Lords Sitting of 17 February 2003

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

Lord Bassam of Brighton: Personal Statement
Lord Bassam of Brighton: My Lords, with the leave of the House, I have a statement to make about a reply that I gave on 11th February in answer to a Starred Question from the noble Lord, Lord Hooson, about the number of people given leave to enter the United Kingdom as investors.
In my Answer, I said that the information requested was not available. I am afraid that I have subsequently received information that, although it is not separately recorded in the published Control of Immigration Statistics United Kingdom 2001, it is none the less recorded by the Home Office Immigration and Nationality Directorate. The information therefore can be made available, and I offer my unreserved apologies to your Lordships for not doing so at the time.
The noble Lord, Lord Hooson, asked for figures for the past five years. The answer is as follows: in 2001, there were 25; in 2000, there were 50; in 1999, there were 25; in 1998, there were 15; and in 1997, there were 25. In total, there were 140.
Once again, I apologise unreservedly to your Lordships, and in particular to the noble Lord, Lord Hooson, for inadvertently misleading the House.

Individual Learning Accounts
2.37 p.m.
Baroness Blatch Baroness Blatch asked Her Majesty's Government:
What progress has been made on the investigation into individual learning accounts.
Lord Davies of Oldham: My Lords, the department's special investigation unit has been asked to investigate 153 learning provider organisations. One hundred and nine of these cases have been passed to the police. To date, there have been 62 arrests, resulting in 10 people accepting cautions. Eleven others are awaiting court appearances. One person has been convicted.
Baroness Blatch: My Lords, I am grateful to the Minister for that detailed reply. I have two further questions. First, what is the latest figure for the amount of money that was fraudulently taken from
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the taxpayer? Secondly, is anyone in the department responsible for what happened? If not, who is responsible?
Lord Davies of Oldham: My Lords, we think that £69 million has been the subject of possible fraudulent claims with regard to the money spent on the individual learning accounts. However, that is against a background of the programme massively exceeding expectations. We budgeted for a take-up of 1 million students in the first year, but had 2.5 million applications. As soon as we discovered that fraud had been perpetrated, we put an early stop to the programme. We recognise that that caused considerable distress to students and to those providers who were providing legitimately.
Baroness Sharp of Guildford: My Lords, given the figures that the Minister gave, he will be aware that many people saw the scheme as an opportunity to open up training for themselves. Has the department any proposals to replace the scheme, which was so ill thought-through, with one that will really work?
Lord Davies of Oldham: My Lords, let me first reassure the House that Ministers have learned the lessons of the previous scheme. A new one will be guaranteed to ensure that no recurrence of such fraud occurs. We propose to consult on the new learning and skills strategy in April, with a document for consultation, and to introduce the new proposals in June.
Lord Burnham: My Lords, my noble friend asked who was considered responsible.
Lord Davies of Oldham: My Lords, clearly there were mistakes in the department—that goes without saying. The scheme was a novel one, and it was almost unparalleled in government that such a demand-led scheme should be developed. There is no doubt at all that the scheme had flaws and failures, about which we learned subsequently. The administration of the scheme, and the company employed to carry it out, were another aspect of the problem. In consequence, £1 million of the £2.5 million to which it was entitled was withheld, and £1.5 million was paid.
Lord Brooke of Sutton Mandeville: My Lords, the Minister referred to the expectation of a take-up of 1 million and an outcome of 2.5 million. However, did not providers encourage the large number of extra people to join? The scheme was flawed in that it did not provide a safety net to prevent that happening.
Lord Davies of Oldham: My Lords, fraud on that scale meant that some providers stimulated people to apply, through various strategies, for the advantage of taking the money without providing the service. However, of that 2.5 million, 91 per cent received satisfactory training and gave a satisfactory rating to the programme. Therefore, in terms of delivery, the programme was a considerable success. The fraud, however, leads to the inevitable embarrassment.
Lord Campbell-Savours: My Lords, is it not true that we do not always learn the lessons that we should from the past? In the 1990s, on several occasions, these training companies were caught out doing precisely what they did on this occasion. Indeed, the Public Accounts Committee in another place held inquiries into their activities and found fault. If I recall correctly, a decision was made to prosecute a major training company only three years ago, on a similar issue.
Lord Davies of Oldham: My Lords, I think we would all recognise that training involves the Department for Education and Skills in a particular relationship with a very large number of private providers, and that a very large number of people train effectively and efficiently in this country—hence the previous administration's difficulties, which my noble friend indicated, with training and enterprise councils. I think that we would all recognise the element of difficulty and risk that attaches when resources have to be committed to private organisations to provide the service, whereas the students themselves, by definition, are not able in their early stages of training to judge the quality of that service. I can only tell my noble friend that we have learned some very sharp lessons from the individual learning accounts. Those lessons will guarantee that the new schemes which emerge in June obviate any of these potential dangers.
Baroness Walmsley: My Lords, is the Minister—
Lord Swinfen: My Lords, who was the Minister responsible—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, it is the turn of the Liberal Democrats.
Baroness Walmsley: My Lords, is the Minister aware that, at £300, the value of an ILA is only about one-tenth of the cost of professional training for, for example, a computer training programme, which might cost about £3,000, and yet no other support is available for those over 25? There used to be a scheme whereby such training could be offset against tax. Do the Government have any plans to reintroduce such a scheme? Would the Minister also be kind enough to answer the question from the noble Baroness, Lady Blatch, about who is responsible?
Lord Davies of Oldham: My Lords, on the first question, we are not proposing to reintroduce the scheme which the noble Baroness identifies. However, I am totally mindful of the fact that, as she rightly identified and the individual learning account scheme indicated, there is enormous need and demand in our community for access to high-quality training. It is very much in our interest that we support our people in receiving additional training. The training will inevitably entail a mix of government initiative and support and private resources, as much of the training can be delivered only within those terms.
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As for responsibility, the individual learning account scheme was developed immediately after the Government came to office and successive Ministers played their part in its development and oversight. I think it is recognised that, because of the huge uptake of the scheme in its very first year, what looked to be a roaring success story was subsequently identified as subject to potential fraud in a relatively small percentage of cases.
Lord Graham of Edmonton: My Lords, perhaps I may—
Lord Williams of Mostyn: My Lords, we are into the ninth minute now and there are three other Questions.

Student Fees
2.46 p.m.
Baroness Seccombe Baroness Seccombe asked Her Majesty's Government:
What financial impact their policy on top-up fees will have on higher education in all areas of the United Kingdom.
Lord Davies of Oldham: My Lords, from 2006, English HE institutions will be allowed to determine the fees they charge up to an upper limit of £3,000. Any UK students choosing to undertake HE courses at English institutions for which variable fees are charged will be liable to pay fees. However, we will continue our current system of fee remission. Under proposed arrangements, students from both England and Wales will be able to defer payment of those fees until after graduation. We will discuss any cross-border White Paper implications with the devolved administrations.
Baroness Seccombe: My Lords, I thank the Minister for that reply. However, does he agree that, so long as we have a tradition of UK students attending universities across the UK, they have a right to be treated equally and fairly?
Lord Davies of Oldham: My Lords, they certainly have a right to be treated fairly. However, as the noble Baroness will recognise, Scotland has a devolved administration and makes its own decisions with regard to its students. The Scots maintain that their system contains elements of great fairness. At this point, that system is different from the English and Welsh system. We will discuss with the Scots the implications of the development of our new scheme. However, I think the noble Baroness will recognise that the significance of devolution is that the Scots have the right to take decisions on behalf of their own students.
Lord Pilkington of Oxenford: My Lords, does the Minister agree that any sensible and talented student in England or Wales would go to Scotland in view of the financial arrangements which Her Majesty's Government have introduced?
Lord Davies of Oldham: My Lords, I think that the noble Lord may be presuming too much. I have a very high regard for the intelligence of English and Welsh students. The cross-border traffic has not greatly increased or been enhanced by the development of a fee structure in which the Scottish position has recently been identified as marginally more favourable to students. Students are still deciding where to go based on the quality of the course and on what they think of the university. As we know, some students, including one or two very famous ones, choose Scottish universities. However, Scottish students also come to English and Welsh universities.
Lord Neill of Bladen: My Lords, can the Minister throw any light on the practicalities? As he made clear, the scheme will come into force in 2006. The White Paper makes clear that no repayment by a student is required until they graduate and are earning £15,000. The courses last three, and, in many cases, four years. In the meantime, how are the universities to receive any fees? Will each university be paid per student over those four years by the loan company or by some other public source? The White Paper does not make that clear.
Lord Davies of Oldham: My Lords, it is clear that the scheme needs to be ushered in over a period and it will take time for the provisions of the White Paper to be implemented. The Government have substantially increased funding to 80 institutions over the period of the public spending review—the next three years. The Government are increasing expenditure on HE institutions by 6 per cent—several times above the level of inflation—to help to meet what noble Lords on all sides of the House recognise as the funding crisis in higher education. The increased resources apply to the short term. In the longer term funding will be met through government payment—that goes without saying—and the student contribution through the deferred fees scheme.
Baroness Trumpington: My Lords, does the Minister agree that he has spoken an awful lot of words but has not answered the noble Lord's question?
Lord Davies of Oldham: My Lords, I am sorry if there is one noble Baroness whom I have not satisfied with my answer. I shall try once more. Noble Lords on all sides of the House have identified the fact that universities need more money; the Government are providing that.
Baroness Sharp of Guildford: My Lords, the Minister will be aware that the majority of that money is allocated to the science budget and not to teaching costs. Will the Minister give us figures on the increased unit funding per student for the next three years?
Lord Davies of Oldham: My Lords, I do not have those figures to hand. However, I emphasise that we debated these issues intensively only a short while ago when noble Lords in all parts of the House articulated demands for extra resources on behalf of our universities. Those extra resources are being met in the short term. A period of three years is short term in university terms but nevertheless represents a significant commitment on the part of the Government. The Government will increase resources by 6 per cent year on year. That seems to me a significant step in the right direction.
Baroness Carnegy of Lour: My Lords—
Lord Williams of Mostyn: My Lords, we are into the 16th minute.

Debt
2.53 p.m.
Baroness Wilcox Baroness Wilcox asked Her Majesty's Government:
Whether they are concerned at the level of personal debt.
Lord Davies of Oldham: My Lords, as the noble Lord, Lord McIntosh, said on 3rd December:
"The Government continue to fully back the judgment of the Monetary Policy Committee in delivering macro-economic stability. The MPC is alert to the risks associated with further expansion of household debt, as it made clear in its November inflation report. However, households' total interest payments are now only 7.3 per cent of their disposable income compared with a peak of 15.1 per cent in 1990 and an average of 9.3 per cent over the period 1979–97".—[Official Report, 3/12/02; col. 1022.]
Baroness Wilcox: My Lords, I thank the noble Lord for that Answer. I am pleased that the Government are concerned about the levels of personal debt. Therefore, perhaps the noble Lord can enlighten the on the following question: how did the DTI consumer affairs Minister in another place come to the conclusion that people were in control of their debt when research from the Financial Services Authority shows that 20 per cent of families now owe an average of more than £2,000 on credit cards and 6 million of the 30 million families in Britain have problems meeting their interest payments?
Lord Davies of Oldham: My Lords, the Minister made the point that people are able to manage their debt successfully. One obvious reason why households can be reasonably secure about their debt is that at the present time society enjoys almost the highest employment levels that have ever been known. Job security means that people can indeed be confident about their present position and their ability to take on debts which they have to repay in the future.
Lord Swinfen: My Lords, do the Government consider that the present policy of mortgage lenders is wise? Some years ago they used to lend only up to one-and-a-half to two times an individual's salary and only

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a proportion of the value of the property whereas today I gather they will lend up to four times a salary and over 100 per cent of the value of the property.
Lord Davies of Oldham: My Lords, I believe that most of us recognise that those who supply mortgages do not take undue risks. They carry out a careful analysis of the future prospects of the economy and of the ability of an individual to repay a mortgage. Mortgage lenders are prepared to lend a greater percentage of income as mortgage repayment rates are low due to low interest rates. Therefore, households are able to repay larger amounts of debt.
Lord Barnett: My Lords, I congratulate my noble friend on answering even financial Questions, especially as he is my former PPS. Is he aware that in recent evidence to the House of Lords Economic Affairs Select Committee, the Monetary Policy Committee and The Times Shadow Monetary Policy Committee refused to express any serious concern on these issues and, like the Opposition, put forward no serious alternatives? Is my noble friend therefore content to leave the matter to them? Have the Government no policy in this area by way of taxation, mortgage payments or interfering with the private sector?
Lord Davies of Oldham: My Lords, it is 20 years since I was the noble Lord's bag carrier and sat at his feet but it goes without saying that I am still able to learn lessons from him. I agree with the main premise he puts forward: namely, that the Opposition raise anxieties which sometimes appear in the popular press but have precious little relationship to the way in which the real economy is working. We all recognise that this is a very bumpy time for the international economy. However, British people are in a relatively favourable position in terms of employment, low interest rates and the management of public finances.
Lord Newby: My Lords—
Baroness Gardner of Parkes: My Lords—
Lord Williams of Mostyn: My Lords, it is the turn of the noble Lord, Lord Newby.
Lord Newby: My Lords, I, too, congratulate the Minister on what is clearly his audition for the McIntosh award for ministerial versatility. Given that many financial services providers have aggressively marketed equity withdrawal and other forms of debt over the past couple of years, will the Minister encourage the FSA, as part of its remit of promoting public awareness, to issue strengthened guidance about the downside of excessive consumer levels of personal debt?
Lord Davies of Oldham: My Lords, the noble Lord makes a good point. People are able to borrow more against their mortgages and to remortgage when
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property prices are rising at the present level. There is absolutely no reason to suspect that property prices will continue to rise at the rate that they have done in the past couple of years. Therefore, people need to exercise caution. The noble Lord is right to suggest that public bodies can play some part in that regard, not least against a background of a certain amount of misselling which has occurred with regard to other financial products and arrangements. It would do no harm for a public body to keep a close eye on the situation.
Lord Saatchi: My Lords, when was the last time the Chancellor of the Exchequer used the phrase, "the end of boom and bust"?
Lord Davies of Oldham: My Lords, I do not follow every word that the Chancellor says, although no doubt the noble Lord does and is therefore rather better informed than I am. What the Chancellor often identifies is the extraordinary levels of inflation and house mortgage failures in the 1990s that reflected a very significant bust at that time. He is in a position to assure and guarantee the nation that we do not get a repetition of that.
Lord Higgins: My Lords, does the Minister deny that the savings ratio has virtually halved since the Government came into office? Is that not very worrying?
Lord Davies of Oldham: My Lords, there are aspects of the savings ratio that we would like to see improved. That goes without saying. The noble Lord will also recognise that the fact that a very substantial proportion of the wealth of British people is held in their houses, against a background in which their homes are being significantly enhanced in value by the rises of recent years, means that people are able to look at matters with more confidence than they otherwise would.

Animal Rights Protests
3.1 p.m.
Lord Taverne Lord Taverne asked Her Majesty's Government:
Whether the law provides adequate protection against intimidation from animal rights groups.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, the Government are totally committed to protecting those working on, or otherwise connected with, legitimate scientific research on animals.
The police have a range of powers under existing criminal law and public order legislation to deal with intimidatory protests by animal extremists. We have made legislative changes in the Criminal Justice and Police Act 2001, which provides a new power to move protestors away from homes where such protests may cause harassment, alarm or distress. We have also

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strengthened the provisions on sending malicious communications with the intent to cause distress or anxiety. However, the effectiveness of existing laws is continuously monitored and proposals to strengthen existing legislation will be brought forward if found necessary.
Lord Taverne: My Lords, the Government are concerned about the threat of terrorism. The animal rights extremists are real-live terrorists who terrorise employees, children, babysitters, old ladies who hold shares—anyone who is remotely connected with a target company. They use megaphones in the middle of the night, break windows, burn cars and beat people up. Surely that is a systematic campaign of intimidation. Are the Government satisfied, with more than 700 such cases in the last quarter of last year, that the police are properly enforcing laws against such intimidation? Surely it is a form of terrorism that must be dealt with more effectively and rooted out.
Lord Filkin: My Lords, I share the noble Lord's repugnance for some of the actions of animal rights activists. I agree that, at the extreme end of the spectrum, such repulsive behaviour can be classified as terrorist activities. The Government have worked closely with ACPO to try to ensure that all police forces have in place adequate procedures for monitoring and acting against extremists when they carry out harassment of employees or directors of companies undertaking legitimate scientific research and business activities. A number of people—I think four or five—are currently in prison for having committed and been found guilty of criminal acts of such a nature against such firms or their employees.
The police will not hesitate, and are encouraged by the Government, to use fully the powers that the legislation gives them. In addition, the Crown Prosecution Service is looking to try to ensure that its actions are as co-ordinated and to a similar high standard so that any possible cases, where there are good grounds for prosecution, are brought.
Lord Mason of Barnsley: My Lords, there is an animal rights group called PETA, the People for the Ethical Treatment of Animals. It is also an anti-angling organisation, which concerns me particularly. Have any intimidation cases involving PETA been brought to the Minister's notice? Have any charges been made against the organisation?
Lord Filkin: My Lords, I am aware of PETA, as is the Home Office. To date, it appears to be small and mainly focused on anti-angling campaigns. We have not so far noticed any acts of harassment, but all such groups are actively monitored, both by the Home Office and by the police.
Lord Campbell of Croy: My Lords, does the noble Lord recall the serious threat of extreme violence and the physical attacks a few years ago against people working in laboratories who were carrying out humane experiments aimed at saving the lives of human beings? Does he agree that that was misguided?
Lord Filkin: My Lords, I recall it and I agree that it was misguided. To many of us, it demonstrates the utter extremism of some such actions. We have had, since the 1986 Act was passed, what. I think is the tightest system of regulation in the world. There is a very strong system for authorisation and inspection of people, premises and facilities and projects before animals can be used. Animals are not used flippantly or lightly, but for medical, veterinary or fundamental scientific research that benefits us all.
Lord Clinton-Davis: My Lords, will my noble friend indicate the incidence of prosecution in 2000, 2001 and 2002 of the animal rights groups?
Lord Filkin: My Lords, as I suspect my noble friend would expect, I do not have those figures exactly at my fingertips. I shall be very pleased to write to him with them and place a copy in the Library.
Lord Turnberg: My Lords, is my noble friend aware of the impact of animal rights activists on the pharmaceutical industry? Many companies are considering moving their operations to other countries, particularly the United States, where there is a much more favourable atmosphere.
Lord Filkin: My Lords, we are also aware of the experience of the Huntingdon Life Sciences Company, which moved its shares on to the American stock exchange from the British one because it gave greater shareholder protection and anonymity. The Government work closely with the pharmaceutical industry in respect of the matter. The industry is one of the gems of British industry and British research. It is fundamental to the health of our economy. We view with extreme concern any worries on its part that our environment may be hostile to its highly successful businesses and highly necessary scientific research.
Lord Jenkin of Roding: My Lords, there was recently an event in the House for the Biolndustry Association, which has since written to me on the issue. Some of its members would find it difficult to reconcile their own experiences with the account of the action taken against the terrorists that we have heard today. Will the noble Lord accept that much more needs to be done? If there is to be a proper distinction between persuasion, on the one hand, and intimidation, to use the word of the noble Lord, Lord Taverne, on the other, that intimidation should be effectively proscribed.
Lord Filkin: My Lords, I agree that we wish to prevent and outlaw any acts of intimidation that inhibit or deter legitimate business or scientific research. In respect of the examples that the noble Lord did not fully give, if he would let me have that evidence I would be pleased to place it before my honourable friend the Minister in another place who deals with the matter. I am sure that he would be pleased to consider it to ensure that we do all that we should as a government on the matter.

Licensing Bill Nil
3.9 p.m.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1,

Schedules 1 and 2,

Clauses 2 to 4,

Clause 177,

Clauses 5 to 8,

Schedule 3,

Clauses 9 to 111,

Schedule 4,

Clauses 112 to 176,

Schedule 5,

Clauses 178 to 196,

Schedules 6 to 8.—(Baroness Blackstone.)

On Question, Motion agreed to.

