Health and Social Care Bill

HL Deb 22 March 2001 vol 623 cc1624-710

8.43 p.m.

House again in Committee.

Lord Rix moved Amendment No. 259: After Clause 53, insert the following new clause—

"PROHIBITION OF NEW CHARGES AS A RESULT OF THE CREATION OF CARE TRUSTS No new charges shall be created for new or existing services as a result of the creation of Care Trusts.".

The noble Lord said: I am sure that the Minister will have been advised as to the technical as well as the policy problems with my new clause. What can be said in its defence—and that is no mean virtue—is that its purpose is crystal clear. Even I can understand it. It is intended to ensure that the setting up of a care trust does not open the way to charging for existing services which at present are free, and that it does not open the way to creating new services which will then be charged for.

I accept the assurance that introducing care trusts does not of itself remove the distinction between social services for which charges may be made and health services for which charges may not be made. However, we all know that an important aspect of the increase in charging has been the replacement of free services by chargeable services. The Bill, as it stands, does nothing to prevent the continuation of that process. So far as I can see, it would be open to the managers of the new hybrid to designate all new or amended services as social services for charging purposes. That would not be possible with my quite simple amendment.

I believe that we already have more than enough charging. People should not be taxed on essential activities which are forced upon them by disability or by disadvantage. They already, according to their means, pay taxes towards the cost of public services. Those services should be free at the point of receipt. My amendment would go far to slamming the door on this imaginative creation of new burdens for disabled people, even though it would stop short of removing existing charges.

I hope that the Government will see some attraction in removing from the innovation of care trusts— whether the voluntary arrangements or, as we have heard quite often this evening, the shot-gun wedding variety—the stigma of concern about new charges. With that threat out of the way, the new partnership arrangements can be considered on their merits. I beg to move.

Baroness Greengross

I support the amendment. I have grave concerns that people may not always know what is an NHS service and what is a social service. New methods of flexible working are very welcome.

We all agree that they will make sense to most service users but they may mean that staff themselves will not always know whether a particular service that they provide comes under health legislation or social service legislation. Many staff members already find it difficult to make that distinction. Therefore, perhaps inadvertently people will be charged inappropriately. I support the noble Lord, Lord Rix, because I believe that his amendment seeks to avoid that happening.

Baroness Masham of Ilton

I refer to the point that I made previously in relation to the amendment to which the Minister spoke. I am sure that he will give more assurances now.

Lord Clement-Jones

I rise to support the amendment. I believe that it concerns a very important principle. As I recall, I believe that the noble Lord, Lord Rix, tabled a similar amendment when we debated the Care Standards Bill. We received a set of valuable assurances on that occasion. Each time that we deal with a new piece of legislation which takes powers or which changes the structure of the way in which we proceed, it is important that Ministers return to give us those assurances anew.

My motive in rising to speak on this occasion is horror at the recent consultation on fairer charging policies for home care. In relation to that type of issue, it is absolutely vital that, however welcome it may be, the creation of the new structures does not lead people—particularly vulnerable people or those who need a great deal of support—to being charged where they were not charged previously. I believe that that is absolutely crucial. As the Minister knows, we on these Benches would roll back the boundaries a great deal further than the Government are doing. However, let us at least keep those boundaries where they are at the moment.

Lord Hunt of Kings Heath

I fully accept that this is a useful opportunity for me to place on the record the Government's position. As I said earlier this evening, the creation of care trusts should not be seen, as perhaps has been feared, as a way of extending means-testing or cost-shifting between the NHS and local government.

It is clear that care trusts are likely to be established to Commission or provide services, some of which are charged for and some of which are not. The policy on charging or not charging will remain. Where charges are made currently, there will continue to be charges; and where the services are free—most notably, NHS services—that will also remain the case. In addition, where local authorities have discretion to charge, the policy will continue to be the responsibility of the local authority. I believe that that answers the question that was raised earlier by the noble Baroness, Lady Barker. The care trust will carry out the charging policy as appropriate.

I stress that, because a care trust provides some services that are charged for, there is no intention to introduce charges for NHS services. NHS services will remain free at the point of delivery.

I pick up the concerns that were raised by the noble Baroness, Lady Greengross, about the impact of charging on integrated provision—the noble Lord, Lord Rix, also mentioned that. That concern is nothing new. In relation to partnership arrangements, when staff and managers see the benefit of working together to provide better services, they find ways to minimise any difficulties involving charging. The assessment process is key in that regard. I respond to the noble Baroness by saying that I agree that, from the outset, potential users of services need to know clearly that some services may be charged for. They need clear information so that they can make decisions about the care that they want. Equally, staff need to be trained to ensure that they give clear messages and have good written information to leave with the user.

I am aware of the concern that setting up a care trust might enable people to consider cost-shunting. Once again, I make it absolutely clear that that is not the intention and that the assessment process is key to ensuring that there is clarity in determining which services are free and which are not. The frameworks for performance assessment and performance management exist to pick up any problems that Might arise and to enable us to deal with the matter.

Baroness Masham of Ilton

I have one question for the Minister. I have had notification from the Incontinence Society, which is concerned in this context about catheters, incontinence sheets and so on. Will he give an assurance that such matters will come under nursing care?

Lord Hunt of Kings Heath

The assurance I can give is that the development of care trusts will have no impact on that issue. Essentially, care trusts combine local authority services with NHS services. The point is that if one has a charging policy in relation to some social services, that will be brought into the care trust and the charging policy will be determined by the local authority that is entering the voluntary arrangements. If an NHS service is involved, that will be provided mostly free at the point of delivery, apart from the few cases in which the service is not free. The care trust will have no impact on those wider policy issues.

Lord Rix

Would the Minister say whether a name shift could take place? A service might be provided but not charged for; the body might change the title of the service, as it were, and it might possibly slightly change the content of the service, which might be ruled to be a chargeable item. Is that a possibility?

Lord Hunt of Kings Heath

If there was a deliberate attempt to cost-shift by changing the relevant names, one would not wish to support that and the attempt should be picked up in the performance management process. The key in that regard, surely, is that in the initial agreement to become a care trust, health and local authorities will have worked out those issues so that there is a clear statement of policy. Nothing should be undertaken that compromises the fact that the service, if it is an NHS service, is provided free at the point of delivery. I should expect that to be sorted out by the partners to the agreement on the care trust.

Baroness Noakes

I can quite see how one could deny that it was relatively simple to sort out the charging arrangements—one would bring together two separate organisations and one would distinctly see the different service streams and charging arrangements. If one is trying to create something additional out of a care trust—that must be the aim and involves the idea that the parts are greater than the whole—one would, over time, blur those early distinctions. Early agreement, which I am sure is easy to attain, simply will not hold. The amendment is designed to reflect the fact that early certainties will not obtain after what may be a short period of time. As care trusts progress, I am not sure whether the Government have thought through the implications of mixing those two very different financial streams.

Lord Hunt of Kings Heath

I certainly would not disagree that those arrangements are not without their challenges. We now have good experience of partnership arrangements through the relevant flexibilities. Health authorities and local government are currently facing up to those issues and the evidence is that they have been able to deal with the issue of charges compared with free services in a sensible way.

There is a wider debate in this context about personal care and nursing care, and we shall presently come to it. My view is that there will always be some kind of system of charging for some social care services and I certainly hope that the NHS will always be free at the point of delivery. Given that we have those principles and that we want there to be greater partnership in joint services, we shall just have to work at it to make sure that we manage the matter in the most effective way.

Baroness Cumberlege

I want to take this point a little further. The Minister was absolutely right to say that everyone understands the issues that are involved with pooled budgets. Accountability still goes back to the two parent bodies. However, my noble friend Lady Noakes was arguing that, although that is fine as things are, what will happen when there is a new entity—a new body called a care trust—in relation to which those accountabilities will not be the same? The fact that there is a new entity is the point. I return to the comment that I made earlier; the policies have not been thought through in this regard. I do not refer to rules, although the Minister's previous reply made reference to them. We are talking not about rules but about making policy, and the policy has not been thought through. We believe that those issues will need much more working through before the Bill is enacted.

Lord Hunt of Kings Heath

The care trust is still dually accountable—to the Secretary of State, as are all NHS trusts, and to the local authority, which devolved responsibilities to it. I do not believe that that arrangement differs from the partnership arrangements. I still believe that it is perfectly possible for the partners, as they enter into a voluntary agreement, to be clear about the policy on charging, to be able to make that known to the staff and to ensure, as the noble Baroness, Lady Greengross, and the noble Lord, Lord Rix, require, that users of the service also understand it. The arrangement is a fact of life in health and social care, and it will be with us, as it has been with us previously. It is not beyond the bounds of possibility that people at local level can make the arrangement work.

Baroness Noakes

We currently have mechanisms that work, such as care trusts, which can, under the current framework, manage to make the differentiations that are necessary to achieve proper accountability. What gains are there in imposing a care trust regime on top of that arrangement, in relation to which we have to accept that there is much blurring of accountabilities? That happened, for example, with the creation of the Care Trust Board. I am at a loss to understand why we need these complex new arrangements if, as has been suggested, the partnership arrangements work perfectly well.

Lord Hunt of Kings Heath

The partnership arrangements have been working well. I said earlier that there are at least 40 such arrangements, with a commitment of about £300 million. Care trusts will give us a new system of governance, allowing the NHS and local government to put forward their own people to sit round the table. That is a powerful way to have quiet leadership in a particular service. It can give impetus to the whole partnership arrangement, and will build on the current success of partnership arrangements.

9 p.m.

Lord Rix

Because of my past career, I am a great believer in belt and braces. It is a pity that the Minister was unable to accept my simple amendment, which would have made the formation of care trusts clear to all at the outset. Having said that, and having listened to the Minister's assurances—and his doubts—I feel that I ought to read what he said and consult my colleagues. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 [Further provisions about directions in connection with Care Trusts]:

On Question. Whether Clause 54 shall stand part of the Bill?

Earl Howe

I do not intend to spend long on the clause, but perhaps the Minister can answer a couple of questions. Subsection (2) is not mentioned in the Explanatory Notes. I understand that its purpose is to enable the relevant authority to determine the level of funding to be transferred from the local authority to the care trust for the performance of designated functions. I have already made the observation that by any standards that is serious erosion of local accountability for local authority resource allocation.

Clause 54(2)(e) grants the Secretary of State the power to direct that local authority capital assets are made available to a care trust. That might include office accommodation or other premises, computer equipment, and so on. The effect would be to deprive the local authority of the use of its own capital assets for the purposes that it chooses. Will the Minister clarify whether he is certain that such an expropriation is legally permissible?

Will the Minister also say what will happen if the financial sum that the Secretary of State determines should be transferred from the local authority to the care trust is greater than the sum currently allocated to the activities or functions that are being transferred? In other words, what will happen if the local authority is told that it must transfer more than its social services SSA to the care trust? There would be a direct knock-on effect on the level of funding available for the performance of any social care functions that had not been transferred, and potentially an effect on the entire local authority budget. What safeguards exist to protect a local authority from that situation? What will be the role of the arbitrator in a disputed situation of this kind? Is his decision binding?

The idea of an outside person coming in to decide how much money is to be transferred from a local authority to a central government department—if that is not too stark a way of putting it—is odd. Any light that the Minister can shed would be welcome.

Lord Hunt of Kings Heath

I shall do my best. Under clause 54(2), the Secretary of State will do only what is legally permissible. There are two points to make on the SSA. Clearly, in making such determination, the Secretary of State will take into account the impact that it will have on the local authority as a whole. I am not sure that using the SSA example is quite fair as the noble Earl, Lord Howe, will know that many local authorities spend above their SSA limit. I am not saying that simply because the figure was above the limit it would be necessarily wrong, especially if the authority was spending on social services. Clearly, that would be a matter for the Secretary of State to decide.

Subsection 2(e) will allow premises to be leased or rented, which I do not think will cause problems in relation to the impact on the local authority. We are talking about premises from which services are run. If the services themselves are being transferred, it would make sense to ensure that the premises are covered in the transfer.

The noble Earl, Lord Howe, is right to say that the Secretary of State can determine resources in the absence of agreement, but it is hoped that agreement would be reached. The role of the arbitrator might be helpful, but the extent to which it is binding would depend on what both parties agreed to in going to arbitration.

Earl Howe

I am grateful to the Minister. I thought that the SSA was a formula showing the amount that a local authority ought to be spending in order to deliver services adequately. If the Minister insists on a transfer larger than the SSA, he will have to work pretty hard to justify it, as it implies that the SSA is not an adequate formula.

Lord Hunt of Kings Heath

I was merely saying that many local authorities spend above their SSA on social services. I should have thought that in arriving at a sensible amount of money to be transferred, one needs to examine the authority's overall spend on social services. That might be above the SSA level, which is why I thought that it was not fair to pitch the point at that level.

Earl Howe

One hopes that even in the case of a directed care trust there would be some scope for negotiation on matters of this kind. But I am grateful to the Minister for what he said. It has been a useful clarification in many respects.

Clause 54 agreed to.

Clause 55 agreed to.

Schedule 4 agreed to.

[Amendment No. 260 not moved.]

Baroness Barker moved Amendment No. 261: Before Clause 56, insert the following new clause—

"CARE: DUTY OF SECRETARY OF STATE (1) Where a person has been assessed by a National Health Service body, or any other body or suitably qualified person acting under delegation or under contract to a National Health Service body, or as part of a multi-disciplinary assessment, as reasonably requiring for health care purposes—

1. (a) nursing care (including any planning. supervision, or delegation of such care) which—
1. (i) is planned for a person by a registered nurse after assessing that person's need, and
2. (ii) is provided, delegated or supervised by a registered nurse,
2. (b) the use of any medical, surgical or nursing equipment, or personal aid including that provided by or in a residential or nursing home home, or
3. (c) health care wherever provided, including care provided by or in a residential or nursing home.

(2) Health care includes, the diagnosis, assessment, monitoring and delivery of any care, treatment or therapeutic intervention. (3) It shall be the duty of the Secretary of State to provide the care or equipment or aid as described in this subsection whether directly or indirectly throughout England and Wales. (4) For the avoidance of doubt a local authority shall not: be prohibited from providing or arranging services under subsection (1) above, provided they are delivered by the delegated authority of the NHS under the provisions within section 31 of the Health Act 1999 (delegated NHS functions). (5) In cases where services are provided under subsection (2) above, section 1(2) of the National Health Services Act 1997 (services free of charge) applies. (6) Nothing in this section affects the provisions of the National Health Services Act 1977.

The noble Baroness said: We now come to the part of the Bill which some of us believe is the absolute heart of the matter; that is, the definition of nursing care. The purpose of the amendment is to establish the responsibility of the NHS for healthcare needs, including nursing, equipment and other healthcare in nursing homes. Many people who have read the Bill have been taken aback not just by the narrow definition of nursing care but also by Clause 56 and the way it is phrased. It simply requires that local authorities should not purchase nursing care. It does not endow the National Health Service with a duty to provide nursing care. That seems rather strange.

The definition of "nursing care" in this amendment mirrors that provided by the Royal College of Nursing. It is necessary because a great many older people in nursing homes will not, contrary to what was perceived originally, be eligible for what is commonly thought to be nursing care. The definition of nursing care which we have had so far is not the one put forward by the Royal Commission on Long Term Care and it is not, I suggest to the Committee, the definition which most of us would draw up if we were to try to define nursing care.

It is extremely important that within the context of this debate we define what is and what is not nursing care. So far the Government have said that nursing care is what a registered nurse does. That is not sufficient because what nurses do is changing. Over the past few years there has been—and there is envisaged within the NHS Plan—a great degree of change and a great degree of "skilling-up" of nurses. That means that most of the nursing care which is carried out in nursing homes will not be carried out by registered nurses. It is far more likely to be carried out by care assistants. Therefore, it is important this evening that we draw up a definition of nursing care which is understandable and inclusive.

I suggest that we need to define nursing care this evening because if we do not do so, I suspect that nursing care will be defined in this House but not by us; it will be defined by the Law Lords at a different time. In the Coughlan case, where the care needs were felt to be wrongly judged, and not to come within the ambit of either the NHS or social services, a legal decision was sought, and I believe that that will happen again.

I believe that the Minister's reassurances which he sought to give to the noble Lord, Lord Rix, about NHS services being delivered free need to be backed up by a proper definition of nursing care. We have put behind us for the moment governance and structures and we are now getting down to talking about what those people will do and what their responsibilities are. But there are those of us who still fear that if those new structures are not accompanied by a wider definition of nursing care, we shall begin to see the part privatisation of the NHS.

I want to speak for a few moments about equipment. The amendment deals with that. As the Committee will know from many of the discussions we have had in the past, particularly on Audit Commission reports, provision of nursing and medical equipment is extremely important. At the moment, there is a duty in residential care homes for specialist medical or nursing equipment to be provided; but often it is not. Quite often older people pay for equipment, some of which is very expensive, when, were they in any other setting—at home or in a hospital—they would have received it free of charge.

The noble Baroness, Lady Masham, talked about incontinence pads. I support her in her arguments about that. It is not unusual for older people in nursing homes to be paying for incontinence pads. Those are not luxury items; they need them as part of their everyday lives. In addition, it is not unheard of for people to have to pay for expensive items of equipment, such as pressure beds, which they would not have to do elsewhere.

Amendment No. 261 and the one put forward on behalf of the Royal College of Nursing, which we shall debate shortly, do that which all the Ministers who have wriggled around this question of the definition of nursing care for several months also do. They have said, "Who better can define what is nursing care than a nurse?" Who better to define it in terms of poverty than nurses in the form of the RCN? That being the case, I believe that noble Lords should have no problem in accepting the amendment. I beg to move.

Lord Rix

When I tabled Amendment No. 262 I had not envisaged two substantial discussions on the same issue in Committee and the rather lengthy Amendment No. 261 being grouped ahead of mine. For the second time, the Liberal Democrats opposite have beaten me to the starting post. In the circumstances I shall be brief because the twice told tale—boiling old potatoes—tends to lack an audience, even though at the moment it can only be described as thin.

My amendment addresses the issue quite simply that, in dealing with complex high-dependency needs, in some places a nurse or other health professional will be tackling the need, whereas elsewhere somebody else will be doing it. My argument is for common ground across the country and in all individual cases in all settings in assessing health needs and meeting those needs free of charge. Lesser availability of hands-on health professionals in one area should not mean that people in that area get possibly both a poorer service and a dearer service.

My amendment addresses all three of the desirable elements on which I believe we are agreed: quality, financial equity and getting away from the postcode lottery. Not even Manchester United can manage three goals simultaneously.

9.15 p.m.

Lord Archer of Sandwell

The noble Lord, Lord Rix, has many virtues which I cannot emulate. On this occasion it is the conciseness with which he stated his case. Included in this group of amendments are my Amendments Nos. 263 and 266. I make no complaint of their inclusion in the group. I certainly do not wish to imply any opposition on my part to the other amendments in the group. But in the interests of clarity, I begin by pointing out that my amendments address a much narrower point. I repeat the declaration of interest which I made at Second Reading.

I am privileged to be President of Methodist Homes for the Aged. One of our activities concerns the care and treatment of dementia patients. It is not by any means our only activity, but it is a field in which we have acquired some knowledge and expertise. We have dementia sufferers in a number of our residential homes. At Second Reading I referred my noble friend the Minister to the report of the Audit Commission published last year entitled Forget Me Not. A section was devoted to Methodist homes, particularly to the residential home at Mayfields in the Wirral, which is devoted specifically to the care of dementia patients. I do not know whether my noble friend was able to include that in his reading list. From my recollections of being in office, one's reading of anything but briefs, press reports and official documents goes into suspended animation. I see from the expression on my noble friend's face that he has not succeeded in reading it. I do not in any way complain about that.

The Commission stated: Staff training and support are fundamental to the regime of the home in which relearning and maintaining living skills is emphasised at all times". I attempted to deploy the argument for the amendments at Second Reading. Subsequently, my noble friend generously spent some time discussing them with me. I can state the point at issue relatively briefly, although, as I have said, I cannot hope to emulate the noble Lord, Lord Rix.

Clause 56 relieves local authorities of the obligation to pay for nursing care. The reason, as I understand it, is that in future the cost will he provided by the health service, and that is very much to be welcomed. It is not intended that social care should be provided from that source. As I said at Second Reading, I recognise the disagreement between those who support the distinction and those who believe that no such distinction should or can be made. I see that the noble Earl, Lord Howe, has tabled an amendment on that point at a later stage. I am not addressing that dispute. For the purpose of this argument I assume that the distinction will be made, although I wish the noble Baroness well.

The distinction spelled out in the Bill is between nursing care provided by a registered nurse, which includes planned, supervised or delegated care by a registered nurse, and care which is not nursing care, which is that provided either by someone who is not a registered nurse or by someone who is, but it does not need to be provided by a registered nurse.

The implication appears to be that services within the definition in Clause 56, which will no longer be provided by local authorities, will be provided by the health service while other services will not. Unless I have overlooked it, that is not spelled out in the Bill. Therein lies the difficulty, because there are some conditions requiring services which any of us, using English words to mean what they normally mean, would call "treatment for the patient's condition" yet they may not be provided by a registered nurse.

The condition with which I am concerned for this purpose is dementia. At Second Reading the noble Lord, Lord Rix, referred to a number of other conditions of which perhaps the same might be said. I shall not repeat the examples which I gave, but sometimes a dementia patient will respond not to medication but to someone spending time with them, stimulating conversation, evoking their memories or their interests. That person may not be a registered nurse, but as the Audit Commission pointed out, although the treatment is not being administered by a registered nurse, it is being provided by someone trained and skilled in that form of treatment.

I appreciate that if the treatment consisted of administering medication it would probably be appropriate for that to done by, or under the supervision of, a registered nurse. If the patient were in a hospital or a nursing home, that is likely to be the treatment that would be administered. I appreciate that the type of home does not form part of the distinction in the Bill but it is a factual one: what kind of treatment is likely in fact to be administered where the patient resides. In a residential home the treatment may well be different, but it is frequently more effective. If my noble friend is in any doubt about that I can give him a list of people to whom he could refer.

One consequence of the distinction in the Bill is that the patient or his family may say, "Of course, he or she would be better off in a residential home and the treatment would probably be more effective, but that would cost money. If he or she were in a nursing home the treatment would be free, so we shall opt for the more costly and less effective option because the Government are paying for it". That is the point of my amendments.

