Amendment 113

Health and Care Bill - Report (3rd Day) – in the House of Lords at 3:36 pm on 7th March 2022.

Alert me about debates like this

Votes in this debate

Baroness Pitkeathley:

Moved by Baroness Pitkeathley

113: After Clause 80, insert the following new Clause—“Carers and safe discharge from hospital (1) This section applies where—(a) a person (“the patient”) is a qualifying hospital patient at a hospital, and(b) the responsible NHS body considers that it is unlikely to be safe to discharge the patient from hospital unless care provided by one or more carers is available to the patient.(2) It is the duty of the responsible NHS body to—(a) consult the patient about their preferences regarding their care following discharge from hospital, and(b) take reasonable steps to identify and consult any carer or potential carer of the patient about to be discharged.(3) The NHS body must consult any carer or potential carer identified under subsection (2) to ascertain—(a) whether the carer is able, and is likely to continue to be able, to provide care for the patient needing care, and(b) whether the carer is willing, and is likely to continue to be willing, to do so.(4) Having consulted the carer, the NHS body must cooperate with the local authority in relation to their duties under the Care Act 2014, the Health and Care Act 2006 and the Children Act 1989.(5) For the purposes of this section—(a) a “qualifying hospital patient” means a person being accommodated at—(i) a health service hospital, or(ii) an independent hospital in pursuance of arrangements made by an NHS body,who is receiving (or who has received or is expected to receive) care.(b) a “carer” means any person, including any child under the age of 18, who provides or intends to provide care in respect of a patient to whom the NHS may provide services, but a person is not to be regarded as a carer if they provide or intend to provide care under or by virtue of a contract, or as voluntary work.”Member’s explanatory statementThis provision retains the principle and duty on a hospital, whether it be an NHS hospital or an independent hospital, to ensure that a patient must be safe to discharge from hospital and mirrors carers’ rights which were established in the Community Care (Delayed Discharges, etc) Act 2003.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, Amendment 113 focuses on carers and safe discharge for hospital patients. The amendment defines the patient and the carer and is focused on safeguarding the rights of unpaid carers when the person they care for is discharged from hospital. I am grateful for the support of the noble Lord, Lord Young of Cookham, who is sadly unable to be in his place because he is isolating, the noble Baronesses, Lady Meacher and Lady Hollins, and all the other Peers who have expressed it. My thanks go also to Professor Luke Clements, professor of law and social justice at the University of Leeds, for his wise advice on the drafting of this amendment. I am also grateful to the Minister and his officials for the time and effort they have put in to meeting Peers and Carers UK—I declare an interest as its vice-president.

I continue to be amazed at what I am going to say next because, as it stands, the Bill revokes the Community Care (Delayed Discharges etc.) Act 2003, which includes a requirement to consult carers prior to discharge. Thus, for the first time, the rights of unpaid carers will be removed without being replaced by additional or improved rights. Many people, me included, have been fighting to get rights for carers recognised for over 30 years. We first achieved rights through Private Members’ Bills over several Parliaments and under Governments of all colours. No one could have been more delighted than I when these were later enshrined in government legislation such as the delayed discharges Act and the Care Act, but here there is no question of enhancing carers’ rights.

On the contrary, the Government’s own impact assessment of the Bill recognises that carers may be asked to take on additional hours of care, which could mean they have to reduce their hours of work or give up paid work entirely. It states that while the Government anticipate that in some cases

“carers may choose to … There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier.”

I should point out that “may choose to” is a late addition to the impact statement. Originally, it said simply “There is an expectation that” carers may allocate more time, with no reference to choice at all.

Perhaps this may remind some of your Lordships that the Secretary of State for Health has said that families must be the first port of call for caring responsibilities. I always found that puzzling, since families always are the first port of call. Whatever reforms we make, the bulk of health and social care will continue to be provided by the so-called informal army of family, friends and neighbours. The contribution they make to the economy is now estimated at £193 billion annually—almost the cost of the NHS itself.

