Community Care (Delayed Discharges etc.) Bill

– in the House of Lords at 2:57 pm on 17th March 2003.

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Clause 1 [Meaning of "NHS body" and "qualifying hospital patient"]:

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 2:59 pm, 17th March 2003

moved Amendment No 1:

Page 2, line 2, at end insert—

"( ) The term "independent hospital" includes any hospice registered as an independent hospital (hospice acute category)."

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I do not wish to delay discussion by revisiting the debate that we had at previous stages about whether or not hospices are included in the Bill. The Minister previously stated that he believed that they were not included. I am grateful to the Minister for having met me and Dr Andrew Hoy, chairman of the Association for Palliative Medicine. We had a fruitful discussion. At that time, we were able to provide the Minister with additional evidence to support our view that hospices should be included in the Bill. For the sake of the House, I shall run through that view very briefly.

The registration documents for in-patient units, which are specialist palliative care units, state that they are registered in the independent hospital service category (h)(a), which means "hospice acute". The National Care Standards Commission took over registration of such units, and at the time the designation of hospices was considered to be as independent hospitals providing acute care. Units with such a registration are in the process of establishing or have already established service-level agreements specifically for the care of NHS patients in their buildings.

A simple example is that 160 beds were available in Marie Curie for England and Wales in January. There were 207 admissions, with a 48 per cent discharge rate. More than 50 per cent of those patients needed social services packages to be discharged, and none will continue in care. Marie Curie has the largest number of hospice beds of any independent provider in England and Wales, and those figures are reflected in other hospices that have smaller numbers of beds.

Because there are service level agreements and carefully drawn contracts that specify what will or will not be done, it would appear that we are talking about acute patients in the hospice pursuant to NHS arrangements. Therefore, I hope that the Minister will be able to accept the amendment. I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I am very grateful to the noble Baroness for the discussions that we have had on the issue of hospices and the extent to which patients treated by them are covered by the Bill.

The amendment is not necessary, because the term "independent hospital" in the Bill already includes hospices. That is the same definition as that in the Care Standards Act 2000. Section 2, which is in Part I of that Act, states:

"A hospital which is not a health service hospital is an independent hospital".

In the sense of the Bill, "hospital" means,

"an establishment . . . the main purpose of which is to provide medical or psychiatric treatment for illness or mental disorder or palliative care".

I understand that the noble Baroness has used her amendment as a way of eliciting from me further information about the important matters that she raises. Very helpfully, she let me see a number of copies of what are best described as service level agreements between individual hospices and NHS authorities. From an initial perusal of them, it is at least arguable that patients treated under those agreements are indeed treated pursuant to NHS arrangements and therefore could well fall under the Bill. There needs to be further discussion between my department and the representatives of hospices on that matter, but the noble Baroness has done a great service in bringing it to our attention and clarifying our understanding of the point.

Not all patients in hospices would be so covered, because not all patients will be treated pursuant to NHS arrangements. I also accept that there is a more general point about wishing to ensure a good relationship between hospices and individual local authorities, particularly when it comes to the support that might be required from a local authority for patients who have left a hospice and gone back into their own homes. I have asked my department to institute discussions with representatives of the hospice movement and local authorities, so that we can discuss such matters in great detail.

I hope that the noble Baroness will accept that I have found her intervention in the area extremely helpful. We take it very seriously and we will pursue those discussions in the future.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I thank the Minister for his reply. If I may return the compliment, I would like to thank him for having been so helpful and open to discussion. I feel that the integrated service that hospices have been trying to establish with the NHS is being preserved and built on by the action. There was a lot of concern that, if there was no ability for any hospice beds to be included, some of that work might fall by the wayside.

I am grateful to the Minister for his reassurance that the amendment is not necessary, and that hospices with patients pursuant to NHS arrangements with a formal contract are included. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 2:

Page 2, line 4, at end insert—

"(3) An NHS body may make arrangements with any person connected with the management of an independent hospital in the United Kingdom for that person (or any employee of his) to do, on behalf of the NHS body and in accordance with the arrangements, anything which is required or authorised to be done by the NHS body by or under this Part in relation to qualifying hospital patients accommodated in that hospital.

(4) Anything done or omitted to be done by or in relation to the authorised person (or any employee of his) in pursuance of such arrangements is to be treated as done or omitted to be done by or in relation to the NHS body.

(5) Nothing in subsection (3) or (4) prevents anything being done by or in relation to the NHS body."

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, we have been clear that we want NHS patients treated in independent hospitals to be treated under the Bill in exactly the same way as NHS patients in an NHS hospital would be. We believe therefore that a private provider treating an NHS patient should, where appropriate, be able to issue the notice of a patient's potential need for community care services under Clause 2 and to consult the local authority about follow-up services, on behalf of the NHS body that commissioned the care. I believe that that is logical in order to prevent the patient's discharge being delayed and to prevent unnecessary bureaucracy.

As the Bill is drafted, however, a private provider would not be able to carry out those duties on behalf of the NHS. That is because although Section 23 of the National Health Service Act 1977 allows NHS bodies to make arrangements for others to provide services under that Act on their behalf, the powers and duties conferred on NHS bodies under the Bill are not services under the 1977 Act.

The amendment will therefore introduce a power for private providers to undertake duties under the Bill on behalf of the NHS body, in pursuance of arrangements made between the private provider and the NHS body. The NHS body will of course retain ultimate responsibility for the functions carried out on its behalf and the services provided. I beg to move.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, I would like to interrogate the Minister slightly further on that. I assume that the amendment relates to the letter that he had the courtesy to send to Front-Bench spokesmen on the subject. In Committee and on Report, he said that the PCT would actually levy any charge made. I hesitate to remind him, but I drew the example of a fictitious German hospital that would levy a charge. Is he now saying that a no-longer fictitious but real German hospital would actually levy the charges under the provisions that he stated?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, that is a good question. However, if the noble Lord looks at the amendment he will note that proposed new subsection (3) states:

"An NHS body may make arrangements with any person connected with the management of an independent hospital in the United Kingdom".

I can set his mind at rest. The scenario of a German hospital imposing a penalty on an NHS local authority would not operate, so far as the position of the PCT is concerned. For instance, the noble Lord might ask me whether independent acute hospitals that treated NHS patients would have the right to issue both the notice and the penalty charge. That would depend on arrangements reached locally by the primary care trust. The Bill allows it to happen but the primary care trust will come to a view on how the arrangements might operate in practice.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, before the Minister sits down, I want to leap forward quickly to the next amendment. Can he clarify where responsibility for carrying out NHS continuing care assessments lies?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I believe we shall debate that matter when we come to the next amendment. However, clearly the direction that we shall issue, which will ensure that the continuing care assessment takes place before a Section 2 notice is issued, will be directed to a National Health Service body. It is clearly for that NHS body to ensure that the direction is carried out.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, again before the Minister sits down—

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I believe we are out of order here. Perhaps I may suggest that we discuss that matter when we come to the amendment which deals with continuing care.

On Question, amendment agreed to.

Clause 2 [Notice of patient's likely need for community care services]:

Photo of Baroness Barker Baroness Barker Liberal Democrat

moved Amendment No. 3:

Page 2, line 22, at end insert "; and

"(c) a decision has been made that the patient will not require continuing NHS health care other than services provided by the NHS under section 5(2), a record has been made of why the patient is considered not to meet each of the criteria for such care, and the patient has been informed of his right of review of this decision."