My concern is with dementia. I know that there are other conditions which may raise a similar question, but what I am proposing is a formula which would not tie the hands of the Secretary of State but give him power to prescribe the condition or conditions which should be provided for in this way. I am not wedded to that form: what matters is the substance.

Lord Lipsey

I am tempted to begin by saying that the frontal attack on the citadel having failed, here come the Trojan horses. I can quite see the force behind the amendments. The trouble is that most of them take us a very long way towards the suggestion that all personal care should be free. This House considered that in the very first debate at Committee stage of this Bill and it was decisively rejected. Perhaps I may illustrate that as regards the speech made by my noble and learned friend. I very much understand the case he is making. Rougly speaking, from the estimates which I have seen, 37 per cent of those in residential care are suffering from dementia. So if the things they require are free, that is 37 per cent of the cost of free personal care. But it goes beyond that because my noble and learned friend said that there are other conditions that may be alike which should also he free. So the number starts rising and will take a bigger and bigger share of the budget. In consequence, it will chop off the money which is available—

Lord Archer of Sandwell

I am grateful to my noble friend for giving way. Lest we spend time on a misunderstanding, and I am sure it was my fault, I was not suggesting that—as my noble friend said— "everything that they require should be provided in this way"; I was suggesting that the additional costs of the time that would be spent on this kind of treatment should be provided in this way.

Lord Lipsey

My noble friend will find that that was the bulk of the expenditure being expended. The definition in the Bill of free nursing care is not very lovable. I accept that it has anomalies and some false distorted incentives. I worry very much that what will happen as a result will be that too much will be done by nurses and not enough by people who are equally skilled but who do not require the full list of skills of a registered nurse.

I accept that as a criticism. The trouble is that as one goes through the alternatives—I have done this exercise privately and publicly with other Members of this House and in many forums—nothing else runs that does not end up with the great bulk of the personal care coming under nursing care.

Lord Rix

I thank the noble Lord for giving way. I should like to point out that my amendment does not refer to personal or social care. It says purely and simply that if a person is in receipt of National Health Service care, another person with exactly the same condition should also be in receipt of National Health Service care. Nothing is mentioned in my amendment about personal care whatsoever.

Lord Lipsey

Those receiving national health care gets all their meals free. Is the noble Lord, Lord Rix, suggesting that that should not be charged for?

Lord Rix

I thank the noble Lord for giving way. I am suggesting that, if one is in need of National Health Service care, which includes free meals, and one is such a person in another area, then that should apply, yes.

Lord Lipsey

That is a very helpful clarification from the noble Lord. He is saying that free personal care did not go far enough; that we must have much more than that. That is a perfectly viable point of view. I am not saying that it is not. It is a terribly expensive point of view. It would not leave any money for intermediate care. If the noble Lord had tabled an amendment to that effect, I should have directly liked to address that proposition.

None of the other definitions of nursing care that have been tried comes out any better, in terms of clarity or anything else, than the one in the Government's Bill. I refer again to the speech made by my noble and learned friend Lord Archer. His definition is that a great deal of help is given to people with Alzheimer's disease but not with other conditions. There is the case of Mr Ernie Saunders, who I believe has tucked away a substantial fortune, who is getting his free care so he is jolly rich compared to someone who is just above the £18,000 limit who requires nursing care for a different condition who does not. That is a definition that would fall apart in this House.

One could have a list of conditions. That is an approach that tempted me very much. The trouble is that when one tries to define which conditions should or should not be on the list, and to draw the line at such a place if it does not lead to unaffordable expenditure, that collapses on one. We have all had a go at finding a better definition. No one has found a definition that succeeds in keeping the costs of free nursing under control so that money is available for the improved services—that should be the priority. Secondly, we need a definition that is clearer and more defensible than the definition in the Bill.

I am absolutely certain that if someone came up with such a definition tonight the Minister sitting there would leap to his feet in joy that the hours that have been spent on this matter are needed no longer. We have solved the problem. But with every good will—

Lord Archer of Sandwell

I thank my friend for giving way. At the risk of being tiresome, could I point out that I was not suggesting resting on a definition, but empowering the Secretary of State to look at the particular conditions which he thinks should be treated in this way.

9.30 p.m.

Lord Lipsey

That simply chucks back exactly the same problem. Either he should include the conditions about which my noble friend is worried, in which the cost implications that I am worried about are brought back, or he does not include the conditions my noble friend is worried about, in which case we shall not move any further forward. The Secretary of State will still have to make essentially the same decision; namely, that it is intrinsic in the definition of nursing care being proposed as regards what should be put in and what should be left out.

I have spoken for longer than I had intended. I hope that noble Lords will forgive me, but it has been a little difficult to deploy the case because I have responded to so many interventions. Ultimately, the definition in the Bill, although, as I have said, it is not altogether satisfactory, is less unsatisfactory than anything else. In this whole area we have to consider these: choices, trade-offs and priorities. I am prepared to go along with the choices, trade-offs and priorities that have been incorporated in this Bill.

Baroness Greengross

I rise to support the amendments. I have been one of the Members of this House who has welcomed free nursing care as well as the Government's investment in intermediate care— once we are clear about how that is going to be delivered and how the funding will be arranged— along with the various changes to the charging regime for residential care.

What has just been said by the noble Lord, Lord Lipsey, points to a fundamental difficulty: we do not know how to define nursing care. So many have tried to do so, but it is difficult. Perhaps the Department of Health should have been able to achieve a definition. It has had a long time in which to think about this— since the Leeds case in 1993 and then again since the Royal Commission reported in 1999. Despite those difficulties, I know one thing: Clause 56 as currently drafted is not adequate. It does not include certain health services that I believe should be included.

Rather than add my own amendments, I should like to know how the Minister is going to respond tonight. That is because various views are held on a reasonably good definition of nursing care; indeed, we have heard them during the course of this debate.

I should like to refer briefly to the Minister's remarks during our debate last Thursday: The NHS has a duty to provide healthcare to any member of the public as reasonably required".—[Official Report, 15/3/01; col. 1038] Incidentally, that is the wording used in Amendment No. 261. If the NHS has assessed a health need, then the residents of care homes or of anywhere else should already receive NHS services directly from the NHS in the same way that anyone would receive services from a GP. a physiotherapist or from other members of the health professions under the responsibility of the NHS.

On previous occasions I have tried to make this important point: the NHS should provide healthcare as reasonably required. I do not understand how this cannot include certain tasks and certain pieces of equipment provided in care homes if it is the responsibility of the NHS to provide them. I refer to items such as dressings for open wounds, the insertion of gastro-nasal tubes and the provision of some of the absolutely essential equipment that has already been referred to. The noble Baroness, Lady Masham, mentioned incontinence pads. Such items are not charged for anywhere else.

However, under the current proposals, equipment and services such as these are not considered to form a part of nursing care. That is fine. However, equipment and services like these do form a part of healthcare. It is iniquitous to deny people this kind of healthcare because people need such equipment and services: they must be made available when and where they are needed.

We have only a short time in which to get this right. Perhaps the way forward would be to accept an amendment to Clause 56 so as to give the Secretary of State powers to widen, amend or clarify the definition of nursing care. Indeed, perhaps we should ignore nursing care altogether and refer only to healthcare, as I have suggested. If such a regulation-making power is not included in the Bill, as I understand it, it will not be easy to change the law until further primary legislation on the NHS is presented to this House. I hope that the Minister will reconsider, even at this late hour.

Lord Lipsey

Perhaps I may make one point to the noble Baroness. As I understand it, all that the Bill does is to say what social services authorities cannot pay for; it does not say what health authorities can pay for. This is a fascinating debate on both sides. But if the Bill goes through as it stands, there will still be room for discussion as to what the health service will pay for.

So time is not quite so short as the noble Baroness thinks. We shall have time to return to these issues after the Bill has completed its passage and to try to get a resolution that is even better than anyone has come up with yet.

Baroness Greengross

I thank the noble Lord. I hope that, between us, we can come up with a window of opportunity before it is too late. If we have a little more time, that is wonderful.

Baroness Richardson of Calow

Perhaps I may make one small point. Assessment is not merely about whether these services are to be paid for but about where they are to be delivered. Perhaps I may give an illustration from my personal experience. My husband is a resident in a Leonard Cheshire home. Under the local authority where he lives it is regarded as proper residential care that when he has an epileptic fit his drugs are administered to him through the rectum. That is regarded as ordinary social care which I could provide for him at home and which is provided for him in the care home. When it was considered earlier last year that he should be transferred for convenience to another authority, that authority judged that he was unsuitable for a residential home because that was nursing care.

There is no clear-cut definition; there are grey areas. It is not just a matter of who pays and where payment is made but of how the wholeness of life is to be lived with dignity. For most of the time, residential care is completely acceptable and right. For those occasions when it is possible to keep my husband in a reasonable situation, it is not necessary for him to have full nursing care. But these matters are fudged somehow in the definition that is already in place.

Lord Rix

Perhaps I may add one rider to my Amendment No 262. My aim is to ensure that equal needs get equal financial treatment. My approach has been to argue that if a care need is accepted as a healthcare need and is addressed by a healthcare professional for one person in one place, all people in all places ought to have the same assessment and ought to enjoy free provision whoever provides that care locally.

I am suggesting equality across the country. If a national health service is used by one patient or one resident, if someone is in another county, town or village, that person should receive the same service, if it is required, under the National Health Service.

Earl Howe

As the noble Baroness, Lady Barker, made clear, this issue is one of the three or four most important in the entire Bill. I must confess at the outset that framing amendments to this clause has been a somewhat rarefied exercise. If one interprets the clause literally, one has to ask what it is doing in the Bill. The noble Lord, Lord Lipsey, drew our attention to this. Why on earth do we need a clause specifying that community care services may no longer provide nursing care. The powers for the NHS to provide nursing care in a community setting are already in legislation. Indeed, the Explanatory Notes on the clause sound distinctly coy. They refer to the new arrangement as being to, strengthen the incentives for the NHS to ensure effective rehabilitation after acute illness". They go on to confirm what I have just said; namely, that, the NHS in pursuance of its powers and duties under the 1977 Act will provide or arrange nursing care … free of charge". As an opener to these amendments, I must say that I am baffled as to the legal necessity for this clause as a means of fulfilling the promise made by the Government in response to the Royal Commission on Long Term Care. "Strengthening the incentives" of the NHS to do what it is already empowered to do is very odd language to justify the insertion of this kind of legal provision. I do not understand why, for example, the Secretary of State could not simply have used his powers of direction to require health authorities to pay for certain types of care. If he did so, I doubt whether he would find too many local authorities queuing up to pay for the care instead.

What is the answer? I hope the Minister will explain. I am sure that there is an answer. But the only answer that begins to make sense to me—and it may not suit the Government to draw attention to this—is that somehow a way had to be found of sounding a legislative fanfare on free nursing care but at the same time to delineate in a very narrow way the boundaries of the NHS's new responsibilities. The definition of what constitutes nursing care in a residential setting has deliberately been made very restrictive. It is restrictive for one reason, and one reason alone: that is funding.

Any attempt by this Committee to widen the definition of nursing care in this context will result in a very significant additional burden on the NHS budget. The Government's agenda—the trick they wanted to pull—has been to appear to accept the recommendation of the Royal Commission on the provision of free nursing care in nursing homes while in reality not doing any such thing.

Of the kind of care that in most people's eyes constitutes nursing care, only a minor part will be funded free by the NHS. It is necessary to expose that agenda if one is to understand why the Government are being so obdurate in resisting any change to the definition upon which they have decided. But in confining the definition of nursing care to "care provided by a registered nurse" I believe that they are laying up trouble.

There are two issues: fairness and practicality. The moment that you start defining nursing in terms of who actually delivers the service you are creating scope for tremendous variations in practice around the country. Registered nurses are a scarce commodity; and in some areas and in some homes their availability to deliver nursing care to all who require it will be more limited than in other areas.

On the other hand, in a residential home in which there is a sufficiency of registered nurses there will be no incentive—indeed there will be a deterrent—for any such nurse to delegate a task to a healthcare assistant. In normal circumstances, delegation to a healthcare assistant is the natural way of proceeding, not just for everyone's convenience but because it makes sense to use a person's skills to the ceiling of their abililty and their training. But not any more: the moment the nurse does that the patient will have to pay for the care that he or she receives; and that would create impossible pressures on the registered nurses to allocate their time not according to clinical need but according to the financial impact on the residents.

That, by any standards, will be a perverse outcome of this new regime. It occurred to me that there could be a way out of this. Let us consider how in practice the cost of nursing care for each patient will be logged and billed to the relevant health authority. How will the funding actually work?

There are two possibilities. One is that every time a registered nurse carries out a task for Patient X she will log the time taken to do this on a clipboard. That is not a method of billing that holds any attractions— certainly not to me and, I suspect, not to the NHS. It would be bureaucratic in the extreme.

The other possibility is that each patient will be assessed on the extent of his or her daily need for nursing care. Based on that assessment, the health authority would agree to fund a certain number of hours of registered nursing care per week. That approach, to me, makes a lot more sense; but let us consider its consequences. It would result effectively in a lump sum being paid to the nursing home in respect of the time required by the nurse to deliver the assessed level of care.

Who will be concerned and who will check whether the care is delivered by a registered nurse or by a care assistant, with the nurse's approval or under her supervision? In practice, under this model of NHS funding the strict definition of "nursing care" as laid down in the Bill would fall away and become redundant. In practice in the real world it would be overridden. In other words, whoever delivered the care would be funded.

What this does is to transfer the problem of definition from the question of who delivers to what should or should not be counted in an assessment as constituting nursing care. That is the entrée to Amendments Nos. 264 and 267, to which I have added my name. These amendments seek to get away from the question of who delivers and to define nursing care by what it is that is being delivered. The analogy that springs to mind is that a loaf of bread is still a loaf of bread even if it is delivered by the milkman. For me, this approach is much more in tune with the conclusions of the Royal Commission. The Royal Commission defined nursing care as care using the skill and knowledge of a nurse". This is quite different from the definition of nursing based on the qualification of the person delivering it. My approach would optimise the use of available staff and thus deliver efficiency. By contrast, I believe that the Government's definition will be unworkable. It will put nurses in an impossible position in trying to allocate their time. It will risk unfairness by allowing the same care function to be free on one occasion but not on another, depending whether or not it is carried out by a registered nurse. Effectively, it would place a cap on the amount of nursing care that could be delivered based purely on the availability of registered nurses and with no regard to needs.

One can imagine a winter epidemic when the need for nursing care would rise but many patients would end up paying for their care if registered nurses were in short supply. How is it possible to call that situation anything other than perverse?

The conclusion is clear. We need a definition of nursing care that is workable and one that is equitable. My proposed amendments represent a broadening of the definition so as to be both those things. They would focus on the care given rather than the care giver as the appropriate criterion for determining eligibility for NHS financing. I commend the amendments to the Committee.

9.45 p.m.

Lord Clement-Jones

I shall not repeat the arguments made earlier about personal care. I want to address the issue of the definition of nursing care under Clause 56 even though, on these Benches, we believe that with a better definition of nursing care the solution would still be second best. At best, the current definition of nursing care is defective and highly artificial. Effectively, it is a legal definition—not nursing care as we know it. In that sense it is highly deceptive. It does not mean that the nursing care delivered in a nursing home will be free in the future under this Bill—far from it. It is a far more restrictive interpretation.

We are helped in interpreting the Government's intentions as regards nursing care by the publication of the department's National Minimum Standards. The crux of the matter is contained not in the Bill but in those standards. I suggest that the Committee considers Standard 3.5 which sets out the way in which assessments are to be carried out: The registered nursing input required by service users in homes providing nursing care is determined by NHS registered nurses using a recognised assessment tool, according to Department of Health, guidance". That is more restrictive than the Bill. It means that the Department of Health will define "nursing care" tightly. It will be assessed by a registered nurse; it will be according to Department of Health guidance; and it will only be that provided by a registered nurse.

That point did not arise in the previous consultations. I suggest that this is very much the cuckoo in the nest; it is a Treasury-inserted guideline. We have certainly heard the authentic voice of the Treasury tonight in the shape of the noble Lord, Lord Lipsey. Perhaps the noble Lord had something to do with that particular insertion.

It is not just anyone assessing what could be defined as "nursing care", this is a registered nurse undertaking the task. How long will that assessment take, how will it work and, indeed, what will the health service actually agree to pay for? This situation raises all sorts of different issues. I believe that the noble Earl, Lord Howe, teased out extremely well what the future might hold in that respect. For example, what will the future of nursing homes be? They cart no longer provide nursing care from a registered nurse because that will be provided by the NHS, although the exact duty of the health service in those circumstances is not clear. However, they can provide it from a healthcare assistant, and charge accordingly.

But what will distinguish a nursing home from a residential home? Probably nothing. They can both have visiting registered nurses, who will provide the nursing care as assessed by the very tight definition contained in Standard 3.5 of the National Minimum Standards to which I referred. The noble Earl posited various scenarios, but I very much doubt whether the NHS will be handing over lump sums to care homes. I suspect that it will send along community-based nurses to nursing homes, care homes, and so on, who will provide the very restricted level of care that is assessed as being necessary. This is a very deceptive clause: it does not deliver what most people believe it delivers. I believe that this will rebound on the Government. Indeed, they will find some very angry people on their doorstep when they find out what the Government are actually providing versus the propaganda to date.

Baroness Cumberlege

I support my noble friend and his amendments; and, indeed, the remarks made by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Masham. It is important for us to try to define what nursing care is. There is a distinction here between "nurses" and "nursing". I shall not give another Second Reading speech; I shall stick most firmly to the purpose behind Amendment No. 267. However, before I continue, I should like to thank the Minister for his kind words about nurse prescribing. I am most grateful to him.

I am not as far down the road on this issue as the noble Lord, Lord Lipsey, who, I suspect, has lived with it for some time. However, in trying to define "nursing care", I asked the RCN if it could draw up a six-case study for me. I shall not go into those studies in detail., but they were most interesting to read. One could see quite clearly where the nursing input was, and where the registered nurse was required to delegate and supervise the work of the healthcare assistant. It seemed to me that it was the healthcare assistant receiving that support who could provide the service, not someone who was just an untrained lay person. I believe that there is a real hierarchy in the work that nurses undertake.

I met Christine Hancock today and asked her for a definition. In a quite philosophical way she said that she felt that "nursing" could be described as "invisible mending". In a way, that is the great difficulty. It is not like medicine or surgery where one has a cut and a thrust; similarly, it is not like very strong therapeutic drugs where one gets an immediate reaction. It is something very holistic. That is why it is so difficult to get hold of and to define. I agree with other noble Lords who have said that to have a list of tasks is a snare and a delusion; and that one should not go in that direction. We tried it years ago, and we know that that fails. So we return to the assessment given by nurses, which is so important.

The amendment that we have put forward is quite clear. It shows exactly what the role of the registered nurse is and the sort of care that needs to be provided. I agree strongly with the noble Baroness, Lady Barker, who said it is much better that we define the matter here in Parliament rather than have the Law Lords attempt it. There is a wealth of experience and expertise in this Chamber that might not be reflected in a decision taken by three Law Lords.

I want to pick up the inverse incentives that the noble Lord, Lord Lipsey, mentioned. They are very real. We are very short of nurses. We are trawling the world to try to attract nurses to this country. To build in an inverse incentive is a very rash thing to do, especially at this time.

My last point concerns fairness, which the Committee has addressed. I reflect on what is happening in the community services now. These issues were addressed in the community care Act. Community nurses have sorted out what happens as regards care assistants. It has been quite easy for them because healthcare assistants are provided free to those living at home. That is an extraordinary situation in that people who are less dependent are being looked after at home and receive free nursing care and free healthcare assistance. Yet when those people go into residential care they have to pay for healthcare assistants. If they are cared for by a registered nurse, a better qualified person, that is free, but if they are looked after by someone who is perhaps less expert and less qualified they have to pay for that. That seems to me quite extraordinary.

I believe that the amendments should be accepted. I think that at the very minimum the Government should undertake to fund all the nursing care identified by a patient's nursing assessment as being necessary for that patient irrespective of whether that care is delivered by a registered nurse or by a healthcare assistant.

Baroness Masham of Ilton

I just cannot see how nursing care and social care can be divided. Scotland has recognised that, but then the Scots would; they have a lot of common sense. The noble Baroness, Lady Richardson of Calow, has given a good example of how complicated this matter is. Why have care assistants been left out of the Bill when everyone knows that they carry out a large percentage of nursing these days? I say to the noble Lord, Lord Lipsey, that surely decisions should be made on the basis of need, whatever conditions apply. Unless the Committee can get this message over to the Government there will be a monumental muddle on the ground. The Royal College of Nursing understands that, so I hope that the Minister will.

10 p.m.

Lord Hunt of Kings Heath

I am glad to respond to the debate. I certainly agree that these are difficult issues in relation to definitions. No one can wave a magic wand and come up with a definition that finds universal approval. Like my noble friend Lord Lipsey I believe that we have come up with just about the only workable definition, which I shall seek to identify.

I also believe that despite the anxieties and concerns that have been expressed—I listened closely to the noble Earl, Lord Howe—we are making a real advance by ending the anomaly that only people in nursing homes can be charged for the care they receive from a registered nurse which would be free through the NHS in any other setting. It is worth saying that we calculate that the measure will help about 35,000 people at any one time who currently have to pay for their nursing care and who could save up to about £5,000 a year during their stay in a nursing home. I believe that that is a real advance.

As the noble Earl, Lord Howe, suggested, the clause as currently drafted sets out the care which local authorities will not in future be able to provide. It does not define the care which the NHS will arrange as that is already provided for in the NHS Act 1997 which imposes on the Secretary of State a duty to provide health services including nursing.

It may be helpful if I explain how we envisage that this will work. We shall set out in directions how the NHS would fulfil its duty in respect of nursing home residents. We shall ensure that the same approach to assessing the need for registered nurse input to a person's care in a nursing home is used throughout the NHS in England. So the assessment is clearly key to ensuring that the correct levels of nursing care are provided.

The Royal Commission has been quoted in aid. It discussed the possibility that the creation of free care would increase demand. It stated that assessment of need must control use and, therefore, cost. Our intention is to provide NHS nurses with guidance and training in the assessment process. That will define the registered nurse input into that care package. The intention is that, wherever they live in England, individuals with similar nursing needs will receive similar levels of care from a registered nurse.

