Clause 1 - Meaning of ''NHS body'' and ''qualifying hospital patient''

Community Care (Delayed Discharges etc.) Bill – in a Public Bill Committee at 10:32 am on 10th December 2002.

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Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health) 10:32 am, 10th December 2002

I beg to move amendment No. 58, in

clause 1, page 1, line 9, leave out 'and' and insert 'or

(c) a Care Trust within the meaning of section 45 of the Health and Social Care Act 2001; and'.

I too welcome you to the Chair, Mr. McWilliam, and look forward to serving under your chairmanship during the four sittings on the Bill.

This is intended as a probing amendment. It is designed to explore the Government's thinking about the relationship between the penalty system proposed by the Bill and by the health flexibilities set out in the Health Act 1999, and the joint management arrangements such as care trusts that were set out in the Health and Social Care Act 2001. According to a written answer that I received a couple of weeks ago, 16 pooled budgets in operation around the country have been explicitly set up to deal with delayed discharge issues.

I hope that in response to the amendment the Minister will tell us how she sees those arrangements working in a system in which penalties apply. During the inquiry into delayed discharges by the Select Committee on Health, she said that four care trusts were in place to deal with services for older people, as well as those 16 budgets. Will she make it clear which bodies will be liable for the penalty? Will responsibility lie with social services departments, with the pooled budgets or, when service responsibilities have been merged into them, with the care trusts? The Bill does not make that clear. It is not obvious that the regulation-making powers elsewhere in it are sufficient to enable the fine to be directed to the agency that, within the terms of the Bill, is responsible.

For example, how will an area that operates a pooled budget or care trust share in the £100 million announced by the Secretary of State for Health on Second Reading? How will that be paid? Will it be paid to the social services department and then passported to the pooled budget? Will that be dealt with in regulations?

Will the Minister also spell out how the Department of Health arrived at the figure of £100 million? In recent written answers, she did not say clearly how it was worked out. She implied that it was in some way a capped or maximum figure, and that local authorities could not be subject to penalties that exceeded £100 million. She should give some answers on that subject, not least because it is the time of year when local authorities struggle to balance their books and make their budgets add up in time to set new budgets for the early part of the next year. It would help local authorities if they knew earlier rather than later the basis on which the money would be distributed. If they have pooled arrangements or are thinking about having them, will the money be passed to those pooled budgets? If so, on what basis?

What role will care trusts have in the system? The Bill does not deal with them at all.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

The hon. Member for Sutton and Cheam (Mr. Burstow) rightly said that this part of the Bill—it will become apparent during our proceedings that the same is true of many others—contains several issues on which there is confusion about what the Government intend. That is partly because so much of the Bill will take effect through regulations, rather than through its provisions themselves.

I will not try your patience by elaborating on that, Mr. McWilliam, as there will be far better opportunities to do so later. However, I will say now

that the Bill contains a fundamental flaw; I shall leave aside its content as a whole for now, as we believe that the Bill is deeply flawed. In many ways, it is a mere skeleton that will be fleshed out by regulations that no member of the Committee has seen in advance, so we are somewhat in the dark about exactly what the Government intend to do about the fine detail, through the regulations.

That brings me back to the hon. Gentleman's point about flexibility in the health service. The Bill goes counter to the trend established in previous legislation towards giving greater powers to health trusts, primary care trusts and social services departments. I have welcomed the increasing reduction, in the past decade or so, of barriers between social services departments and the health service in the provision of community care and social care. However, the Bill is centralising, over-prescriptive and controlling, and introduces the concept of fines. The Minister owes it to the Committee to tell us in greater detail what she is expecting—

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. The amendment is narrow, and the hon. Gentleman is making a clause stand part point.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I am grateful for your guidance, Mr. McWilliam. I shall abide strictly by it. Can the Minister explain, with regard to a care trust such as that mentioned in the amendment, how the sum of £100 million announced by the Secretary of State will be distributed? Will it be distributed to a PCT or shared between a PCT, a care trust and an acute trust in a local area? How, as the hon. Member for Sutton and Cheam has already asked, was the figure of £100 million arrived at? Is it a blanket £100 million per annum for three years, or is it up to a maximum of £100 million?