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, as has been said, we are returning to one of the key elements in our debate thus far—that is, the subject of NHS continuing care. During an earlier stage of the Bill, we talked at some length about the ombudsman's report into continuing care. I believe that a key part of that report bears repetition at this point. The ombudsman said:

"The long awaited guidance in June 2001 gives no clearer definition than previously of when continuing NHS health care should be provided; if anything it is weaker, since it simply lists 'factors authorities should bear in mind' and 'details to which they should pay attention' without saying how they should be taken into account. I have criticised some authorities for having criteria which were out of line with previous guidance: except in extreme cases I fear I would find it even harder now to judge whether criteria were out of line with the current guidance. Such an opaque system cannot be fair".

The amendment deals with the lack of clarity in the guidance both nationally and in relation to its implementation locally. It seeks to ensure not only that an assessment for NHS continuing care is carried out before a Section 2 notice is issued but that such an assessment is written down, that the person concerned knows the basis on which he has been refused continuing care and that there is a record of that.

The health ombudsman strongly recommends that there should be documentation and that it should be available not only to patients but to successor bodies. We believe that the criteria should be clear; they should be consistently applied; and there should be records stating whether that has or has not happened. That is the purpose of the amendment. I beg to move.

Photo of Earl Howe Earl Howe Conservative

My Lords, I support the noble Baroness and can add little to what she has so ably said. We debate this Bill against the background of the ombudsman's recent report. If hospital staff are to take informed and correct decisions in implementing the provisions of the Bill, it seems to me self-evident that they must first take informed and fair decisions about whether or not patients are eligible for NHS continuing care. The ombudsman found not only that the department's guidance on continuing care was unclear but also that it was being interpreted and implemented differently in different hospitals and often wrongly.

In 2000, the Royal College of Nursing carried out a review of the eligibility criteria being applied in about a quarter of health authorities in England and Wales. They found that up to 90 per cent of health authorities were acting unlawfully in the way that they assessed people for long-term care funding. There is no evidence that the situation has improved.

In that context, I believe it is right to include in the Bill an explicit requirement for a continuing care assessment to be carried out for every patient and for there to be a record of the reasons for the decision one way or the other. We know that that is what the Government agree should happen. If it is an uncontentious requirement, there can be no reason for omitting it from the Bill, bearing in mind not only its critical importance for patients but also its importance for the smooth operation of the Bill.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 3:15 pm, 17th March 2003

My Lords, I, too, support the amendment for all the reasons that have been laid out so eloquently by the noble Baroness, Lady Barker, and the noble Earl, Lord Howe. The importance of recording a decision cannot be understated, particularly if there is ever to be an appeal against the way that the patient's discharge has been handled.

With explicit criteria for continuing care, which one hopes will be in place everywhere, it should not be too difficult for those who arrange the discharge to detect immediately whether the patient is or is not potentially eligible. Simply recording that step in the process will complete the way that all the data are collected. For patients where assessment must be carried out, it is important to document the date and the pathway of the assessment process. This is an important amendment for reasons of completeness, in order to protect patients from potentially unnecessary over-assessment, and to save social services the time involved in making arrangements for a patient who may then turn out to be eligible for continuing care.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I have some sympathy with the substance of the points raised, although I do not believe that it is necessary to accept the amendment. However, I want to respond to the points mentioned by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, in relation to the departmental guidance issued in 2001. As I said during the Starred Question earlier today, we shall consider the guidance in the light of the review currently being undertaken by strategic health authorities, which have been asked to report back to the department by the end of March. We shall consider those matters and study the ombudsman's report carefully.

Equally, I do not deny that, when it comes to individual decisions about whether or not a particular patient is eligible for continuing care, hard decisions must be taken by practitioners at local level. But I believe that the departmental guidance issued in 2001 and, in particular, Annex C of that guidance, gives a great deal of assistance to NHS authorities on the issues that they should be discussing with local authorities when establishing their eligibility criteria.

I shall not go through the seven points listed in the guidance but I believe that they set out helpfully the type of issues that need to be discussed and decided. While individual cases will always involve difficult decisions and there will always be borderline areas, I question whether the fundamental principles contained in the current guidance are as far off the point as has been suggested. However, we shall consider that matter carefully.

However, from my own reading of the conclusions of the ombudsman's report, which has been, and will be, very helpful in thinking through what we need to do in the future, I believe that much of the problem stemmed from the failure of NHS bodies locally to develop eligibility criteria in accordance with the guidance that had already been established and set out. That is another matter that we shall have to consider closely before deciding whether to make any changes to the guidance.

Having said that, as I said on Report, I have a great deal of sympathy for the intent behind the amendment. We have made clear throughout our debates on the Bill that the first decision in the assessment process has to be whether someone needs continuing care. We have also made clear that that should be done by the relevant NHS body before issuing a Section 2 notice. My colleague in another place, Jacqui Smith, emphasised that on Report when she said that the first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care.

The ombudsman's report highlighted that trusts are not always sufficiently well informed of the assessment process and eligibility criteria. That is why I responded last week with a commitment to issue regulations and, following from that, directions to make clear to the NHS what is required. The approximate form of words that we intend to use for the regulations in respect of a Section 2 notice is, "confirmation that an assessment for continuing care has been carried out in accordance with the directions issued to NHS bodies at some time during 2003".

The legally binding requirement will be placed in directions to the NHS. We shall consult on those directions and issue them at the same time as regulations come into force. The directions will require NHS bodies to carry out an assessment for continuing care for any qualifying patient before a Section 2 notice is issued. The direction will meet the points that I believe have been raised in our debates. It will specify that the assessment for continuing care is to be carried out, that a record is to be made of that assessment, and that the patient was informed of the right to ask that that decision be reviewed, and of the outcome of the review.

That shows our seriousness of purpose in that area. I believe that the combination of the regulation and the strength of the direction to be issued to the NHS shows that we have listened and that we have met the concerns. In the spirit of our debates in this House I believe that noble Lords will recognise when a point has been accepted, that the Government, indeed, are keen to ensure that this matter is dealt with effectively by the NHS and that everyone will be assured that the assessment in relation to continuing care will be carried out before a Section 2 notice is issued.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I thank the Minister for that forceful reply. I believe that this is perhaps one of the most important aspects of the Bill, which will affect the outcome of services for older people. It has been worth raising the issue again, not least because whatever the Minister says—earlier today in Starred Questions I listened carefully to his interpretation of the ombudsman's report, which is very different from mine—the record of the NHS so far on this matter has been extremely poor. We cannot emphasise that enough. If one considers the history, not just of the cases in this episode but of previous ombudsman reports, it is clear that new nursing staff come into the NHS and are not made aware of existing guidance.

None the less, I listened carefully to the Minister's reply. I believe that the guidance will be a step forward. He has helpfully put on record the need for written judgments. On that basis I shall not press the amendment today. However, the Minister should be in no doubt that this is one area of performance of the Bill that will be watched and scrutinised perhaps more than any other. I thank the Minister for his reply. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

moved Amendment No. 4:

Page 2, line 38, after first "the" insert "responsible NHS"

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 5, 7, 9, 11, 12, 14 and 15.

The Government wish to make a number of very small tidying amendments to the Bill, which in the opinion of the parliamentary draftsman are necessary to improve the internal consistency of the Bill, to correct minor ambiguities and occasionally to put more felicitous expression.

The amendment to Clause 10 is a final amendment to ensure that services to carers are referred to in all the appropriate subsections. I beg to move.

On Question, amendment agreed to.

Clause 4 [Duties of responsible authority following notice under section 2]:

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 5:

Page 3, line 33, leave out from "case" to end of line 34 and insert "under section 2 has been given"

On Question, amendment agreed to.