Once the assessment had been made, the NHS would arrange for the registered nurse input to be provided in the nursing home. The NHS would ensure that the nursing home where the person was living could supply the registered nurse input, if needed. If that person had a specialist nursing need, such as stoma care, the NHS may arrange for that to be provided by visiting specialist NHS nurses.

The NHS and social services would contract with the nursing home for a certain level of service. Residents responsible for paying their own fees would pay such fees as would take account of the NHS's financial contribution to that care. There is no intention to charge residents based on time sheets or other bureaucratic processes. The intention is that the NHS, through the contract with the nursing home, would monitor the nursing care received.

Alongside that, the National Care Standards Commission would ensure that the home had adequately qualified staff at correct levels to deliver individual care plans. Reassessment would take place three months after placement in the home, and then not less than annually, except—I am pressed on this matter, as I was in our debate a week ago— that reassessment would be needed much sooner if there had been serious illness or changes in circumstances; and those triggers for reassessment would be outlined in the guidance to the NHS.

Our proposals for the NHS to take responsibility for the provision of care by registered nurses in nursing homes would bring the NHS provision of care in nursing homes into line with the care received by people in residential care homes. The provision of care would be consistent, irrespective of the setting in which they happened to reside.

I believe that some of the amendments would seek to bring bathing, dressing and other daily care routines within the sort of nursing care that local councils cannot provide, with the assumption that they would then become the responsibility of the NHS. But the NHS would not necessarily be able to pick up that responsibility, particularly if it applied to long-term care provided in residential homes and people's own homes. Although the NHS can, and does, provide services ancillary to those of the NHS when there is a need for a high level of help or nursing care, it is not obliged to provide such support services in settings where there is no need for high levels of NHS care.

As my noble friend Lord Lipsey suggested, in one way or another, many of the amendments that we are considering seek to broaden the definition of nursing care. However that is achieved, it seems to me that the distinction between nursing and personal care then becomes blurred, making it much more difficult to draw a line between the care provided by a nurse and that provided by other support workers. The fact is that once that was done, it would add considerably to the costs that we have already committed to improving other people's services.

I hesitate to mention costs, but I do not believe that any of the noble Lords who have moved amendments gave an estimate of the additional cost of their proposals. That takes us back to our Second Reading debate. The Government have decided that, alongside our decision on the definition of a registered nurse, we want to commit the additional resources that we are spending to intermediate care, because we think that that is where the money would be best spent. Any of the amendments in this group would put up the cost, which would beg the question of where the resources would come from.

This is a genuine debate about priorities. The Government have decided where their priorities should be. Everyone brings well considered views to the table. There is a difference between us in principle, but those who are suggesting different definitions owe it to us to accept that they would be likely to cause extra costs and that they are then obliged to say what impact that would have on other priorities.

Amendments Nos. 261, 264 and 267 would all include within the definition of nursing care all the care planned by the registered nurse, regardless of who provides it. Our definition of nursing care is much closer to that provided by the NHS in residential homes. It is not clear from the amendments what such care would cover. Inevitably, it might cover issues such as washing, dressing and toileting. If those functions were included—which, because of the drafting of the Bill, councils could not provide for some people because of the nursing assessment, even though they were still expected to provide them for others in the same circumstances—we would run into problems. Some noble Lords have suggested that our definition will be difficult to operate, but I believe that it is the only definition that will be capable of practical implementation. However worthy the other definitions may be, they would run into many more problems.

The inclusion of healthcare would also extend the definition. The NHS already has a duty to provide healthcare to any member of the public as is reasonably required. Residents of care homes should already receive NHS services direct from the NHS in the same way as any one of us would receive services from our GP, physiotherapist or dentist if we needed them. I see some noble Lords shaking their heads. The fact that that principle is being breached in some parts of the country does not prove the case for more legislation. My department must ensure that the NHS fulfils its responsibility for those services. I accept that we have to face up to that challenge.

Clause 56 does not prevent local authorities exercising the functions of NHS bodies under the partnership arrangements under Section 31 of the Health Act 1999. In those arrangements, there may be a pooled fund for the exercise of certain functions by a local authority on behalf of the NHS body, including the provision of community care. In such cases, we expect local councils and their NHS partners to use that flexibility to ensure that placements in nursing homes are handled in the most effective way possible.

The aim of Amendment No. 262 is to make any community care that is available to other people without charge available to all at NHS expense. That would mean all community care services being provided by the NHS on the same basis as hospital services are currently provided. Following on from the debate between the noble Lord, Lord Rix, and my noble friend Lord Lipsey, I believe that in the end that would lead to the NHS providing board and lodging for those in nursing and residential care. The implications of that are even wider than those in relation to personal care.

Amendments Nos. 263 and 266 suggest that free personal care should be made available to some groups of people but not to others. Such a proposal is based, for example, on the level of need, the diagnosis of particular conditions or the setting in which care is to be delivered.I understand why my noble and learned friend makes that proposal. However, again, I believe that it would bring with it large problems. It would create perverse incentives, and there would be an all-or-nothing assessment of need under which the individual received everything or nothing. There would be a huge cliff-edge, and that would place enormous pressure on the assessment process, with challenges to diagnosis or professional judgment.

I also believe that it ignores the fact that people with a condition may suffer from it in a very serious or a very mild way. However, because a person has the condition, he will be eligible for the free provision. Surely an assessment should be based on need rather than on a particular condition.

I turn to Amendments Nos. 265, 268 and 269. I repeat that the NHS has a duty to provide healthcare to any member of the public as is reasonably required. If the NHS has assessed a health need, residents of care homes should already receive NHS services direct from the NHS in the same way that any of us would receive services from a GP, a physiotherapist or any other member of the health professions under the responsibility of the NHS.

In conclusion, I recognise that this is a genuine debate and that genuine concern exists as to how the definition will operate. I have examined the issue time and time again. I believe that, finally, the definition that we have is the only one that is workable unless, in the end, we return to our previous debate and make personal care free. The Government have decided not to do that. We believe that the priorities are to regularise the position in relation to care provided by registered nurses and to invest in intermediate care, where I am sure that we shall bring about a great deal of improvement in the lot of many people.

Baroness Barker

I begin by thanking all Members of the Committee who have contributed to what the Minister rightly called a very important debate. Many genuinely held points of view have been put forward. I do not intend to speak for long because we have a great deal of work yet to do. However, I wish to raise a few points.

First, I refer to a point made by the noble and learned Lord, Lord Archer of Sandwell. I preface my remarks by saying that I have the utmost regard for the organisation that he represents. I have supported Methodist Homes for the Aged all my life. Within the field of ageing, it is noted rightly as one of the outstanding providers of services for older people. On this occasion, I believe that the noble and learned Lord's argument is wrong, and I support the Minister in not going down that road.

There are many different reasons why older people can end up in the same position. I believe that one of the defining principles of Methodist Homes for the Aged is: "From each according to his means; unto each according to his needs". I say to the noble Lord, Lord Lipsey, that I rather wish that the Treasury had taken that as its approach to the matter.

Lord Archer of Sandwell

I am most grateful to the noble Baroness. It is not a Marxist organisation.

Baroness Barker

It definitely is not. However, it is one of the best organisations at meeting the needs of frail and vulnerable older people in this country.

I believe that the noble and learned Lord's argument is wrong because there is a myriad of reasons why older people can end up with the same need. I understand entirely his point about dementia, but those who suffer strokes, falls, chronic arthritis or the effects of MS can end up with exactly the same needs as someone with dementia. That is the problem.

The noble Lord, Lord Lipsey, talked about costs. The Government's costings, which the Minister trotted out again today, are arbitrary—the £5,000 figure is arbitrary. When we get to the heart of the debate, we shall make it clear that some of the Government's figures do not help us to sort out the problem.

I fundamentally disagree with the Minister's statement that his definition of care is more realistic than those of the rest of us. The definition in the amendment—the planning of care by nurses but the carrying out of that care by care assistants—is the reality for most older people in residential homes. The Minister is simply wrong.

The lack of clarity on nursing care is the point at which the whole of the edifice of the health and social care system that the Government are building will start to fall. Everyone needs to know where they stand. Those Members of the Committee who have tried to sort out care for older relatives or friends know that, when a traumatic incident happens to people in old age that makes them need care, the first thing that one needs to know is what their needs are, what is available and what they have to pay for. The Government's definition of nursing care will not make it easier to do that than is currently the case. I say to the noble Lord, Lord Lipsey, that without the definition of nursing care, even those who want to purchase such care privately will have problems with the proposal.

We have had a good debate and there are extensive concerns in this regard. On another occasion we should have tested the opinion of the Committee but we shall not do so tonight. I urge the Government to go away and to think again about their very mean-spirited definition of nursing care. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 [Exclusion of nursing care from community care services]:

[Amendments Nos. 262 to 264 not moved.]

10.15 p.m.

Baroness Masham of Ilton moved Amendment No. 265: Page 58, line 24, at end insert "or health care by a person who is registered by any board established under the Professions Supplementary to Medicine Act 1960".

The noble Baroness said: I move this amendment, which appears in the name of the noble Lord, Lord Morris of Manchester, in the hope that I can obtain reassurance from the Minister. The Clerk tells me that it is in order for me to do so.

The noble Lord, Lord Morris of Manchester, would like to have included the professions supplementary to medicine— that is, physiotherapy, occupational therapy, speech therapy and chiropody—in the Bill. That is very important. On Monday, I believe, the Minister gave some very hopeful signals that that might be done. I thought that it was worth bringing the matter up tonight because an election may be called and anything could happen to the Bill. I look forward to the Minister giving an assurance on this important matter. I beg to move.

Lord Hunt of Kings Heath

The assurance that the noble Baroness, Lady Masham, seeks is that the services of professions allied to medicine will be available to people in homes. They will be available after assessment, as they are in any other part of the health service. An assessment of need will be made and services will depend on the categorisation of that need. That does not mean that services will be available for every resident; it will depend on the assessment process.

Baroness Masham of Ilton

Would it not be simpler to write that into the Bill, to clarify the muddle that there will be in this matter?

Lord Hunt of Kings Heath

The problem is with the architecture of the Bill. The clause says that nursing can no longer be provided by the local authority, but the words "professions allied to medicine" would restrict what a local authority could do for people who were not in a health setting. I would not recommend that route.

Baroness Masham of Ilton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 266 to 269 not moved.]

Earl Howe moved Amendment No. 270: Page 58, line 31, at end insert— ( ) Before bringing this section into force the Secretary of State shall consult such bodies and organisations as he shall consider appropriate with a view to determining the funding and other arrangements necessary to implement it.

The noble Earl said: While the focus of our debate on this clause has not unnaturally been concentrated on the definition of the terms used and the separation of nursing from personal care, we must address another issue of real concern. Local authorities are worried about how the provision can be implemented without massively increased bureaucracy for nursing home providers, health authorities and local authorities. The implementation date of October 2001 is seen as wholly unrealistic. The logistical aspects of what is proposed are huge and there is real concern that if the transfer of functions proceeds on the basis outlined by the Government, the total amount spent on providing pre-nursing care will increase. The amount of nursing care that it will purchase will decrease.

Amendment No. 270 proposes that, before anything further happens, the Government must get round the table with local and health authorities, as well as the Royal College of Nursing, representative organisations for nursing home providers, and so on, to discuss how the proposals will be funded and implemented.

There are all sorts of unanswered questions. How will the cost of the nursing care element in the nursing home be calculated? Will it be on an actual or notional basis? If we are to avoid postcode lotteries, will national criteria be applied? Who will bear the additional transactional costs that are bound to arise? If local authorities no longer Commission nursing home care, how will they ensure best value for hotel and personal care costs in nursing homes, for which they remain liable? How transparent will the process be for the transfer of funding from local authorities to health authorities? What transitional arrangements are needed?

These are only some of the issues causing concern. I hope that the Minister will recognise that there is considerable worry and disquiet among local and health authorities, which are operating in a vacuum in terms of the information at their disposal. They must have information if they are to plan properly. I hope that the Minister will reassure the Committee that the Government will look carefully at the implementation date that has been set. If necessary, I hope that they will put it back a little to ensure that the process of transfer does not end in chaos. I beg to move.

Lord Hunt of Kings Heath

We certainly do not want anything to stop the smooth introduction of this new policy, nor do we want any delay. It would be a great disappointment to many people if we were unable to introduce it by October 2001. Perhaps I can reassure the noble Earl, Lord Howe, that, although he will not be surprised when I say that I am not keen on a statutory requirement for consultation being in the Bill, we are committed to discussing with key stakeholder groups how best to implement the policy. It is in all our interests to ensure that this runs smoothly. Therefore, in the belief that I have expressed on many occasions during our debates that in order to ensure success, you need ownership, we shall consult widely on the implementation of this policy.

Earl Howe

All I can say is that time is of the essence. I accept the Minister's bona fides in this and his assurance that the Government have that in mind but there really is not long now before this all has to roll out. I say again to him that there are some worried local authorities out there. But I thank him for what he said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 271: Page 58, line 31, at end insert— ( ) The relevant authority shall make regulations requiring that any persons receiving any services which are not considered nursing care, as determined by this section, shall receive detailed information on the costs of the provision of the personal care and accommodation prior to any agreement for the provision of community care services being made.

The noble Earl said: This amendment would ensure that all patients are given clear information as to the costs of personal care and accommodation before they enter a nursing home. It should be made clear exactly how much of the charges relate to personal care and how much to accommodation costs.

In its current form, there is nothing on the face of the Bill that helps elderly people to identify how much long-term care is likely to cost them. For many, if not most, people, that is a critical piece of information. Different patients require different levels of nursing care. That implies that there will be different charges for each patient, depending on the level of nursing and personal care which they will need. Of course, a patient's care needs will change throughout a stay in a residential home. Clear details of the costs of personal care would enable people and their families to prepare for possible future expenditure. It will also ensure minimal confusion when bills are presented to elderly people or their families. I beg to move.

Lord Hunt of Kings Heath

I wholeheartedly agree with the noble Earl, Lord Howe, but my understanding is that that information should already be provided. The current guidance about assessment of resources under the National Assistance (Assessment of Resources) Regulations 1992, with which I am sure we are all familiar, entitled The Charging for Residential Accommodation Guide makes it clear that anyone entering residential care must receive detailed information on the funding of the placement and the contribution he may be required to make before agreeing to any placement being made. I hope that that answers the important point which is being made here.

Baroness Masham of Ilton

What happens if, after a few months, someone finds that he cannot pay? What happens to him then?

Lord Hunt of Kings Heath

I am not sure about after two months, but there clearly are circumstances in which people's resources run down and in some cases, those people have faced eviction. Assuming that people have run down to the capital limit, when the means test kicks in, it would then be a matter for the local authority, in conjunction with the person involved, to decide what to do. But I certainly agree with the noble Baroness's implication that that may leave people in a very difficult situation.

Earl Howe

I am grateful to the Minister for his response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 agreed to.

Clause 57 [Preserved rights: transfer to local authorities of responsibilities as to accommodation]:

Baroness Barker moved Amendment No. 272: Page 59, line 5, leave out "on the appointed day" and insert "from 1st October 2001

The noble Baroness said: This amendment deals with the issue of preserved rights. If ever there was a misnomer in the field of social care, it is the words "preserved rights". Those provisions relate to people in residential care before 1993 and enable local authorities having to take on responsibility for about 0.25 million people who were then funded by the Department of Social Security. They were supposed to reassure them that there would be no change for them. But in many cases, the income support did not meet ceiling levels of the home and many older people caught in that trap have been forced into penury. The reason for the proposal to move the date to October 2001 is, therefore, to help a group of people who are often in dire hardship as a result of having to try to meet the difference in cost—either by themselves or their relatives or by recourse to charities—of where they live and their income.

One of the purposes of the amendment is to seek reassurance from the Minister that when social service departments take on a case, just because a person is in a home that is more expensive than the level of fees which a local authority would normally pay, that should not be a reason for moving that person.

We are talking of older people who in many cases are well into their eighties and nineties and in one case which was recently alluded to on Radio 4's "You and Yours" 102 years-old. A lady of 102 was threatened with eviction. At that time and in that case there was a statement from the Minister's department that: Councils already have powers to help people of working age who are struggling to pay their fees. We accept that possible eviction is a problem for some older people, particularly those in nursing homes whom councils cannot normally help. We are planning to change the regulations shortly to remove some of the present restrictions that prevent councils from helping".

To the best of my knowledge, that has not been forthcoming.

Another reason for moving the amendment is to seek reassurance that local authorities will receive adequate funding, not just for the costs of homes but also for the cost of extra assessment and extra care management.

The Minister will not be surprised at my asking what happened to regulations which were promised at the end of last year and still have not appeared. They were supposed to be forthcoming within a few months to help older people until April 2002. I can only assume that the Minister's department has been working so hard on the national service framework that it has not been able to get those out to us.

The amendment deals with the unhappy situation of a number of elderly people who are in dire need. I therefore hope that the Minister will look favourably upon it. I beg to move.

Lord Hunt of Kings Heath

The noble Baroness has put the case well. I understand the difficulties and pressures on this group of people. I also want to assure her that the intention is that they should stay in their existing homes.

We are working closely with colleagues in the Department of Social Security and with the local authority associations o ensure a smooth transition to the new system. I also understand the need for urgency. Local authorities and benefit offices need as much time as is reasonably possible to plan their management of the change if it is to be introduced effectively. In addition, people affected need to be given time to prepare for the change.

The Department of Social Security is planning to write to the people concerned to notify them of the reasons for the change t o their benefit payments and to explain the local authority's involvement in and responsibility for their future care needs. That obviously requires a great deal of planning and preparation. It can start only after the passage of the Bill. That is why we felt that April 2002 was the best date to start the scheme.

Given that what we propose will involve a reassessment of and changes to the income support payments which people with preserved rights currently receive, it also makes sense to introduce the change at the same time as other planned changes are made to the benefit. As the noble Baroness will know, the annual increase in all income support rates takes place every April.

As regards the regulations, perhaps I may say to the noble Baroness that we are working on them; I cannot give her a date.

Baroness Barker

I am very glad that the Minister did not give a date because I am not sure that I would have been able to keep to it. We are talking not just about the cost of implementing the abolition of preserved rights, but also its associated costs. The Minister and Members of the Committee will know about the consequences when very elderly people are moved from their long-established homes. There are well-documented cases where such transition has taken place quickly without any help, support or advocacy. The result has been a very much higher death rate than anticipated among these elderly people. Therefore, will the cost of additional matters such as advocacy be included in the provisions?

Lord Hunt of Kings Heath

I thought I had said that the intention was for people to remain in their homes. I well recognise the issue that she raised. It is something which the National Health Service has found when it has moved residents who have been at one address for a very long time. The mortality rate is extremely high. We clearly have to avoid that.

Baroness Barker

I am very happy to accept the Minister's assurances. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 273: Page 60, line 9, at end insert— ( ) Before bringing this section into force the Secretary of State shall consult such bodies and organisations as he may consider to represent the relevant interests of local government as to—

1. (a) the methodology to be used for calculating the amounts required to fund the arrangements provided for in this section;
2. (b) the methodology to be used for calculating a fair and equitable distribution of such funding amongst local authorities: and
3. (c) the means whereby such funding is to be transferred."

The noble Earl said: The contentious issues surrounding preserved rights are not to any great extent about policy, they are about implementation. En a nutshell, unless the level of funding transfer reflects the actual costs and not just the current level of social security funding involved, then local authorities with large numbers of preserved rights residents will be unable to implement the policy without incurring very serious financial difficulties. The Minister will be aware that the actual costs for local authorities include not just the funding to be paid to home owners as fees, but additional costs associated with care management, financial assessment, contracting, invoice processing and income collection.

The DSS has estimated that in 45 per cent of preserved rights cases there is a shortfall between the fees charged by care home owners and the weekly benefit income of residents. That has arisen because over the years benefit increases have failed to keep pace with the actual costs faced by care home providers.

The fear among local authorities that are likely to be the worst affected, such as Kent, East and West Sussex, Devon and Lancashire, is that the funding transfer from social security will involve only the transfer of current expenditure. These sums are due to be increased in April, but unfortunately there is little comfort in the level of increase as it is only 1.8 per cent. which is well below inflation. But if that happens, then the shortfall in fees currently met by social security would have to be met instead by local authorities from their own resources, including council tax receipts.

On the worst case premise, Kent County Council has calculated that, with an estimated 4,000 preserved rights residents, the additional annual cost to its budget would be of the order of £8 million to £10 million. That is a huge sum of money to find. What is needed is some reassurance to local authorities such as Kent. I am looking for a categorical assurance, if the Minister can give it, that these clauses, irrespective of the overt policy intention which is perfectly sound, are not going to be used as a means of transferring an unfunded cost pressure from central government funding to local authorities and their tax payers. That is why my Amendment No. 273 specifies that before anything happens under the provisions of this clause, there has to be consultation, not just about the money itself, but about the methodology to be used in calculating what local authorities need, how to determine a fair allocation between local authorities, and how in practice the money will be transferred, whether by SSA or by special or specific grant. The Association of Directors of Social Services, the LGA and CIPFA need to be involved here.

I should be grateful if the Minister would take this opportunity to confirm that the funding transfer to local government will reflect actual costs of care provision; that the additional care management and other costs that I mentioned will be reflected transparently in the financial settlement for local government; and that the Government will give thought to setting up some kind of mechanism to compensate those relatively few local authorities who will find their administrative workloads increased dramatically as a result of this change of policy. I beg to move.

Lord Hunt of Kings Heath

I am not sure I can answer all the questions raised by the noble Earl. I agree that it is important that local authorities are given as much information as possible and are properly consulted about the changes.

The noble Earl mentioned concerns of local authorities. We have been working very closely with colleagues in the Department of Social Security and the local authority associations to ensure a smooth transition. I accept that local authorities are particularly keen to ensure that the amount of money allocated to them for their new responsibilities is both sufficient and is calculated fairly and equitably.

So far as concerns the money, the money the DSS would have spent on people with preserved rights is to be given to local councils. That amounts to £528 million in 2002–03 and a projected £474 million in 2003–04. This money will be paid to councils with the money being transferred in respect of changes to the residential allowance within the new promoting independence grant of £862 million in 2002–03 and £873 million in 2003–04.

Conditions will be attached. They will be announced shortly. They will enable us to ensure that this money is spent in the right way. Brief details of this decision have already been notified to local authorities in a circular issued on 27th November of last year.

