of joint working, as pointed out in extenso at Second Reading. That is no more so than in the case of a care trust where the NHS and the local authority pool not only their financial resources but their legal responsibilities also. It seems highly probable that the attempt to apply this scheme to established care trusts may, in any event, result in charging decisions that are ultra vires under the Health and Social Care Act. This limited amendment is designed to ensure that the legislation will not result in lengthy and expensive judicial review proceedings. I beg to move.
I support Amendment No. 1 and identify myself fully with what has already been said, but perhaps I may take the noble Lord's remarks a little further. The Bill is misconceived and has many serious shortcomings, but it seems to me that one of its regrettable consequences will be bureaucracy. To require a local authority under Clause 3 to prepare a care plan for discharge may fit very snugly into this wonderful new procedure but it leaves dangling in the air something that is tried, tested and very important—the single assessment process.
By definition, the care plan for discharge proposed in the Bill will be based not on the fact of how the treatment has turned out but on someone's guess about what may possibly happen during the course of the in-patient stay. Very often when a patient is admitted, ward staff can flag up their belief that he will need to go into residential care following treatment. That prediction can later be confounded when the patient makes a full recovery and goes home without the need for community services. Equally, events can often move the other way: the patient can unfortunately die in hospital soon after admission.
In other words, in many cases, the care plan for discharge is likely to be made redundant by subsequent events. Inaccurate conjectures by ward staff can lead to wasted work as well as misleading expectations. That simply cannot be a sensible use of resources. What is envisaged in the Bill is over and above the single assessment procedure. Its sole purpose is to determine the point in time when social services start to be fined. Therefore, it is a device that will not only cut across good working practice but will also exist for entirely non-therapeutic reasons.
There is also a serious human dimension. What concerns me greatly is that when a local authority begins its discharge plan it will have to start making inquiries about a patient's financial status. It will need to do that in order to be sure that the patient is not in a position to be a self-funder and therefore responsible for arranging his own onward care. Cash-strapped local authorities will be under a considerable degree of pressure to do that in every case.
That conjures up a pretty distasteful picture because front line social care managers will be put under pressure to delve deeper and deeper into the individual's financial affairs at a time when the person has just entered hospital and may be ill and very vulnerable. They will make those inquiries, often without being in a position to say to the patient with any degree of accuracy what sort of care he will need when he comes out of hospital. The whole position is invidious. I wonder whether the Government have thought about the issue in those terms.
Clinicians will say that the only care assessment and discharge plans that really matter, as the noble Lord emphasised, are those which are accurate and agreed at the time the patient is deemed to be "ready and safe for discharge". That is the accepted position under the guidance for the single assessment process. The Bill appears to take a coach and horses through the established joint working practice. I should very much like to hear the Minister's response.
I rise to support the amendment. One of the difficulties in determining whether someone is ready for discharge is that clinical states vary. It is essential that there is a clear definition of what constitutes a delayed discharge if one sector is to be able to impose a fine on another sector of care. It would be wonderful if patients' disease trajectory or recovery trajectory was in a straight line but frequently it is not. Patients can seem well in the day but slightly confused at night. They can appear to function well in hospital but when taken on a home assessment it becomes obvious that they cannot cope in the environment of their own home. Indeed, they may function with people with whom they are familiar but when moved to an unfamiliar setting may appear to deteriorate.
The other difficulty is that many of the cases which are causing blocked beds at present are medical cases. Those are the very people whose condition fluctuates much more than surgical cases. It is the surgical cases which are being kept out of hospital. Therefore, it seems imperative that the whole team is involved, not simply one or two groups of professionals. The different aspects of a patient's functioning need to be considered in determining whether a patient is fit and safe to be discharged home. Patients must also be able to understand the clinical decision that has been taken for them to be discharged. It is for those reasons that I support the amendment.
Perhaps I may tease out a little more background to the amendment and to this state of affairs for patients in hospital. It is vital for patients that social services and NHS trust staff work closely together in a co-operative, co-ordinated series of activities. Where there is conflict or blame, only the patients will suffer. No doubt from the patients' point of view, when they do not need the high-tech, high-cost facilities of a hospital they are much better off out of hospital—in the community; at home; in nursing homes or in what used to be called convalescent homes. I wonder what happened to convalescent homes.
We all know that hospitals can be dangerous and uncomfortable places. They are certainly noisy. The food is not always what an individual wants, and patients are isolated from relatives and friends. So, the quicker they get out, the better.
We need more money for support in the community. Thankfully, the Government are now providing some funds for that purpose but more is needed. However, that money is not provided so that it can be given to the NHS to look after patients. The way forward seems to be to give that money to NHS trusts only rarely. That can be achieved only by close collaborative working between the trusts and social services. I do not believe that we can legislate for that kind of co-operative behaviour.
However, we can offer guidance to people in organisations on best practice. Is the Minister willing to consider guidance which includes strong direction to good practice? That would include, for example, the encouragement which can be given to hospital staff to begin working with social services from the moment a patient is admitted and way in advance of the three-day statutory notice period on which we are focusing.
It should be obvious that particular patients are vulnerable from the time of admission. Even though their condition may change during their time in hospital, as has been suggested, one can suspect that a patient is vulnerable. Elderly patients with a stroke, unstable diabetes, heart failure or even simple dizzy attacks which tend to keep repeating themselves are common. They will not be able to cope at home without some sort of support.
Given a week or two of extra notice, assessments of need can begin. Social services can take advantage of and work closely with hospital staff—nurses, occupational therapists, physiotherapists, and so forth—from the beginning. A joint effort will then pay dividends so that when staff decide that a particular patient will be ready to leave hospital in three days' time, statutory notice can be given and the process can move easily and click into action.
If the three-day notice is the first that a social service department hears about a patient who has been in hospital for two or three weeks or more, resentment creeps in, planning is frustrated and patients suffer. Instead of going to meet patients' needs in the community, money will go back to the hospital. That cannot be right.
Therefore, I ask the Minister whether he would consider drafting guidance for best practice along those lines to encourage the sort of collaboration which I suspect the best hospitals and social service departments already operate. If he were to do that, we would not need this kind of amendment.
Perhaps I may also comment on the amendment. As regards the third party, care in the community, the position is not clear. Care in the community is supplied by primary care trusts. However, one also needs to consult the family and carers. I believe that that should be made clear. I agree that more time is required in discussion. There has to be a whole systems approach to the patient. Obviously the patient must be involved from the start.
However, the family and relatives are equally important. Certainly, that is our experience in the North West. That being the case, there is a need to ensure that the definition of "delayed discharge" is carefully considered at a time when all considerations in a whole systems approach have reached an end and an agreement. Otherwise, if the matter is left to the clinicians they would want to consider getting patients out of their beds within three days whatever happens. That would be disastrous.
I rise in support of the last two speakers. Perhaps I may add to the comments of my noble friend Lord Turnberg on the issue of guidance. This is as much a health service responsibility as it is that of the local authority. We cannot state that too frequently as far as concerns the Bill. Only this morning I spoke to someone whose mother is in hospital. She had been admitted with suspected Parkinson's disease and it was the tenth day before she saw a neurologist. We cannot calculate a three- day period in that kind of situation. I hope that the guidance can be drafted in such a way as to bring everyone's responsibilities into the frame.
Perhaps I may respond to a number of noble Lords who have spoken to this group of amendments. The noble Earl, Lord Howe, regards the Bill as misconceived. The noble Lord, Lord Clement-Jones, is concerned about what he describes as the bureaucratic or rigid approach which he alleges will be forthcoming if the Bill is implemented. He is concerned that it will undermine good partnerships.
I start by making absolutely clear that the Bill has not been brought forward to undermine current good working. It is based on the experience of health and local authorities, which work well together, to enable a proper assessment to take place, with all the factors mentioned by Members of the Committee. It will ensure that a proper package of care is available; that it is undertaken as speedily and as effectively as possible; and that the patient can be discharged either into his own home with community care support or into another care setting, or into interim care if he has complex needs.
The Bill seeks first to put rigour into the relationships between health and local government. The report of the noble Lord, Lord Laming, on Victoria Climbie addresses a completely separate area of practice. I looked at what he said about the practice within the health service—the lack of communication, the lack of proper records and the lack of clarity as to which member of staff was responsible for discharging a certain patient—and at what occurred within four social service departments—again the lack of clarity, lack of case notes and lack of supervision. I was led to the view that in order to ensure that we sort out the difficult problem of older people having to wait far too long in acute hospitals where, first, they have deteriorated, secondly, they have become much more susceptible to hospital infection, and, thirdly, the beds are being used inappropriately, there is a case for more rigour in the relationship.
The Bill aims to address that. It is intended to provide incentives. We have said that we will provide to local authorities in a full year an additional £100 million of expenditure, which is our estimate of the cost to them of dealing with late discharges. That, alongside a more rigorous approach, will lead to an enhanced improvement in the current situation. We are building on the experience of those parts of the country where both local authorities and the NHS have got their act together.
As regards definitions, the important point is that the Bill changes no principle of responsibility by either the health service or by local government in the provision of services. It seeks to put in place a series of measures to incentivise those authorities to do their best. Therefore, it is unnecessary to add to Clause 1 a definition of "delayed discharge" or "eligible for discharge" because the terms are not used anywhere in the Bill. We talk about "delayed discharge" payments and the "delayed discharge period", both of which are adequately defined in the Bill, but we do not talk about "delayed discharge" or "eligible for discharge", because the Bill has changed nothing.
The second issue in relation to Amendment No. 1 is the role of the multi-disciplinary team in deciding when a patient is ready for discharge. I welcome the Committee's support for the work of those multi-disciplinary teams. I echo noble Lords' support for the professionals concerned to work together. But it is very important that that takes place within current statutory responsibilities. The legal position is that the decision to withdraw health services is for the relevant NHS body. The Bill maintains that position. Therefore, it would be inappropriate to change that by building in a statutory role for the multi-disciplinary team. However, in the context of good practice, the definition of "delayed discharge" that is already used by the department, and which was discussed at the Health Select Committee, already includes a role for the multi-disciplinary team. Furthermore, discharge guidance already emphasises the need for its involvement.
In that way, the role of health and social care professionals, including physiotherapists, occupational therapists and social workers, is not undermined. The involvement of the multi-disciplinary team is important in ensuring that all aspects of an individual's care are taken into account and that he or she is ready to be discharged. Ultimately, the decision that a patient's state of health is such that he or she is ready to be discharged must be taken by the appropriate NHS body. As I have said, the Bill does not aim to introduce a fundamental change in the way the NHS operates in discharging patients from its care. We want to see improved practice.
The problem with a statutory footing for the multi-disciplinary team is that unless one agency has ultimate responsibility to declare an individual fit for discharge one could run into frequent disputes as to an individual's readiness to leave, with an incentive upon the local authority to hold back on agreeing to discharge in order to avoid the possibility of making a delayed discharge payment. That would not help us to succeed in our aim of ensuring that everyone receives care in the most appropriate setting. I see the temptation of saying that the multi-disciplinary team needs to have statutory force. However, I think that our approach of retaining statutory responsibilities as they are, but emphasising the role of multi-disciplinary teamworking, is the best way forward in this area.
I have listened with great care to the noble Baroness, Lady Finlay, the noble Lord, Lord Chan, and my noble friend Lord Turnberg, about how these processes will work in practice. I very much agree with my noble friend Lord Turnberg about ensuring that work with social workers begins immediately the patient enters hospital. With elective surgery, the Bill allows the notice to the local authority to be issued a maximum of eight days before admission. So we are already building into the process encouragement for early discussions between the health service and the social workers.
Moreover, the three-day period for assessment is the absolute minimum. From the length of stay of many older people in hospitals, we know that often it takes longer. I believe that it is important to have the three days as the minimum period because all the evidence suggests that far too many older people are stuck in these beds inappropriately, waiting for an assessment to take place.
I listened to the concerns of the noble Earl, Lord Howe, regarding the assessment process and the changes that a patient may experience during his or her stay, which I accept. The focus of the Section 2 notice—the two days provided for the process of assessment and ensuring that community care services are in place—is a much more rigorous approach to current practice in many parts of the country, which is why the Bill is so important.
On care trusts, I recognise that the noble Lord, Lord Clement-Jones, has tabled the amendment as a probing amendment. He knows that the wording is not strictly necessary because, as we debated during the passage of the previous health Bill—or perhaps the one before that—happily a care trust is either an NHS trust or a primary care trust, so it is already covered by Clause 1.
We have undoubtedly been pleased by the progress that care trusts have made—although I hope that their current emphasis on adult services is extended to children in future. The report of the noble Lord, Lord Laming, is particularly apposite to that. It shows that strong partnerships are in place, which are key to reducing delayed discharges, but having a care trust or pooled budget does not guarantee excellent performance on delayed discharge. A budget that was pooled between the community and the acute sector to commission services for older people across all three sectors would begin to work in the same way as would the incentives in the Bill, although I am unaware of any such budgets at present.
Pooled budgets have been set up between health and social service partners for health and social services in the community. The intended use of the budget must clearly be carefully considered by the partners. They must consider which services are to be provided from the budget and explicitly include that in the partnership agreement. The partners will need to consider whether the services are key to dealing with hospital discharge, and whether social services' contribution to the pooled budget reflects an intention to pay any reimbursement from the acute trust from the pooled budget. That should then be dealt with in the budgetary part of the partnership agreement.
The legal position remains that the local authority is responsible for the reimbursement but, with the primary care trust's agreement, payments may be made from the pooled budget. However, if such payments have to be made from the pooled budget, that reduces the resource available within that budget for the development of community care services. So, in those cases, the Bill will none the less act as an incentive to the care trust to get its act together in that area.
So although the noble Lord, Lord Clement-Jones, has raised an interesting point about care trusts, the principle of reimbursement for care in the acute sector once the patient is the responsibility of the care trust still holds. That does not detract from the overall aim of the Bill.
Perhaps I may respond on a couple of points. First, the Minister mentioned £100 million to help with the Bill's implications. How will that be distributed? Will, as usual, those who have done nothing in the area get all the money while those who have worked hard on their limited resources get nothing? Secondly, will the Minister answer the question posed by the noble Lord, Lord Turnberg: what has happened to convalescent homes? One of the great shortages in the country is of somewhere to deal with patients during the two or three weeks of post-hospital stress. Where are they?
I am afraid that, in today's jargon-laden health service, convalescent homes are now called intermediate care. We are developing many new facilities for just the conditions mentioned by the noble Lord—up to six weeks' care, enabling people to rehabilitate after an acute episode of care and return to their own home or another care setting. I certainly agree that convalescent homes have always had their part to play. In their new guise, they will have an increasingly important role in future.
The noble Lord asked an interesting question about how the £100 million is to be distributed. I cannot answer that because we have not reached final decisions, but I understand his point. There will always be a tension here. I agree that there are parts of the country and local authorities whose record in the area is splendid. I am sure that they will say that they should have their fair share of that sum. Equally, we are naturally concerned about those parts of the country where performance is poor. Improving that performance is partly about better organisation but will be partly an issue of resources. So a careful balance will have to be drawn, but I cannot go further than that at present.
When does the Minister expect the £100 million to be distributed? He will be aware that if the scheme of fines is to be introduced on 1st April, local authorities will have little time to work out its financial implications. When they will know is almost as important as how much they will get.
I am glad that the noble Baroness recognises the need for urgency. I take it that that means that she will not support any moves to delay the Bill's introduction. I understand her point. I cannot give her a day or date, but I understand the need for speed in the area.
To return to what the Minister has just said, how will the incentives built into the Bill affect the construction of new intermediate care facilities? Do they not encourage the National Health Service to say, "Let us not bother with this sector. We can now just chuck these people at local authorities"? Under the Bill's structure, why should the National Health Service spend a lot of money on intermediate care facilities?
Because, if we do not develop sufficient intermediate care, we will not tackle waiting lists and times as we need to do. That is an essential part of the modernisation of the NHS and the NHS Plan. The Government have no intention of stepping off the pedal of developing more intermediate care.
We seem to be straying from the substance of Amendment No. 1. To return to that and make a brief philosophical point, the Minister agreed with much of what the noble Lord, Lord Clement-Jones, said about the need for multi-disciplinary team decisions. The question is whether writing that into the Bill will make that more likely to happen.
I suspect that if we recognise that that is a serious problem and that more rigour is needed in addressing it, the problem with the Bill is that it is confrontational. It is not the first time that the House has received a confrontational Bill that needs to be changed in style and character to make it more acceptable and bring on board the people necessary to get a perceived problem dealt with rigorously. The noble Lord, Lord Clement-Jones, was right to introduce the amendment, because it would encourage multi-disciplinary working and make it more likely that more rigorous practice would be introduced sooner.
I am grateful to the right reverend Prelate for those comments. The Bill is not meant to be confrontational. It is meant to put in place proper incentives for both the NHS and local government to get their act together and sort out the problem. We know that some parts of the country have been able to sort out the problem. Even in the South-East, which faces many pressures on resources and staff recruitment, there are boroughs and local authorities that have done excellent work in that area.