Photo of Lord Morris of Manchester Lord Morris of Manchester Labour 3:30 pm, 17th March 2003

moved Amendment No. 6:

Page 3, line 45, at end insert—

"( ) Where the responsible authority does not carry out its duty under section 4(2)(a) within the minimum interval prescribed under section 5(6)(b), the responsible NHS body must carry out the assessment of the patient's needs on its behalf."

Photo of Lord Morris of Manchester Lord Morris of Manchester Labour

My Lords, the purpose of this amendment is to allow the House briefly to revisit an issue of the first importance to many thousands of the most vulnerable people in Britain today: one that was not resolved by the vote in Committee on 17th February to delay the implementation of this legislation for a year.

My amendment was prompted by representations from people now unnecessarily detained in hospital by failure to assess and meet their needs for care in the community. They put it to me that, where a local council and NHS trust cannot work together to facilitate that care and the council fails even to assess need, then the NHS trust both in its own and the public interest should be empowered to act alone in doing so. They insist that patients must not—their words not mine—"be left to rot in hospital" in acute beds, urgently needed by others, when they could be better cared for elsewhere.

I move the amendment as a serial legislator in this policy area for over 33 years now, both as a Back-Bench parliamentarian and a Minister, having first entered the fray with my Private Member's Bill that became the Chronically Sick and Disabled Persons Act 1970. And it was 27 years ago that I announced, as the then Minister for Disabled People, the first-ever joint funding by the NHS and local social services authorities of care in the community for people leaving hospital in need of continuing care. At the same time I promoted the legislation that introduced the severe disablement allowance, the mobility allowance, the invalid care allowance and the disabled housewife's allowance.

That experience and much else in a long involvement in working to achieve the right help, in the right place, at the right time for chronically ill and disabled people leaves me extremely unhappy with the Bill as it now stands.

The Government have provided local social services authorities with much increased funding to fulfil their responsibilities, including £1 billion earmarked for older people's services. But as amended this Bill delays for a year hard-won resources to facilitate more appropriate care for them. That delay will prolong pain and suffering among thousands of people now languishing on hospital waiting lists. Arguably the delay could endanger the lives of some of them—since it is for acute beds that they will have to go on waiting—and it will compound the distress of people now perversely described as "bed blockers" for being detained in hospital in denial of their rights to community care.

Again the Bill does nothing in its present form to acknowledge or reward the local councils, in many parts of the country, that already work so successfully in partnership with NHS trusts to achieve an integrated approach—case by complex case—to the making of humane provision for continuing care of needful people who no longer require a hospital bed.

I have no wish to question the stance taken by anyone on either side of the debate on 17th February. My purpose is not to recriminate about what happened in Committee, but to look forward to what can still be done to protect the benefits the Bill offers. Nor do I question the right of those outside Parliament who have made us aware of their concerns, least of all those of the Local Government Association (LGA) and Help the Aged. On the contrary I hold both of those organisations in high regard and read their submissions with care. In turn they for their part will, I know, understand the depth of my concern about the prospect of leaving the issue of deferred discharges in limbo for a whole year as we are in danger of doing now.

The LGA is concerned, in particular, that the £100 million per full year the Government have made available for assessing need is limited to three years and falls short of their estimate of £133 million a year. While this rightly concerns them, is it not a matter for continuing dialogue and negotiation, rather than justification for blocking an attempt to deliver the right care in the right setting? The LGA is rightly concerned too—like Help the Aged—to ensure "person centred" care for older people and to prevent them being treated as "commodities". But that is how many of them—wrongly and avoidably denied the dignity of living in their own homes—feel they are being treated now. As my noble friend Lord Hunt frankly stated on 17th February:

"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".—[Official Report, 17/2/03; col. 952-953.]

Sadly that is how they will go on being treated if this Bill remains as now drafted and it should not be beyond the wit of parliamentarians, working together, to make it an effective instrument for the achievement of objectives we can all support.

The problems of delayed discharges from hospital are not new. Nor are the debates on the provisions of this Bill the first attempt to solve them. What is new is that substantial extra money has now been found and the Government deserve credit for having accepted this as a prerequisite of meaningful progress towards a solution.

I am much reminded today of Michael Barry, an elderly and severely disabled man, whose case was brought to this House in February/March 1997 on appeal by Gloucestershire County Council and the then Secretary of State for Health (R v Gloucestershire County Council and Another ex parte Barry). They sought to reverse a judgment in Mr Barry's favour given by the Court of Appeal on 27th June 1996.

Following a stroke Michael Barry had been taken into hospital. He had previously had several heart attacks and could not see well. After being discharged from hospital he lived alone and got around with the aid of a Zimmer frame, having fractured his hip some years earlier. Without reassessing his needs, Gloucestershire County Council withdrew the cleaning and laundry services he had been receiving under Section 2 of the Chronically Sick and Disabled Persons Act on the grounds that:

"Central government has reduced by £2.5 million the money allocated to us for services for disabled people", and that the council was left with,

"nowhere near enough money to meet demand".

When he heard this Michael Barry could have been excused for thinking that perhaps even some commodities were treated with more care than him. For Gloucestershire County Council and the Secretary of State for Health the issue was,

"keeping the lid on public spending".

For Michael Barry, then 82, it was about personal survival.

No one was more unquestionably vulnerable and acquainted with grief than him; and few of those officially involved in his case can look back with any pride on the way he was treated. But happily one person who can is here this afternoon: the noble and learned Lord, Lord Lloyd of Berwick, who spoke so perceptively in giving this House his opinion about the case of Michael Barry. He clearly saw through the old Spanish customs used to deprive the 1970 Act's beneficiaries of their rights to services. He saw that assessment and reassessment of need were often delayed and avoided because, once need has been assessed, it is the duty of the local authority to meet it by providing services under the Act; and that thus the way to cut expenditure was to delay or avoid assessment or reassessment.

The noble and learned Lord also saw more clearly than legal colleagues, first, that help under the Act depended not on where the disabled person lived but strictly on the extent of individual need; and secondly, that local authorities were not entitled to say that assessment of need must have regard to their overall resources. The solution he said lay with central government:

"Having willed the end, Parliament must be asked to provide the means".

He was eminently correct as well to say categorically that:

"Parliament never intended there should be different standards for measuring the needs of disabled people in Bermondsey and Belgrave Square".

The noble and learned Lord described the Chronically Sick and Disabled Persons Act 1970 as one of "noble" purpose. My response is to say that he enhanced its nobility. His humanity shone through every sentence of his statement here in March 1997 on the case of Michael Barry.

That different standards still exist today, dependent on where a disabled person lives, demeans Parliament and must not be perpetuated by new legislation. The benefits of this Bill are urgently needed and I believe it is not too late to avoid delaying their delivery. I hope profoundly that this can be achieved without party animus and after full consideration by the Government of all matters of legitimate concern, irrespective of by whom they have been raised. There is still time for consensus to be reached on this Bill and those it seeks to help deserve no less. I beg to move.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I support the noble Lord, Lord Morris of Manchester. He has an immense amount of experience in relation to disabilities of all kinds. If the Government want beds to be unblocked in acute hospitals, it is important to speed up assessments without which patients cannot get the help that they need. I hope that the Government will accept the amendment.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, it is tempting to accept my noble friend's amendment because he speaks with great authority, but I shall ask him to withdraw it. He was being unduly modest when he described himself as a serial legislator. I have always seen him as the architect, author and promoter of the Chronically Sick and Disabled Persons Act 1970 which has had a profound impact on society. I always listen to him with great care.