Community Care (Delayed Discharges etc.) Bill
3.9 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Hunt of Kings Heath.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Meaning of "NHS body" and "qualifying hospital patient"]
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 1:
Page 1, line 5, at end insert—
""delayed discharge" means a delay in transfer occurring when—

(a) the patient is eligible for discharge from a general and acute hospital bed to another care setting, subject to a single assessment process; and

(b) a multi-disciplinary team decision has been made that the patient is ready for, and safe to, discharge or transfer to another care setting, but the patient is still occupying such a bed;

"eligible for discharge" means judged tit for discharge in accordance with—

(a) a clinical recommendation; and

(b) discharge procedures adopted by NHS trusts in accordance with guidance issued by the Secretary of State or the Assembly;"

The noble Lord said: It is always a pleasure to speak to Amendment No. 1 at the Committee stage of any Bill because of the close attention that noble Lords pay to the proceedings at such a time. That is particularly
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the case when dealing with an important Bill such as this because I suspect that many of your Lordships will be back in the Chamber for Divisions, both in Committee and on Report.
In moving Amendment No. 1, I shall speak also to Amendment No. 2. The Bill should clearly define the mischief that it intends to remedy. The whole edifice of the Bill rests on the question of discharge. Yet, although qualifying patients and the delayed discharge periods are defined, nowhere in the Bill or, so far as I can see, in the Hospital Discharge Workbook is there any legal definition of "discharge" or "delayed discharge". The definitions set out in Amendment No. 1 are designed to generate some certainty about this issue.
Currently some 5,000 patients of all ages are delayed in acute hospital beds when they are ready to leave hospital, although the figures appear to be steadily reducing. There is general consensus that it is bad for older people to be delayed in acute hospital beds once they are ready to leave: they may lose the confidence needed to regain independence when they return home; and they have an increased risk of infection and of losing mobility during an extended stay in hospital. Once they are well enough to leave the hospital environment, most people would rather be in a more homely environment with their own possessions around them.
However, the definition itself is crucial to the patient's onward journey. David Gilroy, the Deputy Chief Inspector of the Social Services Inspectorate, gave the following definition to the Health Committee inquiry:
"The approach the Department takes is to define a delayed transfer of care as occurring when a patient is ready for transfer from an acute hospital bed but is still occupying such a bed. A patient is ready for transfer when: (a) a clinical decision has been made that the patient is ready for transfer; (b) a multi-disciplinary team decision has been made that the patient is ready for transfer; and (c) the patient is safe to discharge or transfer".
He went on to tell the Select Committee:
"The stuff about (a) or (b) is because sometimes the clinical decision is taken as a part of the multi-disciplinary team approach and then (b) is satisfied. Where a consultant makes a separate decision not joined up with the multi-disciplinary team approach, both have to be satisfied. That is what that is about".
In other words, it needs to be made clear on the face of the Bill whether a person's readiness for discharge is a matter for co-decision through multi-disciplinary assessment or whether it is a straightforward clinical decision.
As drafted, the Bill's emphasis on "safeness for discharge" is a purely clinical judgment, and it appears that the Government are going back on their own definition. By including a definition of both "eligibility" and "delayed discharge", linked to statutory guidance, the amendment seeks to ensure that discharge and the patient's onward journey through the social care system are a matter of co-decision. It seeks to move away from the notion of "frictional" delays, which, by health Ministers' own admissions, will vary from locality to locality, as will the definitions. At Second Reading it was pointed out by many noble Lords that discharge can often be

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interpreted in different ways in different localities, and that can, indeed, lead to hardship. That is why a common definition is needed under the Bill.
Amendment No. 2 is a probing amendment designed to clarify the relationship between this legislation and arrangements for joint management systems as care trusts under the Health and Social Care Act. Introducing a mechanism whereby one part of the care sector has a legal obligation to impose financial penalties on the other inevitably raises boundary problems where there are integrated structures.
Similar problems arise in respect of partnerships and pooled budgets under the Health Act 1999 flexibilities. In those situations, it appears to be the legal position that social services are responsible for the reimbursement under Clause 4 but, with the PCT's agreement, may delegate that responsibility to a pooled budget. However, 16 pooled budgets are now in operation around the country and they have been set up explicitly to deal with delayed discharge issues. If, as seems clear from the Explanatory Notes, the Fines are taken out of the pooled budget, will the extra investment in social services go back into the pooled budget?
In the case where a PCT which has been redesignated as a care trust has all social services functions—or, at least, the functions which cover provision of all services for older people and adults—delegated to the care trust, would the care trust be responsible for any necessary reimbursement of the acute trust? Furthermore, what happens where the delayed discharge qualifying patient in the acute hospital setting is the responsibility of a PCT which has been redesignated as a care trust and where the patient may be receiving what is essentially primary care as an in-patient?
In many ways, the "frequently asked questions", which accompany the Bill, attempt the impossible—that is, to answer the questions relating to the Bill. Those questions make clear that it is impossible for a local system to agree not to implement the charging scheme or for an NHS trust not to claim the reimbursements. Once the legislation commences, all partners must act on the legal duties.
That rigidity of implementation risks undoing all that has been achieved by progressive legislation over the past few years in breaking down barriers between health and social services and encouraging a culture of joint working, as pointed out in extenso at Second Reading. That is no more so than in the case of a care trust where the NHS and the local authority pool not only their financial resources but their legal responsibilities also. It seems highly probable that the attempt to apply this scheme to established care trusts may, in any event, result in charging decisions that are ultra vires under the Health and Social Care Act. This limited amendment is designed to ensure that the legislation will not result in lengthy and expensive judicial review proceedings. I beg to move.
3.15 p.m.
Earl Howe: I support Amendment No. 1 and
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identify myself fully with what has already been said, but perhaps I may take the noble Lord's remarks a little further. The Bill is misconceivecl and has many serious shortcomings, but it seems to me that one or its regrettable consequences will be bureaucracy. To require a local authority under Clause 3 to prepare a care plan for discharge may fit very snugly into this wonderful new procedure but it leaves dangling in the air something that is tried, tested and very important—the single assessment process.
By definition, the care plan for discharge proposed in the Bill will be based not on the fact of how the treatment has turned out but on someone's guess about what may possibly happen during the course of the in-patient stay. Very often when a patient is admitted, ward staff can flag up their belief that he will need to go into residential care following treatment. That prediction can later be confounded when the patient makes a full recovery and goes home without the need for community services. Equally, events can often move the other way: the patient can unfortunately die in hospital soon after admission.
In other words, in many cases, the care plan for discharge is likely to be made redundant by subsequent events. Inaccurate conjectures by ward staff can lead to wasted work as well as misleading expectations. That simply cannot be a sensible use of resources. What is envisaged in the Bill is over and above the single assessment procedure. Its sole purpose is to determine the point in time when social services start to be fined. Therefore, it is a device that will not only cut across good working practice but will also exist for entirely non-therapeutic reasons.
There is also a serious human dimension. What concerns me greatly is that when a local authority begins its discharge plan it will have to start making inquiries about a patient's financial status. It will need to do that in order to be sure that the patient is not in a position to be a self-funder and therefore responsible for arranging his own onward care. Cash-strapped local authorities will be under a considerable degree of pressure to do that in every case.
That conjures up a pretty distasteful picture because front line social care managers will be put under pressure to delve deeper and deeper into the individual's financial affairs at a time when the person has just entered hospital and may be ill and very vulnerable. They will make those inquiries, often without being in a position to say to the patient with any degree of accuracy what sort of care he will need when he comes out of hospital. The whole position is invidious. I wonder whether the Government have thought about the issue in those terms.
Clinicians will say that the only care assessment and discharge plans that really matter, as the noble Lord emphasised, are those which are accurate and agreed at the time the patient is deemed to be "ready and safe for discharge". That is the accepted position under the guidance for the single assessment process. The Bill appears to take a coach and horses through the established joint working practice. I should very much like to hear the Minister's response.
Baroness Finlay of Llandaff: I rise to support the amendment. One of the difficulties in determining whether someone is ready for discharge is that clinical states vary. It is essential that there is a clear definition of what constitutes a delayed discharge if one sector is to be able to impose a fine on another sector of care. It would be wonderful if patients' disease trajectory or recovery trajectory was in a straight line but frequently it is not. Patients can seem well in the day but slightly confused at night. They can appear to function well in hospital but when taken on a home assessment it becomes obvious that they cannot cope in the environment of their own home. Indeed, they may function with people with whom they are familiar but when moved to an unfamiliar setting may appear to deteriorate.
The other difficulty is that many of the cases which are causing blocked beds at present are medical cases. Those are the very people whose condition fluctuates much more than surgical cases. It is the surgical cases which are being kept out of hospital. Therefore, it seems imperative that the whole team is involved, not simply one or two groups of professionals. The different aspects of a patient's functioning need to be considered in determining whether a patient is fit and safe to be discharged home. Patients must also be able to understand the clinical decision that has been taken for them to be discharged. It is for those reasons that I support the amendment.
Lord Turnberg: Perhaps I may tease out a little more background to the amendment and to this state of affairs for patients in hospital. It is vital for patients that social services and NHS trust staff work closely together in a co-operative, co-ordinated series of activities. Where there is conflict or blame, only the patients will suffer. No doubt from the patients' point of view, when they do not need the high-tech, high-cost facilities of a hospital they are much better off out of hospital—in the community; at home; in nursing homes or in what used to be called convalescent homes. I wonder what happened to convalescent homes.
We all know that hospitals can be dangerous and uncomfortable places. They are certainly noisy. The food is not always what an individual wants, and patients are isolated from relatives and friends. So, the quicker they get out, the better.
We need more money for support in the community. Thankfully, the Government are now providing some funds for that purpose but more is needed. However, that money is not provided so that it can be given to the NHS to look after patients. The way forward seems to be to give that money to NHS trusts only rarely. That can be achieved only by close collaborative working between the trusts and social services. I do not believe that we can legislate for that kind of co-operative behaviour.
However, we can offer guidance to people in organisations on best practice. Is the Minister willing to consider guidance which includes strong direction to good practice? That would include, for example, the encouragement which can be given to hospital staff to
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begin working with social services from the moment a patient is admitted and way in advance of the three-day statutory notice period on which we are focusing.
It should be obvious that particular patients are vulnerable from the time of admission. Even though their condition may change during their time in hospital, as has been suggested, one can suspect that a patient is vulnerable. Elderly patients with a stroke, unstable diabetes, heart failure or even simple dizzy attacks which tend to keep repeating themselves are common. They will not be able to cope at home without some sort of support.
Given a week or two of extra notice, assessments of need can begin. Social services can take advantage of and work closely with hospital staff—nurses, occupational therapists, physiotherapists, and so forth—from the beginning. A joint effort will then pay dividends so that when staff decide that a particular patient will be ready to leave hospital in three days' time, statutory notice can be given and the process can move easily and click into action.
If the three-day notice is the first that a social service department hears about a patient who has been in hospital for two or three weeks or more, resentment creeps in, planning is frustrated and patients suffer. Instead of going to meet patients' needs in the community, money will go back to the hospital. That cannot be right.
Therefore, I ask the Minister whether he would consider drafting guidance for best practice along those lines to encourage the sort of collaboration which I suspect the best hospitals and social service departments already operate. If he were to do that, we would not need this kind of amendment.
Lord Chan: Perhaps I may also comment on the amendment. As regards the third party, care in the community, the position is not clear. Care in the community is supplied by primary care trusts. However, one also needs to consult the family and carers. I believe that that should be made clear. I agree that more time is required in discussion. There has to be a whole systems approach to the patient. Obviously the patient must be involved from the start.
However, the family and relatives are equally important. Certainly, that is our experience in the North West. That being the case, there is a need to ensure that the definition of "delayed discharge" is carefully considered at a time when all considerations in a whole systems approach have reached an end and an agreement. Otherwise, if the matter is left to the clinicians they would want to consider getting patients out of their beds within three days whatever happens. That would be disastrous.
Baroness Pitkeathley: I rise in support of the last two speakers. Perhaps I may add to the comments of my noble friend Lord Turnberg on the issue of guidance. This is as much a health service responsibility as it is that of the local authority. We cannot state that too frequently as far as concerns the Bill. Only this morning I spoke to someone whose mother is in

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hospital. She had been admitted with suspected Parkinson's disease and it was the tenth day before she saw a neurologist. We cannot calculate a three-day period in that kind of situation. I hope that the guidance can be drafted in such a way as to bring everyone's responsibilities into the frame.
3.30 p.m.
Lord Hunt of Kings Heath: Perhaps I may respond to a number of noble Lords who have spoken to this group of amendments. The noble Earl, Lord Howe, regards the Bill as misconceived. The noble Lord, Lord Clement-Jones, is concerned about what he describes as the bureaucratic or rigid approach which he alleges will he forthcoming if the Bill is implemented. He is concerned that it will undermine good partnerships.
I start by making absolutely clear that the Bill has not been brought forward to undermine current good working. It is based on the experience of health and local authorities, which work well together, to enable a proper assessment to take place, with all the factors mentioned by Members of the Committee. It will ensure that a proper package of care is available; that it is undertaken as speedily and as effectively as possible; and that the patient can be discharged either into his own home with community care support or into another care setting, or into interim care if he has complex needs.
The Bill seeks first to put rigour into the relationships between health and local government. The report of the noble Lord, Lord Laming, on Victoria Climbié addresses a completely separate area of practice. I looked at what he said about the practice within the health service—the lack of communication, the lack of proper records and the lack of clarity as to which member of staff was responsible for discharging a certain patient—and at what occurred within four social service departments—again the lack of clarity, lack of case notes and lack of supervision. I was led to the view that in order to ensure that we sort out the difficult problem of older people having to wait far too long in acute hospitals where, first, they have deteriorated, secondly, they have become much more susceptible to hospital infection, and, thirdly, the beds are being used inappropriately, there is a case for more rigour in the relationship.
The Bill aims to address that. It is intended to provide incentives. We have said that we will provide to local authorities in a full year an additional £100 million of expenditure, which is our estimate of the cost to them of dealing with late discharges. That, alongside a more rigorous approach, will lead to an enhanced improvement in the current situation. We are building on the experience of those parts of the country where both local authorities and the NHS have got their act together.
As regards definitions, the important point is that the Bill changes no principle of responsibility by either the health service or by local government in the provision of services. It seeks to put in place a series of measures to incentivise those authorities to do their best. Therefore, it is unnecessary to add to Clause 1 a
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definition of "delayed discharge" or "eligible for discharge" because the terms are not used anywhere in the Bill. We talk about "delayed discharge" payments and the "delayed discharge period", both of which are adequately defined in the Bill, but we do not talk about "delayed discharge" or "eligible for discharge", because the Bill has changed nothing.
The second issue in relation to Amendment No. 1 is the role of the multi-disciplinary team in deciding when a patient is ready for discharge. I welcome the Committee's support for the work of those multi-disciplinary teams. I echo noble Lords' support for the professionals concerned to work together. But it is very important that that takes place within current statutory responsibilities. The legal position is that the decision to withdraw health services is for the relevant NHS body. The Bill maintains that position. Therefore, it would be inappropriate to change that by building in a statutory role for the multi-disciplinary team. However, in the context of good practice, the definition of "delayed discharge" that is already used by the department, and which was discussed at the Health Select Committee, already includes a role for the multi-disciplinary team. Furthermore, discharge guidance already emphasises the need for its involvement.
In that way, the role of health and social care professionals, including physiotherapists, occupational therapists and social workers, is not undermined. The involvement of the multi-disciplinary team is important in ensuring that all aspects of an individual's care are taken into account and that he or she is ready to be discharged. Ultimately, the decision that a patient's state of health is such that he or she is ready to be discharged must be taken by the appropriate NHS body. As I have said, the Bill does not aim to introduce a fundamental change in the way the NHS operates in discharging patients from its care. We want to see improved practice.
The problem with a statutory footing for the multi-disciplinary team is that unless one agency has ultimate responsibility to declare an individual fit for discharge one could run into frequent disputes as to an individual's readiness to leave, with an incentive upon the local authority to hold back on agreeing to discharge in order to avoid the possibility of making a delayed discharge payment. That would not help us to succeed in our aim of ensuring that everyone receives care in the most appropriate setting. I see the temptation of saying that the multi-disciplinary team needs to have statutory force. However, I think that our approach of retaining statutory responsibilities as they are, but emphasising the role of multi-disciplinary teamworking, is the best way forward in this area.
I have listened with great care to the noble Baroness, Lady Finlay, the noble Lord, Lord Chan, and my noble friend Lord Turnberg, about how these processes will work in practice. I very much agree with my noble friend Lord Turnberg about ensuring that work with social workers begins immediately the patient enters hospital. With elective surgery, the Bill allows the notice to the local authority to be issued a maximum of eight days before admission. So we are

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already building into the process encouragement for early discussions between the health service and the social workers.
Moreover, the three-day period for assessment is the absolute minimum. From the length of stay of many older people in hospitals, we know that often it takes longer. I believe that it is important to have the three days as the minimum period because all the evidence suggests that far too many older people are stuck in these beds inappropriately, waiting for an assessment to take place.
I listened to the concerns of the noble Earl, Lord Howe, regarding the assessment process and the changes that a patient may experience during his or her stay, which I accept. The focus of the Section 2 notice—the two days provided for the process of assessment and ensuring that community care services are in place—is a much more rigorous approach to current practice in many parts of the country, which is why the Bill is so important.
On care trusts, I recognise that the noble Lord, Lord Clement-Jones, has tabled the amendment as a probing amendment. He knows that the wording is not strictly necessary because, as we debated during the passage of the previous health Bill—or perhaps the one before that—happily a care trust is either an NHS trust or a primary care trust, so it is already covered by Clause 1.
We have undoubtedly been pleased by the progress that care trusts have made—although I hope that their current emphasis on adult services is extended to children in future. The report of the noble Lord, Lord Laming, is particularly apposite to that. It shows that strong partnerships are in place, which are key to reducing delayed discharges, but having a care trust or pooled budget does not guarantee excellent performance on delayed discharge. A budget that was pooled between the community and the acute sector to commission services for older people across all three sectors would begin to work in the same way as would the incentives in the Bill, although I am unaware of any such budgets at present.
Pooled budgets have been set up between health and social service partners for health and social services in the community. The intended use of the budget must clearly be carefully considered by the partners. They must consider which services are to be provided from the budget and explicitly include that in the partnership agreement. The partners will need to consider whether the services are key to dealing with hospital discharge, and whether social services' contribution to the pooled budget reflects an intention to pay any reimbursement from the acute trust from the pooled budget. That should then be dealt with in the budgetary part of the partnership agreement.
The legal position remains that the local authority is responsible for the reimbursement but, with the primary care trust's agreement, payments may be made from the pooled budget. However, if such payments have to be made from the pooled budget, that reduces the resource available within that budget
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for the development of community care services. So, in those cases, the Bill will none the less act as an incentive to the care trust to get its act together in that area.
So although the noble Lord, Lord Clement-Jones, has raised an interesting point about care trusts, the principle of reimbursement for care in the acute sector once the patient is the responsibility of the care trust still holds. That does not detract from the overall aim of the Bill.
Lord Lucas: Perhaps I may respond on a couple of points. First, the Minister mentioned £100 million to help with the Bill's implications. How will that be distributed? Will, as usual, those who have done nothing in the area get all the money while those who have worked hard on their limited resources get nothing? Secondly, will the Minister answer the question posed by the noble Lord, Lord Turnberg: what has happened to convalescent homes? One of the great shortages in the country is of somewhere to deal with patients during the two or three weeks of post-hospital stress. Where are they?
Lord Hunt of Kings Heath: I am afraid that, in today's jargon-laden health service, convalescent homes are now called intermediate care. We are developing many new facilities for just the conditions mentioned by the noble Lord—up to six weeks' care, enabling people to rehabilitate after an acute episode of care and return to their own home or another care setting. I certainly agree that convalescent homes have always had their part to play. In their new guise, they will have an increasingly important role in future.
The noble Lord asked an interesting question about how the £100 million is to be distributed. I cannot answer that because we have not reached final decisions, but I understand his point. There will always be a tension here. I agree that there are parts of the country and local authorities whose record in the area is splendid. I am sure that they will say that they should have their fair share of that sum. Equally, we are naturally concerned about those parts of the country where performance is poor. Improving that performance is partly about better organisation but will be partly an issue of resources. So a careful balance will have to be drawn, but I cannot go further than that at present.
3.45 p.m.
Baroness Noakes: When does the Minister expect the £100 million to be distributed? He will be aware that if the scheme of fines is to be introduced on 1st April, local authorities will have little time to work out its financial implications. When they will know is almost as important as how much they will get.
Lord Hunt of Kings Heath: I am glad that the noble Baroness recognises the need for urgency. I take it that that means that she will not support any moves to

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delay the Bill's introduction. I understand her point. I cannot give her a day or date, but I understand the need for speed in the area.
Lord Lucas: To return to what the Minister has just said, how will the incentives built into the Bill affect the construction of new intermediate care facilities? Do they not encourage the National Health Service to say, "Let us not bother with this sector. We can now just chuck these people at local authorities"? Under the Bill's structure, why should the National Health Service spend a lot of money on intermediate care facilities?
Lord Hunt of Kings Heath: Because, if we do not develop sufficient intermediate care, we will not tackle waiting lists and times as we need to do. That is an essential part of the modernisation of the NHS and the NHS Plan. The Government have no intention of stepping off the pedal of developing more intermediate care.
The Lord Bishop of Hereford: We seem to be straying from the substance of Amendment No. 1. To return to that and make a brief philosophical point, the Minister agreed with much of what the noble Lord, Lord Clement-Jones, said about the need for multi-disciplinary team decisions. The question is whether writing that into the Bill will make that more likely to happen.
I suspect that if we recognise that that is a serious problem and that more rigour is needed in addressing it, the problem with the Bill is that it is confrontational. It is not the first time that the House has received a confrontational Bill that needs to be changed in style and character to make it more acceptable and bring on board the people necessary to get a perceived problem dealt with rigorously. The noble Lord, Lord Clement-Jones, was right to introduce the amendment, because it would encourage multi-disciplinary working and make it more likely that more rigorous practice would be introduced sooner.
Lord Hunt of Kings Heath: I am grateful to the right reverend Prelate for those comments. The Bill is not meant to be confrontational. It is meant to put in place proper incentives for both the NHS and local government to get their act together and sort out the problem. We know that some parts of the country have been able to sort out the problem. Even in the South-East, which faces many pressures on resources and staff recruitment, there are boroughs and local authorities that have done excellent work in that area.
First, the issue of confrontation derives from language that is used in Bills—that may be inescapable. Secondly, although I am second to no one in my belief in multi-disciplinary working, it must be rigorous, not the sloppy working that occurs in some parts of the country, which allows people to run away from their individual responsibilities. That is why the Bill in itself does not change any current statutory responsibilities. The health service remains responsible for its parts; personal social services remain
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responsible for their part. They are meant to exercise those responsibilities within a context of partnership and multi-disciplinary teams. But my great fear is that, if we built multi-disciplinary teamwork into a statutory relationship, or gave it statutory backing, as suggested, we would give many hostages to fortune. If agreement between statutory agencies could not be obtained, it is difficult to see where one could go. That would be the great risk in proceeding as the noble Lord, Lord Clement-Jones, proposes.
We need certainty about who is responsible for what. We need agencies to work together, but we must not run away from the certainty of the health service being responsible, with local authorities having responsibility for another aspect of the delayed discharge procedure.
Baroness Greengross: If someone is discharged from hospital to intermediate care situated in unused wards in an acute hospital, as mentioned in the excellent workbook on the subject, will the same agreement need to be made so that the other authorities are brought into the decision?
Lord Hunt of Kings Heath: For instance, when a patient has been moved from an acute bed to intermediate care, one would expect health and local authorities to work together to ensure that, when that person leaves intermediate care, any required care facility is available. In those circumstances, the normal statutory community care services kick in.
Baroness Finlay of Llandaff: I prefer the term "multi-professional working" to "multi-disciplinary working", because we are talking about different healthcare professions. As the Minister rightly cited, in areas where things are working well, teams speak to each other. My concern is that, where things do not work well, the lack of team-functioning in the NHS will be used as a wonderful excuse as to why the discharge was not safe in the first place. In a team that functions well, nurses and doctors will be able to say that a patient does not need a physiotherapy or occupational therapy assessment because there is good understanding of the roles of those therapies. In teams where that does not exist, and where medical and nursing professionals are arrogant towards the other professions, patients go home with unmet needs, particularly in physiotherapy and occupational health. Yet, when the patients are home, social services will he able to claim that the discharge was not proper in the first place.
It is precisely to avoid lengthy disputes that I have supported Amendment No. 1 in the belief that a clear definition needs to be included in the Bill. By including "multi-disciplinary working" or "multi-professional working" in the Bill, teams that do not communicate well would be forced to consider the other professions that they should be considering on discharge
Lord Hunt of Kings Heath: I understand what the noble Baroness is saying. Of course I agree that multi-professional working is how we wish to progress.