There is the question of how the money is allocated to individual authorities and what conditions will be linked to its use. Our intention is to consult with the local authority associations about this change over the next few weeks and months. As part of those discussions we shall also seek their views about the statutory guidance we plan to issue later in the year and about how authorities should carry out their new responsibilities.

To sum up, we want to ensure that the local authorities have the resources they need. We also want to ensure that the allocation is seen to be fair and equitable. I hope that answers the main points that the noble Earl raised.

Earl Howe

I thank the Minister for his reply. If I am honest, I cannot discern from his answer whether he has covered every point that I raised. He said that he was not able to cover every point. The main point was whether local authorities will find themselves suddenly with an unfunded liability. I think he said that that was not the Government's intention. If I am right in having understood him in that way then that is reassuring. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rix moved Amendment No. 274: Page 60, line 25, at end insert— (11) Nothing in this section shall authorise any movement of a person other than in that person's interests and with that person's consent.

The noble Lord said: In rising to move Amendment No. 274, I realise that it has echoes of its immediate predecessors. Charity being the chief of virtues, I hope that I shall not be accused of lack of charity in suggesting that the presentation of the benefits of abolishing preserved rights for people in residential care has been a little one-sided.

For people under pension age, the possession of preserved rights has never stopped local authorities topping up where the social security funding falls short in meeting the Bill. It is people over pension age who have been disadvantaged by rules which mean broadly that, if you have preserved rights, the local authority cannot top up. So for the person under pension age with a learning disability, preserved rights have meant greater personal financial bargaining power without loss of other rights and less likelihood that the local authority will want to move them.

Given the age at which people with learning disabilities tend to leave the family home, many people do not particularly want to move again. The change that the Government propose to make can be an unmixed as opposed to a mixed blessing if the Government, by legislation, regulation or direction, ensure that nobody will be moved from their present home unless it is in their interests and with their consent or, if they cannot consent, with the consent of their independent advocate.

Nobody should be put under pressure to move. I add that condition because vulnerable people are indeed vulnerable to pressure, many of them having spent most of their adult lives being subject to choices made by other people. The choice directive, which concerns choosing where you live if you move, is applied to those who move following the loss of their preserved rights.

There is another aspect to all this where I am less confident of seeking government reassurances. The transfer of preserved rights funding to local authorities is, as I understand it—if I understand it at all—to be accompanied by a top up from the Government to allow some catching up where the preserved rights of older people have fallen behind the costs of their residential care. However, the concern is whether, over time, annual local settlements will be adequate to sustain good quality provision. What none of us wants is an increasing gap between local authority responsibilities and the ability of local authorities to discharge those responsibilities. I look forward to such reassurances as the Minister can give. I beg to move.

10.45 p.m.

Lord Hunt of Kings Heath

I understand the point made by the noble Lord, Lord Rix, which we have already debated to a certain extent. I am very conscious that people with preserved rights have been in residential or nursing accommodation since before April 1993. Many will have lived in the same home for all that time and, as I have said, clearly it would be utterly traumatic for those people to have to move.

The Government accept that. We gave a commitment in the NHS Plan that the abolition of preserved rights would not disadvantage anyone. To fulfil that commitment, after consulting interested parties, we intend to issue statutory guidance to local authorities—I stress that this will be statutory guidance—to make it clear that no one must be removed from their existing care home under the new arrangements against their will unless there is a compelling reason why that should be so. I should also like to stress that the guidance will make it clear that no pressure must be put on people to move.

The kind of situation which would be regarded as a compelling reason might be a circumstance where the current home closes or in which it cannot meet the person's assessed needs. I hope that, given those assurances, the noble Lord will feel that this matter is being handled in an acceptable way.

Lord Rix

I am most grateful to the Minister for that response. I am delighted that he was able to say that statutory guidance will be given covering all the points which I raised. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clauses 58 and 59 agreed to.

Lord Rix moved Amendment No. 275: After Clause 59, insert the following new clause—

"MANDATORY DISREGARD OF PROPERTY IN CERTAIN CIRCUMSTANCE (1) The Secretary of State shall, by regulations subject to approval by both Houses of Parliament, make provision requiring local authorities to disregard the value of an individual's property when that property is occupied in whole or in part, as his home, by a person or persons as prescribed. (2) [Regulations under this section may, in particular, make provision prescribing the categories of person, and the conditions to be satisfied by a prescribed person, in relation to a mandatory disregard.

The noble Lord said: The reality of community care is, as we all know, that most people are cared for not by the community, not by the state or the local authority, not by their wider family, but by one family carer. This makes it particularly objectionable that when the parting of the ways comes, and the person cared for has to move into residential care, the family carer may lose his or her home.

Those whose favourite bedside reading is LAC(99)9—Charges for Residential Accommodation Guide—and its regular flow of amendments, will be familiar with the detail of which carers are or are not protected in possession of the home they have shared with the person they have cared for. In support of this amendment, I need only say that not all are protected by legal rights; and that while local authorities have discretion to protect others, that is a much more fragile safeguard.

Age Concern has highlighted cases where the carer is left high and dry, and a whole range of voluntary bodies which are united in support of this amendment have similar experiences to relate. From my own experience, I can point to a grand-daughter who devoted herself to looking after her grandmother for some 10 years until the old lady's needs got beyond her capacity, and who then faced the prospect of becoming homeless. Her grandmother died before the house they shared had to be sold to pay the bills—but the chance of death is not an adequate substitute for the guarantee of justice.

The amendment is worded cautiously, because I recognise the need for safeguards. It is conceivable that in protecting the relative who has lived with and cared for the elderly or disabled person for half a lifetime, protection might also be given to the absent relative who moves in the day the elderly or disabled person moves out. The possibility of abuse is not justification for inaction. It is justification for caution.

I want to conclude this short statement of the case with a worst case scenario. The argument cart seem to be one for rewarding the carer for past caring responsibilities by protecting his or her home at the point when those responsibilities cease. It is, of course, not like that. The carer normally carries on caring— not just by regular visiting but commonly by actual, physical caring in the new setting. To say to that carer, "We want, immediately or in due course, to take away your home in order to pay for the care you are helping us to provide", seems to me—as I hope it does to all Members of the Committee, including the Minister— simply untenable. I beg to move.

Baroness Barker

I support the case set out by the noble Lord, Lord Rix. The mandatory disregard for property does not cover a number of people, particularly carers and same sex partners. I am particularly concerned about same sex partners, because they are people who in other respects have difficulty in making legal arrangements to safeguard their property when their relationships are not recognised.

In Standing Committee in another place, it was agreed that a genuine issue is at stake. The Minister in the other place said that the Government would reflect further on it. The Minister went on to say: A procedure already exists to issue regulations about who should be disregarded for these purposes, and regulations offer the most appropriate means of dealing with the problem". It would be helpful if the Minister in this place would give an undertaking that regulations will be amended to ensure that property is disregarded so that members of the resident's family or former carers—the people who will be picking up the personal care which the noble Lord, Lord Lipsey, does not wish to have paid for by other means—are not penalised twice over.

Lord Hunt of Kings Heath

Under current legislation, when deciding how much a person is liable to pay towards the cost of their residential care the council will look at how much capital the person has. The limit for a person with over £16,000 in capital is to be raised to £18,500 from 9th April: above that, persons will be required to pay the full cost of their accommodation. The council will look at all forms of capital, including the former home, when deciding how much capital the person has. However, as the noble Baroness has suggested, regulations made under Sections 22 and 26 of the National Assistance Act 1948 require councils to disregard the value of a resident's property where it continues to be occupied by the resident's spouse or partner or another relative who is 60 or over, or another relative who is incapacitated, or where a child who is dependent on the resident continues to live in the property.

Importantly, councils also have the discretion to disregard property where it continues to be occupied by a third party not covered by the mandatory disregards. Many local authorities make use of this discretion, and we have given this a great deal of consideration since the discussion in another place. I have also had the benefit of a meeting with the noble Lord, Lord Rix, to discuss this further.

We have decided to look to future guidance and remind councils on how they should be interpreting the liable relatives rule with respect to carers, including those where the cared for person enters respite care. This guidance will remind councils of the purpose and place of the liable relatives rule while at the same time encouraging them to use common sense and discretion where appropriate.

For instance, it will remind them of current guidance under the Carers and Disabled Children Act, which asked councils not to charge carers for services received by those for whom they care. As has been suggested, this must make sense. For example, it would serve little purpose if carers are asked to contribute to care cost when they are already making significant sacrifices to care for their partner and when some in that situation might see little point in carrying on caring. The pathway we have chosen is to issue more guidance to local authorities in this area.

Lord Rix

With that assurance, which I am delighted to hear, and seeing that guidance will be strengthened in regard to the liable relatives rules, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Greengross moved Amendment No. 276: After Clause 59, insert the following new clause—

"DUTY TO DISREGARD FINANCIAL RESOURCES IN MAKING ASSESSMENT DECISIONS (1) The National Health Service and Community Care Act 1990 (c. 19) shall be amended as follows. (2) After section 47(1) (assessment of needs for community care services) there shall be inserted— (1A) In deciding whether or not to carry out an assessment under subsection (1) above a local authority shall disregard any financial resources available to the person. (3) After section 47(3) there shall be inserted— (3A) Where a local authority has decided to carry out an assessment the authority shall give reasonable notice in writing that an assessment is to be carried out. (3B) Within 14 days of completing their assessment the authority shall notify the person in writing of the outcome, including details of—

1. (a) any needs that have been identified as a result of the assessment that require the provision of any community care services;
2. (b) any community care services that the person will receive;
3. (c) the statutory agency which is responsible for ensuring that such services are provided;
4. (d) a summary of the charging structure that will apply for provision of such services by the authority;
5. (e) the date on which services will commence;
6. (f) in so far as the authority does not accept that needs identified by the person and the authority (or both) as requiring the provision of community care services call for the provision of such services, the authority shall inform the person of the reasons for this decision;
7. (g) the right to request a review of the decision and of the time within which such a request must be made."

(4) In section 47(4) leave out the words "subsection (7) below" and insert "subsections (1A), (3A) and (3B) above and (7) below". (5) The Secretary of State may issue directions requiring that assessments shall commence and be completed within prescribed periods."."

The noble Baroness said: This amendment would ensure that persons who have sufficient resources to purchase their own long-term care are not, because of that, denied the benefit of a skilled assessment of need. We know that there is a likely potential for service users to be left with inadequate information about which services are the responsibility of which statutory body, to which agency they complain and for which of their services they are paying. We have heard about this during the course of our debate. Current practice in carrying out assessments and complete care plans, I am afraid, is often woefully inadequate, to the extent that service users are often unaware that they have been assessed.

Delays in assessment and in the subsequent provision of services due to the involvement of more than one statutory agency are also a concern. This is a multi-purpose amendment about the whole process of assessment. People encounter a great many problems, and we want to have on the face of the legislation some provision which could address these problems. I beg to move.

Lord Lipsey

My noble friend Lord Morris is desolated that he cannot be here because of an important medical engagement. However, whatever view we take about whether richer people should contribute to their care, he believes that they should not be denied assessment. Assessment is a signpost that tells you what you need, however that is to be paid for.

I have some sympathy with this view. The more one considers this area the more one realises that the difficulties do not concern finance, but assessment, and finding out where the services are available, at their many points. I quite see that this is as difficult for better-off people as it is for less well-off people. I hope that the Minister will at least accept the spirit of this amendment, and give us some comfort.

Lord Hunt of Kings Heath

I thank noble Lords for those comments, which are very important. Let me say immediately that I thoroughly agree that the person's financial situation should not be taken into account during the assessment of their needs—the very point my noble friend Lord Lipsey raised.

I am aware that in some areas the practice has developed that as soon as it is discovered a person has care and attention available to them, including resources, council staff will not commence or may terminate assessments of need. Irrespective of the value of a person's resources, the care and attention that is otherwise available to them, there is no question that councils have a duty to commence or complete assessments of need. We were aware of this problem, and two or three years ago we reminded councils of the legal position. We said in Circular LAC 98/19 that in our view the law does not allow authorities to refuse to undertake an assessment of care needs on the grounds of a person's financial resources.

The amendment does not alter the current legal position. I can assure the noble Baroness, Lady Greengross, that we shall continue to hammer home this important message whenever appropriate. Clause 60 of the Bill, through regulations, will remove the person's main property from the consideration of whether someone shall have care and attention available to them.

The noble Baroness's amendment suggests a range of improvements to the way in which assessments are carried out. Generally, these proposed changes are about practice and will probably be better dealt with in guidance than in legislation. It is proposed that a local authority should give reasonable notice in writing that assessment is to be carried out. Surely, that is common sense. If a care professional is scheduled to discuss with a person their needs and problems it is good practice to inform them of this in writing. Current practice guidance on assessment and the Government's charter for long term care cover those points.

With regard to results of assessment being notified to prospective service users within 14 days, I understand that many users are notified much earlier than that. There is some danger in stating 14 days because, in the perverse way these matters sometimes operate, that might become the norm and make the situation worse. I believe that current guidance covers this issue and reminds councils that assessment processes should be timely, and services following assessment provided without delay.

The final part of the proposed new clause provides for the Secretary of State to issue a requirement that assessment should commence and be completed within prescribed time scales. This is another important element of practice. While I appreciate the sentiment behind the proposal, it could be difficult to put into effect. For some reasons assessments can be completed quickly; others may take considerably longer. While I agree that the assessment should not drag on, I would be worried about prescribing time limits in direction or regulation.

In conclusion, matters raised in this amendment focus on good practice and, as such, are best dealt with by guidance. I hope the noble Baroness will recognise that I am very sympathetic to the general point she makes.

11 p.m.

Baroness Greengross

My Lords, I thank the Minister for those reassuring points. I am not sure that everything will be achieved through guidance. That is why we have raised some of these problems. I accept the sympathy offered. I am sure that the noble Lord, Lord Morris, would feel the same way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Greengross moved Amendment No. 277: After Clause 59, insert the following new clause—

"LIABILITY OF RELATIVES (1) The National Assistance Act 1948 shall be amended as follows. (2) Sections 42 (liability to maintain wife, husband or children) and 43 (recovery of cost of assistance from persons liable for maintenance) shall cease to have effect. (3) In section 48(3) (duty of councils to provide temporary protection for property of persons admitted to hospital etc) omit the words "or from any person who for the purposes of this Act is liable to maintain him". (4) In section 51(1) (failure to maintain) omit the words "or any person whom he is liable to maintain for the purposes of this Act". (5) In section 56(1) (legal proceedings) omit the words "other than a sum due under an order made under section 43 of this Act". (6) In Schedule 6 (transitional provisions) omit paragraph 19. (7) The Public Health (Control of Diseases) Act 1984 shall be amended as follows. (8) In section 46(5) (burial and cremation) omit the words "or from any person who for the purposes of the National Assistance Act 1948 was liable to maintain the deceased person immediately before his death". (9) The Local Authority Social Services Act 1970 shall be amended as follows. (10) In Schedule 1 (enactments conferring functions assigned to social services committees) for the words "Sections 43 to 45 in column 1" substitute "Section 45".

The noble Baroness said: This amendment is designed to ensure that relatives do not have to pay, and do not have to be pursued so that they pay, for the care of their spouse who goes into residential care. I have to say that I was bitterly disappointed at having to table the amendment. Having said in the other place that the proposal had merit, I had hoped that the Government would table such an amendment. Now that all the consequential amendments have been covered, I trust that the Government will be able to accept the proposed new clause in this place

However, if the amendment is not acceptable, I hope that the Minister will be able to tell me exactly why the Government are no longer supporting it. It was said in the other place that any repercussions and any policy of other government departments would need to be considered. I do not know why the Department of Health has changed its mind, nor, indeed, where the problem lies. Could the Minister please explain the position to me?

Perhaps the Minister should consider the fact that all I am asking for is that local authorities should be debarred from asking spouses to contribute towards the cost of care. Research undertaken by Age Concern has shown that this applies to a very small number of people. However, it is a matter that causes them a tremendous amount of anxiety. It is true that only a few authorities pursue spouses and that only a few individuals are being penalised, but those concerned go through a terrible time of anxiety.

Moreover, it does not fit in with the Government's statements regarding not charging carers. Spouses have often performed the role of carer for years, thus saving the state huge amounts of money. Even when they reluctantly have to give up caring at home, many want to take an active part in the care of their spouse in the care home, thereby incurring much cost to themselves in terms of visiting.

I should like to make it quite clear to the Minister that I am only asking the Department of Health to change its rules, which would entail very negligible cost. Nevertheless, it would have a huge effect in relieving the anxiety of many people. I know that there are similar rules in relation to social security, but these cover all types of separation and, importantly, the maintenance of children. We have no expectation of there being any effect on those rules. I beg to move.

Lord Rix

I rise to support my noble friend Lady Greengross, and I shall do so briefly. Where charges fall to be made, it is obviously necessary to inquire into the shared resources to determine what the person who must meet the charge should pay. However, it cannot be satisfactory that the expectations of funding by relatives and partners should vary from place to place. Indeed, it cannot be right that the pressures on relatives to top up and make good service deficiencies should vary from place to place. We need greater clarity; and we need to dispel the fear that a relative's own resources will be depleted by domiciliary and residential charges, just as they are very often depleted by caring responsibilities.

I am also anxious to block, if we can, the moral pressure problem. This arises when someone who has no legal obligation to maintain is faced by an unacceptably poor quality of service for their nearest and dearest, with the offer to pull it up half-way to decency if he or she—the family member—would like to pay the bill. I hope that the Bill's standards provisions will help in that respect, while my noble friend's proposal addresses the legal position.

Lord Hunt of Kings Heath

As we heard, the amendment would stop councils seeking further contributions to care costs for residential care from spouses, in addition to the costs that residents are fairly assessed to pay under the means test. Again, I fully understand the intentions behind the amendment. I am aware of the difficulties caused by the operation of the liable relatives rule as far as concerns residential care and the distress that can be caused to residents and their husbands or wives at what is already a very difficult time. I am also aware of correspondence from Age Concern England which has highlighted that not all care managers are as aware of the liable relatives rule as they ought to be and that there have been some examples of such managers bringing considerable pressure to bear on spouses to make a contribution. It has been reported that fishing expeditions have been undertaken into spouses' financial affairs, causing considerable distress.

Moreover, it is clear that the liable relatives rule is applied patchily over the country. Some councils do not seem eager to apply it, while other councils, although in a minority, seem to be very enthusiastic about it. In another place my right honourable friend the Health Minister said that he would look carefully at the operation of the liable relatives rule and the link to similar rules that apply to other government departments. We have explored all the issues thoroughly and there are a number of difficulties in proceeding along the lines proposed by the amendment. In the first place, I believe that there would be significant implications for public spending as the liable relatives rule has a read-across to wider social security issues. At the end of the day I am not sure it is possible simply to put a barrier round this particular application of the liable relatives rule.

Secondly, it is appropriate that councils are enabled, where it is appropriate, to seek contributions to care costs where the resident has relatively meagre resources while the partner at home is well off. In these instances, residents should look not only to the state for support but also to their partners. To do otherwise would be inappropriate and would place an unfair burden on taxpayers. Thirdly, as I have said, many councils apply current guidance and common sense and do not seek liable relative contributions from spouses in all cases.

Having carefully considered this matter and the arguments that we have heard tonight, I believe that the best course of action would be to remind councils of current guidance rather than to repeal this fundamental rule. When cared for people enter respite care I would expect councils fully to consider all of the issues before considering what contribution to care costs, if any, to seek from spouses who are substantial and regular carers. I realise that my response will be disappointing to the noble Baroness but I am committed to ensuring that we reissue current guidance and remind councils of their responsibilities.

Baroness Greengross

I am rather saddened by the Minister's response. I shall return to the matter. Meanwhile. with great reluctance and given the time of night, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 [Disregarding of resources when determining need for residential accommodation]:

Baroness Greengross moved Amendment No. 278: Page 61, line 44. after "person" insert "a local authority shall only consider care and attention to be otherwise available if it is satisfied that—

1. (a) the person is both willing and able to make his own arrangements, or
2. (b) a representative acting on that person's behalf is both willing and able to make the arrangements for that person,

and

The noble Baroness said: This amendment is designed to ensure that all people assessed as being in need of care and attention and who want the security of social services arranging their residential or nursing home care should not he denied access to this service.

The current provisions discriminate against people who have over £16.000, as even when they are assessed as needing residential care they are left to make their own arrangements with care homes. Many would prefer to have the security of a social services contract—these people by definition are frail and often very elderly. That would also mean that they would be under the care management of social services, which would oversee their care and would review it to check that it was still appropriate. We must remember that people's care needs change; sometimes they need less care. They do not always need more care.

There is clear guidance on those who lack the mental capacity to make their own arrangements and those people will come under social services, but that leaves frail older people who find it difficult to negotiate with home owners faced with doing so, often on their own. Even if they have relatives negotiating on their behalf, it would still leave them with no one fully qualified to oversee their care. I beg to move.

Lord Hunt of Kings Heath

I consider that the essential elements of this matter are fully covered by existing legislation and departmental guidance. First, the legislation places an obligation on councils to make arrangements for people assessed to be in need of care who lack the means to finance their admission or lack the capacity to make their own arrangements. That is clearly right and proper; councils must target the most vulnerable residents for support. Secondly, as I said earlier, the departmental guidance reiterates that existing law provides that councils may not, on the grounds of a person's financial resources, refuse to undertake an assessment of care needs for anyone. That is the position under Section 47 of the National Health Service and Community Care Act 1990. In that sense, the position is covered.

I turn to consider other elements of the amendment. In my opinion, it would be wasteful of councils' scarce resources to ask them to become involved in making arrangements for admission to residential care of all residents, irrespective of their real need for support. I believe that it may distract councils from priority work, and some residents may regard it as a rather intrusive measure on the part of councils into their affairs. In that sense, councils should be able to consider what alternative provision people have available to them.

However, with regard to the question of the responsibility of councils, I repeat that it is quite clear that they may not, on the grounds of financial resources, refuse to undertake an assessment of anyone's care needs.

Baroness Greengross

I thank the Minister for that reassurance. I think that it depends on how the local authority feels. There may be a need for a tightening of the controls at a later stage, and I hope that that will be kept under review. Meanwhile, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 279: Page 62, line 4, leave out lines 4 to 6.