Given that the Government have assessed that the cost of delayed discharge to care trusts, PCTs and acute trusts runs at about £180 million per year—a figure that has been reinforced by our research with social services departments—and that the level of fines anticipated by social services departments at current levels will be a similar figure, why £100 million? What will happen after three years, if there are still problems with delayed discharge and the money is not made available? I hope that the Minister will deal with all those points. They are an important factor in our consideration of how effective this part of the legislation will be.

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

It is important to outline the role that we see for incentives in the Bill. Incentives must be put in the right place to ensure that patients do not have to wait for services, and are not trapped in hospital—because the system is slow, or because the NHS and social services are arguing about which services are needed—when they would be most appropriately served out of hospital. In some cases, the poor funding experienced by many social services departments in the years preceding 1997 meant that social services had an incentive to slow down the system to protect their budgets. As I outlined on Second Reading, we have made progress on tackling delayed discharge not only through investment but through top-down performance management.

However, performance is still patchy, and the Bill will enable us to put in place a new approach, which will work at a local level.

The hon. Member for West Chelmsford (Mr. Burns) accuses the Bill of centralising arrangements, but it does precisely the opposite: it puts in place the necessary incentives at local level to ensure that the significant extra investment that the Government are putting into social services is spent on the community alternatives necessary to ensure that older people are given the choices that they need and the opportunity to leave hospital at the appropriate time.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne 10:45 am, 10th December 2002

Does the Minister accept that partnership working in areas such as mine has proved its worth, and targets for reducing delayed discharges have been over-achieved? The problem is that the Bill simply sets everyone at each other's throats again. It does not discriminate between areas where partnership is being implemented constructively and those where it is not. Surely the Minister can see that.

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

I shall go on to talk in a little more detail about how the Bill promotes partnership—but I fundamentally disagree with the hon. Gentleman. First, of course, partnership is about results. In combination with the £100 million transfer, about which I shall talk in a little more detail, the Bill will provide rewards and incentives for areas that have good partnerships at local level and already achieve good results. It will do that by focusing on individuals and on the way in which they are processed through the system.

Secondly, partnership depends on a clear understanding of the roles and responsibilities of the different sections of the system. If there is a criticism of the system, it is, I am afraid, that there has sometimes not been clarity about social services departments' responsibility towards people—particularly older people—who are leaving hospital. The Bill will ensure that there is clarity. That will promote partnership, not undermine it.

The hon. Members for Sutton and Cheam and for West Chelmsford mentioned the £100 million. It is worth remembering that the Bill is being introduced in the financial context of a significant increase in resources for social services departments over the next three years. Indeed, the annual real-terms rate of growth of investment in social services will be doubled. In addition, we have recognised the need for a reward element in the Bill, which is about incentives. That will ensure that we put in place the resources necessary for social services departments to build capacity so that older people get the right care in the right place at the right time. The important point about the Bill is not that there will be charges but that it will give incentives for the sort of behaviour that ensures that social services departments will not have to pay charges. It is about providing the right services in the right place at the right time.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

On the subject of building capacity, will the Minister tell us whether the Department has examined how long it will take to commission the

additional services that will be available as a result of the new investment?

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. I have given hon. Members considerable latitude, but the clause is very narrow and deals mainly with definitions. The hon. Gentleman is making a Second Reading point.

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

In that case I shall not be tempted down that route, Mr. McWilliam—much as I would like have liked to respond.

The hon. Members for Sutton and Cheam and for West Chelmsford referred to the £100 million, and it would be helpful if I worked through the process by which we arrived at that figure.

Social services departments have already benefited from the £300 million building care capacity grant that has been available since last October. They have also have set a target for delayed discharge, which they expect to reach by next March. It reflects their ability to build capacity as a result of that £300 million. The figure is 4,200. Let us assume—I think it is a fair assumption, if not somewhat generous to social services—that 60 per cent. would be the responsibility of social services, and let us also assume a certain breakdown of the 4,200 between the areas outside London and the south-east, where the daily charge will be £100 a day, and the areas in London and the south-east, where the daily charge will be £120 a day. On that basis, we can calculate for each of those areas what the figure, multiplied by the proportion that is the responsibility of social services, multiplied by the total, would be. It equals approximately £100 million.