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I agree with her that, although much of the debate on this group of amendments and at Second Reading has been about the role of local government, the Bill will come down as hard on the health service as it will on local government.
The noble Baroness raised some of the current problems with delayed discharge. It is also about the National Health Service not getting its act together. There are examples of that. I say to the noble Baroness that we have published Good Practice in Hospital Discharge, which we will follow up with further guidance. In response to my noble friend Lord Turnberg, that publication emphasises the points that the noble Baroness raises.
It is important to remember that this Bill does not seek to change current statutory responsibilities. That is the problem with seeking to include "multi-disciplinary working" or "multi-professional working". It would detract from current statutory responsibilities. Committee Members should have no doubt that we shall stress continually in our guidance the need for multi-professional working.
Earl Russell: When the Minister said in response to the right reverend Prelate the Bishop of Hereford that it was not a confrontational Bill, I am sure that he made an absolutely accurate statement of his intention. But, during the past month, I have perhaps spent longer watching what is happening in one of our best NHS hospitals than any other noble Lord. I observed that this Bill and its prospect would make it even harder than usual for the hospital to maintain the primacy of clinical judgment. They endeavoured to do so with great gallantry, and, I believe, with success. But the Bill would not make the task easier. It is one effect of the culture of targets that, because the interests of patients are a seamless robe, as soon as you isolate one single factor and turn it into a target regardless of its effect on anything else, you risk creating something that acts against the supremacy of clinical judgment and against medical need. Whitehall as a whole has yet to take that on hoard. I hope that it will think about it.
Lord Hunt of Kings Heath: I am grateful to the noble Earl, Lord Russell, for raising those points. I understand what he means by picking targets that negate whole-system approaches—as referred to in jargon terms—to health and social care. It is not the aim of the Bill suddenly to put in place an arbitrary target that will have adverse knock-on effects throughout the rest of the health and social care system. It is trying to tackle the big problem of around 5,000 people a day stuck inappropriately in acute beds. We know that many will lose their independence the longer they wait in an NHS acute-bed hospital. We know that many are at risk of infection because of the risks in hospitals. We also know that good local authorities and good NHS hospitals have been able to get round some of those issues to produce effective delayed discharge procedures. There is a case for codification and producing a system that makes it
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abundantly clear to both the NHS and local government that they must deal with the matters professionally.
The transfer of £100 million in a full year will enable local authorities to plan the additional services required and to provide continuity of services. Barnsley is an example of where good work has been carried out. The authorities there recognise that long-term investment is necessary, perhaps in the private sector, to deal with the problem and to ensure that there are available care-home beds. Bristol has an aids and adaptation team, which enables patients to be discharged by installing aids in, and adapting, their homes in a matter of hours. When one sees such examples of good practice, one begins to see how the system will work in the future, which gives me confidence. The Bill is not meant to put in place confrontational arrangements or to get in the way of an integrated approach to providing health and social care.
Lord Lucas: It may be all right in Barnsley or in King's Heath under the latest local government assessment, but those who live in the south face a 20 per cent rise in council tax and even that will not provide enough money to cover inflation and the legislative requirements on councils. It is hard to imagine how councils will find the money to put in place the sort of dreams that the noble Lord, Lord Hunt of Kings Heath, delightfully wishes they would dream.
The noble Lord said that the Bill bore down as heavily on the NHS as on local councils. Will the NHS be fined when it does not provide sufficient intermediate care? Will it be fined when, because of inefficiencies in the primary care system, it places people in hospital who should never have been there, rather than working with the local authority to keep them out of hospital? Will it be fined for discharging people too early? I may be reading the wrong part of the Bill, but I cannot see that that will happen.
4 p.m.
Lord Hunt of Kings Heath: The noble Lord anticipates a debate that, I suspect, will occur later on the question of penalties on the National Health Service.
The answer is "No". The incentives for the NHS to get its act together are clear. First, if the NHS does not sort the problem out on its side, it will not be able to free up beds for the treatment of acute patients. The Government put tremendous pressure on the NHS—I am usually criticised from the Benches opposite for applying that pressure—to speed up the process and treat more people so that we can reduce waiting times. There is no incentive for the NHS to fail to deliver its side of the bargain.
The other allegation often made is that the NHS will push to have patients discharged more quickly than they ought to be. Over the next two to three years, we are bringing in a new system of funding called "financial flows". If NHS policy leads to the

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readmission of patients, it will be financially penalised because it will have to treat those patients again and will not receive additional funding for that. So the right incentives are in place to make sure that the NHS plays its part.
I come to the situation in the South East. By the way, King's Heath is in Birmingham, and I am afraid that, at the moment. I would not hold up the Birmingham social services department as one of the best in the country, although its record on delayed discharges is better than its record on some other services. There are local authorities in the South East that face some of the pressures to which the noble Lord referred. There is pressure on services; there are funding pressures; and there is the question of the recruitment and retention of social workers. None the less, those authorities appear to be able to deal effectively with discharge.
It is not simply a question of the number of care home places; it is a question of organization. If an authority can organise itself effectively, build in long-term relationships with the care sector, develop interim care and systems to ensure that admission to hospital need not take place in some cases, it will be able to deal with the issue.
Lord Clement-Jones: I thank the Minister for his several replies. It has been a crucial debate and demonstrates the extent to which the Committee is doubtful about the premise on which the Bill is based.
The Minister has not grasped the nettle in the amendment. Many noble Lords have made the point that close working and partnership between the NHS and social services is needed. The interface between the NHS and social services is crucial. Yet, in the context of the Bill, greater clarity will be needed in matters such as delayed discharge and eligibility for discharge. That is not in the Bill at present.
The Minister may say that responsibilities have not changed, but there will be a fundamental change in the dynamics and practice of discharge. The whole edifice of the Bill is based on discharge and the question of when a patient is eligible for discharge. We must have a suitable definition in guidance or in primary legislation. Whether the approach taken should be multi-professional or multi-disciplinary is a matter for debate, but unless there is clarity and certainty in the definition there will be huge uncertainty. The Bill will set social services at the throat of NHS acute trusts and other parts of the NHS.
The Minister has not gone halfway to doing what is needed in this part of the Bill. He says, "The amendment is unnecessary because we don't talk about delayed discharge in the Bill". The title of the Bill contains the words "delayed discharges"; how much more central to the Bill could it be? We will return to the issue. My noble friend Lord Russell put his finger on the need for definition, on the basis of his recent experience. The experience of many noble Lords, as professionals and as patients, prompts them to urge the Minister at least to reconsider the issue.
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If the Minister wishes to make some further points at this stage, I shall give way. Otherwise, I leave it at that for Amendment No. 1. We shall need to return to the matter in due course. The most ungracious remarks that the Minister made in his response were those blaming the parliamentary draftsman for the confrontational nature of the Bill rather than placing the blame on the Government's intentions.
Lord Hunt of Kings Heath: That is unfair. I have views about the parliamentary draftsman, but I am not prepared to share them with the Committee. I hold the draftsman in the greatest respect.
I did not make any criticism of the parliamentary draftsman. I simply made the point that, given the essentially legalistic nature of such legislation, it might appear that the Bill is confrontational. In fact, the Bill is aimed at encouraging the closest possible effective working between the Health Service and local government.
Lord Clement-Jones: The balance of iniquity is on the side of Ministers rather than that of the poor old parliamentary draftsman. That may seem like one lawyer defending other lawyers, but it is possible to adopt much friendlier language in trying to create a better care system.
The Minister's response to Amendment No. 2 was a classic of its kind. It was so convoluted that no one here will be able to understand exactly how the Minister assumes the system will work without referring to Hansard. The Minister's reply demonstrated the unnecessary complexity of the Bill. Like the rest of the Committee, I shall study the Minister's reply. I have no doubt that his answer satisfied the technical aspects of the Bill; of course, care trusts have the status that he described. However, the toing and froing of responsibilities that he described, as he went through the procedures, is a cause of great concern. The lack of clarity is great. I dare say that we shall also return to that issue at every stage.
The Minister wants it to be an integrational Bill. I think that that is what he said. He wants it to be a non-confrontational Bill. Our discussion on the first two amendments has demonstrated that that goal is a long way off. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 3:
Page 1, line 10, after "means" insert ", subject to subsection (2)."
The noble Lord said: In moving Amendment No. 3, I shall speak also to Amendment No. 10. These are technical amendments and are necessary to provide clarification of the fact that the Bill does not apply to any person who is ordinarily resident outside England and Wales. The amendments do not affect the substance of

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the Bill but serve simply to avoid any future misunderstanding about which patients the Bill applies to.
I should like to take this opportunity to apologise to the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, for not giving due notice and sending an explanation. I beg to move.
Earl Howe: I thank the Minister for introducing Amendments Nos. 3 and 10 which seem straightforward and uncontroversial until one thinks about the practical implications. At what point is a hospital to determine whether someone is or is not ordinarily resident in England and Wales? How is a hospital supposed to do that? My understanding is that the definition "ordinarily resident" is not met just by confirming the street address where someone was last living: it is a matter of law. It will be necessary to determine how long a person has been living in this country and whether that period has been continuous. I am sure that the Minister will correct me if I am wrong. However, if that is right, it would be inordinately burdensome for hospitals to determine the information and the process would not be easy if a patient were in a vulnerable condition.
What happens if a Section 2 notice is issued to a local authority which then goes to a lot of trouble on the patient's behalf, only for it to emerge later that the patient is ordinarily resident outside England and Wales? There does not appear to be any provision for the costs of the local authority to be reimbursed in those circumstances. One can imagine that that situation could arise quite often. Will the Minister comment on those issues before we move on to further amendments?
Lord Lucas: For instance, would the Minister's right honourable friend Gordon Brown be considered to be ordinarily resident in Scotland, or not?
Lord Hunt of Kings Heath: I should have thought this a straightforward matter, but your Lordships will always analyse these issues. That is right. Again, I apologise for not giving due warning. As far as I understand the issue, if a patient who was ordinarily resident in Scotland were treated in an English NHS hospital, the Act would not apply. And it would be the same if a patient who was ordinarily resident in England were treated in a Scottish NHS hospital—the Act would not apply.
The definition of a person "ordinarily resident" takes its normal meaning. It would be a matter for the hospital concerned to determine when a Section 2 notice was being issued.
4.15 p.m.
Earl Howe: I am grateful to the Minister. That situation could give rise to practical difficulties in certain cases. If the Minister is able, perhaps he could consult on this and either write or speak to me.
I turn now to Amendments Nos. 5 and 11. The Minister will be under no illusions of the views held on these Benches about Part 1 of the Bill. We believe that
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it is misconceived. We wish that the Government would think again. Nevertheless, it is not right for this House either to kill or wreck the Bill. We shall let it go through. In doing so, its effects should be mitigated and confined in specific ways. The amendment that I am now moving is a means to that end.
We know—or we think we do—that the Government's main concern in seeking to impose financial penalties, or the threat of penalties, on local authorities, is to bear down on delayed discharges relating to patients who have received any type of acute care in hospital. Many—though not all—such patients will be elderly. Above all, they are the groups of patient whose delayed discharges make the greatest impact on a hospital. They are the groups on whom Ministers have particularly focused their remarks when speaking to the Bill's provisions—and understandably so.
The regulations just published in draft form restrict the definition of "acute care" to:
"intensive medical treatment provided by or under the supervision of a consultant which is for a limited time after which the patient no longer benefits from that treatment".
Setting aside the rather strange idea that a patient no longer benefits from treatment after it has finished—I should have thought that the opposite is true in most cases—one can understand what the definition is getting at. The Bill does not refer, for example, to intermediate care, mental health treatment, rehabilitation or palliative care, but as framed it would be open to the Government to extend the scope to any category of NHS patient if they so chose in the future. I am not happy about that.
I make a simple point. The larger the group of patients caught by the Bill, the more serious will be the negative effects ensuing from it. I shall not repeat all the objections that I set out at Second Reading, but one of my main worries is the knock-on effect of the financial penalties for other groups of patients. The more local authorities are obliged to prioritise their efforts on to hospital patients of one sort or another, the more they are in danger of disadvantaging elderly people living at home who may be in need of domiciliary care, as well as other individuals in the community. Above all, local authorities will want to ensure that they do not incur fines. Therefore, the efforts of social workers will be disproportionately concentrated on patients blocking beds. The needs of patients who do not give rise to fines will inevitably become secondary. That is my worry.
This distortion of priorities will manifest itself in other ways. I shall read a short section of the Audit Commission report, Fully Equipped 2002. It states:
"In the case of community equipment service in particular, social services departments were finding themselves under increasing pressure to cope with the demands of people being discharged earlier from acute hospitals. The policy to support the immediate needs of the NHS was putting pressure on other parts of social services home care budgets and driving up eligibility criteria for those who needed less intensive support to help them to stay at home—risking unnecessary hospital admissions and increasing demands on the NHS".
The argument is taken a stage further: people who need less intensive support at home are increasingly not receiving it because it is becoming more difficult for them to qualify. The result is that such people have

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to be referred to hospital. Therefore, the whole process is circular. Indeed, it is self-defeating and the Bill will promote that self-defeating process.
I return to the perverse incentives that are likely to be created. The larger the cohort of individuals directly affected by the Bill, the greater those perverse incentives will be. The example that I gave at Second Reading was that of a GP trying, without success, to find a care-home bed for a patient. The obvious answer is to refer that patient to hospital as an acute case. Hey presto, the problem is solved! At Second Reading, the Minister said that that type of eventuality was never the Government's intention. Of course it was not the Government's intention, but that is precisely the point: the unintended consequences must be confronted and dealt with.
Finally, Amendment No. 11 proposes that the ambit of the Bill should not be extended to include mental health patients. There is a real problem of delayed discharges in the mental health sector. The problem is not something to be welcomed in any way. It is damaging to patients and costly to the NHS. However, assessing whether a psychiatric patient is fit for discharge involves a complex set of considerations; for example, the potential for self-harm and the risk of harm to others. In the opinion of MIND, the charging scheme set out in the Bill carries a serious risk of inappropriate and premature discharges. Local authorities would be forced to take responsibility for patients without the necessary support services being in place. The Government have acknowledged that the key reason for delayed discharges in mental health is a lack of capacity in specialised mental health services in the community.
The way to overcome that, to revert to our earlier debate, is to have a working partnership between health and social services. Many NHS mental health services already operate with a high degree of integration between health and social services, with pooled budgets and joint commissioning arrangements. It makes no sense whatever to disrupt those arrangements, which inevitably the Bill would do if it were extended to this sector. Apart from anything else, if the charging scheme were extended to mental health, managers with pooled budgets would undergo the odd experience of having to fine themselves.
Those are some of the practical reasons why, in my view, we should seek to limit the scope of the Bill as the amendments propose. On a more philosophical level, we need to ask ourselves whether this system of financially driven imperatives is what we want to see pervading the fabric of our public services wherever the NHS and social services interact. I am clear that it should not.
Baroness Barker: I speak to Amendments Nos. 6, 8 and 9, which are grouped with the amendments of the noble Earl, Lord Howe. The Minister's amendments seek to clarify the meaning of "ordinarily resident". Can I take it from what the Minister said that the discharge arrangements will not extend to hospitals abroad to
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which NHS patients are sent for treatment? It will be interesting if they do not. I should like clarification on that.
Like the noble Earl, I, too, wish to comment on the extension of the Bill to mental health. Time and time again it has been said that the Bill reflects a model of care adopted from Sweden, which in itself was a corruption of a model that pre-existed in Denmark. We on these Benches have chastised the Government for what we call "health tourism", and this is one of the first examples of that. If Members of the Committee had gone to Sweden with the architects of the Bill to look at the system there, they would have discovered that in Sweden the system of reimbursements applies only to geriatric care transfers. It has not been deemed appropriate to extend that principle more widely and specifically to mental health.
For once we are in the happy position of having draft regulations when we discuss a Bill. The definition of "acute care" in the regulations is quite helpful, although it does not exclude paediatric care, which I thought it might do.
Under the current draft regulations, local authorities will not be made liable for charges if the patient is awaiting another NHS or community care service, such as psychiatric or mental health after care assessment, but cannot move on because the availability of such NHS services is blocked due to lack of social care provision. However, as the Explanatory Notes to the Bill make clear, it is the intention of Ministers eventually to apply the reimbursement regime to other NHS services, including mental health.
But there is a clear difference. There is no intermediate care in the field of mental health. NHS mental health services now operate in an integrated structure between health and social care, with varying degrees of pooled budgets and legal responsibility. We are getting into a situation where different departments of the NHS will be claiming back money from each other.
Assessment of a psychiatric patient's fitness for discharge and the putting together of an appropriate after care package is perhaps more complex than dealing with many of the physical disabilities of older people. Considerations such as the risk of self-harm, risk to other people and the need for appropriate accommodation have to be taken into account, and I very much doubt whether such arrangements can be put into place within three days. It will be interesting to see how any decisions made under this Bill will fit in with the provisions of the forthcoming mental health Bill.
There is one other key reason why the Bill should not be extended to mental health service users. That is the danger that this legislation will put pressure on local authorities to take discharged patients earlier than they should, without proper accommodation and essential support services in place. There is also a risk that medication will be used to manage symptoms to achieve earlier discharge without proper consideration being given to therapeutic intervention. We have often discussed in the House how mental health becomes an issue only when there is a crisis. I believe that this is the context in which such decisions can lead to severe risk.

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As to Amendment No. 8, the issue of self-funders is small and technical but it is one of the most important issues in the Bill. It arises several times in the Bill in relation to eligibility for continuing care and unlawful practices by social services departments to make NHS continuing care cases self-funders, as in the case of Coughlan.
In the Second Reading debate in another place the Secretary of State said:
"Self-funders effectively pay for their own care and are not the responsibility of social services".—[Official Report, Commons, 28/11/02; col. 511.]
That implies that they are outwith the system of fines. The statement is somewhat misleading. Social services departments have a responsibility to assess individuals who may have a need for community care services, and until such an assessment is carried out the social services will not know what kind of service a person requires. That has been made quite clear in the Fair-Access to Care practice guidance, which states:
"The carrying out and completion of a community care assessment should not be contingent on whether or not an individual can pay for care services, be they provided in a care home or the individual's home".
So if a social services department delays on the assessment then fines could be imposed.
In the case of those who require care services at home, the guidance goes on to state:
"With respect to individuals receiving services at home, a council should arrange those services irrespective of the resources or capacity of the service user, if that is what the service user wants the council to do. Where an individual is to receive services under Section 29 of the National Assistance Act 1948 and is ordinarily resident in a council area, that council has a duty to arrange services on his/her behalf".
Therefore social services remain responsible for all those who are defined as requiring care at home and cannot use the argument that a person can arrange his or her own care.
The practice has grown up that where a person has capital of more than £19,000 the local authority does not have a duty to arrange care unless he or she is not able to arrange it for himself or herself and there is no one willing to do so on his or her behalf. In general, this has come to be interpreted as meaning that local authorities retain responsibility where the person lacks capacity to make his or her own arrangements with the care home.
However, a recent case in the House of Lords—Robertson v Fife—has thrown considerable doubt on this approach. Although the case referred to Scottish law, it relied heavily on English case law in coming to its conclusion. The judgment stated:
"But the guiding principle is that the provision of community care services to a person who is in need of them is not related to the ability of the person to meet the costs. The assessment of need and decisions as to whether they call for the provision of any community care services to a person who is in need of them is not related to the ability of the person to meet the costs … The assessment of means, and the requirement to pay what the person can afford comes afterwards".
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So if, as many community care and public law lawyers agree, this has effect in England and Wales, then social services departments are responsible for arranging the care for many more people than they currently do and they will be brought into the regime of fines. If the costings for the Bill have been done on the basis that there are people outside the system of fines, then they could be severely underestimated.
Even if there is a group of people who are not the responsibility of social services, given the ethos of swift discharge that these fines will foster, hospitals may pressurise self-funders into accepting the first place in which there is a vacancy, whether or not it meets their needs. For example, people could feel impelled to take a place in a care home which is miles away from their family or social contacts, or which may be far more expensive than other homes in the area which do not have vacancies. So self-funders could, yet again, be doubly disadvantaged.
I said earlier that it was useful to have the draft regulations before us—and, indeed, it is. It was alarming to have frequently to ask questions about regulations.
There is a blithe assertion that if patients turn down the first care package offered, they will be deemed to have made themselves a self-funder. People in hospital may turn down a care package because they believe that it does not meet their needs. It is not simply a question of choice. There is a small, but significant, group of people who stand at great risk of being disadvantaged under the terms of the Bill as stands. That is the reason for our amendments.
4.30 p.m.
Lord Chan: I support Amendments Nos. 5 and 6, 8 and 9 and 11 in this group. They are in line with experience in our primary care trust on Merseyside. The first priority being laid upon social services is to invest in intermediate care beds. There is no doubt that the extra funding provided by government for the requirements under the Bill will be used in that way. Negotiations are presently taking place regarding the use of beds in acute hospitals for intermediate care, and the money will be invested in that way.
That will produce a problem. The best place for a discharged person, particularly an older person, is his or her home. That is the setting that he or she is used to. However, that would require the co-ordination of several services, including some social services departments, and responsibility for support at home as regards cleaning, meals, etc, and other services in the NHS through the primary care trusts.
Concern is being expressed about the Bill. I received a letter today from an older person who lives in St Helens, on Merseyside, and who is very worried about the effect of the Bill, with its emphasis on delayed discharges. The letter asks:
"will there be a withdrawing of services for very vulnerable people, old, sick, disabled, living alone"?
It asks whether their services will suffer, given that social services are already stretched and that their efforts will need to go into meeting the terms of the Bill in order not to incur fines. I look forward to an