The point of hospital discharge is often the most vulnerable time for patients and carers. Carers UK research shows that more than half of carers were not involved in decisions about discharge, two-thirds were not listened to about their willingness or ability to provide care, and 60% received insufficient support to protect the health either of themselves or of the person being discharged. Anyone who speaks to a carer will hear horror stories about hospital discharge. I am reminded of Norman, a man in his late 70s and a carer for his wife who has multiple disabilities—Norman spoke to a group of your Lordships by Zoom recently. His wife went into hospital for a procedure, which was a relief to him as he himself had been diagnosed with cancer and was having chemotherapy. While he was actually hooked up receiving the chemo, he received a call from the hospital saying that they were discharging his wife. He received no prior notice that she was ready to be discharged. “Okay,” said Norman, “but could you just wait till I get home to receive her?” “No,” was the reply, “she is already in the ambulance on her way home.” Norman’s response was not, “Well, please take her back again,” as I suspect many of us would have been tempted to say, but to ask the oncologist whether the drip that he was on could be speeded up so that he could get home quickly. As it was, he arrived home to find his wife had been left in a bed, frightened and alone. Many of your Lordships will have heard similar stories.

This amendment would place a duty on the NHS to ensure that carers are consulted and to check that they are willing and able to care, as well as ensuring that the patient is fit to be discharged—I emphasise not just medically fit but fit to be at home—and putting the right support in place. It would avoid the experience of another carer, who said, “We knew she was on her way home only when she was on hospital transport. We had to drop everything and rush around to try to get a commode just so she could go to the toilet when she got home.”

The Government suggest that rights in primary legislation will be replaced by statutory guidance. I have been assured of this by the Minister and officials, and I know they are sincere in the belief that this will be more than adequate. But guidance, however strongly worded, is not the same as having concrete rights in legislation that can be quoted and used. I cannot express how disappointed I and all who work with carers are that the Government are for the first time rowing back on the rights of carers, for which we have fought so hard.

With the leave of the House and at his request, I shall quote some of what the noble Lord, Lord Young of Cookham, would have said had he been able to be present. As your Lordships know, he is especially concerned about young carers. He says—

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

My Lords, while I have a lot of sympathy with my noble friend Lord Young wanting to contribute to the debate, in order to do so, he needs to be in it.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

I apologise to your Lordships. I will just say that the noble Lord said it was a “backward step” to leave only guidance.

This is not only morally wrong but very short-sighted. If a discharge is unsatisfactory, the inevitable consequence is readmission—and think how much that costs. The Government believe that the new discharge to assess procedures will deal with discharge problems, but carers report that discharge to assess takes place as the discharge itself is happening, with no chance to order suitable devices, equipment or changes to the home, let alone to consult the carer. I must point out that two earlier versions of the discharge to assess guidance did not even mention carers and did so only after pressure from Carers UK.

I am sorry to say that the Government and the NHS have form on ignoring carers. They were not mentioned in the health and care White Paper, which set out the foundations for the Bill and only marginally in the integration White Paper, yet I have never heard any Minister say anything other than that carers are essential, that they must be valued and respected and that we owe them a debt of gratitude. Similarly, I have always heard Ministers and officials agree that carers must be supported to combine paid work with caring to help them financially now and to avoid future poverty, yet here we are with a Bill which states baldly that carers must allocate more time, requiring a reduction in work hours and associated financial costs. I asked the Minister at Second Reading and I ask him again: does he expect carers to go on benefits in order to provide care?

Carers and patients need this amendment badly, and I hope the Minister understands that. I have no doubt of his good intention, but I fear for the plight of carers and patients if he does not accept the amendment, which is essential if we are to ensure that all carers, including young carers, are not overlooked in the hospital discharge process but retain concrete rights and recognition in primary legislation. I beg to move.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

The noble Baroness, Lady Brinton, is taking part remotely, and I invite her to speak.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat Lords Spokesperson (Health) 3:45 pm, 7th March 2022

My Lords, I declare my interest as a vice-president of the Local Government Association. I will speak very briefly from the Liberal Democrat Benches to offer our support for both the amendments in this group.