Importantly, he dealt with the issue of commodity. Noble Lords will know that I objected forcefully when, in Committee, it was suggested from the Bishops' Bench that the Bill aimed to treat a patient as a commodity. At the moment we have a major problem in that every day thousands of people are inappropriately stuck in NHS acute beds. The longer they stay there the greater their lack of independence, the more institutionalised they become and the harder it is for them to be discharged back into the community and to their homes. That is why we need to ensure that the health service and local government get their act together and sort out a proper assessment process and as quick a discharge process as is possible.

Certain patients will have complex care needs which it will not be possible to deal with in a short time. However, such people can be transferred to more appropriate care than is provided in an acute hospital. I share the concern of my noble friend and of the noble Baroness, Lady Masham, that in this House we have voted to delay the implementation of the Bill by a whole year. It is a pity, as I believe that the Government have taken a constructive approach. We have tried to meet the concerns that have been expressed. We have met concerns over the issue of consultation on hospices. We have just discussed the issue of decisions on eligibility for continuing care, before a Clause 2 notice is issued. In the spirit of trying to make this Bill work in the House of Lords, we intimated that we would be prepared to see a delay in its introduction by six months. However, that was not to be, and I regret it.

I know that there are concerns about the ability of the health service and local government to make the Bill work effectively. All I will do is repeat what I have said previously. We know from the experience of a number of local authorities that when people are determined to make delayed discharge procedures work well, they can be made to do so. Why should we be denying to members of the public the benefit that this Bill will bring? That was the point my noble friend Lord Morris put so forcefully.

My other point relates to the matter raised previously by the noble Baroness, Lady Barker. She talked about the problem of new staff not being updated with current guidance—whether relating to continuing care eligibility, or good discharge procedures. I agree with her. That must be the conclusion that should be arrived at by reading the Climbie report by the noble Lord, Lord Laming. It pointed to a lack of attention to detail, a lack of procedure, a lack of ability to follow those procedures, a lack of supervision, and above all a seemingly chronic inability among some professional staff to write things down. She knows that I am as critical of the NHS as I am of social services or the police. All of those points are very well taken. However, I contend that this Bill will put in place much more robust procedures—both in the health service and local government. That is why I believe that the Bill is an advance on current arrangements.

Although I have immense sympathy with the comments of my noble friend Lord Morris, I cannot support the exact wording of his amendment. However, he has made some very important points.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, will not this amendment speed things up, especially as there has been a delay of a year?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I think the problem is that the way the amendment is worded would mean that if the local authority failed to carry out an assessment, the NHS could do so on its behalf. There must be some question about whether the NHS would have that ability. Apart from anything else, the assessment under Clause 4(2)(a) is to be treated as a Section 47 assessment. I am afraid that under Section 47, only a local authority social services department can carry that out. So there is a practical issue. There is always an issue about the wording of the amendment, but the point my noble friend Lord Morris is making—which will no doubt be considered very carefully in another place—is whether it is right to delay the introduction of this Bill for six months. The only people who will suffer are the very people we are trying to help. They are the 5,000 people prevented every day from being discharged effectively. I say "only" in parenthesis. It is important that we do not focus on the problems of bureaucratic statutory authorities. We have heard much about the problems of health services and local government. I think we should focus on those individuals. That is the point my noble friend has raised.

Photo of Lord Morris of Manchester Lord Morris of Manchester Labour

My Lords, I am grateful for the support of my good and noble friend, Lady Masham. Like my good friend, the noble Baroness, Lady Darcy de Knayth, she made her maiden speech in 1970 on my Chronically Sick and Disabled Persons Bill. No one knows more fully than they do how true to the parliamentary record the assessment of the Bill by the noble and learned Lord, Lord Lloyd of Berwick, was when he gave his opinion on the Michael Barry case in 1997. I understand why the Minister asks me not to press the amendment. He was very responsive to the case I made, and I trust the amendment may still have the effect I sought as the Bill proceeds. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

moved Amendment No. 7:

Page 4, line 38, leave out "him" and insert "the patient"

On Question, amendment agreed to.

Photo of Lord Rix Lord Rix Crossbench 3:45 pm, 17th March 2003

moved Amendment No. 8:

Page 5, line 15, at end insert—

"(12A) In the case of any person having a learning disability, irrespective of the age of the person and of whether or not that person has other disabilities, the NHS body and the responsible authority shall take account of that person's learning disability in ensuring the person's supported return to their previous home or, where this is impossible, their support in an alternative placement."

Photo of Lord Rix Lord Rix Crossbench

My Lords, according to St. Matthew, Chapter 20, the would-be grape-pickers who presented themselves at the eleventh hour received rather a good deal. My eleventh hour amendment which is designed to protect the position of people with learning disabilities, who are being discharged from hospital, is tabled in hope of similar treatment.

Helpful conversations have taken place with the Minister. There has been an exchange of correspondence, and I have seen the Department of Health's excellent new guidance on hospital discharges. So I live in hopeful expectation of a favourable response—although not necessarily an acceptance of the amendment as it stands. I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, it is always good to welcome the noble Lord, Lord Rix to our debates, even though it is indeed the eleventh hour. However I suspect that this Bill has a little more time to run. He has raised a very important issue. His amendment seeks to place a requirement for local authorities and the NHS to take account of the needs of an individual's learning disability, when arranging their discharge. Of course I agree that is essential, but I believe that it will be achieved without the need for it to be explicit in the Bill.

I understand his concerns about people with learning disabilities who are admitted to hospital for acute treatment. They can then find themselves unable to return to the home from which they came, and then perhaps placed in inappropriate care. I believe that the strength of the assessment systems put in place by this Bill, combined with the revised good practice guidance, will ensure that people with learning disabilities can receive the package of care that most meets their needs upon discharge from hospital. This could mean return to their original home, or a placement somewhere else more appropriate.

The hospital discharge workbook contains good practice that will ensure that an individual's learning disabilities will be taken fully into account when assessing the patient's often complex needs and putting services in place. Appendices 5.6 and 5.7 of the workbook in particular set out good practice and guidelines when dealing with someone with a learning disability. I am confident that this practice will be followed well in the field. It is essential that an individual's learning disability is taken into account. To do otherwise would be negligence by the statutory agencies, as it would be highly unlikely that the individual's discharge would be successful, or that appropriate care would be provided.

The duties that the Bill places on the NHS and social services to work together, in carrying out those assessments, will ensure that there are no gaps in the package of services that are put together. With that assurance I hope that the noble Lord, Lord Rix, will feel that the position of people with learning disabilities is well catered for, and will not press this amendment.

Photo of Lord Rix Lord Rix Crossbench

My Lords, in the world of farce, which I once inhabited, you soon find out that the feed line is as important as the laugh line which follows. Without an audible and well-delivered feed, the audience will sit in glum silence, totally unaware of why they are supposed to be rolling about with laughter. I am glad to say that the Minister has heard my feed line—Amendment No. 8—and has delivered his punch line with warm-hearted clarity. He therefore receives an equally warm-hearted response from me.

In addition to his statement from the Dispatch Box, only this morning I received a letter from the noble Lord, Lord Hunt, which underlined his every spoken word. Again looking back to the world of farce, belts and braces are highly desirable if you are in danger of losing your nether garments. The Minister has ensured that my long-practised art form will not happen here today. I am grateful for his support and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Duties of responsible NHS body following notice under section 2]:

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

moved Amendment No. 10:

Page 5, line 44, at end insert "excluding Saturdays, Sundays and public holidays"

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, we have extensively discussed notice periods under what is now Clause 5 but I make absolutely no excuse for returning to the subject, simply because of the lack of concrete undertakings given by the Minister in Committee and on Report, and the lack of any movement towards the compromise suggested by the noble Baroness, Lady Greengross, on Report.