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assurance from the Minister that there will be some kind of protection for people such as this unfortunate person, who is already very worried as a result of what he has read in the newspapers.
Finally, there is no doubt that the field of mental health offers an example of good practice. As a result of the very good NSF in mental health, we see the development of an integrated service—both NHS and social services. I feel strongly that it should not be included in this consideration.
Lord Brooke of Sutton Mandeville: I speak as a member of the Select Committee on Delegated Powers and Regulatory Reform. I recall that a Select Committee was set up in another place to examine the impact of devolution on procedure. Indeed, I gave evidence to the committee. I speak to Amendment No. 6, standing in the names of the noble Baroness, Lady Barker, and the noble Lord, Lord Clement-Jones, which seeks to delete from Clause 1 the reference to regulations. My remarks refer to that particular reference to regulations.
The Minister will recall that in our report on the Bill we said that we approached each delegation on a case by case basis. We concluded that on this occasion the negative procedure was satisfactory. We went on to anticipate, however, that the impact of devolution on delegated legislation is an issue to which we shall more generally turn our attention in the coming months. The fact that the Bill covers England and Wales is the reason I raise the subject. We concluded with a statement that, meanwhile, we should find it helpful if government departments, when drawing up memoranda on delegated powers in Bills involving England and Wales, would say whether and, if so, how the devolution arrangements influenced their decision as to which parliamentary procedure should be applied in relation to instruments applying to England. I hope the Minister will indicate in his response whether this observation found favour with his department.
Lord Lucas: To return to Amendment No. 3, I recall, when happily occupying the Minister's position, receiving—quite rightly—a great deal of flak from these Benches for importing a definition from a taxes Act for use in a Bill about construction. Taxes Acts are very attractive from this point of view. They go into definitions at great length and are very consistent about them. But when one tries to apply them to the real world, they cause considerable problems. I am happy to say that, at the end of the day, I was forced to back-track and we were able to start from the principle that the Bill in question was a construction Bill and, therefore, the definition of "construction" ought to be from that point of view.
I think the noble Lord is falling into the same trap in the use of the words "ordinarily resident". This is a crusty and well-tried tax term which is immensely complex, as any Member of the Committee who has tangled with it will know. For example, I am not allowed to bring my grandmother's body back from Guernsey for at least 25 years in case she might be considered to be "ordinarily resident" in whichever
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piece of earth I lay her in. It is an extremely difficult piece of legislation, and it is an unfortunate term to use. The Government would do better to look at this from first principles and to ask: to whom do we really wish this to apply?
I understand, of course, that it one of the main duties of the NHS to be beastly to the Scots, and that any poor Scotsman who is idiot enough to fall ill in London deserves what he gets and should be denied the benefits of Clause 3 which would accrue to an Englishman or a Welshman. But I thought that we were under an obligation to our colleagues in the European Union not to subject them to this kind of discrimination. Given that obligation, why should a Frenchman who falls ill in London be denied the benefits of Clause 3?
Lord Hunt of Kings Heath: I certainly do not want to be beastly to the French, particularly at the present time.
As regards the definition of "ordinarily resident", I believe—although I will check and write to the noble Lord—that the health service is well used to that terminology. In debates on a great deal of legislation over the past few years we have reflected on how to deal with the NHS in terms of England, Scotland, Wales and Northern Ireland.
It will be the responsibility of the NHS body as defined in Clause 1 to determine the ordinary residence of the person in question. I do not believe that it will involve the hospital authority in arduous research, as was suggested by the noble Earl, Lord Howe. This is not the same as the "habitual residence" definition. I believe that it will be possible for the hospital authority to determine the ordinary residence without too much difficulty. If the local authority thinks that it has got it wrong, the dispute procedure—which we hope will be used reluctantly—is there to try to resolve the problem. This definition is indeed used in other social care legislation, including in the National Assistance Act 1948. Although I recognise the noble Lord's expertise on this question, in the field of health and social care legislation, as opposed to taxation legislation, it does not seem to have caused a particular problem.
As regards the point raised by the noble Lord, Lord Brooke, I wish that the noble Lord had been present when we debated the Health (Wales) Bill some two weeks ago, when an interesting discussion about the NHS in Wales developed to include far greater issues to do with constitution and the devolution settlement. I have learnt, on all those questions, to say that the commission chaired by my noble friend Lord Richard is, on behalf of the Welsh Assembly, looking at many matters to do with devolution. I understand that he will be reporting at the end of the year, and I am sure that we will all read the findings with a great deal of interest.
My understanding is that Wales will develop its own regulations through Part 1. On the timing, my understanding is that Wales does not intend to implement at this stage, so I do not yet have a date for implementation in Wales. If the Welsh Assembly were to

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implement this, they would be responsible for considering the regulations and how they would be adopted in Wales. I hope that answers the question.
On the more general questions raised in this group of amendments, I know that noble Lords are concerned about the impact of the Bill on the general provision of social care services. The argument is put by the noble Earl, Lord Howe, and the noble Lord, Lord Chan, that if a great deal of emphasis is placed on sorting out the problem of delayed discharges, it will detract from the general provision of social care services. I reiterate that that is not the Government's intent. Indeed, in our guidance on good practice in delayed discharge procedures, we have made it clear that we expect the health service and local authorities to take a whole systems approach.
I listened with care to what the noble Earl, Lord Howe, said about the risk that people requiring less intensive support will not get support. I would be worried if that then led to them being admitted to hospital in the future because there had been no early and quick intervention to prevent that from happening. However, we will stress the need for preventive action in all the guidance. The first way to deal with the problem of delayed discharge is to prevent people from entering hospital in the first place if they have no need to do so. That is why we will emphasise that constantly to local government in particular.
The noble Lord, Lord Chan, asked whether a particular person who was vulnerable would be affected by the Bill. I do not think that person would be affected adversely by the Bill. The Bill aims to incentivise the health service and local government to put together a cohesive package of arrangements to ensure a seamless and integrated approach to health and social care. That takes us back to why the Bill is being introduced. It is because of the experience in so many parts of the country where assessment takes an awful long time to happen: people wait in hospital unnecessarily until the local authority undertakes their assessment; there are long waits for domiciliary packages of care; disagreements between the NHS and social services; waits for social services funding; and waits for care home places. When two authorities in a locality have not been able to get their act together, the person who suffers is the vulnerable patient. That is why we have to sort it out and ensure that there is clear responsibility with clear incentives.
Some noble Lords are concerned that the Bill will distort the priorities of local government. Amendment No. 5 would remove the power to extend the provisions later to other services. If these measures work for older people in acute or geriatric care, should we in principle deny the benefits of the Bill to other services where, as noble Lords have indicated, there are problems of delayed discharges? Of course we intend the Bill to extend initially to the acute sector only. We will exclude mental health, learning disability and maternity care because we are taking a pragmatic approach to the scope of the Bill. We want to minimise the costs in setting up the system and the size of the task of implementation. But I do not think that means that we should at all times rule
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out extending the Bill to other services. The amendments would prove to be unworkable in their current form as there is no definition of either "acute" or "geriatric" care in the Bill, but I am sure that these are being posed as probing amendments.
We come again to self-funders. The noble Baroness, Lady Barker, asks how patients who will be responsible for funding their own community care after discharge are identified as such. I agree that it is an important question; we believe that it is best covered by statutory guidance, which we will be issuing to accompany the Bill, and is not suitable for regulations. That is because the regulations will prescribe the type of care that the person is receiving in order to be within the scope of the Bill—that is, acute care. The regulations do not define who receives services provided by the state and who does not. That is covered by other legislation.
On the specific points raised by the noble Baroness, let me make it clear that the Bill allows the NHS to charge local authorities for delays in instances when the only reason for the delay is that a local authority has not completed an assessment of patient need or provided the services that it had agreed to provide. When the NHS admits a patient who appears likely to require community care services after discharge, the NHS and, indeed, the patient may not be aware that the patient's financial situation is such as to make him a self-funder under the local authority criteria and should therefore notify social services on the basis of the likely need for services after discharge. However, the NHS cannot be allowed to assume that a patient is a self-funder and therefore not notify social services at all. That would run the risk of denying community care services to people who need them.
The legal position, as laid out in Section 47 of the National Health Service and Community Care Act 1990, is that everyone, regardless of means, is entitled to request a local authority assessment. If the NHS issues a notice for the local authority under Clause 2 of the Bill, informing the local authority that the patient requires assessment, the Bill places a duty on the local authority to carry out that assessment. If the local authority has not started or completed that assessment within the time limit allowed and the patient's discharge is delayed as a result, the local authority is liable to pay the reimbursement charge. That is the case even if it later becomes apparent that the patient is not entitled to local authority support and is a self-funder. If that has already become apparent, the local authority will have decided not to provide any services and its duties under Clause 3(3) will have been met. The local authority must be satisfied that the patient is capable both financially and mentally of arranging his own onward care before it can inform the NHS that it will not be providing any services for the patient and that it has therefore discharged its duty towards the patient.
Some patients may decide that they do not want to be assessed by social services or they do not want to accept the services which the local authority has offered to provide. That is the patient's choice. No one is under an obligation to accept social services assistance. But in

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those circumstances the local authority must make all reasonable efforts to assess and meet the patient's need in a way that is acceptable to the patient. The noble Baroness, Lady Barker, referred to an individual being given one choice, and one choice only. Offering only one kind of service and not allowing for any discussion of any alternative with a patient would not count as a reasonable effort. Only if the patient then continues unreasonably to object to the services offered, despite attempts to find a compromise, can the local authority regard itself as having discharged its duties towards the patient, who then becomes a self-funder. Once this has happened, patients become responsible for arranging their own onward care. Any delay in their discharge from hospital is not the local authority's responsibility. However, a self-funding patient does not have the right to occupy an acute bed indefinitely. Hospitals need a clear protocol and communication policy to ensure that patients and families are clear about the need for them to make arrangements for care after discharge.
I emphasise that local authorities' existing responsibilities towards individuals in need of community care services are not affected by the Bill. However, I accept that the kind of details that I have outlined are eminently suited to being addressed in the statutory guidance, which will be published with the Bill. I shall be happy to have further discussions with the noble Baroness on the matters she has raised, which will no doubt inform our discussions on that statutory guidance.
Amendments Nos. 9 and 11 deal with the interesting question of patients with a mental health condition. I have already said that we do not intend to extend the Bill to those patients in the first instance and we do not currently have a timetable for doing so. A decision on whether to apply reimbursement to the mental health sector will be taken after the system has had time to bed down in the acute sector.
I understand the points raised by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, about patients with mental health problems having complex needs. Whatever the complexity, waiting in hospital inappropriately because the package of measures required in the community is not available is as unacceptable to those with a mental health condition as it is to those with an acute health condition. If the legislation is successfully implemented, as I believe it will be, it would not be right at this stage to exclude mental health patients from the system. Let us monitor the effects of reimbursement in the acute sector. We can then decide, if appropriate, to include the mental health sector in the light of experience. The Bill already gives us the flexibility to do that.
If we then decided to extend the scope of the Bill to mental health, we would have to examine whether the reimbursement was set at an appropriate level. We would also have to consider whether it was appropriate to use regulations to extend the minimum compliance period. If the noble Baroness and the noble Earl are right that the difficulties that might arise when assessing mental health patients or putting services in place are of a different order compared with
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those for acute hospital patients, we can use the flexibility in the Bill which means that we do not need a one-size-fits-all system.
Delayed discharge affects many people, not all of them acute patients. There is eminent justification in allowing the flexibility to introduce an extension to the Bill at some stage, but continuing to focus particularly on those patients in acute beds.
Baroness Carnegy of Lour: I come hack to the point made by my noble friend Lord Brooke arising from the discussions in the Delegated Powers and Regulatory Reform Committee, of which I am also a member. The last two lines of Clause 1, which we have been discussing, leave to regulations the definition of a hospital patient to whom Part 1 applies. The noble Lord keeps talking about the importance of flexibility. Would it not be much easier if the Bill contained a definition for England of the hospital patients to whom it applies, with the possibility for the Minister to extend that definition? That could be left to regulations for Wales. It seemed to the Delegated Powers and Regulatory Reform Committee that the Government had some difficulty making a definition for Wales, because, as the Minister has confirmed, Wales is not going to implement for the moment. The Government would not want to do that without talking to the Welsh Assembly. The Welsh tail is wagging the English dog in this case. The committee worries about that, because that is not the right way of using the powers that emerge from devolution. If it were not for Wales not wanting to implement, England and Wales could have a proper definition on the face of the Bill, which would make us much happier. The Minister looks puzzled, but I think it is a valid question. I understand that the point was discussed in the Delegated Powers and Regulatory Reform Committee.
Lord Brooke of Sutton Mandeville: The Minister kindly responded to my question. I am not suggesting for a moment that he missed the point, but when legislation covers England and Wales we were hoping that his department could set out in the explanatory memorandum accompanying the material that comes to us how far devolution has affected the particular recommendation that the Government have adopted on how the regulations should be dealt with procedurally. I am perfectly happy to take this in slower time. The issue does not need an answer today. We raised it because we can see that the dichotomy between England and Wales will be a continuing issue in all joint Bills.
Lord Hunt of Kings Heath: I certainly take the noble Lord's point. I shall make sure that the Select Committee's recommendations are brought to the attention of my department. Giving Members of both Houses as much information as possible about how regulations in those circumstances are to be dealt with would be extremely helpful on future legislation.
Lord Brooke of Sutton Mandeville: I was more concerned about the memorandum that comes to our committee from the department.
Lord Hunt of Kings Heath: I am so sorry. I misunderstood the noble Lord. I thought he was

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referring to the memorandum that accompanies a Bill. I assure the noble Lord that I shall make sure my department takes to heart the recommendations made by the committee. In future submissions to the committee we shall try to deal as informatively as possible with the devolution issue in relation to regulations.
In response to the noble Baroness, Lady Carnegy, I looked puzzled because I was not aware that the terminology in Clause I was used in deference to the National Assembly for Wales, although of course our relationship with the National Assembly is as cordial as ever. We wish to have the flexibility in regulations to define a description because we currently intend to confine the Bill's provisions to those patients who are receiving acute care. We published draft regulations to accompany the debate, paragraph 2 of which sets out our definition of acute care. We want the flexibility of regulations because we hope at some stage to extend the provisions to other classes of patient. That is why there is no definition of acute care in the Bill. I am not aware that it has anything to do with the Welsh dimension.
5 p.m.
Earl Howe: I thank all Members of the Committee who took part in this informative debate, especially the Minister for his illuminating comments.
I shall quickly add some concluding remarks. The Minister said that there was no definition of acute or geriatric care in the Bill and that, therefore, Amendment No. 5 was flawed. In fact, my amendment deliberately leaves it to the regulations to define acute or geriatric care. That was the whole point of the way in which it was phrased.
The Minister rightly drew attention to the need for investing in preventive care and action. I agree with him, but nothing in the Bill incentivises NHS trusts to invest in preventive care. That would have been to the benefit of the Bill, but I do not see it.
I do not share the Minister's enthusiasm for extending the scope of the Bill to increasingly large fines on local authorities. There will be a fundamental disagreement between us about the balance of advantage and disadvantage inherent in the charging scheme. I am all for reducing bed blocking, but not at the kind of price or risk to which this experimental scheme would give rise.
I agree that mental health waits are serious, but there is no financial disincentive on the NHS to avoid premature discharges. That is a serious aspect of the mental health dimension.
I take note of the Minister's comments. We shall undoubtedly return to the issue.
Lord Lucas: Will the Minister write to me on the question of European obligations, since he did not cover it in his reply?
Lord Hunt of Kings Heath: I would be happy to do so. My understanding is that we are not causing
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problems in Europe with this legislation, but I am happy to examine that point to reassure the noble Lord.
I should answer the question whether the clause will apply when an NHS patient is sent abroad under the scheme that we have for that purpose. It could apply, because the clause says that a qualifying hospital patient means,
"a person being accommodated at—

(a) a health service hospital; or

(b) an independent hospital in pursuance of arrangements made by an NHS body".

On that basis, the clause could apply to an NHS patient sent abroad. In that context, the NHS body would be a primary care trust.
That surely makes sense. If an NHS patient was treated abroad under the NHS, we would want to ensure that appropriate arrangements were in place when they came home.
On Question, amendment agreed to.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 4:
Page 1, line 12, after "hospital" insert "or hospice"
The noble Baroness said: In speaking to this amendment, I speak also to Amendments Nos. 30, 39, 53, 55, 56, 86 and 117.
These are probing amendments, and I hope that the Minister will give me some reassurance. I must declare an interest, as I am a hospice doctor, and the amendments focus on patients in hospices. In the light of the Minister's remarks on the European question, I hope that a similar reassurance will be forthcoming.
It is worth remembering that most patients admitted to hospices express a wish to die at home. In 2001–02, there were slightly more than 25,000 in-patient deaths in hospices in the UK and 33,000 deaths of hospice patients in their own homes. More than 50,000 were admitted to hospices, so we are talking about a large number of patients.
Many patients do not die in a hospice on their first or even on subsequent admissions, but achieve death at home. The risks of not including hospices in the clause are that hospital patients will be prioritised over hospice patients. If hospice beds were blocked, patients wishing to go home will probably miss the boat to get home, and patients needing to enter a hospice will not be able to get in for the symptom control that would be essential to improve their last days or weeks of life.
In December 2002, Hazel Blears, the Minister for Public Health, said that the,
"new funding arrangement will ensure more patients are able to live and die in the place of their choice, and better support for carers and their families".
One difficulty is that the Bill does not make it clear whether hospices are included at the outset. The vast majority of patients in hospices are referred by an NHS agency—a primary care or hospital trust.
Jacqui Smith, another Health Minister, stated in Committee in another place that,
"patients in independent hospices would technically be excluded from the Bill in any case, as they are accommodated in neither a health service hospital nor an independent hospital in pursuance of arrangements made by an NHS body".—[Official Report, Commons Standing Committee D, 10/12/02; col. 16]
However, Clause 9 states that an,
"'independent hospital' has the same meaning as in the Care Standards Act 2000".
Clause 3 of that Act states that palliative care is included in the definition of "independent hospital".
Will the Minister make it clear whether hospice inpatients in hospice units are included from the outset? It is worth remembering that not all hospices have a consultant in palliative medicine but have doctors of other grades, who have received training and are delivering high standards of palliative care at almost a specialist level. Therefore, they should all be included. I beg to move.
Lord Clement-Jones: The noble Baroness described these as probing amendments. I simply want to express our strong support for the spirit of the amendments.
It is vital to ensure that patients accommodated in hospices are not given a lower priority for discharge than are people receiving acute care in hospitals. Our concern is that social services will prioritise NHS patients over those in hospices, in an example of precisely the kind of perverse incentive that we discussed on Second Reading, on which the noble Earl. Lord Howe, was so eloquent this morning on the radio.
The amendments also seek to clarify the regulations. Many hospice patients receive intensive medical treatment that meets the definition of acute care given in the draft regulations. Such care most often goes unsupervised by consultants. It is often impossible for hospices to offer consultant supervised care. That is another reason for the Minister to consider the amendments carefully, even though they are probing amendments.
Lord Hunt of Kings Heath: I understand the nature of these probing amendments. All Members of the Committee are clear about the contribution that hospices make to health care in this country.
The noble Baroness, Lady Finlay, referred to comments made by my honourable friend Jacqui Smith in another place, when she said that,
"patients in independent hospices would technically be excluded from the Bill".—[Official Report, Commons Standing Committee D, 10/12/02; col. 16.]
That is the case for most patients in hospices, either because the hospice is registered as a care home or because the patient is not there in pursuance of arrangements made by an NHS body—that is, that the patient is receiving NHS services and being funded by the NHS in the hospice. One group of patients in hospices could come under the Bill: those patients who are in independent hospices but whose placement is fully funded by the NHS.
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I understand the point raised by the noble Baroness. She reflects the concern felt by some hospices that, if all the focus is put on delayed discharge from acute NHS hospitals, it might reduce the emphasis that local authorities would place on the support that they would want to give to patients in hospices. No one would wish to see that happen.
I can offer the Committee this. My department can have discussions with the hospice movement on these issues, to see how we can best work with the NHS and social services to address them. However, although I recognise the issues that the hospices have raised, the hospices are independent organisations. Unless we are talking about patients in hospices who are wholly funded by the NHS within the terms of Clause 1, my reading is that the Bill cannot apply to them. I do not believe that we should extend the Bill to include all patients in hospices, as that would go outside the current remit. As I said, however, I should be very happy to ensure that my department urgently meets representatives of the hospice movement to discuss some of the other issues they have raised concerning the support that they undoubtedly require from statutory agencies in the discharge of their patients from hospices.
Baroness Finlay of Llandaff: I thank the Minister for his reply. However, I am extremely concerned at his statement that only patients whose placement is fully funded by the NHS will be included. Extremely few hospice patients are fully funded by the NHS. In fact, hospice patients are vastly subsidised by the charitable sector and fund raising. The backlog would be even worse if all those patients remained in NHS beds. The obvious implication of the Minister's remarks is that no hospice should accept a patient unless a discharge package for after his or her stay has been arranged. That would make the whole situation farcical.
The proposals would also exclude those with the greatest need, as only self-funders would be able to go into hospices. As we know very well from data from the Hospice Information Service, patients from areas of deprivation often have the greatest need. However, those patients already tend to use hospices less because hospices are usually not established in areas of severe poverty.
I appreciate the Minister's offer to discuss the Bill's implications with the hospice movement, and I am prepared to withdraw the amendment pending such discussions. However, we need to return to this topic, which causes great anxiety in the hospice movement. I feel that I must sound a warning bell that there may be a further patient backlog, and that another awful situation may arise. Patients may be sent home, although no provision has been put in place, because another patient has greater need of symptom control. They may then bounce back into the acute sector and end up dying in an A&E department. We are already beginning to see that situation. It is a tragedy for those patients and their families.
Lord Hunt of Kings Heath: I would be the last to want to see the hospice movement or patients in hospices adversely affected by the enactment of this legislation. If