It is understandable that Opposition Members want some reassurance about the basis of that calculation, not least because our estimates range from £49 million—

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

Off the back of an envelope.

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

Yes, a postage stamp—which nevertheless formed the basis of a Liberal Democrat press release. The hon. Member for West Chelmsford seems to have plucked another figure out of the air—£180 million.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I am sure that the Minister would not want to do me down, and I must point out that my figures were not calculated on the basis that she suggests. If she had read my speech on Second Reading properly, she would realise that my figures were calculated after telephoning social services departments and asking them what they estimated the fines would be.

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

I think that I have spelled out the process by which we calculated that £100 million per

full year of the scheme's operation is a reasonable estimate of the likely fines. I have not seen the details of the questions that the hon. Gentleman asked social services departments, and in view of some of his behaviour on Second Reading, I am unsure whether he made it completely clear to social services departments who was telephoning and what he was asking them. However, it is for the hon. Gentleman to explain the basis of his calculation. I have explained the basis on which we made ours.

Mr. Burstow rose—

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

Now the hon. Gentleman will tell us the details of what was on his postage stamp.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

I think that you would rule me out of order if I did that now, Mr. McWilliam, but I shall gladly do so during the clause stand part debate.

The Minister has spelled out the assumptions that she and her Department made in arriving at the £100 million figure, but what was the split between the £120 a day area and the £100 a day area? What proportions were assumed?

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

We assumed that of the 4,200, 1,900 would be in the £100 a day area and 2,300 would be in the £120 a day area. I hope that answers the hon. Gentleman's question.

On the issue of reward, we made the calculation of £100 million on the assumption that after March 2003 no local authority will make any further progress in reducing the levels of delayed discharge—but that is unlikely to be the case. We have therefore ensured that there will be an element of positive reward for local authorities. As they make progress, they will be covered for what we believe the fines might cost them and they will be able to benefit from the progress that they are making. In that way, the areas that tackle delayed discharge effectively will be able to benefit from the system that we set in place.

Hon. Members have raised issues relating to flexibilities under the Health Act 1999 and care trusts, and I now turn to the detail of those issues. The amendment seeks to add care trusts to the list of NHS bodies in clause 1. Technically, that is unnecessary, as a care trust is either an NHS trust or a PCT. Clause 1 details the definitions of both the trusts and patients in question that qualify under the Bill.

The hon. Gentleman's probing amendment is about how particular partnership arrangements would work under the Bill. It is worth pointing out, as I did to the hon. Member for Eastbourne (Mr. Waterson), that we cannot assume that partnership automatically brings results, although it is an extremely important contributor to results. Therefore, it is important that those incentives are in place.

As we said in the original consultation on the Bill, pooled projects can now be set up as a result of the Health Act 1999. They have been set up between health and social services partners for health and social services in the community. In the case of a pooled budget, the partners need to consider the intended use of the budget very carefully. They need to consider

which services are to be provided from the budget, and explicitly include that in the partnership agreement.

The hon. Member for Sutton and Cheam—referring to a written answer that I suspect I gave—rightly pointed out that 16 pooled budget areas currently cover delayed discharge. They may not, of course, cover the social services responsibility for providing alternatives to hospital. For example, some, I believe, cover the joint employment of occupational therapists, or the joint employment of teams that will enable people to be discharged more quickly. In those cases, the partnership may ensure that the local partners are better able to reach their targets on delayed discharge, although the pooled budget will not necessarily bear the responsibility for ensuring that alternatives are in place. In those cases, the responsibility for payment of any charges that arose would remain with the local authority.

As they make the partnership agreement, the partners will need to consider whether the services are key to dealing with hospital discharge, and whether the social services' contribution to the pooled budget reflects an intention to make any reimbursement to the acute trust from that pooled budget. That would then be dealt with in the budgetary part of the partnership agreement. The legal position remains that the local authority is responsible for the reimbursement, although the payments may be made from the pooled budget, with the PCT's agreement.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

I am trying to follow the Minister's explanation. Am I right to understand that, on the basis she mentioned, the 16 pooled budgets that have been established to deal with reducing delayed discharges to hit targets are unlikely to be subject to fines, because the financial agreements that have already been arrived at do not include them, so there would have to be renegotiation?