The noble Earl said: Clause 60 provides for the Secretary of State to review the amount by which a person's resources can be disregarded by local authorities in determining whether he or she is eligible for support when in residential accommodation. The Explanatory Notes makes it clear that this clause will enable the link with the capital limit of £16,000 to be broken so that more people are able to take up the offer of a charge on their own home to pay for accommodation. As I understand it, it would also facilitate the three-month disregard of someone's property after a stay in hospital. For many people, that very valuable breathing space will be needed to assess whether the residential care in question is to be permanent or long term.

The NHS Plan states that the three-month assessment will, keep open the possibility of returning home after a period of support and rehabilitation, should people be able and wish to do so

That gives rise to an apparent difficulty, in relation to which I should be grateful for the Minister's clarification. If that section of the NHS Plan is to he interpreted to mean that the first three months in a residential setting are a temporary stay, according to current guidelines, the test for that should be completely different. The guidelines state that residents regarded as temporary are unable to claim income support until their capital falls below £8,000— not £16,000, as for permanent residents. Does that mean that, for practical purposes, the capital limits for temporary and permanent stays are to become the same?

I should be glad if the Minister would clarify a further point. What is meant by the word "resources" in this clause? Does it cover both property and capital?

It seems to me that the power given to the Secretary of State to make regulations determining the meaning of "resources" would enable him to discriminate between resources in terms of property and resources in terms of other capital. Many people have chosen not to buy a house, but to rent accommodation, and hold all their capital in stock market investments. Would such a person find that all his capital was being taken into account in the means test from the outset? That would seem unfair. A fairer position would be to set the disregard at a certain level of capital or all of a person's capital. I beg to move.

Lord Hunt of Kings Heath

Under Section 47 of the NHS and Community Care Act 1990, councils have an obligation to assess a person's need in respect of services that they have a power to provide to that person. The law currently provides that, if a person has a need for residential accommodation and care and attention is not otherwise available, the council shall provide it. The ability of the person to provide for themselves is a relevant factor to take into account in determining whether to provide residential accommodation. Resources, particularly a person's home, may be taken into account.

The clause paves the way for the introduction of our deferred payment scheme, as it enables regulations to be made requiring councils to disregard certain resources when determining whether they have care and attention otherwise available to them. We intend to specify in such regulations a person's main or only home.

Subsection (2A) says that certain resources, which we will specify in regulations to be a person's main home, shall be disregarded from the consideration of whether someone has care and attention available to them. Subsection (2B) says that the council shall calculate the person's resources in accordance with regulations. The amendment would delete that paragraph. That would enable a council to assess a person's resources as it saw fit. In particular, it would mean that a council could take into account resources disregarded by the means test to deny a person residential accommodation under Section 21. In other words, it could result in fewer rather than more people being entitled to Part 3 accommodation. The amendment would not help those people who would rather take out a deferred payment arrangement with their council than sell their home on admission to residential care.

Those who may be able to return home should be admitted on a temporary basis. The three-month disregard applies to people who are admitted on a permanent basis.

Earl Howe

I thank the Minister for that reply. This was meant to be a probing amendment. I appreciate the effect of removing subsection (2A). That was not my intention. I merely wanted to tease out some of the factual background to the proposals. I am still in a little doubt about how much capital is taken into account for residents regarded as temporary. If the Minister has any further information on that, perhaps he would care to write to me, as the amendment was prompted by an outside party. In view of the hour, I shall leave it there. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 agreed to.

Earl Howe moved Amendment No. 280: After Clause 60, insert the following new clause— Carers and local authorities ( ) Where it is considered that a person receiving community care services is to be rehabilitated to receive treatment in his own home by a carer, the carer shall be deemed to have asked the local authority for assessment according to section 1 of the Carers and Disabled Children Act 2000. ( ) For the purposes of this section, the provider of the community care services shall have a duty to inform the carer of his right to an assessment under the Carers and Disabled Children Act 2000. ( ) For the purposes of this section "carer" shall have the meaning given in section 1 of the Carers and Disabled Children Act 2000.

The noble Earl said: Before the noble Baroness, Lady Greengross, berates me, I realise that the amendment is flawed, but I shall speak to it because it contains an important point.

The amendment would ensure that the needs of a person's carer were considered before an elderly patient was returned home. I do not think that there is any disagreement with the general proposition that as far as possible people should be enabled and encouraged to stay in their own homes while they rehabilitate. However, moving home has implications for carers. It would be perverse to reduce the burden on the NHS by increasing rehabilitation if that simply resulted in the burden of continuing care falling on the unpaid carers, who could not cope with it. An explicit duty should be placed on health services to consider the effect on carers. That is the purpose of the amendment.

I believe that the noble Baroness, Lady Greengross, will say that carers should not be forced to undergo an assessment if they do not wish it. Certainly I had not intended that carers' wishes should be overridden in that sense. My main concern is that every carer should have the right to an assessment and should have that right communicated to them at what will be a particularly demanding time for them.

We should remember what emerged from the research carried out by the Carers National Association some three years ago. It was found that one in four carers felt that the person whom they cared for had not been discharged from hospital at the right time. In 80 per cent of those cases, the carer felt that the patient had been discharged too soon. In addition, in order to reinforce that point, one in four people discharged from hospital were readmitted within two months.

I hope that the Minister will be sympathetic to the thrust of the amendment. I beg to move.

Baroness Greengross

I support the amendment in the spirit in which it was moved by the noble Earl. I believe that we have received some clarification on it. I understand that the noble Earl does not mean that being deemed to have asked for an assessment will lead to a carer who does not wish to be assessed having to be assessed. I take that point.

I am also delighted that during the course of this debate the needs of carers have, for the first time, been spoken of in this way. I am sure that if the noble Baroness, Lady Pitkeathley, were here, she would echo the points raised about the needs of carers. We all look forward to seeing her back in this House very soon. I support the amendment.

Lord Hunt of Kings Heath

First, I thank the noble Baroness for her kind remarks in relation to my noble friend Lady Pitkeathley. I echo that we very much look forward to her return to our midst. I hope that carers will become involved in the new accountability and public involvement arrangements for the health service and, in particular, that they will become members of patients' forums.

The Government agree fully with the sense of the amendment moved by the noble Earl, Lord Howe. It may be worth informing the Committee that the Carers and Disabled Children Act 2000 comes into force on 1st April 2001. Guidance in relation to the Act issued under Section 7(1) of the Local Authority Social Services Act 1970 was published by my department on 1st March this year. That section states that local authorities must, in the exercise of their social services functions … act under the [Section 7(1)] guidance of the Secretary of State", which, as we know, is statutory guidance.

The Government's aim is to ensure that all carers are aware of their right to an assessment under the provision of the Carers and Disabled Children Act. That has been achieved by instructing those who carry out assessments of people with carers to inform the carer of his right to ask for an assessment. In order to ensure that the carer has been made aware of that right, the assessor should also give him a copy of a new leaflet, How to Get Help in Looking After Someone: A Carer's Guide to a Carer's Assessment. That leaflet was drawn up in partnership with the Carers National Association and 1 million leaflets have been made available to local councils, social services and all other outlets.

Therefore, I hope that we are meeting the spirit of the noble Earl's suggestion in that carers will be notified of their right to an assessment. I hope that that will be helpful to them.

Earl Howe

That is a very helpful reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones moved Amendment No. 281: After Clause 60, insert the following new clause—

"CESSATION OF PAYMENTS WHEN DETERMINING NEED FOR RESIDENTIAL ACCOMMODATION In section 21 of the Act 1948 (duties of local authorities to provide accommodation) there shall be inserted"— (9) Where a person—

1. (a) has previously made his own arrangements for receipt of care and attention in a residential care or nursing home,
2. (b) has requested an assessment under section 47 of the National Health Service and Community Care Act 1990, inter alia, with a view to obtaining community care services, including accommodation provided under section 21(1), and
3. (c) the authority has assessed that person as being in need of such care and attention under section 21(1),

any liability of that person to make any payments under existing arrangements, or alternative arrangements which may be made, shall cease either at the date that the request for the assessment is notified to the local authority, or if later at the date at which the person becomes financially eligible for assistance (under regulations made for the purposes of section 22), and liability shall pass to the local authority to fund that care and attention from that date. (10) Regulations may provide for criteria as to whether the existing arrangements continue. (11) The Authority may in respect of any payment made by them in pursuance of subsection (9) above, recover from that person such an amount in accordance with regulations made for the purposes of section 22. (12) A person will be entitled to recover any monies paid in excess of the amount for which he is liable in accordance with the regulations made for the purposes of section 22 from the date at which the local authority became liable under subsection (9)."

The noble Lord said: This amendment is designed principally to address the problem of delay in assessment. The new clause aims to ensure that residents who have placed themselves in a home but who have reached the capital limit, which from April this year will be £18,500, are able to access the funding that they require at that point from local authorities. Such residents often face long delays in obtaining funding from local authorities. I have come across examples, which I shall not go into at this time of night, from both NACAB and Age Concern which illustrate that this is a serious problem. It would be conditional on their assessment confirming that such accommodation is needed.

The amendment is worded in such a way that if a person applied to a local authority and there were delays in the local authority's carrying out the assessment, it would be responsible for the fees as soon as the person reached the capital limit. It also contains provisions to refund the resident any expenses that he or she may have incurred outwith the means test.

The amendment is designed to assess the serious issue of delay. The Minister for Health in another place addressed that point to some degree during the Bill's Committee stage when he said that he thought that the guidance was adequate and that legal rights were adequate. Having considered what was said in another place, the guidance does not seem to be adequate because many local authorities appear to have delays and considerable problems are caused. People in residential homes find that their capital resources are reduced to below the capital limit, which is totally unfair.

If the Government do not agree to alter the primary legislation in the way that the amendment proposes, it appears that at the very least the guidance should be strengthened. I beg to move.

11.30 p.m.

Lord Hunt of Kings Heath

The problem lies not with the guidance but with that number of local authorities that do not ensure that the guidance is implemented. I assure the noble Lord that when the department is notified that a local authority has not done the right thing, we have acted quickly to remind it of its responsibilities. If someone has been asked to contribute to the cost of residential care outside the means test, it is the department's view that there is a clear liability and responsibility on the local authority to put that right.

When councils delay providing due financial support and the resident loses out financially, he or she has recourse through the local authority complaints procedure, the local government ombudsman and, ultimately, the courts. The law is clear on that.

We have issued statutory guidance that leaves no room for doubt. In view of what has been said in another place and in Committee tonight, I agree that we have to stamp out bad practice. The Government will therefore again remind councils of their statutory duties at the earliest opportunity.

Lord Clement-Jones

I thank the Minister for that very positive reply, which was precisely what the amendment was designed to elicit. Reference to stamping out bad practice is exactly what is needed. I thank the Minister and look forward to the issuing of those reminders to local authorities. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 61 [Funding by resident etc. of more expensive accommodation]:

[Amendment No. 282 not moved.]

On Question, Whether Clause 61 shall stand part of the Bill?

Baroness Barker

This clause is welcome in one sense in that it will enable people who wish to enter residential accommodation that is more expensive than a local authority is prepared to pay to do so. However, I am worried about the lack of safeguards for those who use their own resources to do so. Having listened to the Minister's comments, I am also still concerned about the effect that the clause may have on the economy of the care home sector. In other debates, the noble Earl, Lord Howe, has discussed the great difficulties in that sector. One consideration in this context relates to people who use their resources to fund the additional cost of their care. When their money or their means have run down to the point at which they return to the local authority level, will the care home reduce the costs as they otherwise would have done?

I believe that much of this Bill is good but there are some areas that bear further examination. Is work being undertaken by the department concerning what constitutes realistic fee levels for residential and nursing care homes to ensure that they are reasonable? What safeguards are there to ensure that this provision does not force up the price of homes for those who are self-funding or who make their own contracts? What safeguards are there to ensure that local authorities comply with the choice of accommodation and that the fee levels quoted by local authorities reflect the cost of residential and nursing accommodation that is available in an area? We need to ensure that residents are not routinely expected to top up the costs of local authority accommodation.

Lord Hunt of Kings Heath

The noble Baroness, Lady Barker, raises a number of issues which go rather wide in terms of the viability of the care home sector. I assure her that we are aware of many of those issues and we are in regular discussion with the representatives of those homes to ensure that the arrangements are introduced smoothly.

Subjects include areas of local capacity problems. We are instructing health authorities to work in conjunction with local authorities and providers on the NHS Plan to determine in each locality the number of beds that are likely to be needed in the future. We are also—this is apposite to the comments of the noble Baroness—working to develop a new concordat with the care home sector, to improve Commissioning of long-term care and to maintain capacity and stability in the sector. That will go a long way to ensure that people get the right care at the right time and covers some of the issues that we need to examine.

We are listening to the concerns of care home owners, and we are considering the ways in which we can address the issues raised by the noble Baroness.

Baroness Barker

I thank the Minister for that answer.

Clause 61 agreed to.

Clause 62 [Power for local authorities to take charges on land instead of contributions]:

Baroness Barker moved Amendment No. 283: Page 62, line 40, leave out "an" and insert "a written

The noble Baroness said: I shall not delay the Committee. Nowhere in the Bill does it say that a "deferred payment agreement" must be written. This may seem like a trivial matter, but we are talking about people who may be mentally frail and whose relatives are assisting them to decide to part with their home, which is perhaps the biggest decision that they will have to make at the end of their lives. As a matter of good practice, I believe that such things should be written down. It should be a legal requirement. I beg to move.

Lord Hunt of Kings Heath

I can reassure the noble Baroness that statutory guidance will be issued by the Department of Health to assist councils to implement the deferred payment scheme from October. It will make it clear that written documentation is crucial for the scheme to work effectively. Written agreements will enable residents and councils to confirm the obligations that they have entered into. Moreover, residents will have to grant a legal charge over their land for deferred payment to be arranged. This will have to be in writing like any mortgage. The department expects councils to work to the guidance that we intend to issue regarding the documentation involved in taking a charge on property.

Baroness Barker

With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath moved Amendment No. 284: Page 62. line 45, after first "on" insert "the day after

The noble Lord said: The effect of this amendment is to ensure that the debt accrued by a person taking advantage of a deferred payment agreement becomes repayable on the date after the date on which the exempt period ends. I beg to move.

Baroness Barker moved Amendment No. 285: Page 63. line 8, leave out "56" and insert "114

The noble Baroness said: In the original Bill which was before another place, the period of grace, if one can call it that, was 28 days—28 days to complete the sale of the house. The department recognised that that was not possible and in another place it agreed to extend that to two months.

According to the National Association of Estate Agents, the average time in 2000 to complete the sale of a house is three months. That is in a time of economic prosperity and for 50 per cent of people, the timetable is closer to six months. Therefore, the Government are asking many people to do something which is not possible.

The second point to be made is that people will be arranging the sale of houses of people who have died. For most people, that will inevitably mean that they are dealing with estates and wills. When I was involved recently in sorting out the affairs of a relative who had died, I consulted a friend who was a solicitor and asked what was the normal time in which to expect those matters to be dealt with. She said that when she was in law school she was told as a trainee solicitor that it is impossible to settle a will within three months. The average time taken to settle a will is about nine months. And if a period of three years has elapsed and the will is not settled, then he should begin to be worried.

I believe that with a time of two months, the Government are asking people, at a time of bereavement, to do something which most of them simply cannot do. Therefore, my proposal is that we should extend the period to four months. That is still asking of most people something which they cannot do. In fact, I believe that six months would be more realistic. I sincerely hope that the Minister will take that point on board. I beg to move.

Lord Lipsey

I wish to speak to Amendment No. 286. A gremlin has crept up because this amendment was supposed to be ungrouped from Amendment No. 285 and, of course, I could move it in its rightful place but the thought of my own side, or indeed anyone in this Chamber, finding that at this time of night, I had added an extra grouping, is too much even for my broad back to bear.

This is a part of the Bill for which I am extremely grateful to the Minister. I claim some pride of authorship of it because the proposition that no old person should, in future. be forced to sell his house during his life time to pay for his care was one which was made by the minority of members of the Royal Commission. For some reason that still escapes me, it was not adopted by the majority. Although they wrote the most wonderful chapters on caring for the elderly, they apparently thought that that was a satisfactory thing to be going on in our society. I am glad that the Government have gone with the minority on this and I hope that Members of the Committee who, on other matters favour the majority, will agree with that.

I have heard the figure mentioned of 40,000 homes sold per year. That is for the birds, because I have looked at the original research. But that is not the point. The real point is the fear of elderly people, when they go into residential nursing care, that if they get better, they will not be able to go home because their home has been sold. This Bill lifts this fear.

However, as drafted, it does not lift a second fear; that is, if the carer or close relative is in the house, what happens if the elderly person dies or has to go in a home? In that case, will the carer or close relative be evicted from that home so that it can be sold to pay for the elderly person's care? I do not think there are that many cases where that has happened. Most local authorities would almost certainly prevent that from happening, but the fear hangs over many older people. The amendment is a chance to lift that fear.

My noble friend the Minister is a good and kind man. He knows that I have supported him throughout the Bill in resisting anything that incurs a single penny of extra penny of expenditure. I am the only person in this House who thinks that the definition of nursing care is, if anything, too wide rather than too narrow. Surely, after that he cannot deny me this extremely cheap measure which will lift the curse of fear from many elderly people.

Lord Hunt of Kings Heath

Put not thy trust in the Front Bench. Perhaps I may deal first with Amendment No. 285, which seeks to extend the exempt period before payment is due and interest may be charged to 114 days.

I believe that the current provisions of Clause 6(2)(2) are already advantageous to users and their families or heirs. In addition to the deferred payment scheme being interest free for the duration of the resident's stay in residential care, delaying the payment of interest 56 days makes the arrangements an even more attractive option for those who do not wish to sell their homes on entering residential care to meet their care fees.

However, there is a balance. For the deferred payment scheme to work well and to be widely offered, it needs to be fair and attractive to all parties concerned. I believe that the current period of 56 days is fair to both families and local authorities. In normal circumstances I would argue that it gives time for probate to be completed and for decisions to be made about how to deal with the property without placing undue financial strain on council resources.

The noble Baroness must accept that if we extend the exempt period to 114 days we may well upset the balance and make the scheme too one-sided in terms of advantages, making it then difficult for councils to feel able to offer deferred payment agreements. There is always a balance. The longer that families and heirs have to pay the sums owed to councils, the more difficult it is for councils to offer deferred payments to other people about to enter residential care. I am the first to acknowledge the sterling support of my noble friend Lord Lipsey in these arduous debates on personal care, nursing care and, indeed, the definition of nursing care. His reward will be in Heaven, not in your Lordships' House.

Amendment No. 286 covers a number of situations including instances when a property subject to a deferred payment arrangement is the home of a third party. The basics of the charging system for residential care, as it relates to the deferred payment scheme, applies only to people with property the value of which is above the upper capital limit of the means test for residential accommodation.

Where property owned by residents continues to be occupied by certain third parties, its value is already disregarded from the means test. A point I made earlier is that regulations under the National Assistance Act require councils to disregard the value of a resident's property where it continues to be occupied by a resident's spouse or partner, another relative who is 60 or over, another relative who is incapacitated or when a child who is dependent on the resident continues to live in the property.

Councils also have discretion to disregard property where it continues to be occupied by a third party not covered by the mandatory disregards. The Department of Health already provides guidance to councils on the application of mandatory and discretionary property disregards. It reminds councils of their discretionary powers. Many councils exercise their discretion in that area and disregard property where it is occupied by a former carer who does not fall under the mandatory disregard.

The amendment would give councils the discretion to extend the exempt period of a deferred payment arrangement to allow former carers or other relatives of the resident to remain living in the property or to allow them time to make other arrangements. The amendment also appears to assume that, were councils not to have that discretion, such carers and relatives would either have to find the funds to pay the debt, including any interest that accrues, or find alternative accommodation.

As I have described, the value of a resident's property which continues to be occupied by a carer or a close relative of the resident, will be disregarded in most cases under the existing mandatory or discretionary property disregards. Where the value of a resident's property is disregarded, there will be no need for the resident to enter into a deferred payment agreement secured on the disregarded property. On that basis one hopes that the scenario which the amendment addresses is very unlikely to occur.

Baroness Barker

If the noble Lord, Lord Lipsey, cannot get any blood out of this particular stone, what hope is there for the rest of us? I am very disappointed at the Minister's answer. What the department is expecting of a great many people is impossible for them to fulfil. That is unfair. Taken together, some of the unsatisfactory answers that we have had this evening begin to make this package of measures seem thoroughly unacceptable on these Benches. I reluctantly withdraw my amendment at this stage.

Amendment, by leave, withdrawn.

Lord Lipsey had given notice of his intention to move Amendment No. 286: Page 63, line 11, at end insert ", or (c) at the discretion of the authority, on such later date as it may deem appropriate in order to protect a carer or close relative of the resident from homelessness. (4A) The Secretary of State shall provide guidance to local authorities as to how they should exercise their discretion under subsection (4).

The noble Lord said: I am also greatly disappointed. I do not find the Minister's answers very satisfactory. I do not believe that discretion will stop old people experiencing fear. If there are so few cases, why is he so reluctant to put them on the face of the Bill and stop it? I therefore reserve the right to return to this matter at Report stage if my right honourable friend the Prime Minister makes such a thing possible.

[Amendment No. 286 not moved.]

On Question, Whether Clause 62, as amended, shall stand part of the Bill?

Baroness Barker

In view of some of the unsatisfactory and disappointing answers that we have had, there are one or two questions about deferred payments that I have to ask. I point out to the Committee that similar arrangements are already in place which enable local authorities to collect debts under the Health and Social Services and Social Security Adjudications Act 1983 which, for the benefit of the Committee, but mostly of myself, I shall henceforth refer to as HASSASSA.

Are the deferred payment agreements only for those who do not wish to sell their property in their lifetime? If people do not mind selling their property and making contributions towards the cost of care, will they be able to use the deferred payment agreement rather than having a charge placed on their property under HASSASSA? Are the Government taking steps to ensure that any independent financial adviser would be competent to offer detailed individual advice to someone who was thinking of making deferred payment and that he would have knowledge about the charging, how benefits might be affected and the other options available? There are issues such as insurance on empty property and the oversight of property. It is an enormous change to the way in which older people will have to manage their property. Will the local authorities also meet the associated costs of legal charges? Those are some of the many questions which are opened up by this clause. At this stage I shall not press the matter any further.