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we are truly developing an integrated, whole-systems approach, the hospice movement must be involved not only in the discussions at national level but in the discussions at local level between the health service and local government in regard to effective discharge procedures. I was reflecting on the fact that it is difficult to see how, given the architecture of this clause, the great bulk of hospice patients can be included. Independent hospital patients can be included only in pursuance of arrangements made by an NHS body. As the noble Baroness, Lady Finlay, will know, that is not the case for most patients in hospices. However, I am very happy to discuss this further with her and with representatives of the hospice movement.
Baroness Finlay of Llandaff: I thank the Minister for that reply. We should discuss this matter further and in great detail, without consuming the time of the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 to 9 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 10:
Page 1, line 15, at end insert—
"(2) The term "qualifying hospital patient" does not include any person who is ordinarily resident outside England and Wales."
On Question, amendment agreed to.
[Amendment No. 11 not moved.]
Clause 1, as amended, agreed to.
5.15 p.m.
Clause 2 [Notice of patient's possible need for community care services]:
Earl Howe Earl Howe moved Amendment No. 12:
Page 2, line 5, after "hospital" insert "after 1st April 2004"
The noble Earl said: Much as many of us may deplore this Bill, our job in this revising Chamber, in the words of the Beatles, is to take a sad song and make it better. That is what I shall be asking the Committee to do in moving this amendment.
It is the Government's intention, or at least their stated intention, to bring Part 1 of the Bill into force in less than six weeks' time, on 1st April. I am absolutely convinced that that very ambitious timetable will lead to serious dislocation. I believe that the Government should think again about it. If the system were to be introduced as planned, it would hit local authorities at a very low point in their financial fortunes. Social and community care services have suffered for years from sustained underfunding. Very many local authorities substantially and consistently overspend their SSAs. It is perhaps necessary to point out that these local authorities are under-resourced not just in terms of money but also in terms of people on the ground. Indeed, it is in partial recognition of that that we are to see a 6 per cent increase in social care funding during the coming financial year.
The consequences of underfunding are evident in the community care statistics. Between 1992 and 2001, the number of households receiving home care decreased by 28 per cent. At the same time, the number of hours of home care paid for by local authorities increased by more than 70 per cent. What that means is that local authorities are concentrating their resources on people with high-level need to keep them out of hospital. Those with lower-level need are often not receiving the care they require because there simply are not the resources or the personnel to deliver it.
The Government's policy of incentivising local authorities in order to reduce bed blocking was announced in spring 2002. The period since then may seem a perfectly adequate time to make the necessary preparations for something like this, and certainly that has always been the Government's line when asked about it. However, the timetable is very rushed. Local authorities tell us that they are currently far from being fully prepared. That has nothing to do with what one might term the mechanics of the system. I have no doubt that it could be put into operation, if that were what Parliament decided should happen—but at what penalty? Is it really reasonable to expect local authorities to hit the ground running, on 1st April, when they will not have had any time at all in which to invest new funds into support services for older people leaving hospital or in preventative programmes which make hospital admission unnecessary? These things cannot be conjured up overnight. What is desperately needed in many areas is extra capacity—not just care home capacity, which is a relatively long-term issue, but capacity in domiciliary care and in additional personnel trained to bring the new system smoothly and efficiently into practice.
In fact, 6 per cent is not as large an increase as it might sound. Laing and Buisson recently showed that addressing the existing underfunding of care homes would alone consume all the new money. On top of that, national insurance increases, due to come on stream in 2003, will have a serious impact on social care budgets where people's salaries are the main category of expense. The value of the increase in social care funding will therefore not be anything like the headline figure that has been quoted. If the delayed discharge penalty system were to be railroaded in on 1st April, there would, in my view and that of the LGA, be a distinct risk that older people's services and services for other vulnerable groups might have to be reduced in certain localities.
In this amendment I suggest that the earliest date on which the new system of penalties should come into play should be 1st April 2004. That is the date proposed by a number of bodies including Help the Aged and, interestingly, the BMA. I do not think that it would be realistic or helpful to propose an earlier date. September 1st, just supposing the Minister were to suggest that as a compromise, would be midway through the financial year and there would be practical difficulties associated with it for that reason. But, more substantively, six months would not be long enough for

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local authorities to gear themselves up to meet the new requirements being placed upon them while ensuring that other statutory services do not suffer.
The idea of financial penalties being used as a driver for reducing the number of blocked beds came, we are told, from Sweden. In Sweden, however, where the situation is a good deal less complex than it is here in terms of the pattern of provision of health and social care, it took a full two years for the system to be fully up and running. Let that be a warning to us, or rather let that be a warning to the Government. I hope very much that they will take the cue that I am now offering and agree to a year's postponement. We may not see eye to eye on the Bill itself but if the new system is not to fall on its face, that must be the right and sensible thing to do. I beg to move.
Baroness Greengross: Amendments Nos. 138A and 142A standing in my name are grouped with Amendment No. 12 as they also relate to the Bill's commencement. In speaking to Amendment No. 138A I shall be brief. It is a probing amendment and some of the issues have already been raised.
At Second Reading the Minister said that the Department of Health.
"must demonstrate that that approach will be as rigorous and tough for the NHS as it is for local government".—[Official Report, 27/01/03; col. 965.]
I was encouraged to hear that as, although I am sympathetic to the Bill's aim to tackle delayed discharge—which has been a scandal for many years—and thus benefit mainly older people, I do not see the problem as always being caused by one agency; that is, social services departments, as I know the Minister agrees. I am happy to place additional responsibilities on social services departments but I want to ensure that they are placed on others as well. I declare an interest as a vice-president of the Local Government Association and Age Concern England although I stress that neither body has been involved in the amendment.
As we know, inappropriate discharge will often be caused by the hospital itself, as has already been mentioned. At Second Reading I mentioned an example of a hospital that discharged a patient without notice to the local social services department despite the fact that it knew that that department was trying to arrange a care plan. But thus far I have not seen what additional responsibilities—by that I mean obligations—either as a result of a legislative requirement or a direction from the Secretary of State for Health are to be placed on the NHS other than nominating an NHS officer to be responsible for discharge. Other Members of the Committee have tabled some later amendments which spell that matter out a little more. But, to be frank, I had hoped by now to see something from the Government.
Last week I was most encouraged to receive and read the newly published updated Department of Health Discharge from Hospital pathway process and practice workbook. I hope that it is given a snappier title as I do not think that the present one will be very popular. It seems to me that that substantial document covers
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every aspect of good hospital discharge procedures. Is there any way we can legislate with regard to some aspects of what it covers? My probing amendment would simply require the Minister to report to Parliament that the provisions of the workbook have been implemented by the NHS. Are we clear that they have? Although it has only just been reissued and updated, much of what it recommends is probably happening out there, but we need reassurance that all NHS bodies are following the workbook's provisions before we should allow Part I of the Bill to be implemented.
Baroness Barker: I wish to echo many of the comments made by the noble Earl, Lord Howe, and to make one or two other points. Bad practice is easy to implement quickly. That is the big fear that many of us have with regard to the Bill. Much that is going on at the moment is good. There is much joint working which is laudable. I have listened to the Minister's comments all afternoon but I am not convinced that as regards a Bill which seems to be based on apportioning blame it is possible to be as confident as he is not only that existing good practice will not be undermined but also that bad practice will not come into play.
I wish to mention timing in particular. I believe that the Bill involves immense planning distortions. Good authorities will by now have begun to plan their community care services for most of next year. I do not see how, at such short notice, they will be able to conjure up new places, as the noble Earl, Lord Howe, said. The Minister made much of the statistical breakdown of reasons for delayed discharge. I have spent some time examining them and very interesting reading they are, too. Although it is true that performance varies between authorities and areas, and although it is also true that there are many reasons for that, both in percentage terms and actual terms, the consistent reason an authority has a problem 'As that people are awaiting residential and nursing home care placements. I do not believe that it is wrong to focus on that. I know that there are many reasons to hope that people will not go into residential care but will go home, but when that is such a consistent and obvious problem across the country it is wilful to ignore it.
The Minister said earlier that the Government have not decided how they will allocate the additional resources. Frankly, the lack of notice with regard to the £100 million cannot but help distort prices within local care home economies. If I were a care home owner at the moment—it is a difficult business to be in—I should ratchet up my prices in the knowledge that some of that money would come my way and my places would be at a premium.
The Minister has said all afternoon that there is as big an onus on the NHS to change as there is on social services. Indeed, and in many cases within the NHS discharge practice is not good. It will take the NHS some time to get itself organised and to tackle some working practices which have been around for aeons; namely, that no matter what the lowly discharge officer says, what a consultant says goes. That is one of the biggest causes of delayed discharges in hospital.

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The Minister has already this afternoon drawn our attention to the Victoria Climbié case, and so will I. Over the past six months I have said many times in this Chamber that any social services department which does not intend to increase its children's services this year must be mad. Social services departments are trying to tackle that matter in addition to the matter we are discussing. But there is one reason above all else why I believe that we should defer the measure. At the end of January the department's consultation paper on client confidentiality was produced. It is full of good and interesting material about one of the key issues in healthcare at the moment and contains laudable aims and objectives as regards the handling of information, particularly information which is conveyed by electronic means. However, the measure will not be anywhere near being in practice until 2004 at the very earliest. In many cases, it will not be introduced until 2006.
Behind that—it is implicit in the Bill, not explicit—is the transfer of information. In the noble Lord's response to me about self-funders he talked, although not in great detail, about the fact that people who may not wish it may have personal details handed over to social services departments.
There is a great deal that is not explicit in the Bill, which is deeply worrying. I do not see why older people, merely because they are old, should be subjected to standards of information that are not acceptable for other people. For that reason perhaps above all, we ought to take a year and consider better the Bill and some of the deep ethical issues in it, and how we can enable people to turn services into what they ought to be, which is services that prevent hospital admissions in the first place.
5.30 p.m.
Lord Chan: I support the amendments, particularly the one about delay in the starting time of the Bill's implementation.
On Merseyside, we know that we already have a number of delayed discharges of older people. The immediate acquisition of intermediate care beds in an acute hospital is a short-term measure to avoid paying a proportion of the fine. However, fines for those who are not accommodated in the intermediate care beds will have to be paid.
Clearly, there is a lack of residential care and facilities. The £100 million that the Government are putting towards helping intermediate care beds to be made available is short of the £180 million needed, according to the Association of Directors of Social Services.
Members of the Committee have mentioned the other important issue, which is capacity for domiciliary care and the support for health visitors for older people living in the community. My noble friend Lady Greengross made a useful proposal that the NHS should be audited to ensure that plans were in place. That could be done only if we delayed the implementation of the Bill for a year.
Baroness Finlay of Llandaff: I added my name to the amendment for good reason, I hope. The debate that
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we have had about hospices demonstrates the number of issues that have to be worked out. When speaking to Amendment No. 1, the Minister said that the Bill did not intend to change current practice on multidisciplinary working. I find that very sad, as legislation should drive up standards, improve on current practice and make the lot of the patients better wherever they are. There will be a need to recruit and train some staff if improvements are to occur. I sincerely hope that the intention is not to drive measures through rapidly so that there is no room for such driving up of standards.
The noble Baroness, Lady Barker, says that what a consultant says goes, to which I reply, "Not always". That is sometimes unfortunate, because there is a fear of backlash among staff if a risk foreseen actually occurs. Sometimes when the informed wish of patients is to go home, that is to relatively unsuitable surroundings with very high risk. However, if that is what they want to do and they take an informed decision, they should be supported in doing what they sincerely wish to do.
I have a deep fear that unless the Bill is thought through and the systems are in place to drive up standards, the people who will suffer will be the patients, and what will be sacrificed is patient choice right at the outset. We may have a dumbing down rather than a raising of standards.
The Earl of Onslow: I have listened to the debate for most of the afternoon, and have heard two questions answered by the Minister. First, he said, "I don't know how to distribute the 100 million quid", and secondly, he said, "We haven't got our act together with the hospice movement". If the Government do not know where the £100 million is going and have not got their act together with the hospice movement, they cannot possibly bring the Bill in by 1st April. That simply does not make sense.
The Lord Bishop of Chelmsford: I want to add my voice to those of other Members of the Committees who have pressed for a 12-month delay in the start date. The proposals in the Bill need to be piloted in a number of areas and then properly evaluated by the Audit Commission.
It is clear to me from the great majority of speeches in both Houses that, although everyone agrees that delayed discharges need to be tackled, the Bill's provisions are bound to make things worse by creating perverse incentives. We have already heard the example of the GP. Also, we must be careful not to jeopardise relationships between agencies—in general, they are improving—and create a nightmare of disputes and appeals procedures.
I would like to cite an example of what I see as a very good pilot in my own diocese by the Barking and Dagenham health and social care trust. Julia Ross, the executive director of health and social care, has said:
"In Barking and Dagenham, we are now creating completely integrated senior management with whole systems managing, providing and commissioning. We've reduced our delayed discharges of older people from an average of 75 to an average of 25 this year and are performing well against that target. We intend to reduce any delays of people in hospital to nil. This can only be

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achieved by working seamlessly with our acute providers to achieve this and on the quality of the care that we all provide. We also need to change attitudes too; all too often relatives and front line clinicians believe that the right place for a frail older person is in Nursing Home or residential care".
It takes time to change attitudes, and we need time on our side to ensure that attitudes are sufficiently changed to make the proposals in the Bill truly effective. I have in mind a conversation with a recently retired chief executive of a large NHS trust, who described the huge problems that he had faced in a very large hospital in relating to and integrating in a multidisciplinary and multi-professional way with local authorities. He gave one of no doubt many examples of the difficulties that are faced and will continue to be faced in the coming months. We need time.
By concentrating on delayed discharges, the opportunity could be missed to explore more imaginative and pastorally sensitive ways of caring for elderly people in our communities. As has already been said during the progress of the Bill, it tends to treat them as commodities and as financial liabilities to be shunted around rather than fellow citizens, each with their own human story, each deserving to be treated with dignity, respect and care. I plead for a delay.
Lord Turnberg: I believe that I used to have one or two friends in the Chamber, and I hope I still have by the time that I have finished disagreeing about the delay in bringing the Bill into effect. I really do not believe that delay is in the patients' best interests.
The noble Baroness, Lady Barker, talked about the Bill apportioning blame. I do not see that either. A Bill based on putting pressure on those with responsibility to use extra funds to good effect cannot be construed as apportioning blame. Equally, I do not see merit in delay. Many social services departments and NHS trusts already work very well together. We are talking about building on the good practice which exists, and I believe that we need to give it a jump start. We should begin to develop that now and not delay for a year. The system is in place and we know how it can be done. It simply needs some encouragement.
Lord Lucas: The noble Lord has one friend in this Chamber—the Minister, who will be delighted with what he said. I shall try to curry favour with my noble friend on my Front Bench by adding two points in his favour.
First, it is not true that social security funding is increasing this year, because there is a shift within that part of the budget away from the geriatric element towards youth. In fact, local authorities where there is a preponderance of elderly people over youth have suffered a net cut—in some cases, a substantial net cut—in their social security budgets. This is not the time to pitch them into additional expense when the Government have just cut large amounts of funding from the sums allocated to looking after elderly people.
Secondly, everything that local authorities must do to comply with the Bill is long-term. They must build relationships with the various elements of the National
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Health Service; they must build relationships with their care home providers; and they must sort out with the National Health Service a way of dealing with vanishing intermediate care. If a local authority knows that this will happen in a year's time, it will work just as hard to ensure that it is compliant as if it happened in six weeks' time. I do not see that, by delaying the Bill for a year, any cost to the patient will be involved or that there will be any effect on the velocity with which local authorities make adjustments; there will be a great number of advantages.
Baroness Masham of Ilton: Can the Minister tell the House how many care homes—both those run by social services and private ones—have closed down in the past few years? What is the estimate of the number of beds needed to unblock the present blocking? I am sure that most people want to see the number of beds increased, but it takes time to set up homes and to put in place adequate staff. Can the Minister give an assurance that people will not be placed in unsuitable accommodation because of the shortage of time?
Lord Hunt of Kings Heath: I am sorry to find myself crossing swords with the noble Earl, Lord Onslow. He and I were fellow democrats when it came to House of Lords reform and I believed that we could move forward together. Sadly—
The Earl of Onslow: Now that we are legitimate, I believe that we have the power to do far more nasty things to the Bill than was the case before the Bill was fixed up in another place.
Lord Hunt of Kings Heath: I am all for making the second Chamber as rigorous as possible. I am sure that, as we take the Bill through its next stages, the arguments that I hope to put forward will ultimately be persuasive. I believe that the noble Earl was a little unfair. I did not say that I did not know the position with regard to hospices; I am clear about that. I said that I understand some of the concerns that they have relating to how well they are supported by the NHS and social services. That is why I offered to meet the noble Baroness, Lady Finlay, and representatives of the hospice movement in order to discuss some of those issues.
So far as concerns money, the announcement about £100 million over a full year was made fairly recently during the Bill's passage in another place. I believe that it is reasonable for us to consider carefully the point raised by the noble Lord concerning where the balance of the money should go. Do we reward authorities which have done a good job in the past or do we place most money with the weakest ones? We shall make our decisions known as soon as possible.
The right reverend Prelate spoke of his fear that older people, in particular, would be treated as commodities under the terms of the Bill. However, that is how many of them are treated at present. Poor-quality practice in many health services and in local government has led to a disastrous position for older people. They are stuck inappropriately in acute NHS beds and risk the dangers of infection, of becoming institutionalised and of losing

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their independence. As a result, it becomes much more difficult for them to return either to their own homes or to appropriate community care. That is why we have brought the Bill before the House.
Lord Tebbit: I am grateful to the Minister for giving way. Did I hear him aright? Did he say that one reason for wanting to get people who are currently bed-blockers out of hospital was the fear of infection? Surely one goes to hospital to get rid of infection—not to run the risk of acquiring it.
5.45 p.m.
Lord Hunt of Kings Heath: I believe it has always been recognised that there is a risk of infection among hospital patients. The noble Lord will probably know that the rise in infection rates in hospitals has been a world-wide problem; it is not a UK-exclusive issue. Hospitals throughout all the developed systems are facing such problems. There are a number of reasons for that. We tend to care for more vulnerable patients because we can do more for them. In addition, the excessive use of antibiotics has brought its own risks and dangers.
My point is that, where vulnerable older people receive acute care treatment, it is far better that they leave that hospital rather than stay in an acute care bed. That is why we have brought the Bill before this House. Our intention is not to treat patients as commodities. We want to reflect less on the problems of statutory agencies and on the woeful tales that we have heard this afternoon about the difficulty that they have in co-ordinating what they do.
Poor efforts by many statutory agencies over the past few years have resulted in many older people receiving a raw deal from them. The record of local government and the NHS is one of patchy performance. The fact that I can say that Croydon or Kingston upon Thames—local authorities in the South East—have been able to get their act together and the fact that I can point to Barnsley and local authorities in other parts of the country which have resolved the issues and have an integrated approach gives me confidence. It is not simply a question of money or care home places.
It is very depressing to hear so many Members of the Committee hark on about nursing home places. If noble Lords believe that the whole issue of delayed discharges is about the number of care home places available, then they have misunderstood what the Bill sets out to achieve. The quicker we can discharge people from acute hospitals once they have been treated, the fewer the number of care home places that will be required. The quicker that aids and adaptations can be fitted in an individual's home, the fewer the number of care home places that will be required. The quicker we can provide intermediate and interim care to rehabilitate older people, the fewer the number of care home places that will need to be provided.
Of course, some care home places will always be required. The Bill will encourage local authorities to enter into longer-term, stable arrangements and
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agreements to ensure that, where such places are needed, they will be available. Barnsley, where long-term agreements have been reached with care homes, provides a very good example of how capacity can be maintained and stabilised so that, when a care home place is needed, it becomes available. In response to the noble Baroness, Lady Masham, the number of residential and nursing care places in England reduced from approximately 534,000 in 1997 to 528,000 in 2001. Some of the figures quoted are excessive.
There is no question that in some parts of the country there is a problem with care home places, but it is patchy. I hope that noble Lords recognise that we need to regard care homes as but one element in a range of care packages and support to people in their own homes which need to be provided.
I listened with great interest to the noble Baroness, Lady Greengross, when she suggested that we evaluate in particular the performance of the NHS in implementing Discharge from hospital: pathway, process and practice, which we recently issued. I believe that that is a good piece of work, which I hope will encourage the NHS towards better performance. I stress again that the NHS will have to work as hard as local government properly to implement these measures.
However, I have to say to the noble Baroness, Lady Greengross, that we have issued good practice guidance in the past. In 1994 we issued the Hospital Discharge Workbook. That was very good guidance by the previous Government. However, the trouble is that it was not successful in tackling delays in many parts of the country. We need something tougher to grip the system and to ensure that statutory agencies do the right thing.
I have listened to whether we should delay the introduction of this legislation by a year to 1st April 2004. Noble Lords will know that I spent many happy years representing statutory health authorities. Whatever proposal is brought forward by government—the previous Government brought many restructurings before this Chamber and the health service—we have always said that we need more time. Indeed, if we had chosen 1st April 2004 to implement the Bill I should not be at all surprised if noble Lords said today, "It is not enough time. Let's introduce it in April 2005".
Each time we delay the introduction of a Bill, let us think about what we are delaying. Yes, we are giving more time to the statutory agencies, some of which have performed poorly in the past, but for many thousands of people we are delaying the benefits the Bill will bring. That is the essential balance to be drawn. I accept that there are some local authorities and health services which require more time. Equally, I am reluctant to agree that the Bill should be delayed by a whole year in terms of its implementation.
That is why in the spirit of listening to what the NHS and local government say to us, and reflecting on the views expressed by noble Lords today I suggest that a way forward, which certainly the Government would be prepared to support, would be to allow the Bill to come into operation six months later, on 1st October

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this year. That would get right the balance between those noble Lords who are concerned about the pace of implementation and those who feel that a year would be too long. I believe that that is a reasonable suggestion which I hope noble Lords will look on favourably.
Overall, it is important that we give the right signals to the statutory agencies about the importance of implementing the Bill. I believe that the experience of many different statutory agencies, which are doing such a good job at present, suggests that it will be implemented successfully. I hope that noble Lords will not delay the Bill by a whole year. I believe that to implement it from the autumn would get right the balance. I look forward to the support of noble Lords.
Baroness Masham of Ilton: I could not agree more with the Minister about the disgraceful delays in making adaptations and providing equipment. What will he do about trying to get more occupational therapists, who make assessments and arrange for such equipment? I agree that the delays are disgraceful and are getting worse. The Audit Commission published a report, I believe two years ago, stating just that.
Lord Hunt of Kings Heath: The noble Baroness raised an interesting question which relates to the present delay in assessing people in hospital. One of the reasons we are bringing the Bill before noble Lords is that patients are hanging around hospitals having had their acute treatment, having got better and still awaiting local authority assessment. That is unacceptable. That is why we need to have a Bill which allows for such assessments to be done in a short period of time.
Occupational therapists are important to that. We know that a number of local authorities and NHS bodies are pooling resources creating a joint occupational therapy department. We know that they will have a pivotal role to play in such joint assessments. However, again I say to the noble Baroness that the experience is that even in those parts of the country where recruitment of such professionals has proved to be difficult, those which organised themselves more successfully are able to deal with the problem. They can get the assessment done quickly. If aids and adaptations are needed, they can get people into the person's home so that that can be done as quickly as possible and discharge can take place effectively and satisfactorily. It is that good practice on which the basis of the Bill has been drafted.
Earl Howe: I thank all noble Lords who have taken part in the debate. I also thank the Minister for the offer he made. No doubt noble Lords will need to think about that. My own view is that it is not sufficient. The choice is not between introducing the Bill on 1st April and consigning the patients to further delays. It is between serious dislocation in social services and continuing with partnership working while allowing local authorities time to invest and gear up for April next year. They do need the time.
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The noble Baroness, Lady Masham, need not worry about Part 2 of the Bill because my amendment proposes delaying only Part 1. The Minister suggested that the lack of capacity in the care homes sector had little bearing on delayed discharges. Perhaps I may remind him that in the original consultation paper on introducing the system, the Government gave an analysis of the reasons for delayed discharges from acute and geriatric beds during March 2002. By far the largest reason for delay, 36 per cent, was the patient waiting for a place in a care home or a specific care home of their choice. So I do not accept what he said. I do not favour delay for the sake of delay. I am arguing for a year's grace, during which time money flowing to local authorities can be directed creatively.
My noble friend Lord Lucas made two compelling points, with which I agree. However, I particularly note his well-made comment that investing in and establishing services is a long-term business. I hold fast to my belief, bolstered by the views of other noble Lords and the right reverend Prelate, that a year's delay is right. I should like to test the opinion of the Committee.
5.58 p.m.
On Question, Whether the said amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 152; Not-Contents, 123.