First, the issue of confrontation derives from language that is used in Bills—that may be inescapable. Secondly, although I am second to no one in my belief in multi-disciplinary working, it must be rigorous, not the sloppy working that occurs in some parts of the country, which allows people to run away from their individual responsibilities. That is why the Bill in itself does not change any current statutory responsibilities. The health service remains responsible for its parts; personal social services remain responsible for their part. They are meant to exercise those responsibilities within a context of partnership and multi-disciplinary teams. But my great fear is that, if we built multi-disciplinary teamwork into a statutory relationship, or gave it statutory backing, as suggested, we would give many hostages to fortune. If agreement between statutory agencies could not be obtained, it is difficult to see where one could go. That would be the great risk in proceeding as the noble Lord, Lord Clement-Jones, proposes.
We need certainty about who is responsible for what. We need agencies to work together, but we must not run away from the certainty of the health service being responsible, with local authorities having responsibility for another aspect of the delayed discharge procedure.
If someone is discharged from hospital to intermediate care situated in unused wards in an acute hospital, as mentioned in the excellent workbook on the subject, will the same agreement need to be made so that the other authorities are brought into the decision?
For instance, when a patient has been moved from an acute bed to intermediate care, one would expect health and local authorities to work together to ensure that, when that person leaves intermediate care, any required care facility is available. In those circumstances, the normal statutory community care services kick in.
I prefer the term "multi-professional working" to "multi-disciplinary working", because we are talking about different healthcare professions. As the Minister rightly cited, in areas where things are working well, teams speak to each other. My concern is that, where things do not work well, the lack of team-functioning in the NHS will be used as a wonderful excuse as to why the discharge was not safe in the first place. In a team that functions well, nurses and doctors will be able to say that a patient does not need a physiotherapy or occupational therapy assessment because there is good understanding of the roles of those therapies. In teams where that does not exist, and where medical and nursing professionals are arrogant towards the other professions, patients go home with unmet needs, particularly in physiotherapy and occupational health. Yet, when the patients are home, social services will be able to claim that the discharge was not proper in the first place.
It is precisely to avoid lengthy disputes that I have supported Amendment No. 1 in the belief that a clear definition needs to be included in the Bill. By including "multi-disciplinary working" or "multi-professional working" in the Bill, teams that do not communicate well would be forced to consider the other professions that they should be considering on discharge.
I understand what the noble Baroness is saying. Of course I agree that multi-professional working is how we wish to progress. I agree with her that, although much of the debate on this group of amendments and at Second Reading has been about the role of local government, the Bill will come down as hard on the health service as it will on local government.
The noble Baroness raised some of the current problems with delayed discharge. It is also about the National Health Service not getting its act together. There are examples of that. I say to the noble Baroness that we have published Good Practice in Hospital Discharge, which we will follow up with further guidance. In response to my noble friend Lord Turnberg, that publication emphasises the points that the noble Baroness raises.
It is important to remember that this Bill does not seek to change current statutory responsibilities. That is the problem with seeking to include "multi-disciplinary working" or "multi-professional working". It would detract from current statutory responsibilities. Committee Members should have no doubt that we shall stress continually in our guidance the need for multi-professional working.
When the Minister said in response to the right reverend Prelate the Bishop of Hereford that it was not a confrontational Bill, I am sure that he made an absolutely accurate statement of his intention. But, during the past month, I have perhaps spent longer watching what is happening in one of our best NHS hospitals than any other noble Lord. I observed that this Bill and its prospect would make it even harder than usual for the hospital to maintain the primacy of clinical judgment. They endeavoured to do so with great gallantry, and, I believe, with success. But the Bill would not make the task easier. It is one effect of the culture of targets that, because the interests of patients are a seamless robe, as soon as you isolate one single factor and turn it into a target regardless of its effect on anything else, you risk creating something that acts against the supremacy of clinical judgment and against medical need. Whitehall as a whole has yet to take that on board. I hope that it will think about it.
I am grateful to the noble Earl, Lord Russell, for raising those points. I understand what he means by picking targets that negate whole-system approaches—as referred to in jargon terms—to health and social care. It is not the aim of the Bill suddenly to put in place an arbitrary target that will have adverse knock-on effects throughout the rest of the health and social care system. It is trying to tackle the big problem of around 5,000 people a day stuck inappropriately in acute beds. We know that many will lose their independence the longer they wait in an NHS acute-bed hospital. We know that many are at risk of infection because of the risks in hospitals. We also know that good local authorities and good NHS hospitals have been able to get round some of those issues to produce effective delayed discharge procedures. There is a case for codification and producing a system that makes it abundantly clear to both the NHS and local government that they must deal with the matters professionally.
The transfer of £100 million in a full year will enable local authorities to plan the additional services required and to provide continuity of services. Barnsley is an example of where good work has been carried out. The authorities there recognise that long-term investment is necessary, perhaps in the private sector, to deal with the problem and to ensure that there are available care-home beds. Bristol has an aids and adaptation team, which enables patients to be discharged by installing aids in, and adapting, their homes in a matter of hours. When one sees such examples of good practice, one begins to see how the system will work in the future, which gives me confidence. The Bill is not meant to put in place confrontational arrangements or to get in the way of an integrated approach to providing health and social care.
It may be all right in Barnsley or in King's Heath under the latest local government assessment, but those who live in the south face a 20 per cent rise in council tax and even that will not provide enough money to cover inflation and the legislative requirements on councils. It is hard to imagine how councils will find the money to put in place the sort of dreams that the noble Lord, Lord Hunt of Kings Heath, delightfully wishes they would dream.
The noble Lord said that the Bill bore down as heavily on the NHS as on local councils. Will the NHS be fined when it does not provide sufficient intermediate care? Will it be fined when, because of inefficiencies in the primary care system, it places people in hospital who should never have been there, rather than working with the local authority to keep them out of hospital? Will it be fined for discharging people too early? I may be reading the wrong part of the Bill, but I cannot see that that will happen.
The noble Lord anticipates a debate that, I suspect, will occur later on the question of penalties on the National Health Service.
The answer is "No". The incentives for the NHS to get its act together are clear. First, if the NHS does not sort the problem out on its side, it will not be able to free up beds for the treatment of acute patients. The Government put tremendous pressure on the NHS—I am usually criticised from the Benches opposite for applying that pressure—to speed up the process and treat more people so that we can reduce waiting times. There is no incentive for the NHS to fail to deliver its side of the bargain.
The other allegation often made is that the NHS will push to have patients discharged more quickly than they ought to be. Over the next two to three years, we are bringing in a new system of funding called "financial flows". If NHS policy leads to the readmission of patients, it will be financially penalised because it will have to treat those patients again and will not receive additional funding for that. So the right incentives are in place to make sure that the NHS plays its part.
I come to the situation in the South East. By the way, King's Heath is in Birmingham, and I am afraid that, at the moment, I would not hold up the Birmingham social services department as one of the best in the country, although its record on delayed discharges is better than its record on some other services. There are local authorities in the South East that face some of the pressures to which the noble Lord referred. There is pressure on services; there are funding pressures; and there is the question of the recruitment and retention of social workers. None the less, those authorities appear to be able to deal effectively with discharge.
It is not simply a question of the number of care home places; it is a question of organisation. If an authority can organise itself effectively, build in long-term relationships with the care sector, develop interim care and systems to ensure that admission to hospital need not take place in some cases, it will be able to deal with the issue.
I thank the Minister for his several replies. It has been a crucial debate and demonstrates the extent to which the Committee is doubtful about the premise on which the Bill is based.
The Minister has not grasped the nettle in the amendment. Many noble Lords have made the point that close working and partnership between the NHS and social services is needed. The interface between the NHS and social services is crucial. Yet, in the context of the Bill, greater clarity will be needed in matters such as delayed discharge and eligibility for discharge. That is not in the Bill at present.
The Minister may say that responsibilities have not changed, but there will be a fundamental change in the dynamics and practice of discharge. The whole edifice of the Bill is based on discharge and the question of when a patient is eligible for discharge. We must have a suitable definition in guidance or in primary legislation. Whether the approach taken should be multi-professional or multi-disciplinary is a matter for debate, but unless there is clarity and certainty in the definition there will be huge uncertainty. The Bill will set social services at the throat of NHS acute trusts and other parts of the NHS.
The Minister has not gone halfway to doing what is needed in this part of the Bill. He says, "The amendment is unnecessary because we don't talk about delayed discharge in the Bill". The title of the Bill contains the words "delayed discharges"; how much more central to the Bill could it be? We will return to the issue. My noble friend Lord Russell put his finger on the need for definition, on the basis of his recent experience. The experience of many noble Lords, as professionals and as patients, prompts them to urge the Minister at least to reconsider the issue.
If the Minister wishes to make some further points at this stage, I shall give way. Otherwise, I leave it at that for Amendment No. 1. We shall need to return to the matter in due course. The most ungracious remarks that the Minister made in his response were those blaming the parliamentary draftsman for the confrontational nature of the Bill rather than placing the blame on the Government's intentions.
That is unfair. I have views about the parliamentary draftsman, but I am not prepared to share them with the Committee. I hold the draftsman in the greatest respect.
I did not make any criticism of the parliamentary draftsman. I simply made the point that, given the essentially legalistic nature of such legislation, it might appear that the Bill is confrontational. In fact, the Bill is aimed at encouraging the closest possible effective working between the Health Service and local government.
The balance of iniquity is on the side of Ministers rather than that of the poor old parliamentary draftsman. That may seem like one lawyer defending other lawyers, but it is possible to adopt much friendlier language in trying to create a better care system.
The Minister's response to Amendment No. 2 was a classic of its kind. It was so convoluted that no one here will be able to understand exactly how the Minister assumes the system will work without referring to Hansard. The Minister's reply demonstrated the unnecessary complexity of the Bill. Like the rest of the Committee, I shall study the Minister's reply. I have no doubt that his answer satisfied the technical aspects of the Bill; of course, care trusts have the status that he described. However, the toing and froing of responsibilities that he described, as he went through the procedures, is a cause of great concern. The lack of clarity is great. I dare say that we shall also return to that issue at every stage.
The Minister wants it to be an integrational Bill. I think that that is what he said. He wants it to be a non-confrontational Bill. Our discussion on the first two amendments has demonstrated that that goal is a long way off. In the meantime, I beg leave to withdraw the amendment.
moved Amendment No. 3:
Page 1, line 10, after "means" insert ", subject to subsection (2),"
In moving Amendment No. 3, I shall speak also to Amendment No. 10. These are technical amendments and are necessary to provide clarification of the fact that the Bill does not apply to any person who is ordinarily resident outside England and Wales. The amendments do not affect the substance of the Bill but serve simply to avoid any future misunderstanding about which patients the Bill applies to.
I should like to take this opportunity to apologise to the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, for not giving due notice and sending an explanation. I beg to move.
I thank the Minister for introducing Amendments Nos. 3 and 10 which seem straightforward and uncontroversial until one thinks about the practical implications. At what point is a hospital to determine whether someone is or is not ordinarily resident in England and Wales? How is a hospital supposed to do that? My understanding is that the definition "ordinarily resident" is not met just by confirming the street address where someone was last living: it is a matter of law. It will be necessary to determine how long a person has been living in this country and whether that period has been continuous. I am sure that the Minister will correct me if I am wrong. However, if that is right, it would be inordinately burdensome for hospitals to determine the information and the process would not be easy if a patient were in a vulnerable condition.
What happens if a Section 2 notice is issued to a local authority which then goes to a lot of trouble on the patient's behalf, only for it to emerge later that the patient is ordinarily resident outside England and Wales? There does not appear to be any provision for the costs of the local authority to be reimbursed in those circumstances. One can imagine that that situation could arise quite often. Will the Minister comment on those issues before we move on to further amendments?
I should have thought this a straightforward matter, but your Lordships will always analyse these issues. That is right. Again, I apologise for not giving due warning. As far as I understand the issue, if a patient who was ordinarily resident in Scotland were treated in an English NHS hospital, the Act would not apply. And it would be the same if a patient who was ordinarily resident in England were treated in a Scottish NHS hospital—the Act would not apply.
The definition of a person "ordinarily resident" takes its normal meaning. It would be a matter for the hospital concerned to determine when a Section 2 notice was being issued.
I am grateful to the Minister. That situation could give rise to practical difficulties in certain cases. If the Minister is able, perhaps he could consult on this and either write or speak to me.
I turn now to Amendments Nos. 5 and 11. The Minister will be under no illusions of the views held on these Benches about Part 1 of the Bill. We believe that it is misconceived. We wish that the Government would think again. Nevertheless, it is not right for this House either to kill or wreck the Bill. We shall let it go through. In doing so, its effects should be mitigated and confined in specific ways. The amendment that I am now moving is a means to that end.
We know—or we think we do—that the Government's main concern in seeking to impose financial penalties, or the threat of penalties, on local authorities, is to bear down on delayed discharges relating to patients who have received any type of acute care in hospital. Many—though not all—such patients will be elderly. Above all, they are the groups of patient whose delayed discharges make the greatest impact on a hospital. They are the groups on whom Ministers have particularly focused their remarks when speaking to the Bill's provisions—and understandably so.
The regulations just published in draft form restrict the definition of "acute care" to:
"intensive medical treatment provided by or under the supervision of a consultant which is for a limited time after which the patient no longer benefits from that treatment".
Setting aside the rather strange idea that a patient no longer benefits from treatment after it has finished—I should have thought that the opposite is true in most cases—one can understand what the definition is getting at. The Bill does not refer, for example, to intermediate care, mental health treatment, rehabilitation or palliative care, but as framed it would be open to the Government to extend the scope to any category of NHS patient if they so chose in the future. I am not happy about that.
I make a simple point. The larger the group of patients caught by the Bill, the more serious will be the negative effects ensuing from it. I shall not repeat all the objections that I set out at Second Reading, but one of my main worries is the knock-on effect of the financial penalties for other groups of patients. The more local authorities are obliged to prioritise their efforts on to hospital patients of one sort or another, the more they are in danger of disadvantaging elderly people living at home who may be in need of domiciliary care, as well as other individuals in the community. Above all, local authorities will want to ensure that they do not incur fines. Therefore, the efforts of social workers will be disproportionately concentrated on patients blocking beds. The needs of patients who do not give rise to fines will inevitably become secondary. That is my worry.
This distortion of priorities will manifest itself in other ways. I shall read a short section of the Audit Commission report, Fully Equipped 2002. It states:
"In the case of community equipment service in particular, social services departments were finding themselves under increasing pressure to cope with the demands 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".
The argument is taken a stage further: people who need less intensive support at home are increasingly not receiving it because it is becoming more difficult for them to qualify. The result is that such people have to be referred to hospital. Therefore, the whole process is circular. Indeed, it is self-defeating and the Bill will promote that self-defeating process.
I return to the perverse incentives that are likely to be created. The larger the cohort of individuals directly affected by the Bill, the greater those perverse incentives will be. The example that I gave at Second Reading was that of a GP trying, without success, to find a care-home bed for a patient. The obvious answer is to refer that patient to hospital as an acute case. Hey presto, the problem is solved! At Second Reading, the Minister said that that type of eventuality was never the Government's intention. Of course it was not the Government's intention, but that is precisely the point: the unintended consequences must be confronted and dealt with.
Finally, Amendment No. 11 proposes that the ambit of the Bill should not be extended to include mental health patients. There is a real problem of delayed discharges in the mental health sector. The problem is not something to be welcomed in any way. It is damaging to patients and costly to the NHS. However, assessing whether a psychiatric patient is fit for discharge involves a complex set of considerations; for example, the potential for self-harm and the risk of harm to others. In the opinion of MIND, the charging scheme set out in the Bill carries a serious risk of inappropriate and premature discharges. Local authorities would be forced to take responsibility for patients without the necessary support services being in place. The Government have acknowledged that the key reason for delayed discharges in mental health is a lack of capacity in specialised mental health services in the community.
The way to overcome that, to revert to our earlier debate, is to have a working partnership between health and social services. Many NHS mental health services already operate with a high degree of integration between health and social services, with pooled budgets and joint commissioning arrangements. It makes no sense whatever to disrupt those arrangements, which inevitably the Bill would do if it were extended to this sector. Apart from anything else, if the charging scheme were extended to mental health, managers with pooled budgets would undergo the odd experience of having to fine themselves.
Those are some of the practical reasons why, in my view, we should seek to limit the scope of the Bill as the amendments propose. On a more philosophical level, we need to ask ourselves whether this system of financially driven imperatives is what we want to see pervading the fabric of our public services wherever the NHS and social services interact. I am clear that it should not.