The amendment tabled by the noble Baroness, Lady Pitkeathley, Amendment 113, says that unpaid carers, including those under 18, must be properly consulted by the NHS to ensure that they are able to provide the care needed to keep patients safe. In Committee—and, more recently, at the excellent and moving round table with family carers organised by Carers UK, about which the noble Baroness, Lady Pitkeathley, just spoke—we heard evidence of hospitals discharging patients before assessments had been completed and before carers had even been told. The burden that this places on carers is totally unacceptable and unsafe. Worse still—and unsurprisingly—the home arrangements too often break down when family and unpaid carers are not a full part of the consultation process. We support the noble Baroness, Lady Pitkeathley, in this vital amendment.

The second amendment, Amendment 144, to which I have added my name, was tabled by the noble Baroness, Lady Wheeler. The amendment ensures that there are always proper social care needs assessments to ensure that both the family and unpaid carers are consulted, along with the relevant local authority; and that ICBs must have an agreement in place with the relevant parties to ensure that vulnerable people are not discharged without the right support. Some carers are themselves vulnerable people, and we need to make sure that all protections are in place for them too.

Equally importantly, it ensures reporting by the relevant authorities back to the ICB so that it can monitor discharge effectiveness. It says—as a bit of stick to go with the other carrot parts—that the ICB must pay for any

“additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments”, in the event that the patient has been discharged before this was completed.

There are 1.4 million unpaid carers who save the state just under £3 billion a year—and they need more than guidance. Both of these amendments will ensure that the patient and their unpaid carer are assessed and supported properly, and that the key stakeholders—the NHS, the relevant local authority and the ICB—must work together to make this happen.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, I rise to support Amendment 113. I applaud the noble Baroness, Lady Pitkeathley, both on this amendment and on the years and years of commitment she has given to the support of carers.

It is extraordinary what this Government are prepared to do in this Bill. In revoking the Community Care (Delayed Discharges etc.) Act 2003, they are abolishing the “safe to discharge” test, which requires processes to have been followed to ensure that appropriate and adequate care is, or will be, in place for a patient’s discharge from hospital. The Government are proposing that carers’ rights in primary legislation should be put in statutory guidance instead.

As a member of the Delegated Powers and Regulatory Reform Committee, I am very conscious that, under this Government, secondary or delegated legislation is used more and more to concentrate power in the hands of Ministers rather than in Parliament. The only possible reason for the Government to remove carers’ rights from the Bill, and to put them into secondary legislation, is to weaken those rights. Can the Minister give any reassurance on that point? It is a very important question.

A number of us recently met with a group of so-called adult carers—teenagers and adults—and also with a group of young carers. Both of those experiences were humbling from my point of view. I will mention a couple of points that came up. One teenager rather casually mentioned that she had begun being a carer at the age of three. This is unbelievable, is it not? I forgot to ask her what she actually had to do at the age of three; it is difficult to imagine. But, whatever she had to do, the idea that she somehow had a sense of responsibility at that age is truly alarming.

The other memorable moment was when a teenager was asked, “What is the most difficult thing for you, or the biggest problem that you have as a carer?” I thought she would say that she did not have any time to play with her friends or that she had to do all sorts of boring and horrible jobs that her friends do not. But no, she did not say any of that; what she actually said was, “The biggest problem I have is that the hospital staff won’t tell me how much medication my mum needs. They say they’ve got to talk to my mum, but that’s impossible.” The selflessness implied in that is just completely extraordinary—and of course there were lots of other incredible points.

If these young carers are not consulted before their dependent relative is discharged from hospital, they may be at school or in the middle of a hockey match—it is just unimaginable that this requirement should be in any way weakened. I ask the Minister to take extreme care on this issue when going back and considering the Bill; only then can we be sure that patients are not just medically fit to be discharged from hospital, as the noble Baroness, Lady Pitkeathley, said, but are safe to be discharged—that is, carers or others are there to look after them.