Division No. 1

CONTENTS

Aberdare, L.

Dholakia, L.

Addington, L.

Elliott of Morpeth, L.

Alderdice, L.

Elton, L.

Alton of Liverpool, L.

Ezra, L.

Attlee, E.

Falkland, V.

Avebury, L.

Feldman, L.

Baker of Dorking, L.

Finlay of Llandaff, B.

Barker, B. [Teller]

Fookes, B.

Blaker, L.

Freeman, L.

Blatch, B.

Gardner of Parkes, B.

Bowness, L.

Geddes, L.

Bradshaw, L.

Gilmour of Craigmillar, L.

Bridgeman, V.

Glentoran, L.

Brittan of Spennithorne, L.

Goodhart, L.

Brooke of Sutton Mandeville, L.

Gray of Contin, L.

Brougham and Vaux, L.

Greaves, L.

Burnham, L.

Greenway, L.

Buscombe, B.

Griffiths of Fforestfach, L.

Caithness, E.

Hamwee, B.

Campbell of Alloway, L.

Hanham, B.

Carlisle of Bucklow, L.

Harris of Peckham, L

Carnegy of Lour, B.

Harris of Richmond, B.

Chadlington, L.

Hayhoe, L.

Chelmsford, Bp.

Hereford, Bp.

Clement-Jones, L.

Higgins, L.

Colville of Culross, V.

Hodgson of Astley Abbotts, L.

Colwyn, L.

Holme of Cheltenham, L.

Cope of Berkeley, L. [Teller]

Hooson, L.

Cox, B.

Howe, E.

Craigavon, V.

Howe of Aberavon, L.

Cumberlege, B.

Howell of Guildford, L.

Dahrendorf, L.

Hunt of Wirral, L.

Darcy de Knayth, B.

Jenkin of Roding, L.

Dean of Harptree, L.

Jopling, L.

Denham, L.

Kimball, L.

957

Lamont of Lerwick, L.

Redesdale, L.

Lester of Herne Hill, L.

Rees-Mogg, L.

Linklater of Butterstone, B.

Rennard, L.

Lucas, L.

Roberts of Conwy, L.

Luke, L.

Rodgers of Quarry Bank, L.

Lyell, L.

Roper, L.

McColl of Dulwich, L.

Rotherwick, L.

MacGregor of Pulham Market, L.

Ryder of Wensum, L.

Saatchi, L.

Mackie of Benshie, L.

St John of Fawsley, L.

McNally, L.

Saltoun of Abernethy, Ly.

Maddock, B.

Sandberg, L.

Mancroft, L.

Scott of Needham Market, B.

Mar and Kellie, E.

Seccombe, B.

Marlesford, L.

Selborne, E.

Mayhew of Twysden, L.

Sharman, L.

Miller of Chilthorne Domer, B.

Sharp of Guildford, B.

Miller of Hendon, B.

Shaw of Northstead, L.

Mowbray and Stourton, L.

Shutt of Greetland, L.

Moynihan, L.

Skelmersdale, L.

Murton of Lindisfarne, L.

Smith of Clifton, L.

Naseby, L.

Strange, B.

Newby, L.

Strathclyde, L.

Newton of Braintree, L.

Swinfen, L.

Noakes, B.

Taverne, L.

Northbrook, L.

Taylor of Warwick, L.

Oakeshott of Seagrove Bay, L.

Tebbit, L.

Thomas of Gresford, L.

O'Cathain, B.

Thomas of Walliswood, B.

Onslow, E.

Thomson of Monifieth, L.

Palmer, L.

Tope, L.

Park of Monmouth, B.

Tordoff, L.

Patten, L.

Trefgarne, L.

Pearson of Rannoch, L.

Trumpington, B.

Perry of Southwark, B.

Vivian, L.

Perry of Walton, L.

Wallace of Saltaire, L.

Peyton of Yeovil, L.

Walmsley, B.

Phillips of Sudbury, L.

Watson of Richmond, L.

Pilkington of Oxenford, L.

Wigoder, L.

Plummer of St. Marylebone, L.

Wilcox, B.

Quinton, L.

Williams of Crosby, B.

Razzall, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Evans of Parkside, L.

Ahmed, L.

Evans of Temple Guiting, L.

Allenby of Megiddo, V.

Farrington of Ribbleton, B.

Andrews, B.

Faulkner of Worcester, L.

Archer of Sandwell, L.

Filkin, L.

Ashley of Stoke, L.

Fyfe of Fairfield, L.

Bach, L.

Gale, B.

Barnett, L.

Gavron, L.

Bassam of Brighton, L.

Gilbert, L.

Blackstone, B.

Gladwin of Clee, L.

Brennan, L.

Golding, B.

Brooke of Alverthorpe, L.

Goldsmith, L.

Brookman, L.

Goudie, B.

Brooks of Tremorfa, L.

Gould of Potternewton, B.

Burlison, L.

Graham of Edmonton, L.

Campbell-Savours, L.

Greengross, B.

Chan, L.

Grenfell, L.

Christopher, L.

Grocott, L. [Teller]

Clinton-Davis, L.

Hannay of Chiswick, L.

Corbett of Castle Vale, L.

Hardy of Wath, L.

Craig of Radley, L.

Harris of Haringey, L.

Crawley, B.

Harrison, L.

David, B.

Haskel, L.

Davies of Coity, L.

Hayman, B.

Davies of Oldham, L.

Hilton of Eggardon, B.

Dean of Thornton-le-Fylde, B.

Hollick, L.

Desai, L.

Hollis of Heigham, B.

Dixon, L.

Howells of St. Davids, B.

Dormand of Easington, L.

Howie of Troon, L.

Dubs, L.

Hoyle, L.

Eatwell, L.

Hughes of Woodside, L.

958

Hunt of Chesterton, L.

Plant of Highfield, L.

Hunt of Kings Heath, L.

Puttnam, L.

Irvine of Lairg, L. (Lord Chancellor)

Ramsay of Cartvale, B.

Randall of St. Budeaux, L.

Janner of Braunstone, L.

Rea, L.

Jones, L.

Richard, L.

Jordan, L.

Sainsbury of Turville, L.

King of West Bromwich, L.

Sawyer, L.

Kirkhill, L.

Sheldon, L.

Layard, L.

Simon, V.

Lea of Crondall, L.

Simon of Glaisdale, L.

Lipsey, L.

Smith of Gilmorehill, B.

Listowel, E.

Smith of Leigh, L.

Lofthouse of Pontefract, L.

Stone of Blackheath, L.

Macdonald of Tradeston, L.

Symons of Vernham Dean, B.

McIntosh of Haringey, L. [Teller]

Taylor of Blackburn, L.

Temple-Morris, L.

MacKenzie of Culkein, L.

Thornton, B.

Mackenzie of Framwellgate, L.

Tomlinson, L.

Marsh, L.

Turnberg, L.

Masham of Ilton, B.

Varley, L.

Mason of Barnsley, L.

Walker of Doncaster, L.

Massey of Darwen, B.

Warwick of Undercliffe, B.

Milner of Leeds, L.

Weatherill, L.

Mishcon, L.

Whitaker, B.

Mitchell, L.

Whitty, L.

Morgan of Huyton, B.

Williams of Elvel, L.

Morris of Aberavon, L.

Williams of Mostyn, L. (Lord Privy Seal)

Morris of Manchester, L.

Nicol, B.

Williamson of Horton. L.

Pendry, L.

Winston, L.

Pitkeathley, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.9 p.m.
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 13:
Page 2, line 6, after "the" insert "responsible body and the"
The noble Lord said: In moving Amendment No. 13, I shall speak also to Amendments Nos. 15, 31, 62 and 119. My noble friend Lady Maddock will speak in particular on the housing issues, which are relevant to these amendments.
The amendments are about pooling the responsibilities of agencies. It is especially important that housing departments are brought into the loop, as they are responsible for administering the "Supporting People" budget, a single funding stream for social services contingent on supported housing. Funding for supported services is currently dealt with by central Government. From April 2003, local authorities will receive a grant for co-ordinating and funding local support services and the cost of providing those services, including those provided by a warden in sheltered accommodation. Those will no longer be paid for through housing benefit; instead, landlords will receive a grant from the local authority.
The stated aim of the "Supporting People" programme is to improve the quality of services for residents of sheltered and other types of supported housing. Sheltered housing is being included in the new funding regime for supported housing, despite calls for it to be excluded during the initial consultation process. The Government have given the following reason for its inclusion. Including it in the new specific grant will ensure the provision of high-quality support services to

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vulnerable older people that are flexible and responsive to needs by decoupling accommodation support from the benefits infrastructure.
In January 2001, the Department of the Environment, Transport and the Regions, now the Office of the Deputy Prime Minister, published Supporting People: Policy Into Practice. That document explained that the programme intended to ensure a continuation of service to existing tenants in sheltered housing. Authorities, in preparing their "Supporting People" strategy, would be required to take full account of those guarantees and existing obligations. They would not, consequently, be permitted to withdraw funding for schemes where such an action would leave the provider unable to continue to provide the support services.
The ODPM assumes that in most cases, the existing provider of support services will continue to do so. However, within the context of the "Supporting People" grant, authorities and providers will almost certainly want to discuss improvement to services as well as to negotiate the price to be paid for services. One service provider may be replaced by another. It may be impossible to disentangle support from other services in the scheme. In best value reviews, authorities and providers will want to review the strategic supply of sheltered housing within the authority, and may wish to introduce the type of remodelling or change of provision that is already taking place in some areas.
Home care and "Supporting People" are by their nature two different services aimed at meeting different needs, but it is unclear from the proposals how the single charging mechanism will be applied in a way that avoids possible conflicts of interest and ensures that users of both services are charged in an equitable and fair manner. The Government have provided the following guidance on how those different services should be treated, but there is no clear and unambiguous line between care and support.
Generally speaking, care is provided to people who are at greater risk or who have high needs. Support is provided to people who have lesser needs but are nevertheless vulnerable. By definition, services provided in accommodation registered under the Registered Homes Act 1984 include care, while services provided in registered care homes can also include services that are support, along with care services. They will continue to be funded from sources other than "Supporting People". However, care services can be provided to people living in accommodation that is not registered under the Registered Homes Act 1984, such as domiciliary care provided to people in their own homes and under the Care Standards Act 2000. Might not those services be supported under "Supporting People"?
A further issue arises in relation to delays for adaptations and services that are already the responsibility of housing authorities, such as the installation of a level access shower. Here, the social services authority will have to pay the fine if a housing authority does not provide the adaptations.
I hope that I have demonstrated some of the difficulties that arise under the Act and I look forward to hearing the Minister's reply. I beg to move.
6.15 p.m.
Baroness Noakes: I shall speak to Amendments Nos.14, 52, 57 and 58, which are grouped. Amendment No. 13, which the noble Lord, Lord Clement-Jones, has just moved, is similar to Amendment No. 14. He focused on the relationships with housing authorities. We consider the amendments to be directed at a topic that we have already debated today: partnership working. The Minister will be aware that one reason that we regard the Bill as so unacceptable is that it undermines joint working between local authorities and the NHS. We are joined in that view by almost all the bodies that have commented on the Bill.
The Bill is a wrecking Bill that sets the NHS apart from local authorities by setting out functions that the NHS must perform alone. Amendments Nos. 13 and 14 concern a decision about discharge from hospital—whether it is safe without community care services being made available. Of course, that is a joint decision; it is nonsense to suppose otherwise.
Amendment No. 52 is similar and would insert the local authority into the process in Clause 3(7)—determining whether the patient's circumstances have changed and hence whether a Clause 2 notice should be withdrawn. Clause 3(7) appears to be based on the premise that only clinical matters within the knowledge of the NHS are relevant to the decision or that the NHS is omniscient about the patient's total circumstances. Neither premise is reasonable. I invite the Minister to tell us why local authorities are excluded from the process and ask him to confirm that partnership working should extend to the totality of planning the discharge of a patient.
Amendments Nos. 57 and 58 deal with the provision of services after discharge by the NHS. Subsection (8) states:
"The responsible NHS body, and any other NHS body which is considering whether to provide services … must consult the responsible authority".
I am sure that the main NHS body, the hospital, has knowledge about what services need to be provided, but how will other NHS bodies—for example, those that provide community-based services—enter the loop? The Bill is silent about that and Amendment No. 57 makes clear that the NHS body—the hospital—should consider the services that it or another NHS body should provide. The hospital's clinical staff are clearly well positioned to judge what other NHS services should be brought into the post-discharge package.
The first paragraph of Amendment No. 58 requires the responsible NHS body to provide information to other NHS bodies so that they can consider precisely what they need to provide. The second paragraph of Amendment No. 58 requires the responsible NHS body not only to consult but, importantly, to agree with the local authority the services that it will provide

961
after discharge. Again, it cannot be for the NHS to impose its will. There must be agreement; that is what partnership working is all about.
In different ways, the amendments are designed to ensure that the Bill becomes an instrument that will underpin partnership working, not the principal cause of the death of partnership working.
Baroness Maddock: I shall speak to Amendments Nos. 15 and 31, to which my name is attached. Their purpose is to ensure that provision to deal with bed blocking is more explicitly tied to other government programmes and initiatives. The programmes with which I am especially concerned are those that deal with poor housing conditions, especially damp homes, and the closely associated problems of fuel poverty.
I declare my interests as the vice-president of National Energy Action, a charity that fights to eradicate fuel poverty, and the vice-president of the National Home Improvement Council. I shall briefly outline why those areas are so relevant and suggest to the Minister one or two things that he could do to assist.
Between 4 million and 6 million households in England live in cold, often damp, homes that they cannot afford to heat. They are in fuel poverty. We know that cold, damp homes are associated with premature mortality, physical and mental illness and the impairment of quality of life. They aggravate a wide range of medical conditions; they increase suffering; and they make it much harder to care for vulnerable people at home, thus adding to the burdens on our national health system.
The effects on the national health system are seen annually, particularly in winter, with our waiting lists for admission and bed blocking—the issue of the Bill. Unnecessary admissions to hospital can be avoided by ensuring that homes are warm, dry and in good repair. Bed blocking would also be prevented because a patient's home would be fit to return to. To return to the line that the Minister used earlier, we will require fewer care homes if that happens.
The National Service Framework for Older People is relevant to this debate, because 93 per cent of excess winter deaths are among people aged 65 and over. I went into the matter in detail in my Second Reading speech, so I will not do so today. Let it suffice to remind the Committee that Britain has a poor record in this regard compared with other northern European countries. Strand 3 of the National Service Framework for Older People states that,
"intermediate care must provide integrated services to promote faster recovery from illness, prevent unnecessary acute hospital admissions, support timely discharge, and maximise independent living".
That is particularly relevant to addressing revolving-door syndrome, which is part of the Bill, whereby people fall ill because of their cold, damp homes; they recover in hospital; they then get discharged back to cold, damp homes; they go back into hospital, and so on.
962
The chief executive of the NHS sent out Improvement, Expansion and Reform: The Next 3 Years' Priorities and Planning Framework 2003–2006 in October last year, which outlined the need to develop local plans. The problem of patients staying in hospital for longer than necessary because their homes are unsuitable and unhealthy can be addressed through such plans. There are 1.5 million unfit homes in Britain. Most are owner-occupied and most are lived in by older people. There are recommendations that winter task forces in primary care trusts should produce local plans to deal with those problems. They would help to increase awareness of the links between housing and health; to identify households at risk; and to establish referrals to fuel poverty programmes and good energy advice. We can tie those aspects into the Bill, because it is about referrals. When patients are assessed, the condition of their homes is examined. They are exactly the sort of people who could be referred to programmes to help them to get money to rectify insulation and heating problems in their homes.
DEFRA, which is reviewing its Warm Front scheme, is being urged to introduce a fast-tracking mechanism that will prioritise people eligible for heating and energy efficiency grants. I agree with the point made earlier by the noble Lord, Lord Turnberg, that the care package should be looked at when people arrive in hospital. For example, if a patient will be in hospital for six weeks, that period will be needed to fix a heating problem.
Home improvement agencies and other service providers have developed effective, fast, small repairs and adaptations processes—for example, repairing heating systems. However, delays can arise where large capital investments are needed for heating systems. As a preventive measure, key departments should assess older people's homes in the sorts of circumstances that we are discussing. It would be a good idea to have an emergency fund for work to be completed within 24 hours either by Warm Front contractors or other bodies. Care and Repair has a proposal for a rapid-response fund for hospital discharge services. Energy efficiency and heating measures should be part of that. If the Government want to make a big difference, not only to discharges but to people admitted to hospital, the issues that I have discussed will be important. The problems that I am concentrating on—poor housing, cold, damp homes and fuel poverty—should be part of all the relevant legislation that the Government are looking at.
We had a brief discussion in another place, during which lip service was paid to those issues. The Minister also recognised their importance at Second Reading. I am grateful to the Minister's department for sending me a copy of Discharge from hospital: pathway, process and practice. I agree that it needs a snappier title. However, I was disappointed to find that, although there is a small section on housing, there is almost nothing about the role of heating in cold, damp homes.
I look to the Minister today for confirmation that the matter will be given greater consideration; that there will be more joined-up thinking—I hate to use

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that word—and that he will ensure that the issues I mentioned will be looked at in any primary legislation, secondary legislation or guidance that is produced. There are people who can refer individuals to the schemes. Local authorities are heavily involved in that area. I hope that I can receive assurance from the Minister that the matter will be given greater priority.
The Lord Bishop of Hereford: I add my support to the plea for these amendments, particularly the need for greater attention to good housing conditions, warmth and addressing fuel poverty. The recent census figures provided shaming statistics about the poor quality of our housing stock and the large number of people, mostly elderly, who have no form of central heating. We have made some progress in recent years with the Warm Homes and Energy Conservation Act two or three years ago, which was a move in the right direction. But, if those provisions can be written into this Bill, the discharge of people from acute hospital care will be a good opportunity to make a serious check on the conditions in which people are living and to take action.
We need joined-up caring if not joined-up thinking. This is an opportunity to introduce it. I speak not just about statistics in census returns and official documents, but from 20 years' work as a parish priest. I have entered terrible houses, where people have to go to bed all day because it is the only place where they can be warm. They come out of hospital, where they are in bed, and they go home, where they have to go to bed, because there is no other way of keeping warm. I have seen people huddled over pathetic, extravagant, inefficient, two-bar electric fires. There is no warmth and no possibility of dealing with inherent damp and coldness in such housing conditions. I have seen it time after time. I t is a serious issue. There is the question of the capital cost of installing central heating in a house, but one can do a remarkable amount with modest storage heaters, which can transform the quality of life and atmosphere in a building, drying it out and keeping it at least habitable at a relatively modest cost. It can be done quite quickly.
This opportunity should not be missed. I suspect that the Minister will say that it is not what the Bill is about, but I beg him to consider seriously that it could be so. Introducing such a consideration to the Bill is an opportunity to make legislation that is not widely popular at the moment much more appreciated, more valued and more likely to be welcomed. It would make a considerable difference to the welfare, happiness and dignity of many elderly people.
Baroness Andrews: I am grateful to all Committee Members who have spoken in this debate. It is an opportunity to look at a range of partnership issues. It may be an opportunity to be more positive about partnership, because harsh comments have been made already in the Committee about possible conflicts, deliberate or accidental.
I am afraid that we have a problem with Amendments Nos. 13 and 14 because they are slightly defective. The Bill's raison d'être is to promote closer
964
and more effective working between the NHS and social services. The amendments do not help us to do that. It is essential that at all stages of the process we get social services and healthcare staff to work as closely as possible. We sincerely believe that the Bill enables that to happen more effectively. But it does not mean that they must be locked together at every stage of the way where it is inappropriate.
Essentially, Clause 2 is about notification. Making Amendment No. 13, which would insert the words "responsible body", would mean that the social services and the NHS would need to come to an agreement as to whether social services should be formally notified about a patient's case because it might be unsafe to discharge him without community care services. Bearing in mind that that would have to be done before assessment, it would be difficult for the NHS to come to an agreement with social services at notification stage. Until the NHS notifies social services, they may not know of the client. The case may not involve a client of the social services, and social services may not know that the person is in hospital. There is a problem there.
The NHS—the doctors, nurses and the whole professional team—must be responsible for making the decision to notify the local authority of a patient's case. They will have taken the decision to admit the patient on medical grounds. I understand that the amendment may have been prompted by the concern that, in an attempt to be speedy, the NHS will simply refer everyone to social services. We do not think that that is likely, particularly as the NHS must consider whether it is unlikely to be safe to discharge the patient, unless community services are put in place. That high threshold will ensure that there will not be casual, "just in case" referrals.
The NHS will not meet its obligations under the Bill if it simply notifies the local authority of every patient. The decision that a patient is likely to need services upon discharge can be taken only by the NHS. We checked that out with practitioners at the consultation meetings held by the reimbursement implementation team. We did not find it to be a problem. I hope that that will assure noble Lords that the clause is sound and is quite acceptable.
I stress that we believe there are better ways, in practice, of ensuring that there is joint working. We will be talking about that a lot in the context of the next few clauses. Many of those better ways have already been referred to in the Hospital Discharge Workbook, which is becoming a notorious document. In it there are some good examples of joint working. The workbook calls for joint work before admission, and there are lots of examples of that being done. Chelsea and Westminster Healthcare NHS Trust, for example, has a protocol that starts with assessment before treatment, before people are admitted for surgery. We want to see everybody follow such a pattern.
There is no reason why a hospital should not know that someone who has been on a waiting list for 12 months is coming in with a specific condition and from a particular situation. That is part of the process