I speak to Amendments Nos. 6, 8 and 9, which are grouped with the amendments of the noble Earl, Lord Howe. The Minister's amendments seek to clarify the meaning of "ordinarily resident". Can I take it from what the Minister said that the discharge arrangements will not extend to hospitals abroad to which NHS patients are sent for treatment? It will be interesting if they do not. I should like clarification on that.
Like the noble Earl, I, too, wish to comment on the extension of the Bill to mental health. Time and time again it has been said that the Bill reflects a model of care adopted from Sweden, which in itself was a corruption of a model that pre-existed in Denmark. We on these Benches have chastised the Government for what we call "health tourism", and this is one of the first examples of that. If Members of the Committee had gone to Sweden with the architects of the Bill to look at the system there, they would have discovered that in Sweden the system of reimbursements applies only to geriatric care transfers. It has not been deemed appropriate to extend that principle more widely and specifically to mental health.
For once we are in the happy position of having draft regulations when we discuss a Bill. The definition of "acute care" in the regulations is quite helpful, although it does not exclude paediatric care, which I thought it might do.
Under the current draft regulations, local authorities will not be made liable for charges if the patient is awaiting another NHS or community care service, such as psychiatric or mental health after care assessment, but cannot move on because the availability of such NHS services is blocked due to lack of social care provision. However, as the Explanatory Notes to the Bill make clear, it is the intention of Ministers eventually to apply the reimbursement regime to other NHS services, including mental health.
But there is a clear difference. There is no intermediate care in the field of mental health. NHS mental health services now operate in an integrated structure between health and social care, with varying degrees of pooled budgets and legal responsibility. We are getting into a situation where different departments of the NHS will be claiming back money from each other.
Assessment of a psychiatric patient's fitness for discharge and the putting together of an appropriate after care package is perhaps more complex than dealing with many of the physical disabilities of older people. Considerations such as the risk of self-harm, risk to other people and the need for appropriate accommodation have to be taken into account, and I very much doubt whether such arrangements can be put into place within three days. It will be interesting to see how any decisions made under this Bill will fit in with the provisions of the forthcoming mental health Bill.
There is one other key reason why the Bill should not be extended to mental health service users. That is the danger that this legislation will put pressure on local authorities to take discharged patients earlier than they should, without proper accommodation and essential support services in place. There is also a risk that medication will be used to manage symptoms to achieve earlier discharge without proper consideration being given to therapeutic intervention. We have often discussed in the House how mental health becomes an issue only when there is a crisis. I believe that this is the context in which such decisions can lead to severe risk.
As to Amendment No. 8, the issue of self-funders is small and technical but it is one of the most important issues in the Bill. It arises several times in the Bill in relation to eligibility for continuing care and unlawful practices by social services departments to make NHS continuing care cases self-funders, as in the case of Coughlan.
"Self-funders effectively pay for their own care and are not the responsibility of social services".—[Official Report, Commons, 28/11/02; col. 511.]
That implies that they are outwith the system of fines. The statement is somewhat misleading. Social services departments have a responsibility to assess individuals who may have a need for community care services, and until such an assessment is carried out the social services will not know what kind of service a person requires. That has been made quite clear in the Fair Access to Care practice guidance, which states:
"The carrying out and completion of a community care assessment should not be contingent on whether or not an individual can pay for care services, be they provided in a care home or the individual's home".
So if a social services department delays on the assessment then fines could be imposed.
In the case of those who require care services at home, the guidance goes on to state:
"With respect to individuals receiving services at home, a council should arrange those services irrespective of the resources or capacity of the service user, if that is what the service user wants the council to do. Where an individual is to receive services under Section 29 of the National Assistance Act 1948 and is ordinarily resident in a council area, that council has a duty to arrange services on his/her behalf".
Therefore social services remain responsible for all those who are defined as requiring care at home and cannot use the argument that a person can arrange his or her own care.
The practice has grown up that where a person has capital of more than £19,000 the local authority does not have a duty to arrange care unless he or she is not able to arrange it for himself or herself and there is no one willing to do so on his or her behalf. In general, this has come to be interpreted as meaning that local authorities retain responsibility where the person lacks capacity to make his or her own arrangements with the care home.
However, a recent case in the House of Lords—Robertson v Fife—has thrown considerable doubt on this approach. Although the case referred to Scottish law, it relied heavily on English case law in coming to its conclusion. The judgment stated:
"But the guiding principle is that the provision of community care services to a person who is in need of them is not related to the ability of the person to meet the costs. The assessment of need and decisions as to whether they call for the provision of any community care services to a person who is in need of them is not related to the ability of the person to meet the costs . . . The assessment of means, and the requirement to pay what the person can afford comes afterwards".
So if, as many community care and public law lawyers agree, this has effect in England and Wales, then social services departments are responsible for arranging the care for many more people than they currently do and they will be brought into the regime of fines. If the costings for the Bill have been done on the basis that there are people outside the system of fines, then they could be severely underestimated.
Even if there is a group of people who are not the responsibility of social services, given the ethos of swift discharge that these fines will foster, hospitals may pressurise self-funders into accepting the first place in which there is a vacancy, whether or not it meets their needs. For example, people could feel impelled to take a place in a care home which is miles away from their family or social contacts, or which may be far more expensive than other homes in the area which do not have vacancies. So self-funders could, yet again, be doubly disadvantaged.
I said earlier that it was useful to have the draft regulations before us—and, indeed, it is. It was alarming to have frequently to ask questions about regulations.
There is a blithe assertion that if patients turn down the first care package offered, they will be deemed to have made themselves a self-funder. People in hospital may turn down a care package because they believe that it does not meet their needs. It is not simply a question of choice. There is a small, but significant, group of people who stand at great risk of being disadvantaged under the terms of the Bill as stands. That is the reason for our amendments.
I support Amendments Nos. 5 and 6, 8 and 9 and 11 in this group. They are in line with experience in our primary care trust on Merseyside. The first priority being laid upon social services is to invest in intermediate care beds. There is no doubt that the extra funding provided by government for the requirements under the Bill will be used in that way. Negotiations are presently taking place regarding the use of beds in acute hospitals for intermediate care, and the money will be invested in that way.
That will produce a problem. The best place for a discharged person, particularly an older person, is his or her home. That is the setting that he or she is used to. However, that would require the co-ordination of several services, including some social services departments, and responsibility for support at home as regards cleaning, meals, etc, and other services in the NHS through the primary care trusts.
Concern is being expressed about the Bill. I received a letter today from an older person who lives in St Helens, on Merseyside, and who is very worried about the effect of the Bill, with its emphasis on delayed discharges. The letter asks:
"will there be a withdrawing of services for very vulnerable people, old, sick, disabled, living alone"?
It asks whether their services will suffer, given that social services are already stretched and that their efforts will need to go into meeting the terms of the Bill in order not to incur fines. I look forward to an assurance from the Minister that there will be some kind of protection for people such as this unfortunate person, who is already very worried as a result of what he has read in the newspapers.
Finally, there is no doubt that the field of mental health offers an example of good practice. As a result of the very good NSF in mental health, we see the development of an integrated service—both NHS and social services. I feel strongly that it should not be included in this consideration.
I speak as a member of the Select Committee on Delegated Powers and Regulatory Reform. I recall that a Select Committee was set up in another place to examine the impact of devolution on procedure. Indeed, I gave evidence to the committee. I speak to Amendment No. 6, standing in the names of the noble Baroness, Lady Barker, and the noble Lord, Lord Clement-Jones, which seeks to delete from Clause 1 the reference to regulations. My remarks refer to that particular reference to regulations.
The Minister will recall that in our report on the Bill we said that we approached each delegation on a case by case basis. We concluded that on this occasion the negative procedure was satisfactory. We went on to anticipate, however, that the impact of devolution on delegated legislation is an issue to which we shall more generally turn our attention in the coming months. The fact that the Bill covers England and Wales is the reason I raise the subject. We concluded with a statement that, meanwhile, we should find it helpful if government departments, when drawing up memoranda on delegated powers in Bills involving England and Wales, would say whether and, if so, how the devolution arrangements influenced their decision as to which parliamentary procedure should be applied in relation to instruments applying to England. I hope the Minister will indicate in his response whether this observation found favour with his department.
To return to Amendment No. 3, I recall, when happily occupying the Minister's position, receiving—quite rightly—a great deal of flak from these Benches for importing a definition from a taxes Act for use in a Bill about construction. Taxes Acts are very attractive from this point of view. They go into definitions at great length and are very consistent about them. But when one tries to apply them to the real world, they cause considerable problems. I am happy to say that, at the end of the day, I was forced to back-track and we were able to start from the principle that the Bill in question was a construction Bill and, therefore, the definition of "construction" ought to be from that point of view.
I think the noble Lord is falling into the same trap in the use of the words "ordinarily resident". This is a crusty and well-tried tax term which is immensely complex, as any Member of the Committee who has tangled with it will know. For example, I am not allowed to bring my grandmother's body back from Guernsey for at least 25 years in case she might be considered to be "ordinarily resident" in whichever piece of earth I lay her in. It is an extremely difficult piece of legislation, and it is an unfortunate term to use. The Government would do better to look at this from first principles and to ask: to whom do we really wish this to apply?
I understand, of course, that it one of the main duties of the NHS to be beastly to the Scots, and that any poor Scotsman who is idiot enough to fall ill in London deserves what he gets and should be denied the benefits of Clause 3 which would accrue to an Englishman or a Welshman. But I thought that we were under an obligation to our colleagues in the European Union not to subject them to this kind of discrimination. Given that obligation, why should a Frenchman who falls ill in London be denied the benefits of Clause 3?
I certainly do not want to be beastly to the French, particularly at the present time.
As regards the definition of "ordinarily resident", I believe—although I will check and write to the noble Lord—that the health service is well used to that terminology. In debates on a great deal of legislation over the past few years we have reflected on how to deal with the NHS in terms of England, Scotland, Wales and Northern Ireland.
It will be the responsibility of the NHS body as defined in Clause 1 to determine the ordinary residence of the person in question. I do not believe that it will involve the hospital authority in arduous research, as was suggested by the noble Earl, Lord Howe. This is not the same as the "habitual residence" definition. I believe that it will be possible for the hospital authority to determine the ordinary residence without too much difficulty. If the local authority thinks that it has got it wrong, the dispute procedure—which we hope will be used reluctantly—is there to try to resolve the problem. This definition is indeed used in other social care legislation, including in the National Assistance Act 1948. Although I recognise the noble Lord's expertise on this question, in the field of health and social care legislation, as opposed to taxation legislation, it does not seem to have caused a particular problem.
As regards the point raised by the noble Lord, Lord Brooke, I wish that the noble Lord had been present when we debated the Health (Wales) Bill some two weeks ago, when an interesting discussion about the NHS in Wales developed to include far greater issues to do with constitution and the devolution settlement. I have learnt, on all those questions, to say that the commission chaired by my noble friend Lord Richard is, on behalf of the Welsh Assembly, looking at many matters to do with devolution. I understand that he will be reporting at the end of the year, and I am sure that we will all read the findings with a great deal of interest.
My understanding is that Wales will develop its own regulations through Part 1. On the timing, my understanding is that Wales does not intend to implement at this stage, so I do not yet have a date for implementation in Wales. If the Welsh Assembly were to implement this, they would be responsible for considering the regulations and how they would be adopted in Wales. I hope that answers the question.
On the more general questions raised in this group of amendments, I know that noble Lords are concerned about the impact of the Bill on the general provision of social care services. The argument is put by the noble Earl, Lord Howe, and the noble Lord, Lord Chan, that if a great deal of emphasis is placed on sorting out the problem of delayed discharges, it will detract from the general provision of social care services. I reiterate that that is not the Government's intent. Indeed, in our guidance on good practice in delayed discharge procedures, we have made it clear that we expect the health service and local authorities to take a whole systems approach.
I listened with care to what the noble Earl, Lord Howe, said about the risk that people requiring less intensive support will not get support. I would be worried if that then led to them being admitted to hospital in the future because there had been no early and quick intervention to prevent that from happening. However, we will stress the need for preventive action in all the guidance. The first way to deal with the problem of delayed discharge is to prevent people from entering hospital in the first place if they have no need to do so. That is why we will emphasise that constantly to local government in particular.
The noble Lord, Lord Chan, asked whether a particular person who was vulnerable would be affected by the Bill. I do not think that person would be affected adversely by the Bill. The Bill aims to incentivise the health service and local government to put together a cohesive package of arrangements to ensure a seamless and integrated approach to health and social care. That takes us back to why the Bill is being introduced. It is because of the experience in so many parts of the country where assessment takes an awful long time to happen: people wait in hospital unnecessarily until the local authority undertakes their assessment; there are long waits for domiciliary packages of care; disagreements between the NHS and social services; waits for social services funding; and waits for care home places. When two authorities in a locality have not been able to get their act together, the person who suffers is the vulnerable patient. That is why we have to sort it out and ensure that there is clear responsibility with clear incentives.
Some noble Lords are concerned that the Bill will distort the priorities of local government. Amendment No. 5 would remove the power to extend the provisions later to other services. If these measures work for older people in acute or geriatric care, should we in principle deny the benefits of the Bill to other services where, as noble Lords have indicated, there are problems of delayed discharges? Of course we intend the Bill to extend initially to the acute sector only. We will exclude mental health, learning disability and maternity care because we are taking a pragmatic approach to the scope of the Bill. We want to minimise the costs in setting up the system and the size of the task of implementation. But I do not think that means that we should at all times rule out extending the Bill to other services. The amendments would prove to be unworkable in their current form as there is no definition of either "acute" or "geriatric" care in the Bill, but I am sure that these are being posed as probing amendments.
We come again to self-funders. The noble Baroness, Lady Barker, asks how patients who will be responsible for funding their own community care after discharge are identified as such. I agree that it is an important question; we believe that it is best covered by statutory guidance, which we will be issuing to accompany the Bill, and is not suitable for regulations. That is because the regulations will prescribe the type of care that the person is receiving in order to be within the scope of the Bill—that is, acute care. The regulations do not define who receives services provided by the state and who does not. That is covered by other legislation.
On the specific points raised by the noble Baroness, let me make it clear that the Bill allows the NHS to charge local authorities for delays in instances when the only reason for the delay is that a local authority has not completed an assessment of patient need or provided the services that it had agreed to provide. When the NHS admits a patient who appears likely to require community care services after discharge, the NHS and, indeed, the patient may not be aware that the patient's financial situation is such as to make him a self-funder under the local authority criteria and should therefore notify social services on the basis of the likely need for services after discharge. However, the NHS cannot be allowed to assume that a patient is a self-funder and therefore not notify social services at all. That would run the risk of denying community care services to people who need them.
The legal position, as laid out in Section 47 of the National Health Service and Community Care Act 1990, is that everyone, regardless of means, is entitled to request a local authority assessment. If the NHS issues a notice for the local authority under Clause 2 of the Bill, informing the local authority that the patient requires assessment, the Bill places a duty on the local authority to carry out that assessment. If the local authority has not started or completed that assessment within the time limit allowed and the patient's discharge is delayed as a result, the local authority is liable to pay the reimbursement charge. That is the case even if it later becomes apparent that the patient is not entitled to local authority support and is a self-funder. If that has already become apparent, the local authority will have decided not to provide any services and its duties under Clause 3(3) will have been met. The local authority must be satisfied that the patient is capable both financially and mentally of arranging his own onward care before it can inform the NHS that it will not be providing any services for the patient and that it has therefore discharged its duty towards the patient.
Some patients may decide that they do not want to be assessed by social services or they do not want to accept the services which the local authority has offered to provide. That is the patient's choice. No one is under an obligation to accept social services assistance. But in those circumstances the local authority must make all reasonable efforts to assess and meet the patient's need in a way that is acceptable to the patient. The noble Baroness, Lady Barker, referred to an individual being given one choice, and one choice only. Offering only one kind of service and not allowing for any discussion of any alternative with a patient would not count as a reasonable effort. Only if the patient then continues unreasonably to object to the services offered, despite attempts to find a compromise, can the local authority regard itself as having discharged its duties towards the patient, who then becomes a self-funder. Once this has happened, patients become responsible for arranging their own onward care. Any delay in their discharge from hospital is not the local authority's responsibility. However, a self-funding patient does not have the right to occupy an acute bed indefinitely. Hospitals need a clear protocol and communication policy to ensure that patients and families are clear about the need for them to make arrangements for care after discharge.
I emphasise that local authorities' existing responsibilities towards individuals in need of community care services are not affected by the Bill. However, I accept that the kind of details that I have outlined are eminently suited to being addressed in the statutory guidance, which will be published with the Bill. I shall be happy to have further discussions with the noble Baroness on the matters she has raised, which will no doubt inform our discussions on that statutory guidance.
Amendments Nos. 9 and 11 deal with the interesting question of patients with a mental health condition. I have already said that we do not intend to extend the Bill to those patients in the first instance and we do not currently have a timetable for doing so. A decision on whether to apply reimbursement to the mental health sector will be taken after the system has had time to bed down in the acute sector.