Both in Committee and on Report the Minister made much of the benefits for the patient of a minimum period of three days. The motives on these Benches—and, I am sure, on the Conservative Benches—are to benefit patients by these amendments. The noble Baroness, Lady Greengross, said that older people will not want to be left in acute hospitals for any longer than necessary. We say "Amen" to that. But, as I said on Report, the evidence shows that week-end discharges are three times more likely to lead to readmission than discharges earlier in the week. Would patients wish to be discharged where there is that kind of risk? I suggest not.

The Minister admitted on Report that the medical part of the discharge decision is unlikely to be made at the week-end. Why, therefore, should the care decision have to be made at the week-end when key staff may not be available, pharmacies may not be open, and so on? On Report, the Minister seemed to have the horrors of a resulting minimum five, six or seven-day period. Why? In Committee, the noble Lord, Lord Turnberg, expressed his understanding of how difficult it might be for local government to run the necessary rotas over week-ends and bank holidays.

The Government's motive appears to be simply to free up hospital beds in the shortest possible time. In Committee, the noble Earl, Lord Howe, referred to "passing the parcel", and throughout the passage of the Bill we have referred to patients being treated as commodities. The minimum period without allowance for bank holidays and week-ends is all of a piece with that approach. To date, the Minister has not refuted the example put in Committee by the noble Earl, Lord Howe, that notification could take place at 4.30 p.m. on Good Friday for a discharge no later than 11 a.m. on Easter Monday.

Throughout the Bill, the Government appear to be motivated by a punitive approach towards local government. The Minister believes that statutory agencies will make "excuse after excuse" to walk away from what the Bill is intended to achieve. This clearly reveals the coercive nature of the Bill. The amendment seeks to redress the balance and, at the same time, to make the procedures safer. I beg to move.

Photo of Earl Howe Earl Howe Conservative

My Lords, I support the noble Lord, Lord Clement-Jones, in all that he has said. In Committee, the Minister was heard to utter the words that have become so familiar to us in our debates on successive pieces of health legislation down the years—"getting the balance right". I agree with the objective. What we have to decide, in the absence of direct experience, is where exactly the balance lies.

It is worth saying that the amendment and the case advanced by the noble Lord, Lord Clement-Jones, represent a compromise between the proponents of a much longer minimum period—say five or seven days—and the position set out in the Bill. The argument for settling on three working days as opposed to three calendar days can be stated simply: it is better for patients and fairer on local authorities. It is better for patients because to be discharged at a week-end or on a bank holiday when community services and home care may not be available is, to put it mildly, less than optimal. For a local authority to be told on a Thursday that a particular patient must be discharged on the following Sunday when the patient requires long-term care is a recipe for stop-gap solutions for that patient. If we believe in patient consultation and, wherever possible, patient choice, we should not permit the system to operate on a basis that encourages rushed or superficial discharge planning. As it is, the Bill is likely to place many patients in temporary care settings pending a permanent placement, but the disregard of week-ends and bank holidays accentuates that likelihood unnecessarily and we should remove it.

If the Minister believes that the case is being over-stated, I humbly suggest that he should note the result of the recent survey by the Nursing Standard and Community Care magazines. The principal concern among respondents to that survey was that the system of financial penalties being introduced through the Bill will result in higher numbers of older people being placed in residential care rather than their own homes as care packages can take longer to set up.

Three working days is also fairer for local authorities. Every noble Lord who spoke in Committee made the point that to ignore the patterns of the normal working week will place enormous pressures on local authorities—pressures of staff and pressures of finance. A large number of local authorities are already experiencing substantial budgetary difficulties in social services, way beyond their SSAs. To compound that, the commitments that the Bill would force upon them for week-end and holiday working are unfunded. We all know that the Bill deliberately sets out to place burdens on local authorities, but I do not think that a requirement to have fully staffed social services departments for 365 days a year is in any sense reasonable or fair.

This is an important issue. On Report, the Minister was good enough to say that he would take away the points that had been made and reflect upon them. I look forward to hearing what he has to say.

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, I have some difficulty in speaking on this issue because I am a vice-president of the Local Government Association and of Age Concern. I believe that the amendment is put forward with the best interests of older people at heart but it is too inflexible.

Neither the health service nor the local authority should be surprised when a person leaves hospital. I was involved with someone who was in hospital for two and a half weeks over the Christmas period and who could not be discharged because social services were not fully functioning. To put this requirement on the face of the Bill would not help the people I am most passionate about—that is, those who remain in hospital and who are not discharged.

It would be absolutely unreasonable for the NHS to issue a Clause 2 notice if it is impossible for the social services to comply. At the moment, social services do not work at week-ends but the NHS does. It would not be beyond imagination that in the future some people from social services—those who work with the acute hospitals to get people discharged and who organise the services they will need—may have to alter their ways of working to ensure that health and social services really do work together. Keeping people in hospital, for whatever reason, for longer than is absolutely necessary is not acceptable in this day and age.

On the other side of the argument, the Minister will have to be very careful when drawing up the regulations so that this cannot be seen as an attack on social services, but as legislation to ensure the rapid discharge of patients who ought to be out of an acute hospital—and who have been thrown backwards and forwards for too many years for me to remember without extreme distaste and anxiety.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 4:00 pm, 17th March 2003

My Lords, I have given the matter a great deal of consideration because I recognise that the point raised by noble Lords opposite is a genuine concern about the practicalities that rest on social services departments. Having given it a great deal of consideration, and for the reasons put forward by the noble Baroness, Lady Greengross, who put the matter so very well, I remain firm in my belief that the minimum period on the face of the Bill is correct.

I say to the noble Earl, Lord Howe, that I do not believe the Government are taking a putative approach to local government. Of course we want to see a marked improvement in the performance of local authorities, which builds on what is seen as good practice in a number of local authorities up and down the country. But that will not work unless the NHS also improves its performance.

I return to a point raised by the noble Baroness, Lady Barker, earlier. She talked about the problem of new nurses arriving on a ward not being apprised either of continuing care criteria guidance or of delayed discharge guidance. I agree with her. I think that that is a problem. But that will have to be tackled, as will the defects of local government performance. It is very wrong to think of this Bill as simply being aimed at local government. It will not work unless the health service and local authorities get their acts together.

I turn to the issue of social services departments—the fact that they do not work seven days a week and that therefore it would be impossible for them to respond to the timetable. Whether it is a weekend or a bank holiday does not mean that the older person delayed in acute hospital simply disappears or is any less vulnerable to the consequences of a delay. Although a couple of days may not sound a great deal, we know that institutionalisation can set in rapidly. I do not see why older people should suffer simply because social services do not work at weekends.

Surely, we need to move away from the perception that social services should be provided only between the hours of nine to five on a weekday. We need a more flexible approach to working hours so that the needs of individuals can be met more effectively. I think that that too was the message of the Climbie report. To exclude Saturdays, Sundays and bank holidays on the face of the Bill would, I contend, send entirely the wrong message about what is acceptable and what we expect for older people.

The other point worth making is that, where a minimum number of days is set before the charging element is triggered, delays will always tend to drift up towards that minimum. So if we set the minimum number of days as three, then, where the minimum period falls over a week-end, the patient will usually end up waiting for at least five days. For someone who is ready to go home sooner, five days is an unacceptably long time to wait.