BASW rightly points out that revoking a local authority’s Care Act duty to integrate care and support provision with health provision at the time of the key decision about where a person should be discharged to from hospital undermines the model of integration between social and health care staff—surely the absolute opposite of the whole objective of the Bill. I understand that discharge to assess is probably reasonable for medium and long-term care planning. However, an assess to discharge approach is even more important and should be done in hospital, from the date of admission to hospital. Where is that commitment in the Bill? I look forward to the Minister’s response.

Photo of Baroness Hollins Baroness Hollins Crossbench

My Lords, I am very pleased to support the noble Baroness’s amendment, and my thanks go to Carers UK for its briefing. I declare an interest as a family parent carer of an adult disabled man.

Earlier in Report, community rehabilitation was debated, and Amendment 113 complements this by acknowledging the vital role that carers play in supporting people’s discharge from hospital and promoting a community-based model of care. In Committee, I promoted an amendment that sought to define carers within the Bill, as they are mentioned in three clauses. This amendment incorporates that approach, to ensure that parent and young carers are not overlooked. I cannot stress sufficiently strongly how important rights in primary legislation are for carers, who often have all the responsibility for caring but very few of the rights. They are often experts in how people like to be treated, and they can be experts in a condition that professionals may have little detailed knowledge of.

Carers UK heard from carers directly about their experiences of being shut out of the system as part of the discharge to assess process. For new carers, it was often described as bewildering; promises to contact them just did not materialise. Carers UK research found that carers were not consulted and were not given information and advice or the support that they needed to care safely and well for the person who had been discharged. For several of these people, this involved admission to longer-term intensive support or, sadly, readmission back into hospital again. The amendment would have provided the checks and balances needed to ensure that this did not happen.

Carer experience surveys are also important, and they found that carers’ experiences of accessing health and care services for themselves have either plateaued or deteriorated in the recent past. Carers are twice as likely to have ill health as a result of caring; too often, they are overlooked in policy and practice in relation to health services. This is particularly true for parents of disabled children and for young carers. The work that they do has invaluable medical and economic benefit, often at the expense of their own well-being. I therefore urge the Minister to accept the amendment.

Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Chair, Children and Families Act 2014 Committee, Chair, Children and Families Act 2014 Committee

My Lords, I strongly support the two amendments in this group.

In Committee, I spoke on hospital discharge, focusing particularly on carers who are working. As the noble Baroness, Lady Pitkeathley, said, until very recently the impact assessment talked about an expectation that carers would have to provide more care. It said:

“There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier. For some, this may result in a … reduction in work hours and associated financial costs.”

While Ministers have talked of carers being able to choose whether or not they give up work to care, we have heard that many have not been given a choice, been consulted or been given the right information to care safely and well. We know that, on occasions, carers do make an informed choice to take on more care, which is great, but we have heard far more stories where the system is working against carers. Indeed, the research from Carers UK shows that two-thirds did not feel listened to about their willingness and ability to care by healthcare professionals.

I am particularly concerned about carers who are trying to juggle working and caring. They may be willing to take on and provide more care, but they are juggling work as well. The impact assessment makes an assumption that, when carers give up work, it will be a short-term thing because the care provided will not be significant. Yet the stories we have heard from carers show that, too often, that is not the case because patients with significant needs are discharged into the community without sufficient support.

To conclude, this is not a minor issue. It affects millions of people, and it particularly affects women. There have been 2.8 million more carers juggling work and care during the pandemic, and many have had to give up work. We also need to remind ourselves that women are more likely to be reducing their working hours to juggle work and care, and they are a group that is already often under-pensioned.

Photo of Baroness Walmsley Baroness Walmsley Co-Deputy Leader of the Liberal Democrat Peers

My Lords, we on these Benches, as has been said, support both amendments in this group. I just ask the Minister one question. We have heard about people who might have to give up work or reduce their hours in order to care. I do not know if the Minister has ever tried to apply for benefits, but it takes a while, and it certainly takes a while for the benefits to turn up in somebody’s bank account. Given that situation, will the Minister talk to the relevant department to see if a fast-track process could be put in place for people in that position?