I understand the points raised by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, about patients with mental health problems having complex needs. Whatever the complexity, waiting in hospital inappropriately because the package of measures required in the community is not available is as unacceptable to those with a mental health condition as it is to those with an acute health condition. If the legislation is successfully implemented, as I believe it will be, it would not be right at this stage to exclude mental health patients from the system. Let us monitor the effects of reimbursement in the acute sector. We can then decide, if appropriate, to include the mental health sector in the light of experience. The Bill already gives us the flexibility to do that.
If we then decided to extend the scope of the Bill to mental health, we would have to examine whether the reimbursement was set at an appropriate level. We would also have to consider whether it was appropriate to use regulations to extend the minimum compliance period. If the noble Baroness and the noble Earl are right that the difficulties that might arise when assessing mental health patients or putting services in place are of a different order compared with those for acute hospital patients, we can use the flexibility in the Bill which means that we do not need a one-size-fits-all system.
Delayed discharge affects many people, not all of them acute patients. There is eminent justification in allowing the flexibility to introduce an extension to the Bill at some stage, but continuing to focus particularly on those patients in acute beds.
I come back to the point made by my noble friend Lord Brooke arising from the discussions in the Delegated Powers and Regulatory Reform Committee, of which I am also a member. The last two lines of Clause 1, which we have been discussing, leave to regulations the definition of a hospital patient to whom Part 1 applies. The noble Lord keeps talking about the importance of flexibility. Would it not be much easier if the Bill contained a definition for England of the hospital patients to whom it applies, with the possibility for the Minister to extend that definition? That could be left to regulations for Wales. It seemed to the Delegated Powers and Regulatory Reform Committee that the Government had some difficulty making a definition for Wales, because, as the Minister has confirmed, Wales is not going to implement for the moment. The Government would not want to do that without talking to the Welsh Assembly. The Welsh tail is wagging the English dog in this case. The committee worries about that, because that is not the right way of using the powers that emerge from devolution. If it were not for Wales not wanting to implement, England and Wales could have a proper definition on the face of the Bill, which would make us much happier. The Minister looks puzzled, but I think it is a valid question. I understand that the point was discussed in the Delegated Powers and Regulatory Reform Committee.
The Minister kindly responded to my question. I am not suggesting for a moment that he missed the point, but when legislation covers England and Wales we were hoping that his department could set out in the explanatory memorandum accompanying the material that comes to us how far devolution has affected the particular recommendation that the Government have adopted on how the regulations should be dealt with procedurally. I am perfectly happy to take this in slower time. The issue does not need an answer today. We raised it because we can see that the dichotomy between England and Wales will be a continuing issue in all joint Bills.
I certainly take the noble Lord's point. I shall make sure that the Select Committee's recommendations are brought to the attention of my department. Giving Members of both Houses as much information as possible about how regulations in those circumstances are to be dealt with would be extremely helpful on future legislation.
I am so sorry. I misunderstood the noble Lord. I thought he was referring to the memorandum that accompanies a Bill. I assure the noble Lord that I shall make sure my department takes to heart the recommendations made by the committee. In future submissions to the committee we shall try to deal as informatively as possible with the devolution issue in relation to regulations.
In response to the noble Baroness, Lady Carnegy, I looked puzzled because I was not aware that the terminology in Clause 1 was used in deference to the National Assembly for Wales, although of course our relationship with the National Assembly is as cordial as ever. We wish to have the flexibility in regulations to define a description because we currently intend to confine the Bill's provisions to those patients who are receiving acute care. We published draft regulations to accompany the debate, paragraph 2 of which sets out our definition of acute care. We want the flexibility of regulations because we hope at some stage to extend the provisions to other classes of patient. That is why there is no definition of acute care in the Bill. I am not aware that it has anything to do with the Welsh dimension.
I thank all Members of the Committee who took part in this informative debate, especially the Minister for his illuminating comments.
I shall quickly add some concluding remarks. The Minister said that there was no definition of acute or geriatric care in the Bill and that, therefore, Amendment No. 5 was flawed. In fact, my amendment deliberately leaves it to the regulations to define acute or geriatric care. That was the whole point of the way in which it was phrased.
The Minister rightly drew attention to the need for investing in preventive care and action. I agree with him, but nothing in the Bill incentivises NHS trusts to invest in preventive care. That would have been to the benefit of the Bill, but I do not see it.
I do not share the Minister's enthusiasm for extending the scope of the Bill to increasingly large fines on local authorities. There will be a fundamental disagreement between us about the balance of advantage and disadvantage inherent in the charging scheme. I am all for reducing bed blocking, but not at the kind of price or risk to which this experimental scheme would give rise.
I agree that mental health waits are serious, but there is no financial disincentive on the NHS to avoid premature discharges. That is a serious aspect of the mental health dimension.
I take note of the Minister's comments. We shall undoubtedly return to the issue.
I would be happy to do so. My understanding is that we are not causing problems in Europe with this legislation, but I am happy to examine that point to reassure the noble Lord.
I should answer the question whether the clause will apply when an NHS patient is sent abroad under the scheme that we have for that purpose. It could apply, because the clause says that a qualifying hospital patient means,
"a person being accommodated at—
(a) a health service hospital; or
(b) an independent hospital in pursuance of arrangements made by an NHS body".
On that basis, the clause could apply to an NHS patient sent abroad. In that context, the NHS body would be a primary care trust.
That surely makes sense. If an NHS patient was treated abroad under the NHS, we would want to ensure that appropriate arrangements were in place when they came home.
In speaking to this amendment, I speak also to Amendments Nos. 30, 39, 53, 55, 56, 86 and 117.
These are probing amendments, and I hope that the Minister will give me some reassurance. I must declare an interest, as I am a hospice doctor, and the amendments focus on patients in hospices. In the light of the Minister's remarks on the European question, I hope that a similar reassurance will be forthcoming.
It is worth remembering that most patients admitted to hospices express a wish to die at home. In 2001–02, there were slightly more than 25,000 in-patient deaths in hospices in the UK and 33,000 deaths of hospice patients in their own homes. More than 50,000 were admitted to hospices, so we are talking about a large number of patients.
Many patients do not die in a hospice on their first or even on subsequent admissions, but achieve death at home. The risks of not including hospices in the clause are that hospital patients will be prioritised over hospice patients. If hospice beds were blocked, patients wishing to go home will probably miss the boat to get home, and patients needing to enter a hospice will not be able to get in for the symptom control that would be essential to improve their last days or weeks of life.
"new funding arrangement will ensure more patients are able to live and die in the place of their choice, and better support for carers and their families".
One difficulty is that the Bill does not make it clear whether hospices are included at the outset. The vast majority of patients in hospices are referred by an NHS agency—a primary care or hospital trust.
"patients in independent hospices would technically be excluded from the Bill in any case, as they are accommodated in neither a health service hospital nor an independent hospital in pursuance of arrangements made by an NHS body".—[Official Report, Commons Standing Committee D, 10/12/02; col. 16.]
However, Clause 9 states that an,
"'independent hospital' has the same meaning as in the Care Standards Act 2000".
Clause 3 of that Act states that palliative care is included in the definition of "independent hospital".
Will the Minister make it clear whether hospice in-patients in hospice units are included from the outset? It is worth remembering that not all hospices have a consultant in palliative medicine but have doctors of other grades, who have received training and are delivering high standards of palliative care at almost a specialist level. Therefore, they should all be included. I beg to move.
The noble Baroness described these as probing amendments. I simply want to express our strong support for the spirit of the amendments.
It is vital to ensure that patients accommodated in hospices are not given a lower priority for discharge than are people receiving acute care in hospitals. Our concern is that social services will prioritise NHS patients over those in hospices, in an example of precisely the kind of perverse incentive that we discussed on Second Reading, on which the noble Earl, Lord Howe, was so eloquent this morning on the radio.
The amendments also seek to clarify the regulations. Many hospice patients receive intensive medical treatment that meets the definition of acute care given in the draft regulations. Such care most often goes unsupervised by consultants. It is often impossible for hospices to offer consultant supervised care. That is another reason for the Minister to consider the amendments carefully, even though they are probing amendments.
I understand the nature of these probing amendments. All Members of the Committee are clear about the contribution that hospices make to health care in this country.
"patients in independent hospices would technically be excluded from the Bill".—[Official Report, Commons Standing Committee D, 10/12/02; col. 16.]
That is the case for most patients in hospices, either because the hospice is registered as a care home or because the patient is not there in pursuance of arrangements made by an NHS body—that is, that the patient is receiving NHS services and being funded by the NHS in the hospice. One group of patients in hospices could come under the Bill: those patients who are in independent hospices but whose placement is fully funded by the NHS.
I understand the point raised by the noble Baroness. She reflects the concern felt by some hospices that, if all the focus is put on delayed discharge from acute NHS hospitals, it might reduce the emphasis that local authorities would place on the support that they would want to give to patients in hospices. No one would wish to see that happen.
I can offer the Committee this. My department can have discussions with the hospice movement on these issues, to see how we can best work with the NHS and social services to address them. However, although I recognise the issues that the hospices have raised, the hospices are independent organisations. Unless we are talking about patients in hospices who are wholly funded by the NHS within the terms of Clause 1, my reading is that the Bill cannot apply to them. I do not believe that we should extend the Bill to include all patients in hospices, as that would go outside the current remit. As I said, however, I should be very happy to ensure that my department urgently meets representatives of the hospice movement to discuss some of the other issues they have raised concerning the support that they undoubtedly require from statutory agencies in the discharge of their patients from hospices.
I thank the Minister for his reply. However, I am extremely concerned at his statement that only patients whose placement is fully funded by the NHS will be included. Extremely few hospice patients are fully funded by the NHS. In fact, hospice patients are vastly subsidised by the charitable sector and fund raising. The backlog would be even worse if all those patients remained in NHS beds. The obvious implication of the Minister's remarks is that no hospice should accept a patient unless a discharge package for after his or her stay has been arranged. That would make the whole situation farcical.
The proposals would also exclude those with the greatest need, as only self-funders would be able to go into hospices. As we know very well from data from the Hospice Information Service, patients from areas of deprivation often have the greatest need. However, those patients already tend to use hospices less because hospices are usually not established in areas of severe poverty.
I appreciate the Minister's offer to discuss the Bill's implications with the hospice movement, and I am prepared to withdraw the amendment pending such discussions. However, we need to return to this topic, which causes great anxiety in the hospice movement. I feel that I must sound a warning bell that there may be a further patient backlog, and that another awful situation may arise. Patients may be sent home, although no provision has been put in place, because another patient has greater need of symptom control. They may then bounce back into the acute sector and end up dying in an A&E department. We are already beginning to see that situation. It is a tragedy for those patients and their families.
I would be the last to want to see the hospice movement or patients in hospices adversely affected by the enactment of this legislation. If we are truly developing an integrated, whole-systems approach, the hospice movement must be involved not only in the discussions at national level but in the discussions at local level between the health service and local government in regard to effective discharge procedures. I was reflecting on the fact that it is difficult to see how, given the architecture of this clause, the great bulk of hospice patients can be included. Independent hospital patients can be included only in pursuance of arrangements made by an NHS body. As the noble Baroness, Lady Finlay, will know, that is not the case for most patients in hospices. However, I am very happy to discuss this further with her and with representatives of the hospice movement.
moved Amendment No. 10:
Page 1, line 15, at end insert—
"(2) The term "qualifying hospital patient" does not include any person who is ordinarily resident outside England and Wales."
On Question, amendment agreed to.
[Amendment No. 11 not moved.]
Clause 1, as amended, agreed to.
Clause 2 [Notice of patient's possible need for community care services]:
Much as many of us may deplore this Bill, our job in this revising Chamber, in the words of the Beatles, is to take a sad song and make it better. That is what I shall be asking the Committee to do in moving this amendment.
It is the Government's intention, or at least their stated intention, to bring Part 1 of the Bill into force in less than six weeks' time, on 1st April. I am absolutely convinced that that very ambitious timetable will lead to serious dislocation. I believe that the Government should think again about it. If the system were to be introduced as planned, it would hit local authorities at a very low point in their financial fortunes. Social and community care services have suffered for years from sustained underfunding. Very many local authorities substantially and consistently overspend their SSAs. It is perhaps necessary to point out that these local authorities are under-resourced not just in terms of money but also in terms of people on the ground. Indeed, it is in partial recognition of that that we are to see a 6 per cent increase in social care funding during the coming financial year.
The consequences of underfunding are evident in the community care statistics. Between 1992 and 2001, the number of households receiving home care decreased by 28 per cent. At the same time, the number of hours of home care paid for by local authorities increased by more than 70 per cent. What that means is that local authorities are concentrating their resources on people with high-level need to keep them out of hospital. Those with lower-level need are often not receiving the care they require because there simply are not the resources or the personnel to deliver it.
The Government's policy of incentivising local authorities in order to reduce bed blocking was announced in spring 2002. The period since then may seem a perfectly adequate time to make the necessary preparations for something like this, and certainly that has always been the Government's line when asked about it. However, the timetable is very rushed. Local authorities tell us that they are currently far from being fully prepared. That has nothing to do with what one might term the mechanics of the system. I have no doubt that it could be put into operation, if that were what Parliament decided should happen—but at what penalty? Is it really reasonable to expect local authorities to hit the ground running, on 1st April, when they will not have had any time at all in which to invest new funds into support services for older people leaving hospital or in preventative programmes which make hospital admission unnecessary? These things cannot be conjured up overnight. What is desperately needed in many areas is extra capacity—not just care home capacity, which is a relatively long-term issue, but capacity in domiciliary care and in additional personnel trained to bring the new system smoothly and efficiently into practice.
In fact, 6 per cent is not as large an increase as it might sound. Laing and Buisson recently showed that addressing the existing underfunding of care homes would alone consume all the new money. On top of that, national insurance increases, due to come on stream in 2003, will have a serious impact on social care budgets where people's salaries are the main category of expense. The value of the increase in social care funding will therefore not be anything like the headline figure that has been quoted. If the delayed discharge penalty system were to be railroaded in on 1st April, there would, in my view and that of the LGA, be a distinct risk that older people's services and services for other vulnerable groups might have to be reduced in certain localities.
In this amendment I suggest that the earliest date on which the new system of penalties should come into play should be 1st April 2004. That is the date proposed by a number of bodies including Help the Aged and, interestingly, the BMA. I do not think that it would be realistic or helpful to propose an earlier date. September 1st, just supposing the Minister were to suggest that as a compromise, would be midway through the financial year and there would be practical difficulties associated with it for that reason. But, more substantively, six months would not be long enough for local authorities to gear themselves up to meet the new requirements being placed upon them while ensuring that other statutory services do not suffer.
The idea of financial penalties being used as a driver for reducing the number of blocked beds came, we are told, from Sweden. In Sweden, however, where the situation is a good deal less complex than it is here in terms of the pattern of provision of health and social care, it took a full two years for the system to be fully up and running. Let that be a warning to us, or rather let that be a warning to the Government. I hope very much that they will take the cue that I am now offering and agree to a year's postponement. We may not see eye to eye on the Bill itself but if the new system is not to fall on its face, that must be the right and sensible thing to do. I beg to move.
Amendments Nos. 138A and 142A standing in my name are grouped with Amendment No. 12 as they also relate to the Bill's commencement. In speaking to Amendment No. 138A I shall be brief. It is a probing amendment and some of the issues have already been raised.
"must demonstrate that that approach will be as rigorous and tough for the NHS as it is for local government".—[Official Report, 27/01/03; col. 965.]
I was encouraged to hear that as, although I am sympathetic to the Bill's aim to tackle delayed discharge—which has been a scandal for many years—and thus benefit mainly older people, I do not see the problem as always being caused by one agency; that is, social services departments, as I know the Minister agrees. I am happy to place additional responsibilities on social services departments but I want to ensure that they are placed on others as well. I declare an interest as a vice-president of the Local Government Association and Age Concern England although I stress that neither body has been involved in the amendment.
As we know, inappropriate discharge will often be caused by the hospital itself, as has already been mentioned. At Second Reading I mentioned an example of a hospital that discharged a patient without notice to the local social services department despite the fact that it knew that that department was trying to arrange a care plan. But thus far I have not seen what additional responsibilities—by that I mean obligations—either as a result of a legislative requirement or a direction from the Secretary of State for Health are to be placed on the NHS other than nominating an NHS officer to be responsible for discharge. Other Members of the Committee have tabled some later amendments which spell that matter out a little more. But, to be frank, I had hoped by now to see something from the Government.
Last week I was most encouraged to receive and read the newly published updated Department of Health Discharge from Hospital pathway process and practice workbook. I hope that it is given a snappier title as I do not think that the present one will be very popular. It seems to me that that substantial document covers every aspect of good hospital discharge procedures. Is there any way we can legislate with regard to some aspects of what it covers? My probing amendment would simply require the Minister to report to Parliament that the provisions of the workbook have been implemented by the NHS. Are we clear that they have? Although it has only just been reissued and updated, much of what it recommends is probably happening out there, but we need reassurance that all NHS bodies are following the workbook's provisions before we should allow Part I of the Bill to be implemented.