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. We are now way off the clause. The point that the hon. Gentleman raised arises under clause 4, not the present clause or amendment. In view of the latitude that I gave other Members, I have allowed the Minister considerable latitude—but the Committee should discuss the financial aspects under clause 4, which is where they lie.

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

Thank you, Mr. McWilliam. I will respond briefly to the point about care trusts over and above partnership agreements.

The services provided by the care trusts that carry out all social services functions, or services for older people and adults, do not yet include NHS acute services. Our proposals provide that the payment should be made to the acute trust, although I am sure that that will be discussed later. The principle of reimbursement for the care in the acute sector is to ask the local authority—or, in the instance that we are considering, the care trust—to reimburse the acute trust for the cost of looking after someone if the responsibility for looking after that person has been transferred. In those cases, the principle of reimbursement for the actual care given in the acute sector once the patient is supposed to be the care trust's responsibility still holds. The care trust will be

responsible for any necessary reimbursement to the acute trust, and that should be borne in mind when the care trust's budget and objectives are set.

You are right, Mr. McWilliam, to say that we have had a relatively wide-ranging debate on the amendment. I hope that the hon. Member for Sutton and Cheam feels that his probing has drawn some results and that he can therefore withdraw the amendment.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

The Minister has given some information about which I shall want to ask more questions when we reach a later clause. However, in the light of what we have been told, and although I may want to return to the matter later, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health) 11:00 am, 10th December 2002

I beg to move amendment No. 8, in

clause 1, in page 1, line 14, leave out 'or is expected to receive'.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

With this it may be convenient to take amendment No. 9, in

clause 2, page 2, line 4, leave out 'or is expected to become'.

I remind the Committee that the amendments are very narrow in scope: they deal only with the question whether people who are expected to receive care should be included in the Bill.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

The amendments are probing in nature and concern those people who are ''expected to receive'' care. I should be grateful for further information from the Minister. The clause defines an ''NHS body'' and a ''qualifying hospital patient'', and, with reference to the latter, states that it is someone

''who is receiving (or who has received or is expected to receive) care''.

I fully understand, and find unambiguous, the references to someone who ''is receiving'' or who ''has received'' care. However, I experience a degree of confusion about someone who ''is expected'' to receive it. The expression has a logical meaning in English, but what is meant in the context of the Bill? How do you know whether you are expected to receive care? Does that expectation arise because you have a medical complaint that may develop?

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. The word ''you'' refers to me, in Committee, and as will be obvious to hon. Members, I do have a medical complaint—a rotten cold. However, the hon. Gentleman should use the third person.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

Thank you, Mr. McWilliam. I am sorry to hear of your complaint.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

Indeed, as my right hon. Friend says, the clause may be more relevant to you, Mr. McWilliam, than was first apparent, in view of what you have told the Committee.

Patients with a medical complaint that in the normal run of things can develop into something more serious might be expected to receive care at some point. Is that what the clause refers to? Alternatively,

is it intended solely to denote someone who is elderly, who might on that account be expected to require care at some point? The explanatory notes also suggest a need for clarification. They state:

''To be a qualifying hospital patient, a patient must be receiving care of a type prescribed in regulations.''

There is no mention of patients who are expected to receive such care. I understand that explanatory notes are not binding. They are intended as guidance and illumination rather than a hard and fast catch-all explanation of every element of the legislation. However, they miss out that definition.