Lord Hunt of Kings Heath

I hope that the noble Baroness will not mind if I duck a couple of her questions and write to her about the specific details. The point she raised about financial advisers is important. Certainly one would wish that people in that situation had proper independent advice.

We need to do everything to ensure that that occurs. If independent financial advisers are going to become involved, it will be important for us to make sure that they are appraised of the issues. I may take that issue back and have a look to make sure that we are covered.

I have suddenly received inspiration in the nick of time on the questions raised by the noble Baroness. On the HASSASSA questions, it is deferred payments only for those who do not want to sell their home and open to anyone who wants to take up a deferred payment. If the home is sold then the resident will need to pay.

Clause 62, as amended, agreed to.

Clause 63 agreed to.

Baroness Barker moved Amendment No. 287: After Clause 63. insert the following new clause—

"CROSS-BORDER ASSESSMENTS Where a person has been assessed by one local authority and moves to a residential or nursing home in another local authority area, the authority which made the assessment, and as a result of which a duty to provide accommodation under section 21 of the National Assistance Act 1948 has arisen, shall agree such payments which are at least equivalent to those which are normally made in the authority to which the person has moved for the type of accommodation in which that person resides or will be residing.

The noble Baroness said: The title which has been placed upon the amendment in the Marshalled List of "Cross-border assessments" is wrong. The amendment is not about that matter. It is not about vast numbers of people who will be retiring to Scotland, given the fact that the Scots have seen fit to ignore the advice of the noble Lord, Lord Lipsey, on personal care. It seeks to address inter-authority payments within England. It is about people who want to move to a different local authority and have problems if they move to an authority which pays a higher fee level than their own. That happens quite often. Older people want to move to be nearer to their families.

Local authority practice is often to pay only the level of fees they 'would pay if a person moved into a home in their own area, rather than the fees that the local authority agrees to pay in the new area. That often means that there is a shortfall which the resident's family have to make up. That can be a huge difference, particularly if people move from the North to the South of England.

In effect it can mean that an older person may not be able to move to be near his or her family because of the differences in local market prices in care homes. The issue potentially raises some human rights issues about respect for family and home life if a person cannot move because of local authority policies.

Lord Hunt of Kings Heath

Under existing legislation once a person with assessed care needs is ordinarily resident in a local authority area, that authority has an obligation to provide for any residential accommodation needs that he or she has. These needs may have to be met by placing the person in a home in another local authority. The authority responsible for the person cannot point to a standard rate for a care home place and say that they will not apply above that if the needs of the person require it. So where a person moves from one local authority area to another, the responsible local authority must provide the person with accommodation that meets his or her needs and pay the appropriate cost.

The authority is free to negotiate the fee it will pay to the care home provider to meet those needs. I do not believe that there is an issue here with the current legislation.

Baroness Barker

The move to another part of the country to be near relatives is often regarded as a preference rather than a need, and many older people find that the differences are not made up. I take it from the Minister's reply that we shall be as lucky on this amendment as we have been all night. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 64 and 65 agreed to.

Lord Rix had given notice of his intention to move Amendment No. 288: After Clause 65, insert the following new clause—

"REQUIREMENT TO REPORT ON PROGRESS WITH COMMUNITY CARE (1) Section 11 of the Disabled Persons (Services, Consultation and Representation) Act 1986 shall be amended as follows. (2) In subsection (1) leave out all words after "Parliament" and insert "separate reports incorporating—

1. (a) such information as the Secretary of State considers appropriate on the development of health and social care in the community and elsewhere for people experiencing mental health problems, including information about the views of people with mental health problems and their families on such developments; and
2. (b) such information as the Secretary of State considers appropriate on the development of health and social care in the community and elsewhere for people with learning disabilities, including information about the views of people with learning disabilities and their families on such developments.

(1A) The Secretary of State shall as far as possible include in these reports such information as he considers appropriate about developments in other services for people respectively with mental health problems and people with learning disabilities, such as financial, employment, education, housing and leisure services."

The noble Lord said: I beg leave to withdraw Amendment No. 288 and to move in its place Amendment No. 316C and to speak to its consequential amendment, Amendment No. 319D. I do this for a good reason. I have found my original amendment transformed by legal hands.

Lord McIntosh of Haringey

I hope that the noble Lord will forgive me. If he is not moving Amendment No. 288, he will need to move Amendment No. 316C in its place in the Marshalled List.

Lord Rix

With due respect, the amendment is in its place in the Marshalled List.

Lord McIntosh of Haringey

It may be in the same grouping as Amendment No. 288, but if the noble Lord is not going to move Amendment No. 288, then he will need to move Amendment No. 316C when we come to the appropriate place in the Marshalled List.

[Amendment No. 288 not moved.]

Clause 66 agreed to.

Clause 67 [Control of patient information]:

Midnight

Earl Howe moved Amendment No. 289: Page 67, line 11, leave out subsections (1) and (2).

The noble Earl said: I beg to move Amendment No. 289. In doing so I shall speak also to Amendments Nos. 290, 291, 293, 293A, 294, 298, 299A, 300A, 301, 302, 302B, 302D, 305ZA, 305ZB and 308. Clause 67 of the Bill, more than any other clause in any other Bill that I have ever dealt with, has incurred the alarm, anger and condemnation of virtually the entire medical community, from doctors, medical charities, the pharmaceutical industry and the press.

The clause provides the Secretary of State with two sweeping new powers: a power to regulate the use of any kind of health information by third parties, even anonymised data; and a power to collect personal health information, even when the patients themselves object. These are such huge matters that it is difficult to deal with them adequately in the space of a few minutes. However, I shall attempt to address each in turn.

As many noble Lords will know, there are companies that specialise in collecting and analysing anonymised medical data on behalf of pharmaceutical companies. At the moment, an established agreement between the medical profession and the health data companies allows those companies to collect certain kinds of statistical data, provided that neither doctors nor patients can be identified in the statistics without their consent. In a recent case involving one such company, Source Informatics, the Appeal Court rejected an attempt by the Department of Health to depict this statistical data collection as a breach of patient privacy. That argument was as disingenuous as it was ridiculous. However, the Government are now seeking to overturn the court's judgment by means of legislation.

Many people have expressed serious concern that the effect of this legislation will be, among other things, to prevent and, indeed, to criminalise any independent investigation of NHS performance. Many others fear that it will seriously damage the UK's ability to conduct medical research. The Government say that this is not their intention at all. They have tabled amendments which seek to narrow the scope of this clause in an attempt to meet the criticisms that have been made. Those amendments will not do and I shall return to them in a moment.

The second new power would enable the Secretary of State to compel doctors and hospitals to hand over patients' medical records even if the patients object. At present, there are powers to do this only in relation to notifiable diseases such as tuberculosis, where there is a clear public interest in preventing the spread of infection. No one argues with the need for those powers, nor is there in general much dispute about the work of cancer and other disease registries, whose legality was questioned last year under the provisions of the Data Protection Act. The data collected by cancer registries is of direct benefit to medical research.

However, the proposed powers are not limited to cancer or, indeed, to medical research. They would permit the government of the day to demand whatever data are of interest to them—and not just for research but under that well-worn rubric of the public interest. Nowhere in this clause is there any mention at all of that essential prerequisite: informed patient consent.

This new power is not about protecting patients' rights, it is about expediency. As such—I know that this is strong language but it is true—it represents nothing less than the sovietisation of medicine. Clause 67 will ride roughshod over patient's rights in order to make life a little easier for Ministers.

But it does not stop there. There are other costs. Doctors will no longer be able to guarantee confidentiality to their patients. What will that do? It will do one very obvious thing: it will erode patient confidence; and in the process it will erode public confidence in medical research.

Recent events in the NHS at Bristol and Alder Hey, and other cases, have already served to dent public confidence in the medical profession. The last thing we should be doing is to damage that foundation stone of medical ethics, the unbreakable bond of trust between doctor and patient.

The powers sought by Ministers are far, far too wide. They are outrageously wide. The Delegated Powers and Deregulation Committee of this House, in its criticisms of subsections (1) and (2) described the power as "over wide". Quite rightly, the committee did not comment on issues of policy, although it noted with regret the complete lack of consultation on the proposals before the Bill was presented to Parliament.

Since the report was published, the Government have tabled amendments to try to address the committee's criticisms. The amendments to subsection (1) restrict the powers to data, obtained or generated in the course of the provision of the health service",

and processed for, the purposes of. or in connection with, marketing or other promotional activities which he considers to be contrary to the economic or financial interests of the health service".

I urge Members of the Committee to read those words. What do they mean? What would a court of law take them to mean? They are incredibly imprecise and vague. The vagueness in the meaning of such words as "marketing" and, obtained or generated in the course of the provision of the health service",

is dangerous. The Secretary of State would be left with huge scope for subjective decision-making on almost as broad a basis as he would have under the clause as first drafted.

One very simple point appears to have been overlooked by Ministers. The commercial use of NHS data and the availability of that data to those conducting medical research are inseparable. You cannot divide off the commercial bit from the rest, because commercial data are used to carry out research.

Why are the Government seeking to take this power? They assert that the use of anonymised patient data is likely to lead to increased costs in the NHS, in particular in the drugs bill. The Government have not produced a shred of evidence to support these assertions. The argument simply has not been made. Indeed, the Monopolies and Mergers Commission has demonstrated convincingly that the flow of information to doctors actually reduces prices. Pharmaceutical promotion emphasises the benefits of using cheaper alternatives to the ones that have been used in the past. That is the effect of a competitive market-place. Anonymised patient data highlight inappropriate prescribing as well as drawing attention to new or improved medicines. Both of these are in the interests of patients.

Ministers have offered assurances that they will not use these powers to their full potential extent. I am willing to accept those assurances in good faith. But the Minister knows that this will not do. Once the powers have been granted by Parliament, no such assurances will bind a future government. The fact is that there is no basis for Parliament to grant such wide powers as these in the first place.

In view of the time, I have not spoken individually to my amendments but I have covered their theme and their purpose. When I first looked at this clause, I thought that it was unamendable. With regard to anonymised patient data, that is still essentially my view. The Government should abandon subsections (1) and (2) altogether. However, there may be a way of amending the clause acceptably in relation to identifiable patient data. I have an open mind about this. If there is, it will involve writing on the face of the Bill many more safeguards than are currently in place. In this connection, I shall listen with interest to the noble Baroness, Lady Northover, when she speaks to her Amendment No. 305B.

In the final analysis, this clause is truly astonishing. It offends against everything that Ministers have ever said about a patient-centred health service. It is directly contrary to the principles of patient confidentiality. If it comes to a choice between the clause as it stands and striking the clause out, I should have no hesitation in choosing the latter course. beg to move.

Lord Walton of Detchant

May I say that I totally agree with the views expressed by the noble Earl, Lord Howe. I totally agree with him when he says that the medical profession in its entirety and the entire pharmaceutical industry are deeply and bitterly opposed to Clause 67.

In commenting upon the issues relating to anonymised data prescribing I must declare an interest as I am a neuro-science adviser to a pharmaceutical company. Nevertheless, I must make the point that I have not been briefed by that company but have received a great deal of information from many other pharmaceutical companies and from the Association of the British Pharmaceutical Industry.

If this clause, unamended, were to go through it would restrict the use of anonymised data from the NHS in clinical trials. It would inhibit epidemiological research or pharmocovigilance based on UK data; it would inhibit the collection of data required for submission to regulatory authorities in relation to both EU and UK law; and it would introduce new restrictions on data generated from pharmacy transactions or anonymised data where these are aggregated at a level greater than individual physician prescribing. The industry has long used such aggregated data above the individual prescriber level without harm to the interests of the NHS. Also, as the noble Earl said, the Monopolies and Mergers Commission has come to the conclusion, quite contrary to the view of the department, that the use of such data and the implementation of the consequences of such data would in fact reduce costs for prescribing in the NHS and would render this very much more efficient.

I greatly appreciate the courtesy of the Minister in arranging for some of us to meet him to discuss these clauses. I am grateful for that, and I fully appreciate how, in Amendment No. 295, he has attempted to address some of the greater concerns that have been expressed. However, as the noble Earl said, this simply does not go far enough. My particular departments are engaged in a wide range of activities, which of course include investigating marketing needs, but also the development of new medicines.

The term "marketing" is so broad in meaning that all the commercial databases covering NHS activities remain under threat. These databases are very expensive to develop and maintain. The removal of commercial funding would close them down so that they would no longer be available for non-commercial uses. I believe that this particular part of Clause 67 is unamendable, as the noble Earl said.

Turning to the issues of patient confidentiality, I agree entirely with those who have said that confidentiality between doctor and patient is the cornerstone of medical practice. Yet Parliament, under the medical Act, has charged the General Medical Council with the responsibility of giving advice to the medical profession on issues of confidentiality. There are of course exceptions, which the GMC has for many years accepted, relating to the breaching of confidentiality. Thus, under the Police and Criminal Evidence Act it is perfectly appropriate for a doctor to breach confidentiality in order to assist the police in the investigation of a grave or very serious crime.

It is also perfectly appropriate when a patient with epilepsy proposes to continue driving, against medical advice, for a doctor to report that individual to the licensing authority. There are therefore exceptions. At the present time, the General Medical Council, in relation to databases which are used for disease registries—in the field of cancer, for instance—have said that doctors are not required to obtain signed consent before data are passed to such registries. However, the GMC proposes from December 2001 to make it mandatory upon all doctors who wish to pass such information to disease registries to seek written informed consent. It is in this situation that there is a serious conflict of opinion within the medical profession. Those involved in cancer research and many other fields of medicine are much opposed to those potential requirements of the GMC. I believe, for that reason, that to implement Clause 67 as it stands at present would inhibit further discussions between individuals involved in cancer research and other disease registers, on the one hand, and the GMC on the other. I believe that in the fullness of time this difference of opinion could be resolved, but to give these unfettered powers to the Secretary of State would, effectively, give him the power to override the advice of the General Medical Council to the detriment of patient confidentiality.

I have agonised over what might be done in relation to this clause. After studying it carefully, I can see no alternative but to ask the Minister and the Government to think again and to withdraw this clause for further detailed consultation with the industry and the profession.

12.15 a.m.

Baroness Northover

I speak to Amendments Nos. 298A, 302C, 304A, 305, 315A and 316A which stand in my name and to the other amendments in this group.

Clause 67 has generated enormous controversy. There are three strands. First, there is the problem of the wide powers taken here by the Secretary of State. They are powers so wide that the Delegated Powers and Deregulation Committee has pronounced upon this. The second and third areas of contention are the use to which anonymised data can be put and the issue of confidential patient information.

There are several features of the controversies that need not have been as they are. The Secretary of State did not have to seek such wide powers. The complex issues addressed here did not have to be sprung upon people with little or no consultation. The departments did not have to put together anonymised and confidential data in the one clause; however, this is where we are.

I take the matter of anonymised data first. Like other noble Lords, I have received many submissions from those who will be affected by this section of the clause. I have met many delegations and I appreciate their desire to inform as fully as possible. Pharmacists have the right to sell anonymised data to companies who then sell it to the pharmaceutical industry and others who use it as a tool in their marketing strategy or in research. It is very clear that the NHS is unable to supply accurate, up-to-date information to those who need this for research purposes. It is clear that preventing such researchers from using this material in anonymous form, so that the patient could never be identified, would be a very retrograde step.

The Government sought to prevent the sale of anonymised data to the industry but lost the Source Informatics case on appeal, largely, it seems to me, because they were arguing that the patient's confidentiality was at risk, which it clearly was not. However, one of the judges stated that if the Department of Health, continued to view such schemes as operating against the public interest, then they must take further powers in this already heavily regulated area to control or limit their effect". They seem to be doing so. The report of the Monopolies and Mergers Commission in 1999 argued that the merger of two companies who dealt in this information produced a damaging monopolistic effect and this could drive up costs for the drug companies and, they deduced, the NHS. In that report, I note that whereas the Government spends £5 million a year on providing prescribers with information about medicines through such measures as the Drugs and Therapeutic Bulletin and, more recently, the Prodigy Scheme which gives prescribing support to GPs, the industry in 1997 spent around £270 million in promoting its products, mainly to prescribers. They had 6,000 sales representatives or about one for every five to six GPs.

Therefore, I have some sympathy with the Government in seeking to avoid the pharmaceutical industry being able to target such resources on GPs, using their knowledge of their prescribing habits. There is something of a David and Goliath situation here. However, my concern is that by blocking the pharmaceutical industry from its so-called "micro-marketing" the pharmacists will not collect the information to the detriment of the research community.

The clause has been narrowed down in a way that I welcome. As I see it, it will still allow the collection of data on a regional level, at a level that the industry could use to lobby the Government and the public about the poor up-take of useful medicines. However, I remain concerned at the clause's potential scope and impact. It is difficult to justify how it might be in the public interest to restrain pharmacists from communicating anonymous information to the companies that collect such information. My preference would be for the Prodigy scheme to be, as they say, "rolled out", so that doctors take that as their main source of information. Thus our Amendment No. 298A emphasises that any action—such as contemplated here—must be "in the public interest".

I turn now to the other can of worms in this clause; namely, confidential patient information. Here we have to balance the rights of the individual and the needs of society. The immediate problem over this also seems to have emerged from the Source Informatics case, after which the GMC advised doctors that they were in danger of breaking the law if they passed information about named patients, even to such organisations as the cancer registries. They were advised that if they did so without the informed consent of the patients they must be prepared to defend their actions in a court of law. Not surprisingly, that had an immediate effect. Although the GMC then offered a moratorium in its expectations of doctors in this respect, there has been a significant decrease in the amount of information going to the disease registries.

I have with me evidence from Dr Wendy Atkin from St Mark's Hospital, who is running trials for bowel screening programmes for the Department of Health. She had hoped soon to be able to introduce screening into the wider population to catch this disease when it is completely curable, given the fact that at present it kills 20,000 people a year at present. Dr Atkin has told me that the information is simply no longer complete enough for her to judge the effectiveness of the trials.

Yet, within law, it seems that the problem can be resolved. For example, the European Convention on Human Rights guarantees a patient's right to the protection of confidential information and personal privacy, but that is not an absolute right. As my noble friend Lord Lester of Herne Hill put it in advice to the GMC, the public interest test for lawfully interfering with a patient's right to protection of confidential information and of personal privacy … is whether there is a pressing social need and whether the interference is proportionate to the purpose". It is clear that the disease registries, the Public Health Laboratory Service, and so on, can all fairly claim to be acting in the public interest. So, again, I have sympathy with the Government in putting forward proposals that will once again enable the free flow of information in the public interest, while at the same time protecting patient confidentiality where possible.

But, once again, too much power is in the hands of the Secretary of State. Let us suppose that we had a Secretary of State for whom it was not a high priority in the interests of society to allow such data to be collected, or who wished to hide, say, the collection of information that was embarrassing to the Government. Patient groups have expressed serious reservations about what they see as a power that might be abused.

We have therefore put down an amendment from the BMA which was tabled in Committee in another place and which has since been improved in the light of the discussions there. It seeks to define more precisely what we should seek to do. This amendment is loosely based on the existing United States federal statute which establishes cancer registries.

The purpose of Amendments Nos. 302C and 304A is to make explicit in the Bill the intention of the Secretary of State here; that is, to make provision for disease registries and medical research and to provide a basis for the regulation of the use of patient information for these purposes.

Lord Turnberg

On Second Reading I said that I found this clause difficult to understand. I think that I understand it better now, but I do not think that I find it any easier. Certainly an enormous amount of heat and anxiety has been generated. The noble Earl, Lord Howe, and the noble Lord, Lord Walton, have expressed some of those anxieties well. However, as regards the assertion that the vast majority of the medical profession are completely against the measure, I doubt whether that is absolutely true. That is certainly not true of the Royal College of Paediatrics and Child Health. It does not seem to be true of the Royal College of Physicians. It is not true of the Academy of Medical Sciences. It is not true of the clinical professors of medicine. I do not even think that it is true of all members of the General Medical Council. I do not think that they have had an opportunity to study it properly yet.

We have discussed two types of patient data: that which is identifiable to given patients and that which is not. They are not terribly well distinguished in the clause. Data to which names cannot possibly be attached are used, and will continue to be used, for research and public health purposes. They do not come under the Data Protection Act or, I believe, under the GMC guidelines.

While the common law allows the use of non-identifiable data, there is the prospect, I suppose, that the GMC could theoretically interpret that differently. Certainly research ethics committees could easily become confused and interpret the clause to mean that even anonymised data should not be used for research purposes. I should like to see that matter not necessarily on the face of the Bill but at least clearly affirmed in regulations or guidance so that that confusion is removed.

As regards data from patients who are identifiable and from whom consent has not been obtained—that is a particular concern—that is now constrained and after the end of October this year will be very much further constrained so that it will not be feasible. The Data Protection Registrar and the GMC will at that time make the use of such data absolutely impossible unless, of course, the second part of the clause is enacted which would allow the use of such data without informed consent in very defined circumstances for very specific purposes with certain safeguards. Of course, everyone believes that consent should be obtained in every instance wherever that is possible. That is absolutely vital; it is the baseline from which everyone begins. But it may not always be possible. Under those circumstances it is helpful to have a measure such as Clause 67.

Even though it is rather late I should like to enlarge for a moment or two on the occasions when it may be necessary and, indeed, essential for us to bypass the measure I have mentioned—for example in the case of so-called "secondary research"; that is, not research done directly on patients but on data derived from patients at some time in the past, or from samples derived from patients at some time in the past where those patients have died or have moved or are untraceable. Without this clause one would not be able to do any of that kind of research.

There are many examples. Let me give a few: first, the Gulf War syndrome. To establish whether soldiers who had been to the Gulf had an increased incidence of cancers of various types, one would need to determine the rate of cancer in those Gulf War veterans and compare it with the incidence in a comparable group of soldiers of a similar age who had not been to the Gulf. It turns out, incidentally, that the incidence of cancer is more or less the same, but it would not be possible to know that without being able to look back at people who could not possibly have given their consent when they developed cancer.

Similarly, the Public Health Laboratory Service would not have been able to conduct the study into the relationship between autism and the measles, mumps and rubella vaccination. It did find that there was no relationship between the two; that one does not seem to be causal of the other. Therefore, we would not have been able to determine that without the opportunity to look back at data on MMR and autism.