I wish to echo many of the comments made by the noble Earl, Lord Howe, and to make one or two other points. Bad practice is easy to implement quickly. That is the big fear that many of us have with regard to the Bill. Much that is going on at the moment is good. There is much joint working which is laudable. I have listened to the Minister's comments all afternoon but I am not convinced that as regards a Bill which seems to be based on apportioning blame it is possible to be as confident as he is not only that existing good practice will not be undermined but also that bad practice will not come into play.
I wish to mention timing in particular. I believe that the Bill involves immense planning distortions. Good authorities will by now have begun to plan their community care services for most of next year. I do not see how, at such short notice, they will be able to conjure up new places, as the noble Earl, Lord Howe, said. The Minister made much of the statistical breakdown of reasons for delayed discharge. I have spent some time examining them and very interesting reading they are, too. Although it is true that performance varies between authorities and areas, and although it is also true that there are many reasons for that, both in percentage terms and actual terms, the consistent reason an authority has a problem is that people are awaiting residential and nursing home care placements. I do not believe that it is wrong to focus on that. I know that there are many reasons to hope that people will not go into residential care but will go home, but when that is such a consistent and obvious problem across the country it is wilful to ignore it.
The Minister said earlier that the Government have not decided how they will allocate the additional resources. Frankly, the lack of notice with regard to the £100 million cannot but help distort prices within local care home economies. If I were a care home owner at the moment—it is a difficult business to be in—I should ratchet up my prices in the knowledge that some of that money would come my way and my places would be at a premium.
The Minister has said all afternoon that there is as big an onus on the NHS to change as there is on social services. Indeed, and in many cases within the NHS discharge practice is not good. It will take the NHS some time to get itself organised and to tackle some working practices which have been around for aeons; namely, that no matter what the lowly discharge officer says, what a consultant says goes. That is one of the biggest causes of delayed discharges in hospital.
The Minister has already this afternoon drawn our attention to the Victoria Climbie case, and so will I. Over the past six months I have said many times in this Chamber that any social services department which does not intend to increase its children's services this year must be mad. Social services departments are trying to tackle that matter in addition to the matter we are discussing. But there is one reason above all else why I believe that we should defer the measure. At the end of January the department's consultation paper on client confidentiality was produced. It is full of good and interesting material about one of the key issues in healthcare at the moment and contains laudable aims and objectives as regards the handling of information, particularly information which is conveyed by electronic means. However, the measure will not be anywhere near being in practice until 2004 at the very earliest. In many cases, it will not be introduced until 2006.
Behind that—it is implicit in the Bill, not explicit—is the transfer of information. In the noble Lord's response to me about self-funders he talked, although not in great detail, about the fact that people who may not wish it may have personal details handed over to social services departments.
There is a great deal that is not explicit in the Bill, which is deeply worrying. I do not see why older people, merely because they are old, should be subjected to standards of information that are not acceptable for other people. For that reason perhaps above all, we ought to take a year and consider better the Bill and some of the deep ethical issues in it, and how we can enable people to turn services into what they ought to be, which is services that prevent hospital admissions in the first place.
I support the amendments, particularly the one about delay in the starting time of the Bill's implementation.
On Merseyside, we know that we already have a number of delayed discharges of older people. The immediate acquisition of intermediate care beds in an acute hospital is a short-term measure to avoid paying a proportion of the fine. However, fines for those who are not accommodated in the intermediate care beds will have to be paid.
Clearly, there is a lack of residential care and facilities. The £100 million that the Government are putting towards helping intermediate care beds to be made available is short of the £180 million needed, according to the Association of Directors of Social Services.
Members of the Committee have mentioned the other important issue, which is capacity for domiciliary care and the support for health visitors for older people living in the community. My noble friend Lady Greengross made a useful proposal that the NHS should be audited to ensure that plans were in place. That could be done only if we delayed the implementation of the Bill for a year.
I added my name to the amendment for good reason, I hope. The debate that we have had about hospices demonstrates the number of issues that have to be worked out. When speaking to Amendment No. 1, the Minister said that the Bill did not intend to change current practice on multidisciplinary working. I find that very sad, as legislation should drive up standards, improve on current practice and make the lot of the patients better wherever they are. There will be a need to recruit and train some staff if improvements are to occur. I sincerely hope that the intention is not to drive measures through rapidly so that there is no room for such driving up of standards.
The noble Baroness, Lady Barker, says that what a consultant says goes, to which I reply, "Not always". That is sometimes unfortunate, because there is a fear of backlash among staff if a risk foreseen actually occurs. Sometimes when the informed wish of patients is to go home, that is to relatively unsuitable surroundings with very high risk. However, if that is what they want to do and they take an informed decision, they should be supported in doing what they sincerely wish to do.
I have a deep fear that unless the Bill is thought through and the systems are in place to drive up standards, the people who will suffer will be the patients, and what will be sacrificed is patient choice right at the outset. We may have a dumbing down rather than a raising of standards.
I have listened to the debate for most of the afternoon, and have heard two questions answered by the Minister. First, he said, "I don't know how to distribute the 100 million quid", and secondly, he said, "We haven't got our act together with the hospice movement". If the Government do not know where the £100 million is going and have not got their act together with the hospice movement, they cannot possibly bring the Bill in by 1st April. That simply does not make sense.
I want to add my voice to those of other Members of the Committees who have pressed for a 12-month delay in the start date. The proposals in the Bill need to be piloted in a number of areas and then properly evaluated by the Audit Commission.
It is clear to me from the great majority of speeches in both Houses that, although everyone agrees that delayed discharges need to be tackled, the Bill's provisions are bound to make things worse by creating perverse incentives. We have already heard the example of the GP. Also, we must be careful not to jeopardise relationships between agencies—in general, they are improving—and create a nightmare of disputes and appeals procedures.
I would like to cite an example of what I see as a very good pilot in my own diocese by the Barking and Dagenham health and social care trust. Julia Ross, the executive director of health and social care, has said:
"In Barking and Dagenham, we are now creating completely integrated senior management with whole systems managing, providing and commissioning. We've reduced our delayed discharges of older people from an average of 75 to an average of 25 this year and are performing well against that target. We intend to reduce any delays of people in hospital to nil. This can only be achieved by working seamlessly with our acute providers to achieve this and on the quality of the care that we all provide. We also need to change attitudes too; all too often relatives and front line clinicians believe that the right place for a frail older person is in Nursing Home or residential care".
It takes time to change attitudes, and we need time on our side to ensure that attitudes are sufficiently changed to make the proposals in the Bill truly effective. I have in mind a conversation with a recently retired chief executive of a large NHS trust, who described the huge problems that he had faced in a very large hospital in relating to and integrating in a multidisciplinary and multi-professional way with local authorities. He gave one of no doubt many examples of the difficulties that are faced and will continue to be faced in the coming months. We need time.
By concentrating on delayed discharges, the opportunity could be missed to explore more imaginative and pastorally sensitive ways of caring for elderly people in our communities. As has already been said during the progress of the Bill, it tends to treat them as commodities and as financial liabilities to be shunted around rather than fellow citizens, each with their own human story, each deserving to be treated with dignity, respect and care. I plead for a delay.
I believe that I used to have one or two friends in the Chamber, and I hope I still have by the time that I have finished disagreeing about the delay in bringing the Bill into effect. I really do not believe that delay is in the patients' best interests.
The noble Baroness, Lady Barker, talked about the Bill apportioning blame. I do not see that either. A Bill based on putting pressure on those with responsibility to use extra funds to good effect cannot be construed as apportioning blame. Equally, I do not see merit in delay. Many social services departments and NHS trusts already work very well together. We are talking about building on the good practice which exists, and I believe that we need to give it a jump start. We should begin to develop that now and not delay for a year. The system is in place and we know how it can be done. It simply needs some encouragement.
The noble Lord has one friend in this Chamber—the Minister, who will be delighted with what he said. I shall try to curry favour with my noble friend on my Front Bench by adding two points in his favour.
First, it is not true that social security funding is increasing this year, because there is a shift within that part of the budget away from the geriatric element towards youth. In fact, local authorities where there is a preponderance of elderly people over youth have suffered a net cut—in some cases, a substantial net cut—in their social security budgets. This is not the time to pitch them into additional expense when the Government have just cut large amounts of funding from the sums allocated to looking after elderly people.
Secondly, everything that local authorities must do to comply with the Bill is long-term. They must build relationships with the various elements of the National Health Service; they must build relationships with their care home providers; and they must sort out with the National Health Service a way of dealing with vanishing intermediate care. If a local authority knows that this will happen in a year's time, it will work just as hard to ensure that it is compliant as if it happened in six weeks' time. I do not see that, by delaying the Bill for a year, any cost to the patient will be involved or that there will be any effect on the velocity with which local authorities make adjustments; there will be a great number of advantages.
Can the Minister tell the House how many care homes—both those run by social services and private ones—have closed down in the past few years? What is the estimate of the number of beds needed to unblock the present blocking? I am sure that most people want to see the number of beds increased, but it takes time to set up homes and to put in place adequate staff. Can the Minister give an assurance that people will not be placed in unsuitable accommodation because of the shortage of time?
I am sorry to find myself crossing swords with the noble Earl, Lord Onslow. He and I were fellow democrats when it came to House of Lords reform and I believed that we could move forward together. Sadly—
I am all for making the second Chamber as rigorous as possible. I am sure that, as we take the Bill through its next stages, the arguments that I hope to put forward will ultimately be persuasive. I believe that the noble Earl was a little unfair. I did not say that I did not know the position with regard to hospices; I am clear about that. I said that I understand some of the concerns that they have relating to how well they are supported by the NHS and social services. That is why I offered to meet the noble Baroness, Lady Finlay, and representatives of the hospice movement in order to discuss some of those issues.
So far as concerns money, the announcement about £100 million over a full year was made fairly recently during the Bill's passage in another place. I believe that it is reasonable for us to consider carefully the point raised by the noble Lord concerning where the balance of the money should go. Do we reward authorities which have done a good job in the past or do we place most money with the weakest ones? We shall make our decisions known as soon as possible.
The right reverend Prelate spoke of his fear that older people, in particular, would be treated as commodities under the terms of the Bill. However, that is how many of them are treated at present. Poor-quality practice in many health services and in local government has led to a disastrous position for older people. They are stuck inappropriately in acute NHS beds and risk the dangers of infection, of becoming institutionalised and of losing their independence. As a result, it becomes much more difficult for them to return either to their own homes or to appropriate community care. That is why we have brought the Bill before the House.
I am grateful to the Minister for giving way. Did I hear him aright? Did he say that one reason for wanting to get people who are currently bed-blockers out of hospital was the fear of infection? Surely one goes to hospital to get rid of infection—not to run the risk of acquiring it.
I believe it has always been recognised that there is a risk of infection among hospital patients. The noble Lord will probably know that the rise in infection rates in hospitals has been a world-wide problem; it is not a UK-exclusive issue. Hospitals throughout all the developed systems are facing such problems. There are a number of reasons for that. We tend to care for more vulnerable patients because we can do more for them. In addition, the excessive use of antibiotics has brought its own risks and dangers.
My point is that, where vulnerable older people receive acute care treatment, it is far better that they leave that hospital rather than stay in an acute care bed. That is why we have brought the Bill before this House. Our intention is not to treat patients as commodities. We want to reflect less on the problems of statutory agencies and on the woeful tales that we have heard this afternoon about the difficulty that they have in co-ordinating what they do.
Poor efforts by many statutory agencies over the past few years have resulted in many older people receiving a raw deal from them. The record of local government and the NHS is one of patchy performance. The fact that I can say that Croydon or Kingston upon Thames—local authorities in the South East—have been able to get their act together and the fact that I can point to Barnsley and local authorities in other parts of the country which have resolved the issues and have an integrated approach gives me confidence. It is not simply a question of money or care home places.
It is very depressing to hear so many Members of the Committee hark on about nursing home places. If noble Lords believe that the whole issue of delayed discharges is about the number of care home places available, then they have misunderstood what the Bill sets out to achieve. The quicker we can discharge people from acute hospitals once they have been treated, the fewer the number of care home places that will be required. The quicker that aids and adaptations can be fitted in an individual's home, the fewer the number of care home places that will be required. The quicker we can provide intermediate and interim care to rehabilitate older people, the fewer the number of care home places that will need to be provided.
Of course, some care home places will always be required. The Bill will encourage local authorities to enter into longer-term, stable arrangements and agreements to ensure that, where such places are needed, they will be available. Barnsley, where long-term agreements have been reached with care homes, provides a very good example of how capacity can be maintained and stabilised so that, when a care home place is needed, it becomes available. In response to the noble Baroness, Lady Masham, the number of residential and nursing care places in England reduced from approximately 534,000 in 1997 to 528,000 in 2001. Some of the figures quoted are excessive.
There is no question that in some parts of the country there is a problem with care home places, but it is patchy. I hope that noble Lords recognise that we need to regard care homes as but one element in a range of care packages and support to people in their own homes which need to be provided.
I listened with great interest to the noble Baroness, Lady Greengross, when she suggested that we evaluate in particular the performance of the NHS in implementing Discharge from hospital: pathway, process and practice, which we recently issued. I believe that that is a good piece of work, which I hope will encourage the NHS towards better performance. I stress again that the NHS will have to work as hard as local government properly to implement these measures.
However, I have to say to the noble Baroness, Lady Greengross, that we have issued good practice guidance in the past. In 1994 we issued the Hospital Discharge Workbook. That was very good guidance by the previous Government. However, the trouble is that it was not successful in tackling delays in many parts of the country. We need something tougher to grip the system and to ensure that statutory agencies do the right thing.
I have listened to whether we should delay the introduction of this legislation by a year to 1st April 2004. Noble Lords will know that I spent many happy years representing statutory health authorities. Whatever proposal is brought forward by government—the previous Government brought many restructurings before this Chamber and the health service—we have always said that we need more time. Indeed, if we had chosen 1st April 2004 to implement the Bill I should not be at all surprised if noble Lords said today, "It is not enough time. Let's introduce it in April 2005".
Each time we delay the introduction of a Bill, let us think about what we are delaying. Yes, we are giving more time to the statutory agencies, some of which have performed poorly in the past, but for many thousands of people we are delaying the benefits the Bill will bring. That is the essential balance to be drawn. I accept that there are some local authorities and health services which require more time. Equally, I am reluctant to agree that the Bill should be delayed by a whole year in terms of its implementation.
That is why in the spirit of listening to what the NHS and local government say to us, and reflecting on the views expressed by noble Lords today I suggest that a way forward, which certainly the Government would be prepared to support, would be to allow the Bill to come into operation six months later, on 1st October this year. That would get right the balance between those noble Lords who are concerned about the pace of implementation and those who feel that a year would be too long. I believe that that is a reasonable suggestion which I hope noble Lords will look on favourably.
Overall, it is important that we give the right signals to the statutory agencies about the importance of implementing the Bill. I believe that the experience of many different statutory agencies, which are doing such a good job at present, suggests that it will be implemented successfully. I hope that noble Lords will not delay the Bill by a whole year. I believe that to implement it from the autumn would get right the balance. I look forward to the support of noble Lords.
I could not agree more with the Minister about the disgraceful delays in making adaptations and providing equipment. What will he do about trying to get more occupational therapists, who make assessments and arrange for such equipment? I agree that the delays are disgraceful and are getting worse. The Audit Commission published a report, I believe two years ago, stating just that.
The noble Baroness raised an interesting question which relates to the present delay in assessing people in hospital. One of the reasons we are bringing the Bill before noble Lords is that patients are hanging around hospitals having had their acute treatment, having got better and still awaiting local authority assessment. That is unacceptable. That is why we need to have a Bill which allows for such assessments to be done in a short period of time.
Occupational therapists are important to that. We know that a number of local authorities and NHS bodies are pooling resources creating a joint occupational therapy department. We know that they will have a pivotal role to play in such joint assessments. However, again I say to the noble Baroness that the experience is that even in those parts of the country where recruitment of such professionals has proved to be difficult, those which organised themselves more successfully are able to deal with the problem. They can get the assessment done quickly. If aids and adaptations are needed, they can get people into the person's home so that that can be done as quickly as possible and discharge can take place effectively and satisfactorily. It is that good practice on which the basis of the Bill has been drafted.
I thank all noble Lords who have taken part in the debate. I also thank the Minister for the offer he made. No doubt noble Lords will need to think about that. My own view is that it is not sufficient. The choice is not between introducing the Bill on 1st April and consigning the patients to further delays. It is between serious dislocation in social services and continuing with partnership working while allowing local authorities time to invest and gear up for April next year. They do need the time.