I wonder whether the Minister would give a greater explanation, because we do not want to pass a skeleton Bill—it will be fleshed out by regulation, so in some ways we are very much in the dark—that could cause confusion or misunderstanding over exactly what the Government mean by the qualifications and elaborations. If the Minister were to explain exactly what she intends by that part of the definition of a patient requiring care, it would go a great way to reassuring us.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. Before the question is put, I remind the Committee that the reading of newspapers and periodicals, or even photocopies of them, is not allowed in Committee—the hon. Member for Edmonton (Mr. Love) should put it away.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

I want to ask a question of the Minister. We are exploring who might be expected to be in need of care. One category is those patients who it is expected will be admitted to hospital as elective admissions. Will the Minister explain why the Department does not seem to know the split between those who are admitted to hospital on an elective basis, and how many of them experience delayed discharge, and those who are admitted as emergency cases who experience delayed discharge? Given that the Department does not have that information and has not sought it, it is difficult to understand how the clause will work. At the moment, the Department does not know how many of those people there are, and therefore the financial or practical implications of putting such a provision in the Bill. Will the Minister explain why the Department does not seem to know that information and what is being done to get it?

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

The hon. Gentleman is getting the hang of the Bill—I am sure that the hon. Member for West Chelmsford will get the hang of it before long—because he recognises that the provision is about how to cope with elective admissions. It is acknowledged to be good practice to begin planning for discharge before admission if the admission is for elective treatment. Generally, the best time to start thinking about what such patients are going to need for discharge is when they go to hospital for their pre-admission assessments. That can be a key step for avoiding delays following an operation or treatment; delays may mean patients losing confidence and perhaps never attaining the full benefits of their treatment.

When we come to clause 2, we shall be discussing one of the important features of the Bill: the requirement for trusts to notify social services departments about the needs of those who are likely to require community care services when discharged from hospital. Clause 1 defines those who will be covered by the Bill. It is important that councils should be notified about those who expect to receive that care—in other words, before their elective admission—because councils will want as much time as possible to make assessments and provide the right conditions. The majority of elective admissions lead to short stays in hospital, and for much of that they will be receiving treatment and recovering from it. It will help if aftercare can be planned as far as possible.

On the point made by the hon. Member for Sutton and Cheam, the Department has information about the likely duration of hospital stays for those aged over 65, depending on whether there is an elective or an emergency admission. I shall pursue his question about whether our hospital episode statistics are broken down between those two types of admission. The problem—I think that this is his point—is whether the type of admission has a bearing on whether discharge is delayed. It is important to note that the Bill does not rely on high-flown statistical analysis of whether one category or another is more likely to involve delayed discharge—that depends on the individual needs of patients and whether they enter hospital electively or in an emergency. The Bill ensures that all the incentives are in place for individuals to be assessed as quickly as possible and that suitable community care alternatives are provided equally quickly.

I hope that hon. Members' concerns have been met and that the hon. Member for West Chelmsford will withdraw the amendment.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I am grateful to the Minister. She has allayed my fears by giving a fuller explanation, particularly as regards elective patients. That raises an important point. It is crucial in the case of elective admissions that there is a turn-key operation, whereby social services departments, and possibly other charitable organisations, can assess the needs of an individual after treatment in order for adaptations to be made inside the home on discharge.

That leads to another matter, which I shall float in little detail so as not to be out of order—I hope that we can return to it later. One can do as much assessment and analysis as is required of what is needed to adapt a home for a patient to return to it, but that costs money. Social services departments have faced a serious problem for some years in that they do not always have the financial resources to make the adaptations that will allow the seamless return home that the Bill, idealistically, seeks to facilitate. I shall not pursue that now, because I do not wish to fall foul of your strictures, Mr. McWilliam. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I beg to move amendment No. 1, in

clause 1, page 1, line 14, leave out from 'receive)' to end of line 15 and insert 'geriatric, acute care'.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

With this it will be convenient to take amendment No. 59, in

clause 1, page 1, line 15, at end add 'except where the patient is accommodated in an independent hospice, an NHS palliative care unit, or a care home within the meaning of the Care Standards Act 2000'.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

This, too, is a probing amendment, leading on from amendments Nos. 8 and 9. The Bill defines ''qualifying hospital patients'' as those who are receiving, who have received or who are expecting to receive

''care of a description prescribed in regulations.''

I think that it is in order, because of the amendment and the wording of the clause, to discuss the regulations. The Bill does not describe what will be prescribed in the regulations. The explanatory notes give us an idea of what the regulations will include:

''In the first instance it is intended that the prescribed type will be acute or geriatric care provided in a general and acute hospital.''