I have already made clear that since the majority of patients who become "delayed discharges" are in hospital for a longer period than three days, there will be a longer period to plan and put services into place. The vast majority of cases where the patient is ready to go home within the minimum compliance period are likely to be simple cases where it should not be unduly challenging to carry out an assessment and put services in place. Where a patient with particularly complex needs is ready for discharge before the local authority has had time to carry out a full assessment or put services in place, then we believe it would be appropriate for them to move to a step-down or interim care facility while their care planning is completed.

I have made this point already: an acute hospital bed is the worst place for a vulnerable older person to be when they can no longer benefit from acute care. They are at risk of losing their independence and at the unfortunate risk of picking up hospital acquired infections. We should aim for them to be moved to a more appropriate environment where they can benefit from some rehabilitative input as soon as possible. The minimum compliance period should accept that.

I have given the matter a great deal of consideration but I do not believe that it would be right to support the amendment. We must give a clear indication to the NHS and to local government of what we expect. I believe that in the interests of the individual concerned we should keep the minimum number of days as presently set out.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

I thank the Minister for giving us the benefit of his thoughts and considerations during the past few days. Clearly his opinion, and that of the department, has hardened against the amendment. I say to the noble Baroness, Lady Greengross, and to the Minister that no one in the House has a monopoly of compassion for the individual patient. We clearly have a difference of opinion as to how the Bill will operate in respect of particular patients and whether by coercing local government into certain actions that will be to the benefit of the patient. It is a fundamental difference of opinion and I propose to seek the opinion of the House.

On Question, Whether the said amendment (No. 10) shall be agreed to?

Their Lordships divided: Contents, 134; Not-Contents, 119.

Division number 1 Private Parking: Ports and Trading Estates — Community Care (Delayed Discharges etc.) Bill

Aye: 132 Members of the House of Lords

No: 117 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 4:17 pm, 17th March 2003

moved Amendment No. 11:

Page 6, line 4, leave out "new" and insert "fresh"

On Question, amendment agreed to.

Clause 6 [Liability to make delayed discharge payments]:

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 12:

Page 6, line 25, at beginning insert "the patient has not been discharged and"

On Question, amendment agreed to.

Clause 7 [Delayed discharge payments: supplementary]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 13:

Page 7, line 31, at end insert—

"( ) Section 6 shall not come into force until 30 days after the Secretary of State has determined that the systems of incentives within NHS bodies operate to discourage NHS bodies from discharging patients inappropriately."

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, we come to a crucial amendment in ensuring that the Bill is balanced when it leaves your Lordships' House. When the Bill arrived here from another place, it was not a balanced Bill. Your Lordships have rectified some of that imbalance. In particular, patients and carers who were marginalised by the Bill in the form that it arrived here will now get a better deal.

We now need to address the imbalance between the NHS and local government. The Minister may seek to deny that the Bill is heavily weighted against local government but denial of the Bill's consequences has been a consistent theme from Ministers throughout our deliberations. They blame local government for causing delays in discharging patients—especially the elderly—from hospital. The Government have rightly encouraged local authorities and the NHS to work in partnership to solve the problems, which is exactly what has been happening. Not all parts of the country have been as effective as the best. Some local authorities are still struggling to overcome the decimation of the care home sector that is the result of government policies—but real progress has been made. However, the Government have always acted as if Rome could indeed be built in a day and, before the new partnership agreements have had a chance to prove themselves, they have changed tack again and decided that a system of fines would sharpen the mind of local government.

Your Lordships will know that financial penalties indeed concentrate the mind; but also that unless penalties are carefully designed, they are likely to overwhelm other system drivers. In this case, they are likely to result in a complete failure of the partnerships that have so carefully been built up. Revealingly, the Minister spoke during our debate on the previous amendment of local authorities taking the maximum time to arrange discharges allowed under the Bill. It is clear from his comments that the Government now assume that partnership working will be killed by the Bill.

Putting that to one side, the system of fines is not even neutral for the NHS. The fines become a revenue stream for a hard-pressed NHS. Do not be fooled by government claims of large amounts of money going to the NHS. Most of the NHS is struggling to balance its books and is achieving precious little extra activity from the money. The fines will be a real financial incentive to the NHS to discharge patients as soon as possible.

So what is the problem with that? There is a major risk that discharges from hospitals will be premature and patients will end up as emergency readmissions. That is a thoroughly miserable prospect for elderly people. We may hear from the Minister another denial of the linkage between early discharge and emergency readmission, but he cannot deny that, following the Government's various initiatives to date on delayed discharge, readmission levels are at record levels and that rates are now as high as they have been since the Government came to power. We fear that the fines will lead to a rocketing readmission rate. That is simply not good enough for patients.

That is why the amendment mentions a system of incentives to prevent the NHS discharging patients inappropriately. At present, the Bill creates an adverse incentive. We need a positive incentive scheme in the NHS to encourage it to do the right thing, not the wrong thing. We need incentives not just to prevent premature discharge but the NHS avoiding its long-term obligation to provide NHS care by rushing to discharge patients into the responsibility of local government.

At various stages of the Bill's passage, the Minister has given us several versions of incentives that may or may not operate in the NHS. He began by relying on some technical financial flows incentives, possibly starting from 2005-06. But those have been unmasked as potentially illusory and certainly have no immediacy. He has also prayed in aid the system of star ratings, the performance management apparatus, the periodic reviews by the Commission for Health Improvement and even the £100 million promised for the Bill that has still not been handed out to local government. I doubt that any noble Lord who took part in earlier debate on the Bill was impressed by any of that.

Amendment No. 13 is simple. The fining aspect of the Bill—although, I stress, no other—would be delayed until the Secretary of State had determined that a system of incentives within NHS bodies operated to discourage them from inappropriately discharging patients.

I hope that, even at this late hour, the Government will understand that this is a reasonable, balancing measure, I beg to move.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I support the amendment tabled by the noble Baroness, Lady Noakes. Anyone who has followed our debates on the Bill during recent weeks will be in no doubt that, as my noble friend Lord Clement-Jones, said, there is no monopoly on concern for the patient. However, we greatly fear that the lack of reciprocity on the NHS in the Bill is a fundamental flaw.

I shall make only three observations. First, readmissions to hospital of older people who have been sufficiently ill to be in acute care are damaging. According to the research from Leicester to which I have referred throughout the passage of the Bill, readmission is often such a disruption that there is an increased mortality rate among older people who are readmitted. That is probably one of the most serious statistics. That is why we want a penalty imposed on the NHS for inappropriate discharge. I reiterate: that is what the Government said they were going to do in the NHS Plan, but they have not.

Secondly, we should do well not to forget that another proposal runs alongside: the flat-rate tariff for treatment. Older people will turn out to be—and already are—in many ways some of the NHS's most expensive patients. On average, it takes older people longer to recover from surgical intervention. It is therefore likely that they will be the biggest drain on NHS resources under a flat-rate tariff system. So there again the NHS will have an incentive to discharge older people before they are ready.

My final point is that during our discussion on 10th March the Minister mentioned the Commission for Health Improvement and performance management. I then invited him to tell us how that would relate to foundation hospitals. He was unable to do so, saying that he could not comment on the legislation at that point. We were overjoyed to receive the Bill, so I therefore ask again: how will the measures work in relation to foundation hospitals?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 4:30 pm, 17th March 2003

My Lords, I was surprised by the tone used by the noble Baroness, Lady Noakes, to describe the Bill. The Government have listened and sought to reach a consensus on many of the important issues that have been debated. For example, there was the decision about regulations and directions on continuing care, the consultation on Section 2 notification and agreement to what we thought was a reasonable compromise—a six-month delay in implementing the Bill—and consultation with local authorities about panel members in case of dispute.