The noble Baroness, Lady Masham, need not worry about Part 2 of the Bill because my amendment proposes delaying only Part 1. The Minister suggested that the lack of capacity in the care homes sector had little bearing on delayed discharges. Perhaps I may remind him that in the original consultation paper on introducing the system, the Government gave an analysis of the reasons for delayed discharges from acute and geriatric beds during March 2002. By far the largest reason for delay, 36 per cent, was the patient waiting for a place in a care home or a specific care home of their choice. So I do not accept what he said. I do not favour delay for the sake of delay. I am arguing for a year's grace, during which time money flowing to local authorities can be directed creatively.
My noble friend Lord Lucas made two compelling points, with which I agree. However, I particularly note his well-made comment that investing in and establishing services is a long-term business. I hold fast to my belief, bolstered by the views of other noble Lords and the right reverend Prelate, that a year's delay is right. I should like to test the opinion of the Committee.
In moving Amendment No. 13, I shall speak also to Amendments Nos. 15, 31, 62 and 119. My noble friend Lady Maddock will speak in particular on the housing issues, which are relevant to these amendments.
The amendments are about pooling the responsibilities of agencies. It is especially important that housing departments are brought into the loop, as they are responsible for administering the "Supporting People" budget, a single funding stream for social services contingent on supported housing. Funding for supported services is currently dealt with by central Government. From April 2003, local authorities will receive a grant for co-ordinating and funding local support services and the cost of providing those services, including those provided by a warden in sheltered accommodation. Those will no longer be paid for through housing benefit; instead, landlords will receive a grant from the local authority.
The stated aim of the "Supporting People" programme is to improve the quality of services for residents of sheltered and other types of supported housing. Sheltered housing is being included in the new funding regime for supported housing, despite calls for it to be excluded during the initial consultation process. The Government have given the following reason for its inclusion. Including it in the new specific grant will ensure the provision of high-quality support services to vulnerable older people that are flexible and responsive to needs by decoupling accommodation support from the benefits infrastructure.
In January 2001, the Department of the Environment, Transport and the Regions, now the Office of the Deputy Prime Minister, published Supporting People: Policy Into Practice. That document explained that the programme intended to ensure a continuation of service to existing tenants in sheltered housing. Authorities, in preparing their "Supporting People" strategy, would be required to take full account of those guarantees and existing obligations. They would not, consequently, be permitted to withdraw funding for schemes where such an action would leave the provider unable to continue to provide the support services.
The ODPM assumes that in most cases, the existing provider of support services will continue to do so. However, within the context of the "Supporting People" grant, authorities and providers will almost certainly want to discuss improvement to services as well as to negotiate the price to be paid for services. One service provider may be replaced by another. It may be impossible to disentangle support from other services in the scheme. In best value reviews, authorities and providers will want to review the strategic supply of sheltered housing within the authority, and may wish to introduce the type of remodelling or change of provision that is already taking place in some areas.
Home care and "Supporting People" are by their nature two different services aimed at meeting different needs, but it is unclear from the proposals how the single charging mechanism will be applied in a way that avoids possible conflicts of interest and ensures that users of both services are charged in an equitable and fair manner. The Government have provided the following guidance on how those different services should be treated, but there is no clear and unambiguous line between care and support.
Generally speaking, care is provided to people who are at greater risk or who have high needs. Support is provided to people who have lesser needs but are nevertheless vulnerable. By definition, services provided in accommodation registered under the Registered Homes Act 1984 include care, while services provided in registered care homes can also include services that are support, along with care services. They will continue to be funded from sources other than "Supporting People". However, care services can be provided to people living in accommodation that is not registered under the Registered Homes Act 1984, such as domicillary care provided to people in their own homes and under the Care Standards Act 2000. Might not those services be supported under "Supporting People"?
A further issue arises in relation to delays for adaptations and services that are already the responsibility of housing authorities, such as the installation of a level access shower. Here, the social services authority will have to pay the fine if a housing authority does not provide the adaptations.
I hope that I have demonstrated some of the difficulties that arise under the Act and I look forward to hearing the Minister's reply. I beg to move.
I shall speak to Amendments Nos.14, 52, 57 and 58, which are grouped. Amendment No. 13, which the noble Lord, Lord Clement-Jones, has just moved, is similar to Amendment No. 14. He focused on the relationships with housing authorities. We consider the amendments to be directed at a topic that we have already debated today: partnership working. The Minister will be aware that one reason that we regard the Bill as so unacceptable is that it undermines joint working between local authorities and the NHS. We are joined in that view by almost all the bodies that have commented on the Bill.
The Bill is a wrecking Bill that sets the NHS apart from local authorities by setting out functions that the NHS must perform alone. Amendments Nos. 13 and 14 concern a decision about discharge from hospital—whether it is safe without community care services being made available. Of course, that is a joint decision; it is nonsense to suppose otherwise.
Amendment No. 52 is similar and would insert the local authority into the process in Clause 3(7)—determining whether the patient's circumstances have changed and hence whether a Clause 2 notice should be withdrawn. Clause 3(7) appears to be based on the premise that only clinical matters within the knowledge of the NHS are relevant to the decision or that the NHS is omniscient about the patient's total circumstances. Neither premise is reasonable. I invite the Minister to tell us why local authorities are excluded from the process and ask him to confirm that partnership working should extend to the totality of planning the discharge of a patient.
Amendments Nos. 57 and 58 deal with the provision of services after discharge by the NHS. Subsection (8) states:
"The responsible NHS body, and any other NHS body which is considering whether to provide services . . . must consult the responsible authority".
I am sure that the main NHS body, the hospital, has knowledge about what services need to be provided, but how will other NHS bodies—for example, those that provide community-based services—enter the loop? The Bill is silent about that and Amendment No. 57 makes clear that the NHS body—the hospital—should consider the services that it or another NHS body should provide. The hospital's clinical staff are clearly well positioned to judge what other NHS services should be brought into the post-discharge package.
The first paragraph of Amendment No. 58 requires the responsible NHS body to provide information to other NHS bodies so that they can consider precisely what they need to provide. The second paragraph of Amendment No. 58 requires the responsible NHS body not only to consult but, importantly, to agree with the local authority the services that it will provide after discharge. Again, it cannot be for the NHS to impose its will. There must be agreement; that is what partnership working is all about.
In different ways, the amendments are designed to ensure that the Bill becomes an instrument that will underpin partnership working, not the principal cause of the death of partnership working.
I shall speak to Amendments Nos. 15 and 31, to which my name is attached. Their purpose is to ensure that provision to deal with bed blocking is more explicitly tied to other government programmes and initiatives. The programmes with which I am especially concerned are those that deal with poor housing conditions, especially damp homes, and the closely associated problems of fuel poverty.
I declare my interests as the vice-president of National Energy Action, a charity that fights to eradicate fuel poverty, and the vice-president of the National Home Improvement Council. I shall briefly outline why those areas are so relevant and suggest to the Minister one or two things that he could do to assist.
Between 4 million and 6 million households in England live in cold, often damp, homes that they cannot afford to heat. They are in fuel poverty. We know that cold, damp homes are associated with premature mortality, physical and mental illness and the impairment of quality of life. They aggravate a wide range of medical conditions; they increase suffering; and they make it much harder to care for vulnerable people at home, thus adding to the burdens on our national health system.
The effects on the national health system are seen annually, particularly in winter, with our waiting lists for admission and bed blocking—the issue of the Bill. Unnecessary admissions to hospital can be avoided by ensuring that homes are warm, dry and in good repair. Bed blocking would also be prevented because a patient's home would be fit to return to. To return to the line that the Minister used earlier, we will require fewer care homes if that happens.
The National Service Framework for Older People is relevant to this debate, because 93 per cent of excess winter deaths are among people aged 65 and over. I went into the matter in detail in my Second Reading speech, so I will not do so today. Let it suffice to remind the Committee that Britain has a poor record in this regard compared with other northern European countries. Strand 3 of the National Service Framework for Older People states that,
"intermediate care must provide integrated services to promote faster recovery from illness, prevent unnecessary acute hospital admissions, support timely discharge, and maximise independent living".
That is particularly relevant to addressing revolving-door syndrome, which is part of the Bill, whereby people fall ill because of their cold, damp homes; they recover in hospital; they then get discharged back to cold, damp homes; they go back into hospital, and so on.
The chief executive of the NHS sent out Improvement, Expansion and Reform: The Next 3 Years' Priorities and Planning Framework 2003–2006 in October last year, which outlined the need to develop local plans. The problem of patients staying in hospital for longer than necessary because their homes are unsuitable and unhealthy can be addressed through such plans. There are 1.5 million unfit homes in Britain. Most are owner-occupied and most are lived in by older people. There are recommendations that winter task forces in primary care trusts should produce local plans to deal with those problems. They would help to increase awareness of the links between housing and health; to identify households at risk; and to establish referrals to fuel poverty programmes and good energy advice. We can tie those aspects into the Bill, because it is about referrals. When patients are assessed, the condition of their homes is examined. They are exactly the sort of people who could be referred to programmes to help them to get money to rectify insulation and heating problems in their homes.
DEFRA, which is reviewing its Warm Front scheme, is being urged to introduce a fast-tracking mechanism that will prioritise people eligible for heating and energy efficiency grants. I agree with the point made earlier by the noble Lord, Lord Turnberg, that the care package should be looked at when people arrive in hospital. For example, if a patient will be in hospital for six weeks, that period will be needed to fix a heating problem.
Home improvement agencies and other service providers have developed effective, fast, small repairs and adaptations processes—for example, repairing heating systems. However, delays can arise where large capital investments are needed for heating systems. As a preventive measure, key departments should assess older people's homes in the sorts of circumstances that we are discussing. It would be a good idea to have an emergency fund for work to be completed within 24 hours either by Warm Front contractors or other bodies. Care and Repair has a proposal for a rapid-response fund for hospital discharge services. Energy efficiency and heating measures should be part of that. If the Government want to make a big difference, not only to discharges but to people admitted to hospital, the issues that I have discussed will be important. The problems that I am concentrating on—poor housing, cold, damp homes and fuel poverty—should be part of all the relevant legislation that the Government are looking at.
We had a brief discussion in another place, during which lip service was paid to those issues. The Minister also recognised their importance at Second Reading. I am grateful to the Minister's department for sending me a copy of Discharge from hospital: pathway, process and practice. I agree that it needs a snappier title. However, I was disappointed to find that, although there is a small section on housing, there is almost nothing about the role of heating in cold, damp homes.
I look to the Minister today for confirmation that the matter will be given greater consideration; that there will be more joined-up thinking—I hate to use that word—and that he will ensure that the issues I mentioned will be looked at in any primary legislation, secondary legislation or guidance that is produced. There are people who can refer individuals to the schemes. Local authorities are heavily involved in that area. I hope that I can receive assurance from the Minister that the matter will be given greater priority.
I add my support to the plea for these amendments, particularly the need for greater attention to good housing conditions, warmth and addressing fuel poverty. The recent census figures provided shaming statistics about the poor quality of our housing stock and the large number of people, mostly elderly, who have no form of central heating. We have made some progress in recent years with the Warm Homes and Energy Conservation Act two or three years ago, which was a move in the right direction. But, if those provisions can be written into this Bill, the discharge of people from acute hospital care will be a good opportunity to make a serious check on the conditions in which people are living and to take action.
We need joined-up caring if not joined-up thinking. This is an opportunity to introduce it. I speak not just about statistics in census returns and official documents, but from 20 years' work as a parish priest. I have entered terrible houses, where people have to go to bed all day because it is the only place where they can be warm. They come out of hospital, where they are in bed, and they go home, where they have to go to bed, because there is no other way of keeping warm. I have seen people huddled over pathetic, extravagant, inefficient, two-bar electric fires. There is no warmth and no possibility of dealing with inherent damp and coldness in such housing conditions. I have seen it time after time. It is a serious issue. There is the question of the capital cost of installing central heating in a house, but one can do a remarkable amount with modest storage heaters, which can transform the quality of life and atmosphere in a building, drying it out and keeping it at least habitable at a relatively modest cost. It can be done quite quickly.
This opportunity should not be missed. I suspect that the Minister will say that it is not what the Bill is about, but I beg him to consider seriously that it could be so. Introducing such a consideration to the Bill is an opportunity to make legislation that is not widely popular at the moment much more appreciated, more valued and more likely to be welcomed. It would make a considerable difference to the welfare, happiness and dignity of many elderly people.
I am grateful to all Committee Members who have spoken in this debate. It is an opportunity to look at a range of partnership issues. It may be an opportunity to be more positive about partnership, because harsh comments have been made already in the Committee about possible conflicts, deliberate or accidental.
I am afraid that we have a problem with Amendments Nos. 13 and 14 because they are slightly defective. The Bill's raison d'etre is to promote closer and more effective working between the NHS and social services. The amendments do not help us to do that. It is essential that at all stages of the process we get social services and healthcare staff to work as closely as possible. We sincerely believe that the Bill enables that to happen more effectively. But it does not mean that they must be locked together at every stage of the way where it is inappropriate.
Essentially, Clause 2 is about notification. Making Amendment No. 13, which would insert the words "responsible body", would mean that the social services and the NHS would need to come to an agreement as to whether social services should be formally notified about a patient's case because it might be unsafe to discharge him without community care services. Bearing in mind that that would have to be done before assessment, it would be difficult for the NHS to come to an agreement with social services at notification stage. Until the NHS notifies social services, they may not know of the client. The case may not involve a client of the social services, and social services may not know that the person is in hospital. There is a problem there.
The NHS—the doctors, nurses and the whole professional team—must be responsible for making the decision to notify the local authority of a patient's case. They will have taken the decision to admit the patient on medical grounds. I understand that the amendment may have been prompted by the concern that, in an attempt to be speedy, the NHS will simply refer everyone to social services. We do not think that that is likely, particularly as the NHS must consider whether it is unlikely to be safe to discharge the patient, unless community services are put in place. That high threshold will ensure that there will not be casual, "just in case" referrals.
The NHS will not meet its obligations under the Bill if it simply notifies the local authority of every patient. The decision that a patient is likely to need services upon discharge can be taken only by the NHS. We checked that out with practitioners at the consultation meetings held by the reimbursement implementation team. We did not find it to be a problem. I hope that that will assure noble Lords that the clause is sound and is quite acceptable.
I stress that we believe there are better ways, in practice, of ensuring that there is joint working. We will be talking about that a lot in the context of the next few clauses. Many of those better ways have already been referred to in the Hospital Discharge Workbook, which is becoming a notorious document. In it there are some good examples of joint working. The workbook calls for joint work before admission, and there are lots of examples of that being done. Chelsea and Westminster Healthcare NHS Trust, for example, has a protocol that starts with assessment before treatment, before people are admitted for surgery. We want to see everybody follow such a pattern.
There is no reason why a hospital should not know that someone who has been on a waiting list for 12 months is coming in with a specific condition and from a particular situation. That is part of the process that patients should be able to expect. It will still be for the medical staff to decide whether to make the first contact with social services, particularly in the case of people who may not have any connection with the social services but who present with a need after surgery or care.
We will certainly emphasise the importance of joint planning in statutory guidance. That is important. However, I also draw it to the Committee's attention that in the regulations there is a focus on the need to inform social services of a named individual. Much of the failure to work together has been due to the failure to have someone whom everybody knows to be responsible. We hear that time and time again. The named person requirement will be in the regulations, which will have the force of law, and that will make a great difference to patients and their families. I hope that, with that explanation, noble Lords will be happy to withdraw the amendment.
Along with Amendment No. 15, I will discuss Amendments Nos. 31 and 119, relating to heating and housing. We must consider the conditions that can prevent unnecessary admissions to hospital and the conditions that must exist before patients can safely be discharged. The noble Baroness, Lady Maddock, spoke cogently and powerfully about the importance of affordable warmth, as did the right reverend Prelate. They are right: warm, dry housing will keep people out of hospital. I would not like to guess how many people are in hospital with respiratory diseases due to damp housing.
Our immediate response, however, is that the problem with including heating provision in the Bill is that it would isolate one service, when individuals require many different services or combinations of services, depending on their need. It is not sensible to identify a particular service in the Bill. That could be restrictive. Social services already have a duty to assess a person's need for community care under Section 47 of the National Health Service and Community Care Act 1990. That includes an assessment of the person's home environment. That is the law under which the assessments made under this Bill will be made; they must follow Section 47 of that Act.
The local authority would not discharge its duty if it did not check that a person's home was adequately heated. That is particularly important in the case of someone with limited mobility or a respiratory condition. Section 47 also requires the local authority to notify the relevant housing authority if, during that assessment, it appears that the patient may need help with housing, such as the installation or improvement of a heating system. Social services are under an existing duty to involve the housing authority if services appear to be needed.
The noble Baroness referred to the "Keep Warm, Keep Well" programme and the Warm Front scheme. She had some interesting things to say about the fast track scheme and about how sensitive action could be taken quickly to deal with problems. That will be of the essence if the Bill is to be the success that we hope. We want to see speedy and sensitive assessment of the issues. In the light of what the noble Baroness said, we should examine the guidance that will be produced with a particular view to giving heating a higher profile and ensuring that assessments accurately reflect the home situation.