They continue with what is presumably a hope list, saying:

''The types of care may later be extended to other sectors, such as mental health or intermediate care, as appropriate.''

Such hopes are very much up in the air. The Government may want to realise them at some point, but they are not as hard and fast as, for example, a manifesto commitment.

I am slightly disappointed that it is not clear from the Bill exactly what the Government want it to deal with in the first instance. It is rather unsatisfactory that we must rely on regulations that we have not seen, and on the very broad guidance in the explanatory notes. I say that especially because regulations throughout the Bill will be subject to negative rather than affirmative resolution. I will not argue the case for negative versus affirmative resolutions for statutory instruments, because we will debate that on another amendment. However, it is still valid to make the narrow point that it is a mistake to rely so heavily on unseen regulations to flesh out the Bill.

As I said, our probing amendment is intended to tease out from the Minister more information than is in the explanatory notes about what the Bill will deal with in the first instance. Can the Minister share with the Committee more of her understanding of what will be in the regulations, which will give detailed descriptions? I assume that her Department has been working on the general contents of the regulations for a considerable time, and I hope that she will tell us that it more or less knows what will be in them. If so, I make a further plea. Given that the Government pay lip service to the idea of open government and sharing information, will she release to the Committee the details of her thinking on the regulations, which she and her Department will no doubt issue as soon as they can after the Bill becomes law? That would enable us to complete our work over our two days of sittings in a better and more informed way.

On the advice of her parliamentary draftsmen, the Minister may argue—probably with some justification—that it would be wrong to accept the amendment. She may argue that it would put the Bill

in too much of a straitjacket and require the Government to introduce further legislation if they wanted to extend the descriptions in the Bill to intermediate and mental health care. I have considerable sympathy with that argument, but before the Minister is too cruel to the Opposition, who cannot rely on the professional services of parliamentary lawyers and draftsmen, I remind her that we tabled our probing amendment solely to tease out more of her thinking. If draft regulations on this and other parts of the Bill are available to her, will she make them available to the Committee to help and enhance our scrutiny?

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health) 11:15 am, 10th December 2002

Although I shall be speaking to amendment No. 59, I support the line of questioning pursued by the hon. Member for West Chelmsford. It would be useful to have some illumination of what the Government intend to achieve through the clause and the Bill's regulation-making powers, in connection with extending the provisions over time.

Amendment No. 59 is almost the opposite of amendment No. 1. It would exclude from the Bill several aspects of health care services, which, it could be argued, should not be included in the regime in question: hospices, palliative care units and care homes. Because the Bill does not specifically exclude them, there is reason to be concerned that they might be included. Will the Minister provide an outline of the Government's intentions, and confirm that they do not ever intend to use the Bill and its regulation-making powers to include such institutions in the provisions?

Like amendment No. 1, our amendment is meant to probe the Government's intentions. It is difficult fully to map out and understand the policy intentions behind the Bill when so much is to be dealt with in regulations. If the Committee could see some of the regulations this week, that would undoubtedly help to make our discussions speedier and more timely. It would also help local authorities and the health care bodies that will have to implement the regulations to get on with things. They face the prospect of those regulations being published within weeks of the Bill coming into force, leaving them to rush arrangements through at a rate of knots. They will probably then become objects of opprobrium for not getting it right. It would help them if the Department could provide the material early, thus creating at least a chance of making a flawed system work a little better.

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

The Bill is intended, as I suggested earlier, to set up a framework of incentives that could operate in a range of areas where patients cannot obtain the community care services that they need and are delayed in in-patient settings. Amendment No. 1 would narrow the scope of the Bill to affect only patients receiving acute and geriatric care. I understand that, as the hon. Member for West Chelmsford made clear, it is a probing amendment. Nevertheless, I must emphasise that it would be detrimental. If, as we believe, the Bill will work for older people in acute care, there will be potential for the incentives to work for other services.

We have already made it clear that we intend the Bill initially to apply to the acute sector only. We have taken a pragmatic approach, focusing on the most

significant areas where there is an acute problem—I hope hon. Members will excuse the pun—and where it is most obvious that too many people, mainly older people, are not receiving the right care at the right time in the right place.