We responded to the requirement of the Select Committee on Delegated Powers and Regulatory Reform for more detail about the size of the charge. We made changes to the giving and withdrawing of notification and the proposed discharge date notification, so that both the NHS and social services will be clear about where each is in the process. We published the draft regulations, as requested, so that noble Lords are aware of the details and, of course, the Government tabled a raft of amendments in another place to bring carers into the Bill. We also announced that we would transfer £100 million in a full year to local government to meet the additional costs of dealing with the number of delayed discharge cases. I therefore think that it is very unfair to say that the Government have not listened, or been ready to discuss or compromise. I am sorry that noble Lords have not acknowledged that.

Of course nursing homes in some parts of the country have come under pressure. The figures that I have show that the number of care home places has fallen by 6,320 between 1997 and 2001. It is a fall, but it is only about 1 per cent of all care home places. That takes account of the number of homes closing, homes opening and existing homes extending capacity. Those are the figures that should be borne in mind—not the highly exaggerated figures that are often quoted.

The amendment relates to the issue of re-admissions to hospitals, and the suggestion that the Bill is an incentive to discharge patients prematurely. We define re-admission as admission to hospital within 28 days of discharge. I do not deny that re-admissions should be a matter of concern if they indicate failings in the care the person received during the earlier period of treatment. But it would be wrong to assume that that is inevitably the case. There are situations in which it would be wrong to blame the NHS for having failed to treat the person properly the first time. The article on re-admission rates in Leicester, to which the noble Baroness, Lady Barker, referred, surely provides evidence of that. The study showed that nearly 60 per cent of re-admissions were due to new problems or chronic medical conditions.

Noble Lords will know that my department has been focusing intently on how to reduce delayed discharges since October 2001 when the building care capacity grant was first distributed. In the period since then delayed discharges have fallen significantly. If the connection between delayed discharge and re-admission were correct, we would expect an equivalent rise in re-admissions, but there has been a rise of under 1 per cent. I do not overlook the fact that re-admission rates can indicate potential problems around discharge, which is why we need to monitor the situation clearly. But there is no justification for arguing that pressure to reduce delays leads inevitably to premature discharge, and hence unnecessary re-admission. I do not believe that the figures back that up.

I found the Leicester study interesting. It showed that social reasons, either alone or in combination with other factors, can contribute to re-admissions. That is hardly surprising. A frail, elderly person returning from hospital without sufficient or timely support could have problems, which might then lead to re-admission. It is extremely interesting to note that the study reported that improper communication among various members of the multi-disciplinary team and with the general practitioner accounted for a significant number of re-admissions. That is the point. It is the point of what we are discussing and the point of lessons from Climbie and elsewhere in the health/social care interface.

It is precisely that problem, which the study described as improper communication, that the Bill will prevent. Many of the problems that we face are not down to enormous pressure on health care and local government, nor are they down to impossible pressure on individuals. They are caused by the lack of proper processes and procedures, lack of proper supervision and a seeming inability among professional practitioners to write matters down so that there is an audit trail. Those are the issues that the Bill is attempting to grip. Because the NHS has a new duty under the Bill to communicate to the local authority that it has a patient who may need help, social services will be brought into the planning process early on—not the situation that has been described when the health service can ring social services departments at 4 p.m. on a Friday saying, "Here is a patient we are just about to discharge".

This is an example of the Bill placing a great deal of responsibility on the NHS to sort out the matter. The NHS will have to inform social services of the date of discharge at least 24 hours beforehand. Social services will have advance notice of when services will be available. Because both the hospital and the primary care trust will consult the local authority about the services that they will provide after discharge, the patient's needs for health and social care will be considered by all parties.

It is not justified to create a link between the Bill and premature discharge. The incentives that are currently in place, and which will be in place with the financial flows in the future, will ensure that the incentives work in the right way towards effective discharge procedures and effective relationships and partnership between the health service and local government. Above all, they will ensure that when a person is ready for discharge, the community care package can be assessed and put into place as quickly as possible. On that basis, I hope that the noble Baroness will not press her amendment.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, I thank the noble Lord for his reply. I did not say in my opening remarks that the Government had not listened. He seemed to accuse me of claiming that, but I did not say that. I said that the Bill was unbalanced when it arrived, but because of amendments tabled by us and those on the Liberal Democratic Benches, it is now better balanced, but it is not yet balanced enough. The Government, or at least the House, listened to many of the amendments. But there is one area that remains outstanding, which is the issue of reciprocal incentives.

I have no doubt that the Bill creates powerful incentives for social services to act as rapidly as possible, but I fear that it creates a harmful incentive on the NHS. I do not claim that early discharge results inevitably in every patient being re-admitted, but there is likely to be a correlation. The statistics that we have seen show that the proportion of re-admissions attributable to early discharge has nearly doubled in the past couple of years, just as we have seen the ticking up of the rate of re-admission.

This is too dangerous an area of the Bill to leave without corresponding incentives on the NHS. I have heard the Minister but the Bill would be inappropriate if it were left without corresponding incentives. I should like to test the opinion of the House.

On Question, Whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contents, 145; Not-Contents, 112.

Division number 2 Private Parking: Ports and Trading Estates — Community Care (Delayed Discharges etc.) Bill

Aye: 143 Members of the House of Lords

No: 110 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 9 [ Dispute resolution]:

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 4:48 pm, 17th March 2003

moved Amendment No. 14:

Page 8, line 26, leave out "under this Part"

On Question, amendment agreed to.

Clause 10 [Adjustments between social services authorities]:

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 15:

Page 8, line 43, leave out from "incurred" to "from" in line 46 and insert—

"(i) in the performance of functions under this Part in relation to a qualifying patient;

(ii) in the provision of community care services which are the subject of a decision under section 4(2)(b); or

(iii) in the provision of services to a carer which are the subject of a decision under section 4(4)(b),"

On Question, amendment agreed to.

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 16:

After Clause 20, insert the following new clause—

"DURATION

(1) Subject to subsection (2), Part 1 of this Act shall cease to have effect at the end of five years beginning with the date on which it comes into force.

(2) If the Secretary of State is satisfied that it is necessary for social services authorities to continue making payments in cases where the discharge of patients is delayed for reasons relating to the provision of community care services or services for carers, he may make an order providing that Part 1 of this Act shall continue in force for a further five years.

(3) An order may not be made under subsection (2) unless a draft of that order has been laid before, and approved by resolution of, both Houses of Parliament."

Photo of Earl Howe Earl Howe Conservative

My Lords, the objections that we in the Opposition have to the Bill are many. Some objections are based on considerations which we know are valid, even in advance of the Bill coming into force. We deplore the way in which it makes local authorities the whipping boys for the problem of delayed discharges without in any way recognising the role which they play day in, day out, in preventing inappropriate admissions to hospital in the first place. We deplore a policy that moves us away from the letter and spirit of shifting the balance of power and imposes a system of micro-management from the centre. We deplore the pointless churning of public money around the system. We deplore the additional bureaucracy and the cost of that bureaucracy.

However, many of our objections to the Bill come under a somewhat different heading—the fact that this whole measure is a giant experiment. The Government profess to be confident that the Bill will achieve what is intended of it. I do not know on what considerations they base that confidence. The idea of penalising local authorities came originally from Sweden. Sweden is the home of many good ideas, but this is one that has not worked. Even after operating the scheme for a number of years, and even with spare capacity in its care home sector, Sweden still has a higher incidence of delayed discharges in both relative and absolute terms than we do in the UK. Against that background, the Government's confidence for the Bill looks somewhat bold.