One of the things that I failed to say was that the Government have a fuel poverty strategy. In the opening pages of the document—I will not say the name again—there is reference to other legislation, but there is no mention of the fuel poverty strategy and its targets. That seems to me to be a failure, and I hope that it can be improved upon.
I am sure that we can improve on it in the guidance. I am grateful for the generous reference to the fuel poverty strategy. The issue of fuel poverty has been neglected for many years. The advice lines, the winter guidance and the financial assistance that are now being made available are welcome, if overdue.
I turn to the linked issue of housing. I shall come to the question asked by the noble Lord, Lord Clement-Jones, in a moment. Amendment No. 31 would require the NHS to notify not only the social services but the housing services. As I said, under Section 47(3)(b) of the National Health Services and Community Care Act 1990, social services are already under an obligation. There is also something defective in Amendment No. 119. It implies that housing authorities are responsible authorities. They are not. They do not provide community services, so it is inappropriate to include them in such an amendment.
I shall deal with the wider issues raised by the amendment. In practical terms, few discharges are delayed for housing reasons. They tend to be social care difficulties compounded by the housing situation. Of course, there will be situations in which extra help will be needed. That is an extremely important factor.
The noble Lord, Lord Clement-Jones, asked about "Supporting People". I do not know a great deal about that, but "Supporting People" requires local authorities to plan housing and care jointly. Therefore, it supports partnership working. Social services are also expected to contribute to extra-care housing by developing the care needed to support people in such housing. Extra-care housing is an area in which the Government are investing a great deal of finance. On 23rd July, the Secretary of State said that part of the additional funding for social services would go towards a 50 per cent increase over the 1997 total for extra-care housing places. Those are housing places that have a great deal of therapeutic support—extremely sheltered housing accommodation with extra medical support. That housing will be available for elderly people.
At the same time, the Government are aware of the need for joining up and being more proactive in this matter. The Department of Health and the Office of the Deputy Prime Minister are publishing guidance to develop housing strategies for older people that makes the link between housing and social care. The Department of Health is currently working closely with the ODPM on that. We hope that we shall see the fruits in the way that this Bill is implemented. In addition, we have home improvement agencies which will receive additional funding over the next three years.
The Government, too, are concerned about the second point that the noble Lord raised—the matter of adaptations and delays. We are aware that the disabled facilities grant tends to go towards major changes and adaptations. Smaller adaptations tend to be covered by the Chronically Sick and Disabled Persons Act. We are aware that the disabled facilities grant is often subject to delay. The ODPM is currently consulting on revised guidance to reduce the length of time taken for completion of adaptations. I hope that that will speed up the process. Some local authorities are much better than others. We want to know why they cannot all aspire to and reach the standard of the best.
The noble Baroness, Lady Noakes, said that the purpose of Amendment No. 52 was to give social services a greater say in the discharge process. Subsection (7) is intended to deal with a change of circumstances which leads the NHS to be concerned that the services which the local authority has decided to provide will no longer be sufficient for it to be safe to discharge the patient. Yes, it must be the NHS which takes the initial decision on medical grounds. However, the NHS has its own social workers. There will be a social service judgment made when the multi-professional team meet. There will be occasions when social services realise that a patient's circumstances have changed. Therefore, on those grounds, Amendment No. 52 is unnecessary because it does not enable the social services authority to do anything that cannot be done under the Bill as it stands.
There may be circumstances when the social services believe that a patient's home life has changed since the original determination. In such cases, social services are free now to bring those changes to the attention of the NHS, without the amendment. The subsequent decision of whether to discharge must rest with the NHS. Essentially, it will be taken on medical grounds. With that explanation, I hope that the noble Baroness will feel that she can withdraw that amendment too.
I turn now to Amendments Nos. 57 and 58 which propose ensuring that NHS bodies are brought into the discharge process. The essential point is that other NHS bodies should be involved—for example, the PCT, the physiotherapy services, the occupational therapy services—to ensure that they take part in all discussions which are likely to affect the patient. As drafted, Amendment No. 57 requires the responsible NHS body, which is usually the hospital trust, to:
"consider whether it or any other NHS body should" provide services to the patient upon discharge. They will undertake the primary consideration about whether or not the NHS should provide services, but that means that they will also make those judgments on behalf of the PCT. However, that is not for the responsible NHS body to do. The PCT is separate. The Government have a problem with Amendment No. 57 on those grounds.
Amendment No. 58 places a duty on the face of the Bill for the responsible body—the hospital trust—to provide information to any other NHS body that it believes may provide services and for it to consult and agree with the local authority about those services. First, the hospital trust already needs to consider whether it or another NHS body should provide services to the patient upon discharge. That is implicit in Clause 3(8). It is also implicit in subsection (8) that the responsible NHS body must provide the relevant information so that it can comply with the duties. There is no need for that to be added to the Bill because it is covered in any case.
That is clearly a point of view. Maybe we shall return to that another time. We believe that it is sufficient as it stands.
However, the Government have another problem as regards how the proposal would work. I should remind Members of the Committee that at Report stage we revised the drafting of this part of the Bill to make it clear that any other NHS body would also have the duty to consult with social services. The amendment, as drafted, would have the effect that the hospital trust would be required to consult with the social services authority, but the other NHS bodies would not have that duty. Therefore, there is a problem in that the amendment militates against joint working.
Amendment No. 58 also states that the responsible body must come to an agreement with the social services about the services which it will provide. Again, we have a problem with that because forcing an agreement could lead to some undesirable outcomes—namely, a loophole which could be exploited by social services departments which might deliberately fail to come to an agreement in order to avoid reimbursement.
In summary, the Government believe that subsection (8), as drafted, is simpler and more effective. It allows for proper consultation and for the proper distribution of roles and responsibilities. All NHS bodies involved in discharge are under a duty to consult with the social services in deciding which services will be made available.
Amendments Nos. 62 and 63 concern joint working with the authority to agree the day of a patient's discharge. That leads us into slightly heavy weather. Obviously, we hope that agreement will be reached that discharge must take place on medical grounds—that is self-evident. The decision needs to be taken in consultation with the patient and carer; the decision needs to be taken, primarily, by the consultant, but with the support of the whole team. These amendments could have the effect of giving the local authority equal responsibility with the NHS. It would require them to agree the date of discharge.
It does not take much imagination to see that there could be a recipe here for disagreement and even deadlock. Confusion over accountability and responsibility is precisely what we are trying to avoid and precisely why we are trying to be clear about roles and responsibilities in the Bill. By allowing the social services to object to a discharge, we should be putting the patient at a great disadvantage. That is not something that we should want—I am sure that Members of the Committee agree. Again, I refer noble Lords to the extremely good practice identified in the hospital discharge workbook. We would want to see local authorities and hospitals following that to avoid the type of confusion and delay which I am afraid would follow from the amendment. Therefore, I hope that noble Lords will consider withdrawing the amendment.
Returning to the question of the NHS consulting, and possibly agreeing, with the local authority in regard to services that should be provided by the NHS post-discharge, the Minister said that there would be a loophole for the social services to exploit if they unreasonably withhold their agreement. But can she explain how the social services will avoid exploitation by the NHS? What will happen in cases where the NHS decides that a patient is ready for discharge but the social services are of the strong view that a proper package of GP services, other community-based services, physiotherapy and so on are needed and do not consider that the services put forward by the NHS are sufficient?
There must be an element of agreement. It should not be a matter of the NHS saying, "We have consulted but we have decided". There must be a reciprocal element. How does the Minister see that fitting in with the Bill?
There is a difference. Ultimately the NHS has to make the decision on medical and fitness grounds. For the social services to hold the NHS to ransom would not be in the spirit of the Bill nor in the interests of the patient. It will work the other way because there will be a joint assessment—a full process is set out under the single assessment process—which will require not enforced agreement but negotiations, with input from the relevant expertise, where judgments are shared and made. There is a difference.
I thank the Minister for her detailed response. It contained some interesting nuggets, particularly in relation to fuel poverty and a number of policy documents which will be coming down the track.
Her response demonstrated the limitations of what the Government are prepared to countenance in terms of partnership working. It is rather like the Government wearing a mask and saying, with an open and smiling face, "Yes, we are all in favour of partnerships and joint working"—and then ripping off the mask and saying, "What we are worried about is you holding us to ransom, so we have to make sure that all the powers and responsibilities are held by the NHS. We cannot give the right to consult to local authorities and social services". That is the underlying problem. The Bill is confrontational in that respect.
The burden of what I said in regard to most of the amendments is that the powers which would facilitate a joint partnership already exist under different legislation which will be contingent on the Bill.
I agree—certainly in regard to the provisions in the 1990 Act. As regards housing and fuel poverty—these are two of the nuggets to which I referred earlier—the Minister's explanation was quite useful. The fact that the ODPM and the Department of Health are putting together a paper on housing for older people is a positive development.
But, ultimately, the issue is not how can we charge people if they do not accept discharge but how we can best facilitate partnership between local government and the NHS. I am afraid that the debate on this issue has underlined the fact that the Government are not prepared to see an equal partnership between the two. This issue is very much NHS driven. The powers will be with the NHS but an awful lot of the burden will fall upon social services.
There have been other interesting areas of discussion. The right reverend Prelate was extremely eloquent on the issue of fuel poverty, on which my noble friend Lady Maddock is an authority, having steered through a Private Member's Bill on the subject. But there are wider topics than fuel poverty and housing and, whether it is called joined-up care or joined-up thinking, as a result of this Bill matters seem to have become more complicated and more punitive on social services if they do not comply.
The amendments seek to redress the balance somewhat while also introducing into the debate the issues of housing and fuel poverty. It may have been wrong to attempt to address both of those issues in the same grouping, but the fact remains that there are real problems with the Government's approach. I hope that the Minister's assurance will be followed through.
I accept what she said about beefing-up the workbook. She almost said "workshop". The Committee will probably constitute a discharge workbook after two days' debate and its members will not be sorry to discharge themselves. But the discharge workbook needs beefing-up in terms of its references to fuel poverty and to housing. It is all very well to refer to policy documents, but people have to understand the total context in which patients are being discharged. The discharge workbook can be massively improved in that respect. I beg leave to withdraw the amendment.
moved Amendment No. 16:
Page 2, line 8, at end insert—
"( ) the responsible NHS body and the social services authority publish and operate an agreed code of practice governing the sharing of patient information;
( ) in cases where a patient has limited mental capacity, a procedure exists to appoint an independent advocate."
In moving Amendment No. 16, I shall speak also to Amendments Nos. 18, 34, 50, 69 and 96.
Just as the Bill omits reference to the consent of local authorities, even more importantly it omits any reference to consent of the patient or carer when placing a duty on the NHS to refer a patient to social services. The amendments seek, first, to give patients a right to be properly consulted and, if they so choose, to refuse the recommended referral.
Although many patients will welcome an early referral to social services, others may consider that they are able to make adequate arrangements for themselves without intervention from social services. Without the amendment it could become normal for the NHS to make automatic referrals to social services without informing the patient of its intention to do so. In the case of an emergency admission the referral might take place at a stressful time for the patient and family and before they have had time to think what arrangements they can put into place themselves.
There is nothing in Clause 2(1)(b) to indicate who makes the decision that community care services are likely to be required or how such a decision is made. Given that hospitals are likely to prefer that all patients come under the responsibility of social services—this will mean that penalties can be imposed if discharge is delayed—it is likely that without a specific recommendation that the views of the individual are taken into account, all patients will be referred regardless of their wishes. Imposing a duty on one authority to refer a patient to another authority without the express consent of the patient goes against the patient's confidentiality and could be a breach of Article 8 of the European Convention relating to respect for private and family life, home and correspondence.
In order to comply with Standard 2 of the National Service Framework for Older People the clause must include the initial choice of whether the patient or carer wishes to have social services involvement.
The amendments, secondly, attempt to ensure that people who lack the capacity to make an informed decision are not automatically referred to social services. In the absence of long-awaited mental capacity legislation, there is a gap in the legal definitions of "capacity" and the protection of people without capacity. At present, if patients are unable to consent themselves, relatives can be consulted but no one can consent on the patient's behalf to such a referral.
However, it is good practice to consult with relatives and carers about their knowledge of what the patient would want. These amendments allow for existing procedures for advocacy and surrogate decision-making to be brought into the discharge planning process. Currently, patients are discharged home, with very short notice, and often no time is given to put care provisions into place.
A recent example of this was given by Age Concern. There was a telephone call to the family at lunchtime to say that the patient would be discharged that afternoon. In that instance, the carer had been told the previous day that there was no chance of the patient being discharged until later in the week. Most patients do not realise that they have the right to request a panel review if they disagree with the decision that they no longer require NHS care and that their discharge will be "safe".
Finally, Amendment No. 69 is designed to find out just what impact Section 60 of the Health and Social Care Act 2001 will have on the exchange of information between the NHS trust and the local authority. What precisely are the duties on the NHS and on social services? How can the exchange of information take place between the two in a way that will not adversely impact on the patient and which will allow both social services and the NHS to take the necessary decisions? I beg to move.
Perhaps I may speak to Amendments Nos. 22, 44, 60 and 65. This Bill has the imprint of the Treasury all over it. That has had a dire effect. So intent have the Government been on achieving their aim of freeing up NHS bed space and putting the onus for this on local authorities, that one very important person has been forgotten; namely, the patient occupying the bed.
The Bill is all about processes, mechanisms and authorities. It forgets that there is a human being at the centre of it all. I believe that we have to amend the Bill to ensure that the patient's views and those of the carer, if there is one, are squarely in the middle of the decision-making process on every single occasion.
The Minister will no doubt say that it is only good practice to involve patients and carers in the discharge process. Of course it is good practice, and it may well continue to happen automatically in a large number of cases. But the Government have to realise that we are in a new game. Just as the Government are not prepared to rely on local partnerships between health and social services but are introducing statutory disciplines, so, equally, we should not be prepared to rely on mere good practice when it comes to the patient's own wishes and interests. Those wishes and interests must be protected on the face of the Bill. If they are not, they will be statutorily irrelevant—which will leave the patient, in the worst case, at the mercy of the system and no more than a parcel.
Between the patient and those looking after him there should be a partnership. It is sobering to see that, between 1999 and 2001, re-admissions of patients within two months of being discharged more than doubled—from 19 per cent to 43 per cent. The proportion of carers who believed that early discharge was to blame for this rose from 23 per cent to 45 per cent; 77 per cent of carers said that they were not given a choice about taking on caring responsibilities.
We shall debate the one-sidedness of the Bill in relation to a later group of amendments—although the noble Lord, Lord Clement-Jones, was eloquent on the subject. Suffice it to say that under the Bill as drafted the NHS will have nothing to deter it from accelerating the discharge of a patient to the maximum extent possible.
For much of the time that may not matter; but on occasions it will—the health service will err on the wrong side and the patient will have to be re-admitted. In the absence of financial disincentives on the NHS that might prevent that, we must build in checks and balances. The most essential is to ensure that on every occasion the mechanisms set out in Clause 2 are invoked and that the patient and his carer are consulted.
One of the casualties in the mad rush to implement the scheme is patient confidentiality. There is nothing in the Bill which even suggests that the NHS body has to obtain the patient's consent before disclosing private details about him to someone in the local government offices. Indeed, Clause 2(2) states:
"It is the duty of the responsible NHS body to give notice of the patient's case . . . to the social services authority".
This point was made by the noble Baroness, Lady Barker. Clause 3 states:
"The responsible authority must . . . carry out an assessment of the patient's needs".
There are no "if"s or "but"s; a statutory duty is placed on both parties. That, I respectfully say, is not good enough for the patient. No one should have his medical confidentiality breached by a hospital; and if confidential information is disclosed to someone outside the NHS, then the patient should agree to that disclosure. If he or she lacks the mental capacity to do so, the hospital should, as a matter of law, formally consider the patient's best interests and record that on his file. That is the point of the word "consent" in Amendment No. 22.
After the local authority has been notified, it will carry out an assessment. At that stage, too, I would argue that the patient has to be involved in the decision-making process. The patient needs to be aware of what will be provided to him on discharge in order to know whether he is happy with the plan. Under Clause 3(3) as drafted, there need be no involvement with the patient when it comes to identifying the community care services that he will supposedly require. It would not take much to change that. My amendment is simply one suggestion.
My Amendment No. 44 also mentions the need to inform the patient of the cost of the proposed care plan. This provision is included because I have been made aware of some distressing and regrettable cases in which that has not happened. The patient has been discharged into a care home. Top-up fees have been charged by the care home, and these have come as a complete bombshell to the individual, who has found himself unexpectedly under financial pressure. Or it may be that the patient is discharged to his own home, little realising that the cost of his continuing care will prove financially burdensome. I have heard of other cases where a hospital has decided, quite wrongly, that a patient is not entitled to free continuing care on the NHS and that he must be means-tested by social services. The patient has then had to sell his home and spend large sums of his own money on the care package, when all along he should have been looked after free of charge on the NHS. That sort of thing has happened in a number of parts of the country.