However, there are other sectors that suffer delays too; the hon. Member for West Chelmsford mentioned mental health. People may remain in intermediate care when other, longer-term care would be more appropriate. Perhaps that even applies to people in community care beds, for whom alternatives might be appropriate. That is why we have included the regulation-making power in the Bill, so that we can extend its scope as and when appropriate. We do not want to remove that power, as the amendment would. Doing so would mean that non-acute patients such as mental health patients, those in intermediate care and those in community hospitals could not benefit eventually from the improved assessment processes and faster provision of services that the Bill will deliver.

The amendment would prove unworkable in its current form, as no definition of acute or geriatric care is set out in the Bill. Those terms could therefore be open to interpretation and lead to disputes. That is why we need to draft regulations carefully. We need to consult widely, consulting not only hon. Members but the people who will implement such legislation. I cannot promise that regulations will be available for the Committee's scrutiny in the next two days, but I assure its members that the regulations will be open for consultation. An important task needs to be undertaken: to ensure that those whom we intend to be the first priority for incentives—those who receive acute or geriatric care—are properly defined.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

The Minister just said that regulations would be put out to consultation so that everyone—not only hon. Members, but interested parties from outside the House—had an opportunity to consider them and comment on them. As we study the legislation, it is important that we understand the provisions that are hidden from us because they will be implemented through regulation. Will she give us a commitment that they will be out to consultation so that we can examine them before Report?

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

I would not like to make a commitment that I was not sure that I could stick to, and I am not completely clear about the parliamentary timetable. However, I assure the hon. Gentleman that it is important that we get the regulations right. That is why they will be open for consultation.

We have made it clear that the key point of the legislation, and the first priority of the regulations, is to set up the framework of incentives to benefit the people most affected by delayed discharges. They are mostly older people; the provisions could benefit others as well, but those are the people who are most often inappropriately delayed in acute hospital care when they would much rather be elsewhere.

The hon. Member for Sutton and Cheam makes a fair point about seeking clarification about who could,

who would and who would not be included in future. Amendment No. 59 seeks specifically to exclude patients accommodated in independent hospices or NHS palliative care. I assure him that we would not consider it appropriate for the new arrangements to apply to the types of care that the amendment would exclude.

I understand the concern that people near the end of their lives should not be discharged from hospices or palliative care and sent home if that is not what they want. I assure the hon. Gentleman that there is no prospect of such a thing happening under the Bill. In fact, patients in independent hospices would technically be excluded from the Bill in any case, as they are accommodated in neither a health service hospital nor an independent hospital in pursuance of arrangements made by an NHS body. They will not be covered by the clause.

Photo of Paul Burstow Paul Burstow Shadow Spokesperson (Health)

I am grateful for those assurances, but will the Minister confirm that when a person nearing death is in an acute care setting, and the prospects of transfer to a palliative care unit or hospice are negligible, that person will not be discharged?

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

I think that I can give the hon. Gentleman that reassurance. We are going to consider the details of cases in which the Bill's provisions might not apply to particular discharges, or to patients still in acute beds. I believe that it would be appropriate to ensure, both by guidance and, if necessary, by regulations, that the situation that the hon. Gentleman mentioned does not arise.

I hope that I have reassured the hon. Gentleman that the Government have no intention of including NHS palliative care in the regulations. The intention is to prescribe acute and geriatric care in the first instance, and later to extend the Bill's provisions to other forms of care in which problems of delay occur, and for which we feel that the framework of incentives would be effective. I hope that after those reassurances, the hon. Gentleman will feel able to withdraw his amendment.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health) 11:30 am, 10th December 2002

I thank the Minister for that explanation. My probing amendment has achieved what I hoped it would, which was to get a greater understanding of the narrow point of what the Government intended to do. There is still a problem with the regulations. However, I hope that the time scale will allow consultation on those, so there will be an opportunity to see the small print of what the Government intend. From experience across the political field, we have found that it is important to study the small print of the Government's intentions, because things sometimes crawl out of the woodwork that one would not expect. I hope that the time scale will make it possible for the regulations to be in the public domain for us to peruse and study before Report. In the light of the Minister's comments, and that proviso, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.