Photo of Baroness Wheeler Baroness Wheeler Shadow Spokesperson (Health and Social Care), Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

My Lords, I fully endorse my noble friend Lady Pitkeathley’s excellent speech and the other contributions on Amendment 113. The amendment focuses on three fundamental issues for unpaid carers: being fully consulted and involved before their loved one is discharged from hospital; having a proper assessment both of their own needs and of those who they care for; and clinging on to the few concrete rights they have under the health and care and family legislation that refers to and defines carers, including parent and young carers, and the right of all carers to have a carers’ assessment.

I also thank the noble Baroness, Lady Brinton, for adding her name to my Amendment 144 and for her usual forensic analysis of how the discharge to assess approach is working and its impact on both carers and their loved ones being discharged from hospital. I spoke on this amendment in Committee, but the noble Baroness has underlined the key points and I will not therefore press my amendment today. We can instead concentrate on showing strong support from across the House for carers and for Amendment 113.

Speakers made this support very clear in Committee. At the very least, we could have hoped that this would lead to a commitment from the Government to reinstate the carers’ rights that the Bill deletes and to ensure that carers are consulted before the partner, husband, relative or friend they care for is discharged from hospital, as per their current entitlement under the 2003 delayed discharges Act. Instead, there have been no reassurances or movement in these crucial areas, despite some helpful meetings with the Minister. As my noble friend Lady Pitkeathley points out, we are once again having to defend existing carers’ rights rather than working to enhance them to recognise the worth of carers and reflect the vital role that they play.

If the Minister was hoping that his recent letter and the accompanying updated draft guidance on discharge to assess would address the deep concern and frustration felt by carers, then he knows today that this has not worked. The promise of statutory guidance, and of carers being able to undertake judicial review if it is breached, is not the same as legal rights. In reality, how many carers would be able to go down the judicial review route? The Government just do not seem to understand how deeply ignored, undervalued and unrecognised carers feel.

We should remember, on discharge to assess, that the evidence from key stakeholders to the Commons committee dealing with the Bill clearly showed a very mixed experience of how the approach was working. In some areas, the perennial and disruptive issues around delayed transfers have eased and it is working relatively well, whereas in others, there were calls for much tougher safeguards or for the process to be ended altogether. The Government need to recognise that the system is in its early days but that, as we have heard, the horror discharge stories are happening now—and all too often, as we see from the briefings from Carers UK.

In his response, the Minister needs to reassure the House about the action that the Government are taking now to ensure that hospitals involve and consult carers about arrangements before discharge of patients. I hope that he will also accept Amendment 113 and fully recognise that carers’ existing rights must be reinstated in the Bill.

Photo of Lord Kamall Lord Kamall The Parliamentary Under-Secretary for Health and Social Care 4:00 pm, 7th March 2022

My Lords, I thank all noble Lords who have spoken and particularly thank the noble Baroness, Lady Pitkeathley, for her continuing championing of carers.

Discharging people as soon as they are clinically ready is increasingly recognised as the most effective way to support better outcomes. The evidence shows that the “discharge to assess” approach reduces time spent in a hospital bed and supports people to remain independent at home wherever possible. Although the hospital discharge clause does not mandate discharge to assess, the Government are supportive of local areas that choose to implement this best practice model. We believe that carrying out long-term needs assessments at a point of optimum recovery leads to a more accurate evaluation of people’s abilities and needs and more appropriate care packages. Many people discharged from hospital require longer than two weeks to recover. Requiring social care needs assessments to be completed within two weeks of discharge would not necessarily be in the patient’s best interests.

I understand that noble Lords are concerned about safe discharge from hospital and safeguards for patients and carers. However, relevant NHS bodies are expected to ensure that patients’ health needs are met safely in hospital and in the community. Local authorities also have duties to assess patients’ and carers’ needs and, where relevant, ensure that appropriate support is put in place for them. In addition, the CQC monitors, inspects and regulates services to make sure that they meet the fundamental standards of quality and safety, which are set out in legislation.