That is one dimension of the risk, but we fear, too, that the Bill will introduce perverse incentives which may frustrate rather than assist the aim it is designed to achieve. We fear that the sword of Damocles hanging over social services will serve to encourage care homes to ratchet up their charges, thus restricting even further the resources available to meet the needs of patients.

We fear that the Bill will distort priorities in that local authorities will not be able to devote the time and resources they should towards helping people in their own homes when they are faced with the imperative of avoiding fines for patients stuck in hospital. Partly because of that, we fear that more elderly patients who need some form of social care will be referred to hospital as the one place where they are guaranteed to have their needs seen to, thus swelling the numbers of patients who are blocking beds. We foresee the creative, collaborative relationship between the NHS and local authorities that is now increasingly in evidence being transformed into a wary, confrontational relationship—again, to the detriment of patients.

The risk that patients and their carers will be denied a proper degree of choice has, at least in part, been forestalled by amendments to the Bill which the House approved last week. But this measure does not have the patient's voice at its core. It is a Bill about the system and about the acceleration of processes. We are assured by Ministers that it would be unthinkable for patients not to be involved in decisions made about what happens to them and for their confidentiality to be breached. But we are not at all confident about those assurances in the face of the financial imperatives and dictates that the Bill introduces.

In looking at the Bill, we are faced with a balance of risks and probabilities. We can only make educated guesses about what will happen. Certainly the Government are not in a position to assert with confidence that the Bill will succeed, by which I mean that it will succeed in the broadest sense. They may not want any of the unintended consequences to happen, but little can be done if they do. That is why I have tabled the amendment. It proposes that we give the Bill a finite life of five years. At the end of that time, the Government would have to present an affirmative resolution to Parliament if they believed that it was necessary to keep the provisions of the Bill in force. I have not set the hurdle any higher than that; it seems a perfectly reasonable proposal. Five years is a reasonable period of time. By then, the effects of the Bill will be measurable. If it has succeeded in delivering a genuinely better system for patients and has encouraged new investment in capacity without the adverse consequences I have referred to, no one in Parliament will argue against its continuation.

So, in the scale of risks for the Government, the risk of accepting the amendment is minuscule. They say they are confident of the Bill succeeding in its purpose. In that case, they have nothing to fear from a review after five years. Equally, in the face of this giant experiment, Parliament, I believe, is entitled to an insurance policy. I beg to move.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, I support the amendment. We have had a powerful speech from the noble Earl, Lord Howe, in favour of it. It is no secret that we on these Benches believe the Bill to be completely misguided. In the best of all possible worlds, we would prefer it not to leave the House, as the Minister is clearly aware.

The Government have a rather different view. What is in contention is the evidence they have that the Bill will be effective. There appears to be no evidence at all, apart from a spurious health tourism visit that Ministers appear to have made to Sweden, as the noble Earl, Lord Howe, pointed out.

The amendment gives the Government the opportunity to put the matter to the test. In five years' time it would give both Houses the opportunity to debate whether the Bill has benefited the patient. Even if we cannot bury the Bill in this House, I hope that at least we can provide for it to be put to the test in five years' time. For that reason, I hope that the amendment will be supported.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I am overwhelmed by the enthusiasm shown by the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, for the Bill. I regret that. I will not repeat what I have already stated today—this is probably our fourth Second Reading-type debate on the principles contained in the Bill—but I would like to respond to two points raised by the noble Earl, Lord Howe, and endorsed by the noble Lord, Lord Clement-Jones.

Let me clearly state that local authorities are not the whipping boys, as described by the noble Earl, Lord Howe. The Bill's architecture and the practice that will follow is so constructed that the success of its implementation will depend on both the local authority and the NHS improving their practice. If the NHS fails on its side of the bargain, incentives will be in place to ensure that it, too, suffers.

The noble Earl, Lord Howe, referred to money moving around the system. I believe that financial incentives, in the right circumstances, can encourage good performance. That is why it is appropriate that we are transferring £100 million in a full year, which is what we reckon will be the local authority costs of dealing with the current level of delayed discharges and why it is right that that money should come from NHS budgets. Where local authorities ensure that they deal with discharge cases effectively, that resource will be spent not on paying penalties to the NHS but on providing effective community support services. That is surely the point.

I very much hope and, indeed, expect that very few penalties will be issued, because that is, in a sense, the last resort under the Bill. One wants good practice to be adopted everywhere. We know that good practice exists in many parts of the country. Despite the spectacle that we have been treated to in our debates of problems facing these poor statutory agencies, there are many examples of such agencies getting their act together, ensuring that discharge procedures are put into place effectively and that there is an effective package of care in the community for older people who have been so discharged.

This is not a confrontational Bill. It is not bureaucratic, but it does demand rigour and proper processes. It demands that matters should be written down. It demands that deadlines are met. But the whole problem with so much practice in health and social care up to now is that rigour has been lacking. I make no apologies whatever for ensuring through the Bill that rigour is put into place as that is the essential safeguard for the individual patient who at the moment is delayed far too long in an acute hospital bed.

As regards the sunset clause, I repeat what I said at Report stage. Such clauses are generally used only in Acts that are passed because of national emergencies such as the Import, Export and Customs Powers (Defence) Act 1939, or Acts which impinge upon individual civil liberties. Proposing a sunset clause for this Bill is going over the top. We shall, of course, monitor the introduction of the Bill. We have monitoring systems in place. We shall look at the data. We shall work with local authorities and with the health service to ensure that the Bill is implemented successfully. I am confident that that will be the case. I believe that older people in particular will very much benefit from its provisions. However, I do not believe that this is the kind of Bill to which a sunset clause should apply.

Photo of Earl Howe Earl Howe Conservative 5:00 pm, 17th March 2003

My Lords, I listened carefully to the Minister and I thank him for his remarks. Once again, he asserted his confidence in the Bill before us. It would be surprising if he had not. What has been notable ever since Second Reading is that, apart from the Minister, hardly anyone at all, not even on his own Benches, has expressed any confidence in the Bill or any enthusiasm for it. I suggest that that fact alone puts the Minister's confidence into perspective. I should tell him that even at this late stage of the Bill I have received impassioned pleas from local government quarters to kill the Bill off entirely. No doubt other noble Lords have also received such pleas. It is only right to take such approaches seriously but for our part, as the noble Lord, Lord Clement-Jones, indicated, we have decided on balance that, particularly improved and amended as it has been by your Lordships, the Bill should be allowed to pass.

As I have said, this is a Bill that is not only shot through with undesirable features but is also fraught with risk and uncertainty. That is the main reason for my amendment. There is another reason which is that it should be second nature to us to look for ways of ridding the statute book of unnecessary or unsuccessful regulation whenever we can. Sunset clauses enable us to address those objectives in a very neat fashion. Frankly, it is irrelevant where and when sunset clauses have been used before. They should be seen as being useful in appropriate circumstances. I believe that this amendment is worthy of approval and I should like to seek the opinion of the House on it.

On Question, Whether the said amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 145; Not-Contents, 115.

Division number 3 Private Parking: Ports and Trading Estates — Community Care (Delayed Discharges etc.) Bill

Aye: 143 Members of the House of Lords

No: 113 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 5:14 pm, 17th March 2003

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)

On Question, Bill passed, and returned to the Commons with amendments.