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that patients should be able to expect. It will still be for the medical staff to decide whether to make the first contact with social services, particularly in the case of people who may not have any connection with the social services but who present with a need after surgery or care.
We will certainly emphasise the importance of joint planning in statutory guidance. That is important. However, I also draw it to the Committee's attention that in the regulations there is a focus on the need to inform social services of a named individual. Much of the failure to work together has been due to the failure to have someone whom everybody knows to be responsible. We hear that time and time again. The named person requirement will be in the regulations, which will have the force of law, and that will make a great difference to patients and their families. I hope that, with that explanation, noble Lords will be happy to withdraw the amendment.
Along with Amendment No. 15, I will discuss Amendments Nos. 31 and 119, relating to heating and housing. We must consider the conditions that can prevent unnecessary admissions to hospital and the conditions that must exist before patients can safely be discharged. The noble Baroness, Lady Maddock, spoke cogently and powerfully about the importance of affordable warmth, as did the right reverend Prelate. They are right: warm, dry housing will keep people out of hospital. I would not like to guess how many people are in hospital with respiratory diseases due to damp housing.
Our immediate response, however, is that the problem with including heating provision in the Bill is that it would isolate one service, when individuals require many different services or combinations of services, depending on their need. It is not sensible to identify a particular service in the Bill. That could be restrictive. Social services already have a duty to assess a person's need for community care under Section 47 of the National Health Service and Community Care Act 1990. That includes an assessment of the person's home environment. That is the law under which the assessments made under this Bill will be made; they must follow Section 47 of that Act.
The local authority would not discharge its duty if it did not check that a person's home was adequately heated. That is particularly important in the case of someone with limited mobility or a respiratory condition. Section 47 also requires the local authority to notify the relevant housing authority if, during that assessment, it appears that the patient may need help with housing, such as the installation or improvement of a heating system. Social services are under an existing duty to involve the housing authority if services appear to be needed.
The noble Baroness referred to the "Keep Warm, Keep Well" programme and the Warm Front scheme. She had some interesting things to say about the fast track scheme and about how sensitive action could be taken quickly to deal with problems. That will be of the essence if the Bill is to be the success that we hope. We want to see speedy and sensitive assessment of the
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issues. In the light of what the noble Baroness said, we should examine the guidance that will be produced with a particular view to giving heating a higher profile and ensuring that assessments accurately reflect the home situation.
6.30 p.m.
Baroness Maddock: One of the things that I failed to say was that the Government have a fuel poverty strategy. In the opening pages of the document—I will not say the name again—there is reference to other legislation, but there is no mention of the fuel poverty strategy and its targets. That seems to me to be a failure, and I hope that it can be improved upon.
Baroness Andrews: I am sure that we can improve on it in the guidance. I am grateful for the generous reference to the fuel poverty strategy. The issue of fuel poverty has been neglected for many years. The advice lines, the winter guidance and the financial assistance that are now being made available are welcome, if overdue.
I turn to the linked issue of housing. I shall come to the question asked by the noble Lord, Lord Clement-Jones, in a moment. Amendment No. 31 would require the NHS to notify not only the social services but the housing services. As I said, under Section 47(3)(b) of the National Health Services and Community Care Act 1990, social services are already under an obligation. There is also something defective in Amendment No. 119. It implies that housing authorities are responsible authorities. They are not. They do not provide community services, so it is inappropriate to include them in such an amendment.
I shall deal with the wider issues raised by the amendment. In practical terms, few discharges are delayed for housing reasons. They tend to be social care difficulties compounded by the housing situation. Of course, there will be situations in which extra help will be needed. That is an extremely important factor.
The noble Lord, Lord Clement-Jones, asked about "Supporting People". I do not know a great deal about that, but "Supporting People" requires local authorities to plan housing and care jointly. Therefore, it supports partnership working. Social services are also expected to contribute to extra-care housing by developing the care needed to support people in such housing. Extra-care housing is an area in which the Government are investing a great deal of finance. On 23rd July, the Secretary of State said that part of the additional funding for social services would go towards a 50 per cent increase over the 1997 total for extra-care housing places. Those are housing places that have a great deal of therapeutic support—extremely sheltered housing accommodation with extra medical support. That housing will he available for elderly people.
At the same time, the Government are aware of the need for joining up and being more proactive in this matter. The Department of Health and the Office of the Deputy Prime Minister are publishing guidance to develop housing strategies for older people that makes the link between housing and social care. The

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Department of Health is currently working closely with the ODPM on that. We hope that we shall see the fruits in the way that this Bill is implemented. In addition, we have home improvement agencies which will receive additional funding over the next three years.
The Government, too, are concerned about the second point that the noble Lord raised—the matter of adaptations and delays. We are aware that the disabled facilities grant tends to go towards major changes and adaptations. Smaller adaptations tend to be covered by the Chronically Sick and Disabled Persons Act. We are aware that the disabled facilities grant is often subject to delay. The ODPM is currently consulting on revised guidance to reduce the length of time taken for completion of adaptations. I hope that that will speed up the process. Some local authorities are much better than others. We want to know why they cannot all aspire to and reach the standard of the best.
The noble Baroness, Lady Noakes, said that the purpose of Amendment No. 52 was to give social services a greater say in the discharge process. Subsection (7) is intended to deal with a change of circumstances which leads the NHS to be concerned that the services which the local authority has decided to provide will no longer be sufficient for it to be safe to discharge the patient. Yes, it must be the NHS which takes the initial decision on medical grounds. However, the NHS has its own social workers. There will he a social service judgment made when the multi-professional team meet. There will be occasions when social services realise that a patient's circumstances have changed. Therefore, on those grounds, Amendment No. 52 is unnecessary because it does not enable the social services authority to do anything that cannot be done under the Bill as it stands.
There may be circumstances when the social services believe that a patient's home life has changed since the original determination. In such cases, social services are free now to bring those changes to the attention of the NHS, without the amendment. The subsequent decision of whether to discharge must rest with the NHS. Essentially, it will be taken on medical grounds. With that explanation, I hope that the noble Baroness will feel that she can withdraw that amendment too.
I turn now to Amendments Nos. 57 and 58 which propose ensuring that NHS bodies are brought into the discharge process. The essential point is that other NHS bodies should be involved—for example, the PCT, the physiotherapy services, the occupational therapy services—to ensure that they take part in all discussions which are likely to affect the patient As drafted, Amendment No. 57 requires the responsible NHS body, which is usually the hospital trust, to:
"consider whether it or any other NHS body should"
provide services to the patient upon discharge. They will undertake the primary consideration about whether or not the NHS should provide services, but that means that they will also make those judgments on behalf of the PCT. However, that is not for the responsible NHS body to do. The PCT is separate. The Government have a problem with Amendment No. 57 on those grounds.
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Amendment No. 58 places a duty on the face of the Bill for the responsible body—the hospital trust—to provide information to any other NHS body that it believes may provide services and for it to consult and agree with the local authority about those services. First, the hospital trust already needs to consider whether it or another NHS body should provide services to the patient upon discharge. That is implicit in Clause 3(8). It is also implicit in subsection (8) that the responsible NHS body must provide the relevant information so that it can comply with the duties. There is no need for that to be added to the Bill because it is covered in any case.
6.45 p.m.
Baroness Noakes: Is it implicit? The amendment proposes that it should be made clear and explicit.
Baroness Andrews: That is clearly a point of view. Maybe we shall return to that another time. We believe that it is sufficient as it stands.
However, the Government have another problem as regards how the proposal would work. I should remind Members of the Committee that at Report stage we revised the drafting of this part of the Bill to make it clear that any other NHS body would also have the duty to consult with social services. The amendment, as drafted, would have the effect that the hospital trust would be required to consult with the social services authority, but the other NHS bodies would not have that duty. Therefore, there is a problem in that the amendment militates against joint working.
Amendment No. 58 also states that the responsible body must come to an agreement with the social services about the services which it will provide. Again, we have a problem with that because forcing an agreement could lead to some undesirable outcomes—namely, a loophole which could be exploited by social services departments which might deliberately fail to come to an agreement in order to avoid reimbursement.
In summary, the Government believe that subsection (8), as drafted, is simpler and more effective. It allows for proper consultation and for the proper distribution of roles and responsibilities. All NHS bodies involved in discharge are under a duty to consult with the social services in deciding which services will be made available.
Amendments Nos. 62 and 63 concern joint working with the authority to agree the day of a patient's discharge. That leads us into slightly heavy weather. Obviously, we hope that agreement will be reached that discharge must take place on medical grounds—that is self-evident. The decision needs to be taken in consultation with the patient and carer; the decision needs to be taken, primarily, by the consultant, but with the support of the whole team. These amendments could have the effect of giving the local authority equal responsibility with the NHS. It would require them to agree the date of discharge.
It does not take much imagination to see that there could be a recipe here for disagreement and even deadlock. Confusion over accountability and responsibility is precisely what we are trying to avoid and

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precisely why we are trying to be clear about roles and responsibilities in the Bill. By allowing the social services to object to a discharge, we should be putting the patient at a great disadvantage. That is not something that we should want—I am sure that Members of the Committee agree. Again, I refer noble Lords to the extremely good practice identified in the hospital discharge workbook. We would want to see local authorities and hospitals following that to avoid the type of confusion and delay which I am afraid would follow from the amendment. Therefore, I hope that noble Lords will consider withdrawing the amendment.
Baroness Noakes: Returning to the question of the NHS consulting, and possibly agreeing, with the local authority in regard to services that should be provided by the NHS post-discharge, the Minister said that there would be a loophole for the social services to exploit if they unreasonably withhold their agreement. But can she explain how the social services will avoid exploitation by the NHS? What will happen in cases where the NHS decides that a patient is ready for discharge but the social services are of the strong view that a proper package of GP services, other community-based services, physiotherapy and so on are needed and do not consider that the services put forward by the NHS are sufficient?
There must be an element of agreement. It should not be a matter of the NHS saying, "We have consulted but we have decided". There must be a reciprocal element. How does the Minister see that fitting in with the Bill?
Baroness Andrews: There is a difference. Ultimately the NHS has to make the decision on medical and fitness grounds. For the social services to hold the NHS to ransom would not be in the spirit of the Bill nor in the interests of the patient. It will work the other way because there will be a joint assessment—a full process is set out under the single assessment process—which will require not enforced agreement but negotiations, with input from the relevant expertise, where judgments are shared and made. There is a difference.
Lord Clement-Jones: I thank the Minister for her detailed response. It contained some interesting nuggets, particularly in relation to fuel poverty and a number of policy documents which will be coming down the track.
Her response demonstrated the limitations of what the Government are prepared to countenance in terms of partnership working. It is rather like the Government wearing a mask and saying, with an open and smiling face, "Yes, we are all in favour of partnerships and joint working"—and then ripping off the mask and saying, "What we are worried about is you holding us to ransom, so we have to make sure that all the powers and responsibilities are held by the NHS. We cannot give the right to consult to local authorities and social services". That is the underlying problem. The Bill is confrontational in that respect.
Baroness Andrews: The burden of what I said in regard to most of the amendments is that the powers
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which would facilitate a joint partnership already exist under different legislation which will be contingent on the Bill.
Lord Clement-Jones: I agree—certainly in regard to the provisions in the 1990 Act. As regards housing and fuel poverty—these are two of the nuggets to which I referred earlier—the Minister's explanation was quite useful. The fact that the ODPM and the Department of Health are putting together a paper on housing for older people is a positive development.
But, ultimately, the issue is not how can we charge people if they do not accept discharge but how we can best facilitate partnership between local government and the NHS. I am afraid that the debate on this issue has underlined the fact that the Government are not prepared to see an equal partnership between the two. This issue is very much NHS driven. The powers will be with the NHS but an awful lot of the burden will fall upon social services.
There have been other interesting areas of discussion. The right reverend Prelate was extremely eloquent on the issue of fuel poverty, on which my noble friend Lady Maddock is an authority, having steered through a Private Member's Bill on the subject. But there are wider topics than fuel poverty and housing and, whether it is called joined-up care or joined-up thinking, as a result of this Bill matters seem to have become more complicated and more punitive on social services if they do not comply.
The amendments seek to redress the balance somewhat while also introducing into the debate the issues of housing and fuel poverty. It may have been wrong to attempt to address both of those issues in the same grouping, but the fact remains that there are real problems with the Government's approach. I hope that the Minister's assurance will be followed through.
I accept what she said about beefing-up the workbook. She almost said "workshop". The Committee will probably constitute a discharge workbook after two days' debate and its members will not be sorry to discharge themselves. But the discharge workbook needs beefing-up in terms of its references to fuel poverty and to housing. It is all very well to refer to policy documents, but people have to understand the total context in which patients are being discharged. The discharge workbook can be massively improved in that respect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 16:
Page 2, line 8, at end insert—
"( ) the responsible NHS body and the social services authority publish and operate an agreed code of practice governing the sharing of patient information;
( ) in cases where a patient has limited mental capacity, a procedure exists to appoint an independent advocate."
The noble Lord said: In moving Amendment No. 16, I shall speak also to Amendments Nos. 18, 34, 50, 69 and 96.
Just as the Bill omits reference to the consent of local authorities, even more importantly it omits any reference to consent of the patient or carer when placing a duty on the NHS to refer a patient to social services. The amendments seek, first, to give patients a right to be properly consulted and, if they so choose, to refuse the recommended referral.
Although many patients will welcome an early referral to social services, others may consider that they are able to make adequate arrangements for themselves without intervention from social services. Without the amendment it could become normal for the NHS to make automatic referrals to social services without informing the patient of its intention to do so. In the case of an emergency admission the referral might take place at a stressful time for the patient and family and before they have had time to think what arrangements they can put into place themselves.
There is nothing in Clause 2(1)(b) to indicate who makes the decision that community care services are likely to be required or how such a decision is made. Given that hospitals are likely to prefer that all patients come under the responsibility of social services—this will mean that penalties can be imposed if discharge is delayed—it is likely that without a specific recommendation that the views of the individual are taken into account, all patients will be referred regardless of their wishes. Imposing a duty on one authority to refer a patient to another authority without the express consent of the patient goes against the patient's confidentiality and could be a breach of Article 8 of the European Convention relating to respect for private and family life, home and correspondence.
In order to comply with Standard 2 of the National Service Framework for Older People the clause must include the initial choice of whether the patient or carer wishes to have social services involvement.
The amendments, secondly, attempt to ensure that people who lack the capacity to make an informed decision are not automatically referred to social services. In the absence of long-awaited mental capacity legislation, there is a gap in the legal definitions of "capacity" and the protection of people without capacity. At present, if patients are unable to consent themselves, relatives can be consulted but no one can consent on the patient's behalf to such a referral.
However, it is good practice to consult with relatives and carers about their knowledge of what the patient would want. These amendments allow for existing procedures for advocacy and surrogate decision-making to be brought into the discharge planning process. Currently, patients are discharged home, with very short notice, and often no time is given to put care provisions into place.
A recent example of this was given by Age Concern. There was a telephone call to the family at lunchtime to say that the patient would be discharged that afternoon. In that instance, the carer had been told the previous day that there was no chance of the patient being discharged until later in the week. Most patients
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do not realise that they have the right to request a panel review if they disagree with the decision that they no longer require NHS care and that their discharge will be "safe".
Finally, Amendment No. 69 is designed to find out just what impact Section 60 of the Health and Social Care Act 2001 will have on the exchange of information between the NHS trust and the local authority. What precisely are the duties on the NHS and on social services? How can the exchange of information take place between the two in a way that will not adversely impact on the patient and which will allow both social services and the NHS to take the necessary decisions? I beg to move.
7 p.m.
Earl Howe: Perhaps I may speak to Amendments Nos. 22, 44, 60 and 65. This Bill has the imprint of the Treasury all over it. That has had a dire effect. So intent have the Government been on achieving their aim of freeing up NHS bed space and putting the onus for this on local authorities, that one very important person has been forgotten; namely, the patient occupying the bed.
The Bill is all about processes, mechanisms and authorities. It forgets that there is a human being at the centre of it all. I believe that we have to amend the Bill to ensure that the patient's views and those of the carer, if there is one, are squarely in the middle of the decision-making process on every single occasion.
The Minister will no doubt say that it is only good practice to involve patients and carers in the discharge process. Of course it is good practice, and it may well continue to happen automatically in a large number of cases. But the Government have to realise that we are in a new game. Just as the Government are not prepared to rely on local partnerships between health and social services but are introducing statutory disciplines, so, equally, we should not be prepared to rely on mere good practice when it comes to the patient's own wishes and interests. Those wishes and interests must be protected on the face of the Bill. If they are not, they will be statutorily irrelevant—which will leave the patient, in the worst case, at the mercy of the system and no more than a parcel.
Between the patient and those looking after him there should be a partnership. It is sobering to see that, between 1999 and 2001, re-admissions of patients within two months of being discharged more than doubled—from 19 per cent to 43 per cent. The proportion of carers who believed that early discharge was to blame for this rose from 23 per cent to 45 per cent; 77 per cent of carers said that they were not given a choice about taking on caring responsibilities.
We shall debate the one-sidedness of the Bill in relation to a later group of amendments—although the noble Lord, Lord Clement-Jones, was eloquent on the subject. Suffice it to say that under the Bill as drafted the NHS will have nothing to deter it from accelerating the discharge of a patient to the maximum extent possible.

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For much of the time that may not matter; but on occasions it will—the health service will err on the wrong side and the patient will have to be re-admitted. In the absence of financial disincentives on the NHS that might prevent that, we must build in checks and balances. The most essential is to ensure that on every occasion the mechanisms set out in Clause 2 are invoked and that the patient and his carer are consulted.
One of the casualties in the mad rush to implement the scheme is patient confidentiality. There is nothing in the Bill which even suggests that the NHS body has to obtain the patient's consent before disclosing private details about him to someone in the local government offices. Indeed, Clause 2(2) states:
"It is the duty of the responsible NHS body to give notice of the patient's case … to the social services authority".
This point was made by the noble Baroness, Lady Barker. Clause 3 states:
"The responsible authority must … carry out an assessment of the patient's needs".
There are no "if"s or "but"s; a statutory duty is placed on both parties. That, I respectfully say, is not good enough for the patient. No one should have his medical confidentiality breached by a hospital; and if confidential information is disclosed to someone outside the NHS, then the patient should agree to that disclosure. If he or she lacks the mental capacity to do so, the hospital should, as a matter of law, formally consider the patient's best interests and record that on his file. That is the point of the word "consent" in Amendment No. 22.
After the local authority has been notified, it will carry out an assessment. At that stage, too, I would argue that the patient has to be involved in the decision-making process. The patient needs to be aware of what will be provided to him on discharge in order to know whether he is happy with the plan. Under Clause 3(3) as drafted, there need be no involvement with the patient when it comes to identifying the community care services that he will supposedly require. It would not take much to change that. My amendment is simply one suggestion.
My Amendment No. 44 also mentions the need to inform the patient of the cost of the proposed care plan. This provision is included because I have been made aware of some distressing and regrettable cases in which that has not happened. The patient has been discharged into a care home. Top-up fees have been charged by the care home, and these have come as a complete bombshell to the individual, who has found himself unexpectedly under financial pressure. Or it may be that the patient is discharged to his own home, little realising that the cost of his continuing care will prove financially burdensome. I have heard of other cases where a hospital has decided, quite wrongly, that a patient is not entitled to free continuing care on the NHS and that he must be means-tested by social services. The patient has then had to sell his home and spend large sums of his own money on the care
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package, when all along he should have been looked after free of charge on the NHS. That sort of thing has happened in a number of parts of the country.
Step one is to discuss the question of cost with the individual. It is a matter of elementary human courtesy, apart from anything else, to make those matters known to a patient. The patient needs to be able to say that he thinks the financial burden is affordable or, on the contrary, that it will be too much for him.
I turn finally to Amendment No. 65. There is a further element to the discharge process which needs to involve the patient. Once the hospital has decided on a discharge date, the patient should be informed of this and given the chance, if he disagrees with the decision, to ask for a review. The Minister may well say that it is inconceivable that a patient would not be told when he was due to be discharged and that it is standard practice. Perhaps in the majority of cases that is so. But I repeat: the Bill proposes that normal standard practice on the part of hospitals and social services is not good enough when it comes to discharging patients. By exactly the same token, we should not expect the patient to have to rely on standard practice laid down in guidance. Standard practice should be on the face of the Bill.
Baroness Finlay of Llandaff: I shall speak to Amendment No. 18 and in support of the other amendments in this group. There is a fundamental principle involved here; namely, consent. We require consent from patients for everything that we do to them: whether we take blood, or operate, or whatever else we do, consent is required. The carers must be considered in the role of secondary patients. They are taking on a burden and they need to know what is involved.
There are three fundamental principles for consent to be valid: first, it must be informed; secondly, the person must be competent to make the decision; and, thirdly, the consent must be voluntary. I have real concerns that, without consent being explicitly spelt out on the face of the Bill, we shall be seriously impinging on patients' rights.
Patients must be informed of the benefits as against the risks and burdens of every decision that they take. That includes knowing the time, order of events and, as the noble Earl, Lord Howe, outlined, the costs that may be incurred. But competence involves the ability to understand the information that is given, weigh it up and communicate choice. I have a concern that patients are extremely vulnerable and that there is a power differential of professionals over patients and their carers. This is never more evident than with those who have chronic disease, who know that they will inevitably be returning to the service and are fearful of incurring the displeasure of those professionals who are involved in their care.
Finally, there is the principle that consent must be voluntary. It must be free of coercion. I am concerned that several things, which we have heard about, make a decision free of coercion extremely difficult.