The Government do not believe that these amendments are in the best interests of either carers or patients. They would create new burdens on NHS bodies and local authorities, and Amendment 144 would create new penalties for local authorities for failing to carry out assessments within a specified timeframe. In doing so, the amendments would undermine the entire purpose of Clause 80 and hinder the ambition, shared across the health system and by Members of this House, to ensure that people are discharged in a safe and timely manner. The creation of significant bureaucracy between local authorities and the NHS risks damaging relationships and would go against the spirit of integrated working that this Bill seeks to support. We agree, however, that accountability and transparency are key to ensuring that local systems deliver high-quality and safe discharge services, which is why we welcome the fact that NHS England now publishes hospital discharge data.

Additionally, a duty on NHS bodies and local authorities to co-operate with one another is already set out in Section 82 of the NHS Act 2006. To specify how this duty will apply to hospital discharge, we are co-producing guidance with organisations including Carers UK, the Carers Trust and Barnardo’s. This will set a clear expectation that, where appropriate, unpaid carers should be consulted during the discharge process. As noble Lords have acknowledged, this guidance will be statutory; NHS bodies and local authorities will therefore be required to have regard to it or risk claims for judicial review potentially being brought against them. We agree that, where we can do more to “think carer” across the NHS, we should. With this in mind, we can commit that we will consult with the public, staff and carers on including a stronger reference to the role and regard of unpaid carers in the NHS constitution, for which a review will be launched this year.

I am also mindful of the specific concerns that have been expressed in relation to young carers. As well as using the guidance to include a much broader definition of carers than that set out in Schedule 3 to the Care Act, I can inform the House that the new Explanatory Notes for the Bill provide clarity that young carers and parent carers are included within the everyday definition.

In response to a number of noble Lords’ questions, I repeat what I said earlier: our new guidance includes a broader definition of carers than Schedule 3 to the Care Act, which applied only to adult carers of patients requiring a long-term needs assessment before discharge. Adult carers’ rights to an assessment of their own needs, under Section 10 of the Care Act, and young carers’ rights, including those as part of the Children Act, remain unchanged under the proposed hospital discharge arrangements.

We believe that statutory guidance is more appropriate here. At the moment, current guidance is not statutory; this will be statutory. Where a young carer is identified, or staff have concerns, the local authority should be notified. Local authorities must then carry out a needs assessment if it appears that the young carer needs support. We are not imposing new duties on local authorities; the existing legislative duties placed on local authorities to assess and meet patients’ and carers’ eligible needs remain unchanged.

I recognise the good intentions behind Amendments 113 and 144, but we believe they would have the effect of undermining the ability of local areas to adopt best practice for hospital discharge. I am not confident when I say this, but I hope that, having heard what I have said, noble Lords may feel able not to press their amendments when reached.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I thank all noble Lords who have spoken and the Minister for his responses, particularly about consultation and about broader definitions and identification of carers. I was a little puzzled when he mentioned transparency, since the latest updated version of the impact assessment says:

“The level of support required as well as the associated impact on work hours and salary would vary significantly case-by-case and the impact on unpaid carers is difficult to assess. We are therefore unable to quantify the impact on unpaid carers at this stage.”

I am very concerned that, if we cannot quantify the impact on carers, we cannot really do anything to support them.

The problem with guidance, good practice guidance or statutory guidance, is that we have been here before. I have seen other bits of guidance—the identification of carers by GPs, breaks for carers—I have seen those bits of guidance fall away when another priority takes over. Therefore, I am very concerned that we need to have the rights of carers enshrined in primary legislation, and I wish to test the opinion of the House.

Ayes 205, Noes 155.

Division number 1 Health and Care Bill - Report (3rd Day) — Amendment 113

Aye: 205 Members of the House of Lords

No: 155 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment 113 agreed.