The determination of the relationship between a rare occurrence of a disease and immunisation—a question that constantly arises—depends on one's ability to look back. Patients could not have given consent about their disease when they got it because at that time the idea that it might be related to immunisation had not even been thought of. If you want to know the relationship between cancer and environmental factors, or the source of an e-coli 0157 or Legionella outbreak, you must use named patient data.

Professor David Barker in Southampton undertook a marvellous research programme into the relationship between the level of nutrition of an unborn child in the womb and diseases that may be acquired in later life. He demonstrated, for example, that the birth weight of an individual may, 50 or 60 years later, determine that person's incidence of high blood pressure, diabetes, heart attack, and the like; and it was dependent on obtaining data about named patients, where consent at birth could not possibly have been given. How poor we would be without that type of research which could not be done.

I, too, have struggled to find a mechanism that might achieve those laudable aims. Unlike the noble Lord, Lord Walton, I have not been able to come up with anything better than legislation of the type envisaged by this clause. I know that giving the Secretary of State powers of this kind is likely to send shivers up and down the spines of many people, but I believe that the proposed controls are pretty stringent as they stand and as promised.

My fear is not that they will have the potential to betray patients' confidences but that they are so draconian that the mechanism itself will inhibit the very research that the clause is intended to allow. It involves advice from an expert committee and a three-month public consultation, and it then has to pass through both Houses of Parliament. We could not need more to protect patients' confidentiality, especially as they cannot possibly be harmed by the sort of things to which I have referred, and only they and the public can gain.

I hope that the Minister will be able to reassure us that the mechanisms involved will be carefully considered, not only from the point of view of the patients but also from the point of view of the public good.

Baroness Cumberlege

I support my noble friend and speak to the amendments standing in my name, which cover both issues in this clause. I was very interested to hear what was said by the noble Lord, Lord Turnberg, and the noble Lord, Lord Walton of Detchant. From the Minister's point of view, there can be nothing more ghastly than being caught between two warring professors, two noble Lords who have different views.

This issue was first brought to my attention when I read a letter in The Times of 7th February—before the Bill went to the other place—expressing grave concerns about this clause. It was signed by Donald Irvine, President of the General Medical Council, Ian Bogle, Chairman of the Council of British Medical Association, Robert Boyd, Chairman of the UK Council of Heads of Medical Schools, Denis Pereira Gray, Chairman of the Academy of Medical Royal Colleges, and James Johnson, Chairman of the Joint Consultants Committee. I know each of those individuals. They are not men of straw. They have each held huge responsibility in the medical profession, leading very important parts of it. Many of them are erudite academics and researchers in their own right. They have expressed great concern about the clause.

Going back to the comments of the noble Lord, Lord Walton of Detchant, we are greatly concerned that the clause will fundamentally change the trust and confidence that patients have with their doctors. I understood the comments of the noble Lord, Lord Turnberg, about secondary research, but is he saying that on certain occasions consent is not required? What about the Alder Hey case? That has caused great distress and concern among parents about the spare parts of their children. Everybody agrees that those issues should be addressed and that consent should be required.

My main concern relates to people with HIV and AIDS. I am a vice-chair of the All-Party AIDS Group. In this country we have 43,834 people with HIV and AIDS. That is a lot of people. Very recently, the all-party group held a series of hearings with people with HIV and AIDS. One of the things that came across strongly—and quite surprisingly—was how much discrimination is still alive and well. We heard of a Durham store manager who had been sacked by Aldi because the company had discovered that he had HIV.

Another speaker at the group told us how her daughter had had to leave her school and later her work because her mother's HIV status was disclosed.

There are lots of cases like that. HIV and AIDS are not notifiable diseases. We are encouraging sufferers to get access to testing and treatment in the name of public health. I wonder what they will feel knowing that their confidence is in any way broken they may well lose their job or their mortgage. They are frequently discriminated against and they very often lose their housing. There are huge dangers in the clause. Like my noble friend, I should like it to be struck out of the Bill.

One reason why there was so much anger when the clause was produced is that there was no forewarning of it. The provisions were not in the NHS Plan. They were suddenly sprung on all of us with no consultation. People were deeply concerned that there were hidden motives.

I have heard a lot of good evidence from the pharmaceutical industry—individual companies as well as the ABPI. I shall not go into that tonight, because the noble Lord, Lord Walton, has dealt with the issue eloquently and thoroughly. However, I find it odd that the Government are seeking to increase the regulation imposed on that industry. It is a successful industry that we should be proud of. The Government are being schizophrenic. They say that they want to encourage it and keep it in this country—we know that many companies are going abroad for their production as well as for the development of their products—yet they are trying to regulate it further. The Prime Minister's competitiveness task force is looking at the issue and will report in a few weeks. It would be right to wait for that report.

Finally, I want to say a little about the House of Lords Select Committee on Delegated Powers and Deregulation. Many reports have come before the House, but I have never read one which has been so damning and which has taken apart to such an extent what is being proposed in this clause. The report goes through the lack of consultation on the draft regulations, the extraordinary claims that are made for regulation, the width of the powers, the affirmative resolution procedure, and the extent of the representations that were made.

I believe that Ministers should be quite ashamed to read a report such as that on proposed legislation. Certainly there has never been one so damning. I believe that a huge amount of evidence is coming forward from all quarters that the Government should take away this clause and think again.

Baroness Gibson of Market Rasen

I do not have the expertise of some Members of the Committee who have spoken in the debate. However, I want to put forward the concerns that have been presented to me. At this point, I declare my interest as a former health and safety Commissioner. The Health and Safety Executive has presented to me its concerns in the event that the clause is removed from the Bill.

In my work as a health and safety Commissioner I tried to ensure that, when studies of workers' health were carried out, the proposed research was explained in detail to workers' representatives and their approval obtained for such studies. However, I recognise that in some situations informed consent cannot be obtained and that the importance of the consent principle in such cases may be outweighed by the public good.

Many occupational research studies do not involve direct contact with the subjects. Instead, they carry out long-term follow-up of the health of groups of workers through death records and cancer records collected routinely by the Office for National Statistics and the NHS. In such studies, it is impracticable for the HSE to contact all former workers in order to obtain their consent. However, for the results to be valid, they must be included.

Perhaps I may give a few examples of research which is necessary in order to gain knowledge to protect the health of workers and the public, and which is either impossible or impracticable if informed consent is mandatory. I shall start with the subject of asbestos, which has formed an extremely important part of the HSE's work over recent years. Going back over almost 30 years, the HSE has the details of 80,000 workers who have been affected by asbestosis. It is impossible to contact so many people in order to explain the purpose of the research study. Even if it were possible, the restriction of the study to those who write back giving their consent will probably so bias the results as to make them invalid.

Other studies of occupational health risks in which it has not been possible to obtain consent include the Health and Safety Executive's study of causes of death and cancer in the semi-conductor industry, where the workforce has serious concerns about possible health risks. The HSE has the full support and agreement of the workforce representatives, but contacting former workers is impracticable.

Similar studies have shown that workers have been exposed to vinyl chloride monomer—an industrial chemical, widely used in making plastics, that may cause cancer—and many other hazardous chemicals. Some years ago the HSE undertook a large study— noble Lords may have read it—of childhood cancers in the area of the Sellafield nuclear plant. That study would not have been undertaken if consent had been required from all the subjects or their parents to access their medical information.

It is not only the HSE that has been in touch with me. Members of the Committee have said that a number of organisations oppose Clause 67. The Association of Medical Research Charities, which consists of more than 100 charities and which includes some prominent cancer charities, including the Breakthrough Breast Cancer, the Breast Cancer Campaign, Action Cancer and Cancer Research Campaign, is totally in favour of Clause 67 and is most concerned that it may be tampered with or removed from the Bill. I shall quote what it said in this context. It said: Clause 67 will allow the use of some data for public benefit in restricted circumstances and under strict control. Without legislation, some types of research will no longer be possible … Applications for approval for the use of data about patients will be examined by an expert committee set up by the Secretary of State and be subject to a period of public consultation. If accepted they would then require affirmative resolution in both Houses of Parliament. Only research for which it has not been possible to ensure complete anonymity or for which it has proved impossible or completely impracticable to obtain patients' informed consent trill be considered for approval … AMRC believes that fully informed consent by patients is essential for research that directly involves them. Even where research is done some time later on data or specimens obtained from named patients, consent should be sought. But sometimes this is not possible, for example, in retrospective studies, where patients have died or are no longer traceable … It is in circumstances such as these, where it is impossible or impracticable to obtain consent, that permission could be sought under this Clause". Those people do not write lightly and they are of importance. I understand the reasoning that motivates those who oppose the clause or contend parts of it, but my experience of HSE research makes it clear that such opposition is somewhat misguided and could cause profound harm to research.

12.45 a.m.

Lord Rea

Although my amendment, Amendment No. 302A, relates to Clause 67(3), I begin by discussing subsections (1) and (2). I support the spirit of the Government's general intention in this regard. The pharmaceutical industry says that use of "anonymised" prescribing data can, among other things, result in cheaper prescribing. As a former general practitioner, I can think of no case in which a pharmaceutical company, other than a generic company, came to me with a preparation that was cheaper. The argument could be that the more expensive and more effective drugs that companies were selling me saved money overall by reducing hospital admissions, referrals, investigations and so on. However, it is not for the pharmaceutical industry to tell us about that; that is for independent, university or research charities to consider. Work by the pharmaceutical industry is, I am afraid, almost certain to represent its side of the case.

Amendment No. 302A includes the words, "valued consent". That is an extremely important concept which should be added to the Bill. It would allow such highly important consent to be overridden only when it was "not reasonably practicable" to obtain it. My noble friend Lord Turnberg and other Members of the Committee described cases in which it was not possible to find patients because they had gone abroad or died. Patients might refuse to co-operate in a case in which it was absolutely essential for the research to go on because the disease being studied was so important.

I hope that the Minister will consider the amendment. The Secretary of State can currently override such considerations as he considers necessary or expedient. That gives him far too much leeway. I want that decision to be removed from the Secretary of State even further than the amendment proposes. It should be removed to a statutory independent body or Commission whose nature should be specified in the Bill. I refer to an independent Commission such as that in Denmark, which meets that very purpose. That provision could be specified in subsection (9). I should like the body to be more tightly defined than it is in subsection (9) which refers to, such bodies appearing to him"— the Secretary of State— to represent the interests of those likely to be affected"— patients, I presume. That gives the Secretary of State too much leeway. The membership of such a body should be written into the Bill, and it should consist of a lay or non-scientific majority, so that patients can have confidence and trust in it, as in the Danish model. It impressed the Science and Technology Sub-Committee, which has been examining the handling of human genetic databases. I hope that my noble friend will consider my amendment sympathetically.

Baroness Masham of Ilton

I shall say only a few words. It seems from the amount of information that has been circulated that there is great concern about Clause 67. It remains unacceptable and there is a strong feeling that lack of clarity underlines the importance of ensuring that adequate safeguards over the sweeping powers awarded to the Secretary of State should be on the face of the Bill. There should be nothing to discourage research into complicated diseases or the development of useful drugs, which patients need, as long as it is anonymised information.

I mention a few conditions, such as motor neurone disease, Parkinson's disease, multiple sclerosis, diabetes, HIV/AIDS, CJD, epilepsy and MRSA. The list could go for a long time. We need effective drugs.

With disasters such as happened at Alder Hey, we need to be sensitive towards patients and their relatives. Whenever possible, patients or their next of kin should be asked permission. Confidentiality is of utmost importance when clinical research is being undertaken. What is wrong with making anonymised information available for research if it will help patients in the long run? The development of drugs takes a long time and is expensive.

If we do not ensure that the clause is acceptable to all who are interested in it, we shall be criticised. The country looks to us to improve legislation and the clause needs to be improved.

Baroness Massey of Darwen

Perhaps I may comment briefly on the issue of confidentiality. It is important. I am sorry that we are having to debate such important issues at this time of night. In discussing confidentiality, I want to comment specifically on the doctor-patient relationship in the case of young people. The Minister knows of my concerns in this matter, and I am grateful to him for responding sympathetically. I want to register my concerns about young people and confidentiality.

If there is any doubt in young people's minds that confidentiality will be breached, they will not seek help and advice. Messages about confidentiality—or lack of it—may be interpreted as being threatening to individual rights. That is particularly true in the area of reproductive health, for example. We have good evidence that if young people are worried about confidentiality. they will not trust professionals and will be afraid to seek advice and help. Teenage pregnancy rates, for example, may rise. I seek reassurance from the Minister that those concerns will be addressed in this clause.

Lord Winston

I too am extremely nervous about the issues which the noble Earl, Lord Howe, and the noble Lord. Lord Walton, have already raised.

We must recognise that this Government have shown huge concern for research governance and for improving the quality of patient involvement in research. But I remain very worried that research may be threatened by this clause as it currently stands. I accept that there are precedents for information being given to the Secretary of State. I am reminded of the Abortion Act, for example, where information has been sent for the past 30 years to the Secretary of State, as far as I know without harm to patients. Indeed, that has happened with regard to the Human Fertilisation and Embryology Act 1990. Nevertheless, there is a great deal of strong feeling in the medical community at large and concern about this matter which I hope will be addressed by the Minister this evening.

Lord Hunt of Kings Heath

This has been an extremely interesting debate. It is clear from the different views expressed from all sides of the Committee that the issues which we are debating are not at all easy of resolution. I believe that the balanced approach which the Government have taken and which is embraced within this clause provides us with the best possible way of meeting some of the real concerns which exist.

I should say to the noble Earl, Lord Howe, that it is essential for this clause to be accepted and enacted into law.

Clause 67 has two parts. The first provides the Secretary of State with a power to restrict in limited circumstances how patient information may be used. The second part provides him with a power to require patient information to be used, again, in limited and, where the information is confidential to patients, tightly controlled circumstances.

The first group of amendments relates to both parts of Clause 67. It may be helpful to set out some of the background to the clause. I shall then turn to the government amendments in this group. I shall write to Members of the Committee on the specific points raised in their amendments, as, at this time of the night, it is important to focus on the key principles which we are debating.

Both parts of Clause 67 have their opponents. There has been much debate and concern expressed. That is entirely understandable. We are dealing with fundamental concerns and issues about commercial interest, privacy and patient confidentiality. But I believe that some of the concerns have been misplaced.

Perhaps I may first cover the second part of the clause because that is clearly very much of the public interest. Subsection (3) provides for the Secretary of State to make regulation to require the flow of information in prescribed circumstances. That will allow us to achieve two aims: first, that patients will receive more information about their own clinical care, delivering the commitment in the NHS Plan; and secondly, to safeguard the continued operation of essential services that currently rely on patient identifiable information.

That point is crucially important. Those services are already in existence, carrying out work that benefits us all. The clause does not signal any change at all in the Government's view on the importance of patient consent. That is key to today's debate and I should like to put the Government's position on the record at this stage.

Informed consent is crucial to the Government's view of how a modern NHS should work. We simply cannot move to a patient-centred service if patients are not informed and consenting participants in the services that they receive. We know only too well that that is not the way in which the NHS operates at the moment. Much of what the NHS does in the NHS relies on implied consent. In some cases, that is appropriate; for example, sharing information within a hospital to ensure that a patient receives appropriate care. But in other cases, the definition of implied consent is pushed much too far. We are determined to address that. It is not small task and the culture of the NHS will have to change radically as we move away from what I can only describe as comfortable habits into practice based on real consent.

The professions have recognised the need to change the way we approach consent. The GMC guidance issued last year made clear its view that informed consent is the only secure legal and ethical basis for disclosing patient confidential information. It, too. recognises the scale of the culture and systems change necessary to deliver it, and has signalled that it will not seek to enforce its guidance until October this year. The Information Commissioner has also drawn attention to the need to improve the way that the NHS seeks consent for the use of patient information. We have made a commitment to her that we shall do just that.

This is a huge task. We will need to identify where information is used, where it is appropriate to rely on implied consent and where we need to do more to feel confident that we have a patient's informed consent. In many circumstances, traditional practice will have to change, either to gain consent or to use anonymised information rather than using confidential information about patients because it has always been done that way.

That will take time, and there will be disruption to NHS services, but the principle is right and we must take action to address it. However, there are certain circumstances where we simply cannot afford a disruption to the flow of information. The cost to individual patients and the public would simply be too high. It is those areas that the Bill seeks to address by allowing patient information to be passed on lawfully without consent in prescribed circumstances.

That is not a step we have taken lightly but one which we believe is essential. The key issue is how far we should go in deciding which information flows should fall within the ambit of these powers. The government proposal is to set out a clear, transparent process where decisions can be reached on the merits of each case, following consultation with those likely to be affected by the regulations laid under these powers. Rigorous safeguards on the use of these powers are built into the process and the Bill. The Information Commissioner has accepted that these safeguards will protect the interests of patients. While we do not feel that it is appropriate to put further safeguards on the face of the Bill, we have assembled a working group with patient and professional representation, including the GMC, the BMA, the Academy of Colleges and the Medical Research Council, to advise on the process by which the power in the second part of this clause should be used.

Perhaps I may say to the noble Baroness, Lady Cumberlege, and my noble friend Lady Gibson that I cannot believe that the instances they raise will be affected by the circumstances in the clause. The safeguards built into the clause are tightly drawn. Perhaps I may say to my noble friend Lady Massey that it is difficult to envisage circumstances where, for instance, the confidentiality owed to teenagers could justifiably be set aside. In any case, there are the tests contained in the Bill and the need for an affirmative resolution after full debate in both Houses. My noble friends Lord Turnberg and Lady Gibson detailed the impact on essential programmes if this clause were not to be adopted.

I turn to the first part of the clause. The need for this part of the clause became apparent as the result of a judicial review brought against the department by Source Informatics. In 1997 both Source and IMS, which at the time were competitors, began collecting information from GPs and pharmacies about doctors' prescribing in order to build up databases. The intention was, as Source Informatics said in its evidence, that the database would primarily be used by pharmaceutical companies to allow them to target more precisely promotions and communications regarding their products.

The department was concerned on two counts: first, that targeted marketing would increase the pressure on GPs to prescribe higher cost medicines unnecessarily; and, secondly, that passing on information about the medicines prescribed to a patient, even though the patient was not identified, would be a breach of confidence. We sent a document to GPs and pharmacies warning of the legal risks and strongly discouraging disclosure on policy grounds.

Although the department's case was initially upheld, the Court of Appeal decided that there was no breach of confidence or indeed breach of the Data Protection Act involved. As the noble Baroness, Lady Northover, commented, the court said that if the department continued to view such schemes as operating against the public interest, it must take further powers. The department did indeed remain concerned. We had discussions with ABPI and with IMS during which it was clear that, if necessary, we would legislate to prevent the sort of activity which caused us concern. We have been unable to enter into any kind of agreement with IMS and we decided that we should take powers in primary legislation.

We took the view that it was important that nothing should be done without proper consultation. We thought that it was particularly important that, while enabling the Government to deal with activities which were not in the interest of the NHS, we should not inadvertently restrict activities which were innocuous or indeed beneficial. We included in the Bill a broad enabling power to restrict the processisng of information about patients or derived from information about patients, but subject to the important safeguard that before any regulations were made the Secretary of State would have to consult bodies representing the interests of those affected.

I know that the breadth of powers of this clause has caused concern. At Committee stage in another place we responded to the concerns of those who thought that it might be used, for example, to prevent independent scrutiny of the NHS by restricting the power to the use of patient information for commercial purposes.

We have taken note of the concerns expressed by the Delegated Powers and Deregulation Committee. We have taken steps to address these concerns, guided by helpful suggestions from the Select Committee, by putting forward a number of government amendments to the clause. I say to the noble Baroness, Lady Cumberlege, that the second report of the committee on these matters makes it clear that it now welcomes the Government's response to the report and is content with their proposed approach, which fully meets the committee's recommendations.

The ABPI certainly remains unhappy. We believe that the power is a necessary one. We simply do not think it right that information which has been obtained in the course of the provision of NHS services should be used against the economic or financial interests of the NHS. Government Amendments Nos. 292, 293, 295 and 312 take into account the helpful suggestions from the Select Committee and address these concerns.

In conclusion, I believe that the approach taken in Clause 67 is a proper and sensitive one. It is essential in relation to the circumstances described by my noble friend Lord Turnberg and the noble Baroness, Lady Gibson, to secure patient interest in relation to the use of confidential information. I believe that it is absolutely essential that this clause is accepted.

Earl Howe

I thank all noble Lords who have taken part in this very interesting debate, not least those such as the noble Lord, Lord Walton, my noble friend Lady Cumberlege and the noble Lord, Lord Winston, who have supported me, but also others such as the noble Lord, Lord Turnberg, and the noble Baroness, Lady Gibson, who have disagreed with me and done so in a very gracious and measured way.

It may not surprise the Committee to hear that I have not changed my mind that this clause, even as amended as the Government propose, is potentially very damaging.

I still believe that the provisions on anonymised data are misconceived. The point is that without anonymised data it is impossible for pharmaceutical companies to find out who is using what drugs. The better the information, the stronger the downward pressure on prices because of the pressures of the competition. That is the way in which the market works. The industry can help the NHS manage patients better. In the process all kinds of essential information emerges, such as adverse reactions and so on. Therefore, the onus is on the Government to produce evidence to justify subsections (1) and (2). So far, they have not done so.

On the issue of identifiable patient data, the starting point should be that it is wrong for any Secretary of State to take powers to allow access to named patient records by third parties without the patient's knowledge or consent. I welcome very much what the Minister had to say about the primacy of that informed consent. The whole thrust of the clause is in the opposite direction. I look particularly at subsection (4) which would oblige doctors to disclose information even when they and the patient do not wish to.

Any exceptions to that general principle should be allowed only for reasons of overriding public interest. Each exception should be considered individually on a case by case basis with full parliamentary deliberation.

I took particular note of the comments made by my noble friend Lady Cumberlege on the disclosure of confidential data. The consequences when that goes wrong can be devastating, but also, as she alluded to, the erosion of trust that it causes eats away at the general fabric of the relationship between doctor and patient and the way that the public view the medical profession. It will eventually be very damaging to research.

The crucial issue which remains obscure is the force of subsection (8). That is the subsection which says that nothing in the clause can be inconsistent with Clause 29 of the Data Protection Act. I still do not understand to what extent and under what circumstance:3 the requirement for informed consent can be overridden by those powers. My advice is that the informed consent requirement is overridden by the word "expedient". The Minister should turn his attention to that matter between now and Report stage.