Step one is to discuss the question of cost with the individual. It is a matter of elementary human courtesy, apart from anything else, to make those matters known to a patient. The patient needs to be able to say that he thinks the financial burden is affordable or, on the contrary, that it will be too much for him.
I turn finally to Amendment No. 65. There is a further element to the discharge process which needs to involve the patient. Once the hospital has decided on a discharge date, the patient should be informed of this and given the chance, if he disagrees with the decision, to ask for a review. The Minister may well say that it is inconceivable that a patient would not be told when he was due to be discharged and that it is standard practice. Perhaps in the majority of cases that is so. But I repeat: the Bill proposes that normal standard practice on the part of hospitals and social services is not good enough when it comes to discharging patients. By exactly the same token, we should not expect the patient to have to rely on standard practice laid down in guidance. Standard practice should be on the face of the Bill.
I shall speak to Amendment No. 18 and in support of the other amendments in this group. There is a fundamental principle involved here; namely, consent. We require consent from patients for everything that we do to them: whether we take blood, or operate, or whatever else we do, consent is required. The carers must be considered in the role of secondary patients. They are taking on a burden and they need to know what is involved.
There are three fundamental principles for consent to be valid: first, it must be informed; secondly, the person must be competent to make the decision; and, thirdly, the consent must be voluntary. I have real concerns that, without consent being explicitly spelt out on the face of the Bill, we shall be seriously impinging on patients' rights.
Patients must be informed of the benefits as against the risks and burdens of every decision that they take. That includes knowing the time, order of events and, as the noble Earl, Lord Howe, outlined, the costs that may be incurred. But competence involves the ability to understand the information that is given, weigh it up and communicate choice. I have a concern that patients are extremely vulnerable and that there is a power differential of professionals over patients and their carers. This is never more evident than with those who have chronic disease, who know that they will inevitably be returning to the service and are fearful of incurring the displeasure of those professionals who are involved in their care.
Finally, there is the principle that consent must be voluntary. It must be free of coercion. I am concerned that several things, which we have heard about, make a decision free of coercion extremely difficult. Language is crucial to the way in which this is communicated—the frame within which issues are to be considered. The language means that realistic risk is included within this frame of decision-making and irrational fears are discarded.
Patients can feel that they are a burden. Some relatives do not want to care and some are fearful of caring. Carers often feel unable to undertake intimate care such as bladder and bowel care. They are fearful of helping someone move to get to the toilet and fearful of what to do if the patient vomits or does not take their tablets. So often, problems arise at home when the district nurse or other professional carers who visit the house have just left. Carers need educating, and this takes time. I have a concern that current hospital policy may mitigate against some of the education that is needed.
What alarms me the most, however, is the concern expressed by the noble Baroness, Lady Barker, when she spoke to Amendment No. 8. There is a real fear that if patients do not accept the care package on offer, they will effectively be told to like it or lump it. That may be the message they get; it would result in true coercion and would mean that any consent was invalid anyway. This raises huge ethical issues about the whole process of the discharge if patients do not have free choice and if it is not fully informed. How can choice be deemed to have occurred and how can consent be valid if the patient has only one option or feels under enormous pressure, for whatever reason, to comply with what is being offered?
I agree that Clause 3(3) is impossibly bald and has led to the widespread feeling that patients are treated in the Bill as commodities. Something must be done about it. The principle of consent is absolutely right, but I am under no illusion that it is always given. Acute dilemmas may arise in which there is little room for manoeuvre and little choice. I am mindful of a recent incident where a patient was ready to be discharged from acute care and needed intermediate care. An intermediate care bed was available in a community hospital but it was an inconvenient distance from where the patient's family lived. The patient's family was told that there really was no alternative—the patient needed to leave acute care and go to the intermediate care bed. The family camped out around the patient's bed physically to prevent the movement of the patient to the intermediate care bed.
There are very serious dilemmas, and I recognise that choice is sometimes not available because there are so few beds. Beds are blocked in not only acute hospitals but intermediate care community hospitals and other places.
Recognising the great difficulties that exist, I still believe that some form of consent needs to be on the face of the Bill, otherwise it will be entirely unacceptable. I recognise that it is not simple and that acute difficulties sometimes have to be negotiated with skills that people might better deploy in the Security Council. Real skill is needed to negotiate the way through these dilemmas. It is a real problem; if the Minister says that we cannot offer choice because sometimes there is none, I think we will have to agree that sometimes that is the case. What then comes into play is the skill of the person who has to negotiate with the family and the carers. That takes a high degree of skill, patience and flexibility, and there may be a slight delay until a better solution becomes available. But I believe that, in principle, consent must be written into the Bill, or Clause 3(3) will be regarded as entirely unacceptable.
The Government have a very proud record of putting patients and their carers at the centre of NHS policy. I want to speak in particular to the amendments concerning carers. Members of the Committee will know that I yield to no one in wanting to see carers in not only every bit of every Bill but in every sentence of every Bill, but I recognise that we have to keep a sense of proportion about this. The Government have made major concessions in another place regarding the recognition of carers, and on the statute book there are already Acts of Parliament concerning carers, such as the Carers (Recognition and Services) Act 1995 and the Carers and Disabled Children Act 2000, with which I had something to do. So there is already a great deal of protection for carers.
There is no doubt that the active engagement of patients and their carers is central to discharge planning. In a recent survey, Carers UK found that 43 per cent of carers felt that they were not given adequate support at the time of the discharge. However, I would query whether these amendments are the way to deal with that. We have to ensure two things: first, that the people concerned with discharge make sure that the carers are central in all their discussions; secondly, that the carers are empowered in that discussion to state their needs. Their needs are already catered for—we have to help them express them.
I, too, strongly support the amendments. A patient should be a person, not just a number. When pressure is on, good standards should be written on the face of the Bill. Some elderly people have a real fear of the social services. Maybe it is to do with pride, but it is also to do with independence. The patient should come first. The old hospital almoner was a well trusted person. The noble Baroness, Lady Pitkeathley, will not agree with me, but I know many elderly people who just do not want to communicate with the social services.
This has been a short but powerful debate in defence of the patient. We yield to no one in our concern for the patient. We would be extremely dismayed if we thought that the notion of the patient as a commodity was implied in the Bill. Nothing could be further from the truth. The whole purpose of the Bill is to establish the rights of patients and the focus on patients so that they get the very best, the most appropriate and the speediest care without sacrificing quality or choice in the process. I believe that we would all agree with that, and I am grateful for what the noble Baroness, Lady Pitkeathley, said.
Let me deal first with Amendments Nos. 16, 24 and 96 and go straight to the code of practice. I hope that I can put the mind of the noble Lord, Lord Clement-Jones, at rest about the code of practice. Let us consider the notice that will be required to be put into operation. It is envisaged that the notice needs only contain the patient's name and location, the name of the NHS contact, the date of admission—if that has not yet occurred—and the likely date of discharge. It does not require or authorise the inclusion of any sensitive details of the patient's medical condition or the transfer of any more information than is currently the case. That is in the regulations, and I hope that it indicates that we are concerned about patient confidentiality and involvement. However, we believe that because the notice is only an administrative device for good record-keeping, there is an argument for not having the patient involved at that stage.
I am pleased to say that we are putting increasing emphasis on patient involvement. We have moved on from the old paternalistic system, in which everything was good for the patient and they never had a say. As the noble Baroness, Lady Pitkeathley, said, we have changed, by recognising and amplifying the voice of the patient. I hope that reassurance deals with Amendment No. 16.
The second part of the amendment would require patient advocates to be appointed in cases of mental incapacity. There will be instances in which patients are unable to express a preference for themselves. There is a long-standing common law principle that public bodies should act in the best interests of people whose capacity to consent or to understand the reasons for a particular treatment has diminished. It would be entirely reasonable to expect the NHS and councils to act on the preferences expressed by the carer, just as the noble Baroness, Lady Pitkeathley, suggested, unless, exceptionally, they felt that that was against the interests of the patient.
Amendment No. 24 raises a similar issue. However, there is a misunderstanding here. The notice formalises what already happens across the country, but it is not issued to the patient. We expect the NHS to discuss with the patient the situation surrounding their stay in hospital before they are admitted. If the patient lacks capacity, the NHS has a duty to act in the patient's best interests. The notice does not involve the patient and it is not necessary for the NHS to explain it. There is not a great deal to explain.
I confess that I find the new clause to be inserted by Amendment No. 96 a bit confusing. It seems to suggest that patients will need the protection of an independent advocate to prevent a proposed discharge. In perhaps the majority of instances, having seen that the patient is recovering fully the consultant will decide to discharge the patient with no need for further assessment. That would be the case with, for example, a fit and healthy person with a broken leg. The safety risks are very low. We have to ask whether we want to require the NHS to offer independent advocates to every person who is well able to look after themselves on leaving hospital. That could be an unintended effect of the amendment.
Of course, any assessment must meet the requirements of people who need support. As I have said, that would be governed under Section 47 of the 1990 Act. I hope that the Committee will commend the fact that, through setting up the patient advocacy and liaison services, we are making a much more robust and clearer opportunity for patients, their carers and their families to be involved generally. They can, when appropriate, refer to independent or specialist advocacy services.
My noble friend Lord Hunt of Kings Heath dealt with the question asked by the noble Baroness, Lady Finlay, about self-funders. He said that some patients may decide that they do not want to be assessed by social services. They have that choice. No one is under an obligation to accept assistance from social services. However, the local authority must make all reasonable efforts to make sure that they have a choice. It is not a question of either agreeing with what the local authority says or being shoved out and having to become a self-funder. It will not work like that. Only if the patient continues unreasonably to object to the services that are offered despite attempts to make a compromise will they have to be regarded as having discharged themselves. We all take very seriously everything that the noble Baroness says, given her long and current experience. I hope that clarification helps her.
Amendment No. 18 deals with the burden of the argument about consent. We understand how genuine the concern for the voice of the patient is. The Government have recognised and worked on that. The problem is that the amendment would create operational difficulties for the NHS. It would give the patient or carer a new and effective veto over social service involvement in the discharge process. The NHS would find it extremely difficult to operate under the amendment, which would place it under a new duty to gain the patient's and carer's consent to involving social services in assessing the need for aftercare.
We want to guarantee the inclusion of the patient in the discharge process, but the amendment would have unfortunate, even perverse, consequences. If a patient withheld consent, the NHS would not be able to inform the authorities how that patient was likely to need help after discharge. If the patient withheld consent and took no steps to inform social services, the community care services would not be in place although the patient might be physically well enough to leave. The patient would effectively be preventing their own discharge. No NHS patient has the right to do that. It would create an unreasonable and unsustainable situation for the NHS.
The amendment would also require the carer's consent to be given. Following what the noble Baroness, Lady Pitkeathley, said, it is inappropriate to oblige the NHS to consult a patient's carer about involving social services. Of course their views must be taken into account—it would not operate otherwise—but that is already standard practice. To build in a statutory obligation would even run the risk of breaching the patient's right of confidentiality.
My second point is that the Bill does not change or undermine any right that the patient presently has on consent. It is a complex law, but in a nutshell it amounts to common law principles plus some of the provisions of the Data Protection Act, which says that consent is the one basis on which information about an individual can be passed on. Patients have an existing right not to consent to receiving treatment. The NHS does not have the right to force services on a patient. If such services were provided without consent, there would almost be a case for civil trespass and, at worst, criminal assault. We are looking at some extremely subtle and dangerous implications. Good practice dictates that all patients should be kept informed. Once again, that is a reference to the discharge workbook and our reasonable expectation that it will be followed.
However, there is some good news. We have listened and we know that this is a very serious issue. I am confident that the statutory guidance and good practice will ensure the correct involvement of patients and carers. We are also prepared to consider a government amendment that would require the NHS to consult patients and, when appropriate, carers, before issuing a Section 2 notice. It is obviously in the best interests of all concerned that social services do not receive referrals for individuals who did not know that they have even been put forward for an assessment and so would hardly be expecting a visit from a social worker. I hope that is acceptable.
Amendment No. 34 would add a duty on the local authority to obtain the patient's consent before assessing their need for community care services. Again, the Bill does not change or undermine any existing rights, for the reasons I have explained. Patients are perfectly entitled not to participate in the social services assessment. However, social services will be expected to carry out at least a cursory assessment, even if the patient does not formally co-operate. Social services can obtain external information that can be useful should the situation change. A package of care can be refused. For the reasons I have given to the noble Baroness, Lady Finlay, those who reject all the alternatives will become self-funders.
On Amendments Nos. 44, 60 and 65, the noble Earl, Lord Howe, made a very powerful case for the information, particularly about the costs of any care and the consultation with patients and carers. Although we are unable to accept the amendments, I assure him that their aims are already clearly met under existing legislation. I referred earlier in the debate to Section 47 of the National Health Service and Community Care Act 1990, which governs assessment under this Bill. In exercising their functions, social services departments must already give all proper information to a person so that he can make an informed decision. That includes information about the costs of any care. The cases that the noble Lord brought were very graphic but one would hope that they would not be usual. They suggest bad practice rather than people simply not knowing or not following the existing law.
With respect to consent in general, the Bill makes no difference to patients' rights. We are hoping that the discharge workbook will make a big difference. We have a similar expectation that the statutory guidance will also make it abundantly plain that patients, their carers and families will be fully informed. The guidance attached to the Bill will act as reinforcement.
We have a similar response to Amendment No. 60, which would place a duty to consult carers and gain patient consent to the services being provided. The Bill does not alter the existing requirement on the NHS to gain the consent; we are happy with it as it stands.
Amendment No. 65 is, likewise, unnecessary. The proper place for information about the discharge date is in regulations rather than in the Bill, given the amount of detail that surrounds it. Putting it in the Bill would make it anonymous, especially as we know that there is much good practice in this area. Many acute trusts and social services departments issue a lot of information, advice and personal support. We hope that the amendment will be withdrawn.
Amendment No. 69 deals with control of patient information. It is difficult to see the intention behind the amendment. Section 60 of the Health and Social Care Act 2001 is about the control of patient information, but regulations made under that section broadly allow for information to be passed between NHS bodies and other bodies in relation to health matters. The amendment would disapply a body's duty of confidentiality to allow it to pass on confidential information for medical purposes in some circumstances. However, it does not apply to social services authorities or appear to have any relevance to data collected or duties undertaken in relation to the Bill. The only possible relevance would be when confidential information was passed between the PCT and the NHS trusts in compliance with their duties under Clause 3(8). Passing information in such circumstances would not breach patients' rights to confidentiality, and, in any case, Section 60 does not apply under the Bill. As I have said several times, nothing in the Bill impinges on the existing rights of patients to confidentiality. I hope that the amendment is withdrawn.
The Minister's reply was as packed with information as ever. I believe that I saw a gleam of silver in there, rather than just a nugget. It may not have been gold, but things are looking up this evening.
There is a lot to be considered, and we will be reading Hansard with some attention. We have been told that there will be a code of practice on confidential information, which the Minister believes will cater for some of the issues raised under some of the amendments in this group in relation to use of personal information on patients.
I do not want to give the impression that there will be a code of practice. There will be statutory guidance. I was addressing the question of what a code of practice might contain following the amendment, but we do not believe that a code of practice is necessary, because the notification is so basic.
I shall have to read with more attention than ever what the Minister said. As long as the statutory guidance broadly contains what we would have wanted to put in the code of practice, we shall be entirely satisfied. The statutory guidance is also intended to deal with the question of consent, but the Minister offered an amendment on Report or Third Reading to the effect that the patient will have the right to be consulted on discharge issues. That is a major step forward. We will have to consider that in the light of self-funders in particular.
I am grateful to the noble Lord for his concession. No legal basis has been settled or discussed. I am not familiar with this Bill—I am here for another purpose—but I am interested in what has just been said. I have not read the Bill, but where is the trigger clause that will give credence and power to make either statutory provision or codes of guidance? Is there such a clause?
Anyway, I shall simply sum up. We do not need to trade further legalities for the purpose of these amendments.
The Minister approached our position in her remarks. There are issues to which we may want to return on Report. As the right reverend Prelate said, some way should be found, however qualified the wording, on consent as opposed to consultation.
We shall think carefully about the Minister's comments. She said that, on the one hand, she did not want to give right of consent to a patient but that, on the other, the NHS could not force a patient to do something. Legally, there was no great issue about the patient being given the right to consent, since it is implicit in the way in which the NHS provides its services. I shall leave that to the department's lawyers to consider in the next week or two. I beg leave to withdraw the amendment.
I beg to move that the House do now resume. In moving this Motion, I suggest that Committee stage begin again not before 8.39 p.m.