The noble Lord, Lord Turnberg, spoke of retrospective studies; studies that looked back to data perhaps involving deceased patients and so on. It would be perfectly possible to phrase a power to cater specifically for cases which look back into the past. However, the point is that the power as expressed in the Bill is objectionable because it can override informed consent going forward. The principle which should guide us here is that consent should be obtained in order to be ethical.

I noted that the Minister felt that this is a transitional power and a temporary arrangement. If that is what he believes it should be, perhaps he would agree to a fully fledged sunset clause instead of the permanent ongoing duty for review as in subsection 6(a).

I worry about the potential for conflict with international commitments. A Council of Europe Recommendation No. R975 on the protection of medical data, to which the UK is a signatory, appears to be at odds with this clause, as does the declaration of Helsinki on ethical principles for medical research involving human subjects. I have read sections which appear to be unequivocal.

I very much regret that the Minister does not see fit to put any extra safeguards on to the face of the Bill. I was hoping that he would agree to that, because I think that it would meet the objections of many people—hut not those of everyone—as regards the disclosure of identifiable patient data. The assurance that has been given in another place and here in Committee on the creation of an advisory committee is welcome as far as it goes, but I feel that this is something that should go on to the face of the Bill if we are to sleep easier in our beds.

I do not believe that it would be appropriate to call a Division at this hour and I shall not do so. If we do reach Report stage of the Bill, then the amendment or the excision of this clause, will be a prime focus for many noble Lords. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.15 a.m.

[Amendments Nos. 290 and 291 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 292: Page 67, line 12, after "prescribed" insert "NHS

[Amendments Nos. 293, 293A and 294 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 295: Page 67, line 13, leave out "prescribed commercial purposes" and insert "the purposes of, or in connection with, marketing or other promotional activities which he considers to be contrary to the economic or financial interests of the health service.

Earl Howe moved Amendment No. 296: Page 67, line 14, leave out "subsection (8)" and insert "subsections (8) and (9)

The noble Earl said: In moving the amendment, I speak also to Amendments Nos. 303, 306 and 314. These four amendments arise from concerns expressed to me by the Royal Pharmaceutical Society of Great Britain. In brief, they all seek to achieve one thing; namely, to ensure much greater consultation with the relevant professional bodies before the various statutory instruments that will emanate from Clause 67 are tabled. Such precautions are entirely appropriate, given the wide-ranging powers proposed in the clause and the comment that it has generated. It may well be that, in view of the furore over this clause, the Government will agree to the principle of these amendments.

The first two amendments clarify that the existing subsection (9), which ensures consultation before tabling secondary legislation, is applicable to both sets of secondary legislation that will be introduced. The third amendment then seeks to strengthen subsection (9) by incorporating a form of words used in the Health Act 1999 to ensure greater scrutiny by providing a three-month period of time for consultation. Such a period would provide the right balance between proper consultation and the effective implementation of legislation.

The fourth amendment addresses issues of access to and use of anonymised patient data, clarifying the areas where the use of anonymised data can and, indeed, should continue. It also provides a requirement for the Secretary of State to be satisfied that patient data can continue to be used for research, that consultation has taken place, and that such consultation has been reported on. A great deal of information of potential use in public health strategies is captured on community pharmacy patient medication records. The development of medication management as part of NHS modernisation plans will require new approaches to sharing appropriate patient records so that the best possible outcomes can be arrived at within the therapeutic partnership.

It is important for the Government to ensure that the correct balance is struck between protection of patients, concern for record-keeping and data management and the ability of NHS contractors, such as small pharmacists, to control their own business processes. I shall be interested to hear the Minister's comments on these matters. I beg to move.

Lord Hunt of Kings Heath

Consultation is clearly important. The requirement set out in Clause 67(9) is for the Secretary of State to consult, such bodies appearing to him to represent the interests of those likely to be affected by the regulations as he considers appropriate". The subsection applies to all regulations made under this clause.

Amendment No. 296 is identical to Amendment No. 297, but subsection (9) begins with the words, Before making any regulations under this section". I take that to mean that the requirement to consult set out in subsection (9) already applies to regulations made under any subsection of the clause.

Amendment No. 306 requires the Secretary of State to publish draft regulations in advance of consultation, to consult representatives of the professions concerned by the regulations and to lay the regulations before Parliament, amended as necessary three months later.

The intention of the amendment appears to be to establish a three-month deadline for consultation while ensuring that the professions most directly affected are consulted. It would have the effect of removing the wider requirement to consult that is set out in the clause by a narrow requirement that looks only to the professions. As drafted, it also requires regulations to be laid before Parliament, perhaps modified to take account of views expressed regardless of the outcome of consultation. It also attempts to impose a deadline of three months on a process that should be considered and thorough, particularly where confidential patient information is concerned, where there may be a need to question and probe any proposed regulations.

We wish to ensure that all those who may be affected by regulations have an opportunity to voice any concerns, not just important but narrowly defined groups. We are particularly concerned, for example, to hear the concerns of industry organisations in relation to any proposed regulations under subsection (1) and patient organisations in relation to regulations under subsection (3). Although the aim of the amendment may have been to bring a degree of certainty to the consultative process, it does so in a way that could conflict with the consultative and thorough approach we have developed around this clause.

The intention of Amendment No. 314 appears to be to ensure that the use of anonymised information for medical research is not prevented by any regulations made under this clause. Let me say from the outset that that is an objective that I share. But I do not believe that the amendment is the right way to achieve it.

There are two regulation-making powers in the clause: subsection (1) and subsection (3). The government amendment to subsection (1) has been accepted and it will be possible to use the power only in relation to NHS patient information for marketing and other promotional activity which the Secretary of State considers to be contrary to the economic interests of the NHS. In consequence, the power to make regulations under that subsection will be limited in such a way that regulations could not be made that would prevent the use of anonymised information for medical research.

I have no quarrel with the sentiments underlying the amendment, but I do think it unnecessary.

Earl Howe

I am grateful to the Minister for his comments. Pharmacists have two sets of concerns. One is: will the clause prejudice the ability of community pharmacists to run their businesses effectively? If that ability is prejudiced, clearly they feel that there will be a resulting diminution in patient care. The second concern is: will the clause force pharmacists into disclosing patients' specific data against their ethical obligations and without the informed consent of the patients? The Minister has made some reassuring comments on the former issue. I hope that the consultation with the professions will iron out any concerns that remain.

The Royal Pharmaceutical Society is currently preparing a draft framework for the mutual disclosure of information between the society and health authorities, PCGs and PCTs. I believe that that work will inform the discussion that the department will no doubt wish to have with them. I thank the Minister for his reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 297 to 298A not moved.]

Lord Hunt of Kings Heath moved Amendment No. 299: Page 67, line 16, after "prescribed" insert "NHS".

[Amendment No. 299A not moved.]

Lord Hunt of Kings Heath moved Amendment No. 300: Page 67, line 26, at end insert "NHS

[Amendments Nos. 300A to 303 not moved.]

Earl Howe moved Amendment No. 304: Page 67, line 37, at end insert "and the Secretary of State shall not exercise the power to make regulations under this section in a manner which hinders or restricts the ability of a relevant practitioner to use health information for the purpose of providing safe and effective services to patients. (4) In this section 'relevant practitioner' means—

1. (a) a pharmacist within the meaning of the Medicines Act 1968; or
2. (b) an appropriate practitioner within the meaning of Section 58 of that Act."

The noble Earl said: I beg to move Amendment No. 304. Patient medication records are vital to pharmacists in helping patients to use their medicines effectively and restrictions on their use could therefore thwart the Government's medicine management objectives. Restrictions could also impede pharmacists from supporting general practitioners through the provision of advice on the quality and cost-effectiveness of their prescribing. Likewise, regulations regarding the use of patient information could potentially make it harder for the Government to achieve their objectives on the electronic transfer of prescriptions from GP surgeries to pharmacies and the prescription pricing authority.

The Government's pharmacy strategy, Pharmacy in the Future, pledged that by 2004 GPs would be able to send prescriptions electronically to the pharmacist. To quote a Department of Health press release of last December: significant benefits for patients are expected, including fewer trips to the GP surgery to collect repeat prescriptions and an end to illegible and incomplete prescriptions".

Without access to anonymised patient information, software developers are likely to find it more difficult to develop this important new technology. I can see that, because the Government are seeking such wide-ranging powers to restrict the use of patient information, there could potentially be damaging and unforeseen consequences for those involved in the delivery of front-line patient care, and the amendment would help to ensure that the powers exercised by Ministers were more limited and that pharmacy, which is perhaps the best known public-private partnership involved in the delivery of healthcare, was able to continue to work in the interests of patients. I beg to move.

Lord Hunt of Kings Heath

Let me make it clear that the Government have no intention of stopping health professionals, including community pharmacists, from providing safe and effective services. However, there are several points to put on the record here.

First, the amendments which the Government have tabled to restrict the scope of subsection (1), and which have been agreed, should reassure pharmacists that regulations could not be made under that subsection which would affect the provision of unaffected services to patients.

The second point is that regulations under subsection (3) can be made only in the interests of improving patient care or in the public interest. cannot see that it would be in the public interest to undermine the provision of safe and effective services to patients. However, superimposed on that is the issue of the use of identifiable patient information by pharmacists and other health professionals. Pharmacists and other health professionals should surely start from the position that as long as information provided in confidence is held in a form that identifies individual patients, it is confidential and would normally only be disclosed to a third party with the informed consent of the patient concerned.

The only exception to this position is where there is a requirement in law to disclose information or where, in very rare circumstances, the public good from the disclosure outweighs the patient's right to confidentiality. This requirement for consent arises out of common law obligations of confidentiality, but beyond those obligations, which lawyers no doubt would be happy to debate for many days, the Government believe that informed consent is the only basis for sustaining a relationship of trust between patients and health professionals.

As I have said already, we fully recognise that current practice may not live up to that standard. We need to change current practice. Clause 67 provides a lifeline for activity that cannot, for good and demonstrable reasons, make the required changes swiftly. All the bodies that represent pharmacists— and I am aware of the issues they raise—will be welcome to apply for the support provided by Clause 67 if they feel that is justifiable.

Earl Howe

I am sure that pharmacists will find that reply very helpful and I thank the Minister for it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 304A to 305ZB not moved.]

1.30 a.m.

Baroness Northover moved Amendment No. 305A: Page 68, line 36, leave out subsection (8) and insert— (8) Without prejudice to the operation of provisions made under subsection (4)(c), regulations made under this section may not make provision for, or in connection with, the processing of prescribed patient information—

1. (a) in a mariner inconsistent with any provision made by, or under, the Data Protection Act 1998 (c. 29); or
2. (b) in a manner which may inhibit research for medical purposes and the publication and dissemination of the results of such research."

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 305B, 307 and 321A. I am grateful for the assistance I have received from the King's Fund which is the leading independent think tank on health policy in Britain.

As soon as this Bill was published it was immediately apparent that this clause in particular gave the Secretary of State powers that were too wide. The delegated powers committee recognised that and requested that Clauses 67(1) and 67(2) be subject to the affirmative resolution procedure. Given the wide concerns from all sides, I sought the help of the King's Fund in seeking a way through. The amendment proposed here is supported by many to whom I have spoken in the medical research community as well as the GMC. I trust that the Minister will give very serious thought to the proposals. I know the Minister has promised to set up an advisory committee but he or any successor could just as easily disband it.

The amendment to subsection (8) is designed to allay fears that the wide powers of the Secretary of State to make regulations could be used to inhibit research that was critical of the Government. Subsections (9) to (17) set up an advisory committee as a watchdog for the Secretary of State when making regulations. It extends to the first two sections of this clause in relation to anonymised data and, therefore, could ensure that there is no encroachment here into medical or academic research.

The wording of the provisions related to the committee is based on a streamlined version of the well established Social Security Advisory Committee set up by the Social Security Administration Act of 1992. Having been established by statute, its position is secure. Flexible provision can be made regarding its membership. Its central role is to report on regulations thereby ensuring that the Secretary of State has put in front of him or her authoritative views from people representing the most interested groups. In addition, the process ensures that if the Secretary of State decides against the committee's recommendations that must become public and the Secretary of State must give reasons for his or her actions.

This amendment sets up a statutory advisory committee and takes out of the hands of some unknown future Secretary of State powers that cause concern on all sides of this debate. Given the weight of support for this amendment across the spectrum, I commend it to your Lordships. I beg to move.

Lord Hunt of Kings Heath

The amendments now to be considered have been grouped together because they have an effect on the whole of Clause 67, not just the first or second parts. Amendment No. 305A seeks to ensure that regulations laid under Clause 67 cannot be made where to do so would inhibit research for medical purposes, and the publication and dissemination of such research. I believe that to be an unnecessary constraint, much as I admire the King's Fund.

The amendments that we have put forward to limit the use of the power provided by subsection (1) leave no scope now for that power to be used to inhibit research or the dissemination of results. Further, the power provided by subsection (3) can only be used for medical purposes that are in the interests of improving patient care, or in the public interest. The actual criteria that will be used to govern the use of that power are likely to be tighter still. We have assembled a working group drawn from patient and professional interests to advise on the matter. But the basic safeguards built into the clause are already substantial and have been approved by the information Commissioner. I should also like to draw the Committee's attention to the requirement for all regulations made under the clause to be laid before both this Chamber and the other place, and approved by resolution.

Amendment No. 305B would require the creation of a new statutory body to provide advice, which it is suggested should be published whenever regulations under Clause 67 are being considered. Amendment No. 321A is consequential to that requirement. The establishment of an expert group is something to which the Government are already committed in respect of the power provided by subsection (3). I am sure that that is a very sensible step to take. However, we remain unconvinced of the need to put the advisory group on a statutory footing.

As we explained at some length during the Bill's progress in another place, the power provided by subsection (3) is intended largely to provide transitional support for important activity until, and not beyond, the time when there is a reasonably practical alternative way of sustaining the activity, whether it be through the gaining of valid consent or through anonymisation or pseudo-anonymisation. The creation of a new body would require further legislation to repeal it in a few years' time when the intention is to move away as quickly as we can from reliance on Clause 67 for all but a few residual activities. We do not consider that that would be a an appropriate way of obtaining the advice that we need.

I know that the noble Earl, Lord Howe, might ask me about the sunset clause. The issue here is that there are clearly uncertainties in terms of the duration of the transitional stage. Many of the issues that depend upon our ability to move from it relate to technology and some of the other difficult areas that must be confronted. I believe that that makes a sunset clause difficult. However, that does not detract from the general argument that this is to be seen as a transitional phase. For that reason. I do not wish to accept the amendments.

Baroness Northover

I hear what the Minister says. Although I still have some concerns, I am pleased that the noble Lord has accepted the idea that an advisory committee should be established. However, as I said, that could just as easily be disbanded. As these issues are clearly very complex, it seems to me to be extremely important that the Government should build in a process to en sure that they draw upon a wide group of people, and that they should seek a resolution by doing so. Therefore, it is equally important to ensure that such a provision is on the face of the Bill.

If, as the Minister said, this is a transitional process and Clause 67 will be repealed in due course, this provision could be repealed at the same time. Other provisions could then be put in its place. If the Minister is to achieve any consensus on this clause, he should seriously consider my amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 305B to 311 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 312: Page 68, line 50, at end insert— (10A) For the purposes of this section, patient information is "NHS patient information" if that information (or any of the information from which it is derived) was obtained or generated in the course of the provision of the health service.

Lord Hunt of Kings Heath moved Amendment No. 313: Page 69, line 8, leave out "from the individual in question" and insert "or generated

[Amendment No. 314 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 315: Page 69, line 11, at end insert— "the health service" has the same meaning as in the 1977 Act;

[Amendment No. 315A not moved.]

Lord Hunt of Kings Heath moved Amendment No. 316: Page 69, line 14, leave out from beginning to "that

[Amendments Nos. 316A and 316B not moved.]

Clause 67, as amended, agreed to.

Lord Rix moved Amendment No. 316C: After Clause 67, insert the following new clause—

"REPORTS TO PARLIAMENT ON SERVICES FOR DISABLED PEOPLE (1) Section 11 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (c.33) shall be amended as follows. (2) Before subsection (1) there shall be inserted— (1ZA) In this section, subsection (1ZB) extends to England and Wales only and subsection (1) extends to Scotland only. (1ZB) The Secretary of State shall annually lay before Parliament—

1. (a) a report containing such information as he considers appropriate with respect to the development of health and social services for persons with mental illness; and
2. (b) a report containing such information as he considers appropriate with respect to the development of health and social services for persons with learning disability,

and each of those reports may contain such other information as the Secretary of State considers appropriate. (3) For subsection (2) there shall be substituted— (2) In this section— health service hospital" has the same meaning as in the 1978 Act, except that it does not include a State hospital; learning disability" means a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning."

The noble Lord said: In moving Amendment No. 316C, I wish to speak also to the consequential Amendment No. 319D.

I find my original amendment transformed by legal hands: There is a lawyer doth shape our ends, rough hew them how we may".

The transformation reflects, as I understand if, sympathy for my objective on the part of the Minister, but rather less sympathy for my drafting.

In the 15 years since the disabled persons Act was enacted, with its requirement for an annual report on what was then called mental handicap and mental illness services, both circumstances and language have changed a great deal. We have also, I hope, become rather better at distinguishing learning disability issues from mental health issues and rather less inclined simply to lump the two things together.

With mental health services already subject to a national service framework, and supported by specific grants, and with learning disability services now the subject of that admirable White Paper referred to this afternoon in the fourth Starred Question, incorporating an implementation programme, this seems a good time to update the present annual reporting requirement. The update I propose includes separating out learning disability and mental health and eliminating the present concentration on the use of hospital beds.

I have chosen to leave the Secretary of State a great deal of discretion as regards what he includes in his report, but I hope that the Minister will be able to assure me, in line with the precedents set by the White Paper, that matters within the ambit of government departments will be included as far as possible. I hope that he will also be able to reassure me, again in line with the White Paper, that the annual report to Parliament will include the perspectives of those at the receiving end. The process of producing the White Paper has fully involved users and carers. I know that Mencap will be happy to contribute to that perspective each year.

I am sure that only preoccupation with other things, and the rather hidden history of Section 11, have prevented the Government proposing this amendment at an earlier stage. I should say that, while the inspiration of the new clause comes from Mencap, it has been shared with MIND as regards the mental health section, and the proposal for change has its full support.

I also ask the Committee to note the consequential Amendment No. 319D which reflects the role of the Welsh Assembly. I look forward with more than usual optimism to the Minister's response. I beg to move.

Lord Hunt of Kings Heath

I found the noble Lord's drafting quite remarkable and his arguments quite persuasive. I support the amendment.

Clause 68, agreed to.

Clause 69 [Regulations and orders]:

Lord Hunt of Kings Heath moved Amendment No. 317: Page 71. line 29, leave out "67(3)" and insert "67

The noble Lord said: I did my best to accept an amendment by the noble Earl, Lord Howe, and his other colleagues. We agree with the principle of this. We feel that the government amendment has the merit of shortening the Bill rather than lengthening it. I beg to move.

Earl Howe

This is a very gratifying way to end an evening.

[Amendment No. 318 not moved.]

Clause 69, as amended, agreed to.

[Amendment No. 319 not moved.]

Clauses 70 to 74 agreed to.

Clause 75 [Short title, commencement and extent]:

[Amendments Nos. 319A to 319C not moved.]

Lord Rix moved Amendment No. 319D: Page 74, line 7, after "67" insert ", (Reports to Parliament on services for disabled people) except so far as extending to Wales

Lord Hunt of Kings Heath moved Amendments Nos. 320 and 321: Page 74. line 25, leave out first "and" and insert "to Page 74, line 29, at end insert— (8A) Subsection (8) does not apply in relation to any amendment or repeal relating to section 115 of the Police Act 1997, and any such amendment or repeal extends to England and Wales only.

Clause 75, as amended, agreed to.

[Amendment No. 321A not moved.]

Schedule 5 [Minor and consequential amendments]:

Lord Hunt of Kings Heath moved Amendment No. 321B: Page 86, line 38, leave out sub-paragraph (3) and insert— (3) In section 17 (Secretary of State's directions: exercise of functions), for subsection (3) substitute— (3) Nothing in any provision made by or under this or any other Act shall be read as affecting the generality of subsection (1) above."

Lord Hunt of Kings Heath moved Amendments Nos. 322 to 325: Page 87, line 2, at end insert— ( ) In section 29A (medical lists), in subsection (3), for paragraph (b) there shall be substituted— (b) he is not disqualified from inclusion in all Health Authorities' medical lists by virtue of a national disqualification imposed on him by the FHSAA. ( ) In section 33 (distribution of general medical services), in subsection (1B), the words from "including, in particular," to the end of the subsection are omitted. Page 87, line 46. at end insert— (bb) after subsection (4) insert— (4A) Subsection (4) above applies to directions given under—

1. (a) paragraph 10(1) of Schedule 5 to this Act,
2. (b) paragraph 8(3) of Schedule 5A to this Act, or
3. (c) paragraph 16(5) of Schedule 2 to the National Health Service and Community Care Act 1990,

as well as to directions given in accordance with section 18 above as mentioned in that subsection." Page 89, line II, at end insert— "National Health Service and Community Care Act 1990 (c. 48) In section 4A of the National Health Service and Community Care Act 1990 (provision of certain services under NHS contracts), in subsection (3), in paragraph (a) of the definition of "ophthalmic services", for "39(a)" substitute "39(1)(a)". Page 90, line 23, leave out "In Page 90, line 24, after "Act)" insert "shall be amended as follows. (2) After paragraph 40 insert— 40A A Patients' Forum established under section 12 of the Health and Social Care Act 2001. 40B A Patients' Council established under section 13 of the Health and Social Care Act 2001.

(3)"

Schedule 5, as amended, agreed to.

Schedule 6 [Repeals]:

Lord Hunt of Kings Heath moved Amendment No. 326: Page 92, line 9, column 2, at end insert "In section 33(1B), the words from "including, in particular," to the end of the subsection.

Lord Hunt of Kings Heath moved Amendments Nos. 326A and 327: Page 92, line 34, column 2, at beginning insert— Section 12(2). Page 92, line 36, column 2, leave out "18" and insert "17

Schedule 6, as amended, agreed to.

Title agreed to.

House resumed: Bill reported with amendments.