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Language is crucial to the way in which thus is communicated—the frame within which issues are to be considered. The language means that realistic risk is included within this frame of decision-making and irrational fears are discarded.
Patients can feel that they are a burden. Some relatives do not want to care and some are fearful of caring. Carers often feel unable to undertake intimate care such as bladder and bowel care. They are fearful of helping someone move to get to the toilet and fearful of what to do if the patient vomits or does not take their tablets. So often, problems arise at home when the district nurse or other professional carers who visit the house have just left. Carers need educating, and this takes time. I have a concern that current hospital policy may mitigate against some of the education that is needed.
What alarms me the most, however, is the concern expressed by the noble Baroness, Lady Barker, when she spoke to Amendment No. 8. There is a real fear that if patients do not accept the care package on offer, they will effectively he told to like it or lump it. That may be the message they get; it would result in true coercion and would mean that any consent was invalid anyway. This raises huge ethical issues about the whole process of the discharge if patients do not have free choice and if it is not fully informed. How can choice be deemed to have occurred and how can consent he valid if the patient has only one option or feels under enormous pressure, for whatever reason, to comply with what is being offered?
The Lord Bishop of Hereford: I agree that Clause 3(3) is impossibly bald and has led to the widespread feeling that patients are treated in the Bill as commodities. Something must be done about it. The principle of consent is absolutely right, but I am under no illusion that it is always given. Acute dilemmas may arise in which there is little room for manoeuvre and little choice. I am mindful of a recent incident where a patient was ready to be discharged from acute care and needed intermediate care. An intermediate care bed was available in a community hospital but it was an inconvenient distance from where the patient's family lived. The patient's family was told that there really was no alternative—the patient needed to leave acute care and go to the intermediate care bed. The family camped out around the patient's bed physically to prevent the movement of the patient to the intermediate care bed.
There are very serious dilemmas, and I recognise that choice is sometimes not available because there are so few beds. Beds are blocked in not only acute hospitals but intermediate care community hospitals and other places.
Recognising the great difficulties that exist, I still believe that some form of consent needs to be on the face of the Bill, otherwise it will be entirely unacceptable. I recognise that it is not simple and that acute difficulties sometimes have to be negotiated with skills that people might better deploy in the Security Council. Real skill is needed to negotiate the way through these dilemmas. It is a real problem: if the Minister says that we cannot offer
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choice because sometimes there is none, I think we will have to agree that sometimes that is the case. What then comes into play is the skill of the person who has to negotiate with the family and the carers. That takes a high degree of skill, patience and flexibility, and there may be a slight delay until a better solution becomes available. But I believe that, in principle, consent must be written into the Bill, or Clause 3(3) will be regarded as entirely unacceptable.
7.15 p.m.
Baroness Pitkeathley: The Government have a very proud record of putting patients and their carers at the centre of NHS policy. I want to speak in particular to the amendments concerning carers. Members of the Committee will know that I yield to no one in wanting to see carers in not only every bit of every Bill but in every sentence of every Bill, but I recognise that we have to keep a sense of proportion about this. The Government have made major concessions in another place regarding the recognition of carers, and on the statute book there are already Acts of Parliament concerning carers, such as the Carers (Recognition and Services) Act 1995 and the Carers and Disabled Children Act 2000, with which I had something to do. So there is already a great deal of protection for carers.
There is no doubt that the active engagement of patients and their carers is central to discharge planning. In a recent survey, Carers UK found that 43 per cent of carers felt that they were not given adequate support at the time of the discharge. However, I would query whether these amendments are the way to deal with that. We have to ensure two things: first, that the people concerned with discharge make sure that the carers are central in all their discussions; secondly, that the carers are empowered in that discussion to state their needs. Their needs are already catered for—we have to help them express them.
Baroness Masham of Ilton: I, too, strongly support the amendments. A patient should be a person, not just a number. When pressure is on, good standards should be written on the face of the Bill. Some elderly people have a real fear of the social services. Maybe it is to do with pride, but it is also to do with independence. The patient should come first. The old hospital almoner was a well trusted person. The noble Baroness, Lady Pitkeathley, will not agree with me, but I know many elderly people who just do not want to communicate with the social services.
Baroness Andrews: This has been a short but powerful debate in defence of the patient. We yield to no one in our concern for the patient. We would he extremely dismayed if we thought that the notion of the patient as a commodity was implied in the Bill. Nothing could be further from the truth. The whole purpose of the Bill is to establish the rights of patients and the focus on patients so that they get the very best, the most appropriate and the speediest care without sacrificing quality or choice in the process. I believe that we would all agree with that, and am grateful for what the noble Baroness, Lady Pitkeathley, said.

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Let me deal first with Amendments Nos. 16, 24 and 96 and go straight to the code of practice. I hope that can put the mind of the noble Lord, Lord Clement-Jones, at rest about the code of practice. Let us consider the notice that will be required to be put into operation. It is envisaged that the notice needs only contain the patient's name and location, the name of the NHS contact, the date of admission—if that has not yet occurred—and the likely date of discharge. It does not require or authorise the inclusion of any sensitive details of the patient's medical condition or the transfer of any more information than is currently the case. That is in the regulations, and I hope that it indicates that we are concerned about patient confidentiality and involvement. However, we believe that because the notice is only an administrative device for good record-keeping, there is an argument for not having the patient involved at that stage.
I am pleased to say that we are putting increasing emphasis on patient involvement. We have moved on from the old paternalistic system, in which everything was good for the patient and they never had a say. As the noble Baroness, Lady Pitkeathley, said, we have changed, by recognising and amplifying the voice of the patient. I hope that reassurance deals with Amendment No. 16.
The second part of the amendment would require patient advocates to be appointed in cases of mental incapacity. There will be instances in which patients are unable to express a preference for themselves. There is a long-standing common law principle that public bodies should act in the best interests of people whose capacity to consent or to understand the reasons for a particular treatment has diminished. It would be entirely reasonable to expect the NHS and councils to act on the preferences expressed by the carer, just as the noble Baroness, Lady Pitkeathley, suggested, unless, exceptionally, they felt that that was against the interests of the patient.
Amendment No. 24 raises a similar issue. However, there is a misunderstanding here. The notice formalises what already happens across the country, but it is not issued to the patient. We expect the NHS to discuss with the patient the situation surrounding their stay in hospital before they are admitted. If the patient lacks capacity, the NHS has a duty to act in the patient's best interests. The notice does not involve the patient and it is not necessary for the NHS to explain it. There is not a great deal to explain.
I confess that I find the new clause to be inserted by Amendment No. 96 a bit confusing. It seems to suggest that patients will need the protection of an independent advocate to prevent a proposed discharge. In perhaps the majority of instances, having seen that the patient is recovering fully the consultant will decide to discharge the patient with no need for further assessment. That would be the case with, for example, a fit and healthy person with a broken leg. The safety risks are very low. We have to ask whether we want to require the NHS to offer independent advocates to every person who is well able to look after themselves on leaving hospital. That could be an unintended effect of the amendment.
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Of course, any assessment must meet the requirements of people who need support. As I have said, that would be governed under Section 47 of the 1990 Act. I hope that the Committee will commend the fact that, through setting up the patient advocacy and liaison services, we are making a much more robust and clearer opportunity for patients, their carers and their families to be involved generally. They can, when appropriate, refer to independent or specialist advocacy services.
My noble friend Lord Hunt of Kings Heath dealt with the question asked by the noble Baroness, Lady Finlay, about self-funders. He said that some patients may decide that they do not want to be assessed by social services. They have that choice. No one is under an obligation to accept assistance from social services. However, the local authority must make all reasonable efforts to make sure that they have a choice. It is not a question of either agreeing with what the local authority says or being shoved out and having to become a self-funder. It will not work like that. Only if the patient continues unreasonably to object to the services that are offered despite attempts to make a compromise will they have to be regarded as having discharged themselves. We all take very seriously everything that the noble Baroness says, given her long and current experience. I hope that clarification helps her.
Baroness Finlay of Llandaff: I thank the Minister for that reassurance, which clarifies the issue for me.
Baroness Andrews: Amendment No. 18 deals with the burden of the argument about consent. We understand how genuine the concern for the voice of the patient is. The Government have recognised and worked on that. The problem is that the amendment would create operational difficulties for the NHS. It would give the patient or carer a new and effective veto over social service involvement in the discharge process. The NHS would find it extremely difficult to operate under the amendment, which would place it under a new duty to gain the patient's and carer's consent to involving social services in assessing the need for aftercare.
We want to guarantee the inclusion of the patient in the discharge process, but the amendment would have unfortunate, even perverse, consequences. If a patient withheld consent, the NHS would not be able to inform the authorities how that patient was likely to need help after discharge. If the patient withheld consent and took no steps to inform social services, the community care services would not be in place although the patient might be physically well enough to leave. The patient would effectively be preventing their own discharge. No NHS patient has the right to do that. It would create an unreasonable and unsustainable situation for the NHS.
The amendment would also require the carer's consent to be given. Following what the noble Baroness, Lady Pitkeathley, said, it is inappropriate to oblige the NHS to consult a patient's carer about involving social services. Of course their views must be

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taken into account—it would not operate otherwise—but that is already standard practice. To build in a statutory obligation would even run the risk of breaching the patient's right of confidentiality.
My second point is that the Bill does not change or undermine any right that the patient presently has on consent. It is a complex law, but in a nutshell it amounts to common law principles plus some of the provisions of the Data Protection Act, which says that consent is the one basis on which information about an individual can be passed on. Patients have an existing right not to consent to receiving treatment. The NHS does not have the right to force services on a patient. If such services were provided without consent, there would almost be a case for civil trespass and, at worst, criminal assault. We are looking at some extremely subtle and dangerous implications. Good practice dictates that all patients should be kept informed. Once again, that is a reference to the discharge workbook and our reasonable expectation that it will be followed.
However, there is some good news. We have listened and we know that this is a very serious issue. I am confident that the statutory guidance and good practice will ensure the correct involvement of patients and carers. We are also prepared to consider a government amendment that would require the NHS to consult patients and, when appropriate, carers, before issuing a Section 2 notice. It is obviously in the best interests of all concerned that social services do not receive referrals for individuals who did not know that they have even been put forward for an assessment and so would hardly be expecting a visit from a social worker. I hope that is acceptable.
Amendment No. 34 would add a duty on the local authority to obtain the patient's consent before assessing their need for community care services. Again, the Bill does not change or undermine any existing rights, for the reasons I have explained. Patients are perfectly entitled not to participate in the social services assessment. However, social services will be expected to carry out at least a cursory assessment, even if the patient does not formally co-operate. Social services can obtain external information that can be useful should the situation change. A package of care can be refused. For the reasons I have given to the noble Baroness, Lady Finlay, those who reject all the alternatives will become self-funders.
On Amendments Nos. 44, 60 and 65, the noble Earl, Lord Howe, made a very powerful case for the information, particularly about the costs of any care and the consultation with patients and carers. Although we are unable to accept the amendments, I assure him that their aims are already clearly met under existing legislation. I referred earlier in the debate to Section 47 of the National Health Service and Community Care Act 1990, which governs assessment under this Bill. In exercising their functions, social services departments must already give all proper information to a person so that he can make an informed decision. That includes information about the costs of any care. The cases that the noble Lord brought were very graphic but one would
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hope that they would not be usual. They suggest bad practice rather than people simply not knowing or not following the existing law.
With respect to consent in general, the Bill makes no difference to patients' rights. We are hoping that the discharge workbook will make a big difference. We have a similar expectation that the statutory guidance will also make it abundantly plain that patients, their carers and families will be fully informed. The guidance attached to the Bill will act as reinforcement.
We have a similar response to Amendment No. 60, which would place a duty to consult carers and gain patient consent to the services being provided. The Bill does not alter the existing requirement on the NHS to gain the consent; we are happy with it as it stands.
Amendment No. 65 is, likewise, unnecessary. The proper place for information about the discharge date is in regulations rather than in the Bill, given the amount of detail that surrounds it. Putting it in the Bill would make it anonymous, especially as we know that there is much good practice in this area. Many acute trusts and social services departments issue a lot of information, advice and personal support. We hope that the amendment will be withdrawn.
Amendment No. 69 deals with control of patient information. It is difficult to see the intention behind the amendment. Section 60 of the Health and Social Care Act 2001 is about the control of patient information, but regulations made under that section broadly allow for information to be passed between NHS bodies and other bodies in relation to health matters. The amendment would disapply a body's duty of confidentiality to allow it to pass on confidential information for medical purposes in some circumstances. However, it does not apply to social services authorities or appear to have any relevance to data collected or duties undertaken in relation to the Bill. The only possible relevance would be when confidential information was passed between the PCT and the NHS trusts in compliance with their duties under Clause 3(8). Passing information in such circumstances would not breach patients' rights to confidentiality, and, in any case, Section 60 does not apply under the Bill. As I have said several times, nothing in the Bill impinges on the existing rights of patients to confidentiality. I hope that the amendment is withdrawn.
Lord Clement-Jones: The Minister's reply was as packed with information as ever. I believe that I saw a gleam of silver in there, rather than just a nugget. It may not have been gold, but things are looking up this evening.
There is a lot to be considered, and we will be reading Hansard with some attention. We have been told that there will be a code of practice on confidential information, which the Minister believes will cater for some of the issues raised under some of the amendments in this group in relation to use of personal information on patients.
Baroness Andrews: I do not want to give the impression that there will be a code of practice. There will be statutory guidance. I was addressing the

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question of what a code of practice might contain following the amendment, but we do not believe that a code of practice is necessary, because the notification is so basic.
Lord Clement-Jones: I shall have to read with more attention than ever what the Minister said. As long as the statutory guidance broadly contains what we would have wanted to put in the code of practice, we shall be entirely satisfied. The statutory guidance is also intended to deal with the question of consent, but the Minister offered an amendment on Report or Third Reading to the effect that the patient will have the right to be consulted on discharge issues. That is a major step forward. We will have to consider that in the light of self-funders in particular.
Baroness Noakes: I want to clarify the exchange between the noble Lord and the Minister on statutory guidance. I may be the only person who does not understand the matter fully. Under what statutory powers will the guidance be given and what force will it have on the NHS?
Baroness Andrews: It is Section 7 guidance, as we familiarly know it. It has statutory force—local authorities have to follow it.
Baroness Noakes: What about NHS bodies? I thought that we were talking about requiring NHS bodies to do certain things.
Baroness Andrews: We can require NHS bodies to follow it, rather than forcing them to.
Lord Clement-Jones: I am glad that we have settled the legal basis, otherwise we would have had a sleepless night.
Lord Campbell of Alloway: I am grateful to the noble Lord for his concession. No legal basis has been settled or discussed. I am not familiar with this Bill—I am here for another purpose—but I am interested in what has just been said. I have not read the Bill, but where is the trigger clause that will give credence and power to make either statutory provision or codes of guidance? Is there such a clause?
Baroness Andrews: No, there is no clause. The Secretary of State can issue Section 7 guidance when he thinks fit.
Lord Clement-Jones: Anyway, I shall simply sum up. We do not need to trade further legalities for the purpose of these amendments.
The Minister approached our position in her remarks. There are issues to which we may want to return on Report. As the right reverend Prelate said, some way should be found, however qualified the wording, on consent as opposed to consultation.
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We shall think carefully about the Minister's comments. She said that, on the one hand, she did not want to give right of consent to a patient but that, on the other, the NHS could not force a patient to do something. Legally, there was no great issue about the patient being given the right to consent, since it is implicit in the way in which the NHS provides its services. I shall leave that to the department's lawyers to consider in the next week or two. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath: I beg to move that the House do now resume. In moving this Motion, I suggest that Committee stage begin again not before 8.39 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Public Services (Disruption) Bill [H.L.]
7.39 p.m.
Lord Campbell of Alloway: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Campbell of Alloway.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Deputy Chairman of Committees (Viscount Allenby of Megiddo) in the Chair.]
Clause 1 agreed to.
Clause 2 [High Court Jurisdiction]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 1:
Page 1, line 11, leave out "collective industrial action" and insert "primary or any form of secondary collective industrial action taken to cause such disruption"
The noble Lord said: I actually have read this Bill. In moving this amendment, by leave, I shall also speak to all the other amendments, each of which shall be moved formally in due course, to afford an opportunity for any Member of the Committee who wishes to speak to do so
These amendments are designed to meet certain criticisms of drafting made on Second Reading. However, at the outset, it has to be asserted that the Bill can have no application to the Fire Brigades Union dispute, which by the good offices of the TUC and of the Deputy Prime Minister has returned to negotiation under the aegis of ACAS. It is the hope that some resolution to this complex dispute—pay, conditions of work, over-manning, restrictive practices, restructuring of the industry—may be found short of a resolution imposed by government. This Bill in no way is concerned with the merits of any dispute, only with the means of resolution.
Amendment No. 4 to Clause 3 may apply only where disruption arises as a result of some future dispute and only after resort to ACAS has been declined or failed to afford mandatory independent arbitration, independent of government, to which the Government would be subservient on the award. To save any repetition and time, reference can be made to the debate on Second Reading, at cols. 1167–68 of the Official Report.
In context with all these amendments, note has to be taken of an objection to the intendment of the Bill taken by the Government, on 27th January, at col. 1127 of the Official Report, which is a total misconception. It was based on the assumption that ACAS was "an adequate arbitration system" on which the Government were happy to rely. Because of that, there was no need to introduce any arbitral system independent of government, and in particular one such as proposed by the Bill. Members of the Committee who have attended this debate will know that ACAS affords only the silken ladder of voluntary conciliation. It is not an arbitral system at all. The disputes in public services identified in Clause 3 of the Bill may not be so readily resolved by a series of ad hoc, imposed government decrees save in wholly exceptional circumstances. Mandatory arbitration independent of government as proposed by the Bill affords the last resort to resolution short of imposed resolution by government decree.
Amendments Nos. 1, 2 and 3 to Clause 2 are designed to meet the criticisms of the noble Lord, Lord McIntosh of Haringey—who I am delighted to see in his place—on Second Reading, at cols. 1174–5 of the Official Report. The criticisms were essentially that Clause 2 was too widely drafted and open to evasion and wanted clarification.
Clause 1 applies to primary and secondary action by Amendment No. 1. Amendment No. 1 applies to primary or secondary action taken with the intention to disrupt public services at the behest of the trade union. There are two elements: intention to disrupt; and at the behest of the trade union.
Amendment No. 2 applies to avoid evasion, it being for the High Court to adjudicate on the civil standard of proof, on the facts of each case. Since the turn of the 19th century, the courts have made a series of decisions on trade union law, which inevitably has a political significance. As to economic significance, the courts have adjudicated, and adjudicate, on competition, restrictive practices and monopolies. The jurisdiction conferred by Clause 2 as amended is not open to criticism on either of these reasons, albeit I think that such was the opinion of the noble Lord, Lord McIntosh.
As to Amendment No. 3, it safeguards the individual entitlement to withdraw or withhold labour. There is no reason why the Central Arbitration Committee should not be given statutory powers to act as an independent arbitral tribunal under Clause 1 independent of government. No other tribunal acceptable to the trades unions and the employers has as yet been proposed to act only as a long stop where conciliation has failed, and only
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in context with public services and the disruption of public services, under a new framework of mandatory arbitration as proposed by this Bill.
The Bill has been cleared by the Joint Committee on Human Rights, in Paper 41, reference HC375, at pages 23 to 26. I beg to move Amendment No. 1.
7.45 p.m.
Lord Roberts of Conwy: I compliment my noble friend on his attempt in these amendments to meet the criticisms levelled at the Bill during its Second Reading. I am bound to say that my noble friend's Bill is a very timely reminder to the Government of the difficulties they face, and not just with the firemen's union. I have to remind the Committee that the days lost through strikes soared to a 12- year high last year, with 1.32 million days lost, compared with 235,000 in 1997, when the Government came into office. So it is wise to think along the lines that my noble friend has thought in this Bill.
Many of those days lost were in the public services, among fire service, rail and Underground workers and in local government. In my view, the outlook for the future is not all that good. There is a new generation of union leaders coming to the front line, pledged to go on the offensive, we are told. The noble Lord, Lord McIntosh, will be familiar with the names and attitudes of Mr Derek Simpson of Amiens, Mick Rix of ASLEF and Bob Crow of the RMT. I understand that Mr Bill Morris of the TGWU is due to retire shortly and that he, too, may be succeeded by a more militant leader. That is part of the background to the Bill.
The Government are clearly prepared to be firm. They showed that on 28th January when the Deputy Prime Minister stated that he would repeal Section 19 of the Fire Services Act 1947, which would put the management of the Fire Service in local hands. As we know, the union sought judicial review but that did not proceed very far. The Deputy Prime Minister also said that he would seek new powers of direction over the Fire Service after consultation. That would involve in effect the restoration of the provisions in the 1947 Act, repealed in 1959, which allowed the Secretary of State to specify pay, terms and conditions in the Fire Service. At the time it sounded like a threat to get the union back to the negotiating table but I understand that the Government have tabled amendments to the Local Government Bill in another place to enable local authorities to close fire stations and reduce numbers without central government permission. So the Government clearly mean business.
I was impressed by the words of the Deputy Prime Minister's Statement:
"Legislation itself will not end the dispute, but it is prudent to take those powers to use, if necessary, to help to reach an agreement".—[Official Report, Commons, 28/01/03; col. 721.]
The whole burden of the Bill and the amendments proposed is that the Government should look to the future because what we have so far is a piecemeal approach. It may work with the FBU but if there are

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other troubles ahead, as I believe there may be, the Government would be well advised to think hard how they may best protect public services.
On Question, amendment agreed to.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendments Nos. 2 and 3:
Page 1, line 18, at end insert "and against any person or body acting in contemplation or in furtherance of such breach at the instigation of an officer of any Trade Union"
Page 1, line 18, at end insert—
"(3) The individual entitlement to withdraw or withhold labour if exercised as such is to be respected."
On Question, amendments agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Interpretation]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 4:
Page 2, line 8, at end insert "and Fire Brigade Services"
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Remaining clause agreed to.
House resumed: Bill reported with amendments.
Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.54 to 8.39 p.m.]

Community Care (Delayed Discharges Bill
House again in Committee on Clause 2.
Baroness Barker Baroness Barker moved Amendment No. 17:
Page 2, line 9, after first "or' insert "a named Discharge Officer acting on behalf of"
The noble Baroness said: I now set off on a rather extensive group of amendments, which deals with several issues. No doubt Members of the Committee will stay with me and we shall get through them all. It is in the nature of the Bill that several issues run throughout as a thread. Some we have already discussed to an extent; some we shall return to again.
Amendment No. 17 seeks to insert the requirement for there to be a named discharge officer. As I believe I said earlier, it is enormously helpful to see the draft regulations, and I note what the Minister said about that requirement being included. The amendment has been tabled not from pedantry on our part; it was very much informed by something to which the Minister referred earlier—the report of the Climbié inquiry. One issue which, in a different context, comes through loud and clear from that report is that systems, however good they are, depend on identifiable people and on people being familiar with one another in their professional roles in order to make them work. That
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was the motivation behind this amendment and behind Amendment No. 26, which concerns the job title of the person.
As I alluded to during debate on one of our earlier amendments, the process of discharge from a hospital involves decisions which are usually taken by more than one person. It is often the case that different parts of the NHS will say different things to patients. Therefore, I believe that if someone has a title—a number of hospitals have now moved to having a named discharge officer—that is helpful not only to the patient but to NHS colleagues as well. It provides a locus for the discharge decision. Therefore, I welcome that point in the regulations.
Amendment No. 20 touches on the issue of responsible authorities. I shall no doubt be told that my amendment is defective. However, I tabled it in order to raise a question. I know that on its immense website the department is currently holding a discussion to determine what "responsible authorities" are. But, in particular in the case of older people, where the experience of hospitalisation may lead someone to make a life-changing decision and to move to another authority—perhaps to be nearer his family or whatever—I have doubts as to whether the NHS alone should decide what constitutes a responsible authority. I see a role for social services as part of that decision-making process. I say that not least because different authorities provide and, crucially, charge different rates for services. That involves the complex issue of the authority in which a person lived before going into hospital being different from the one in which he goes to live after being in hospital. Different rates may be involved, in particular in relation to self-funders.
Amendment No. 23 deals with one of the big flaws in the legislation—that is, the failure for there to be a trigger for the comprehensive assessment of patient needs. In responding to the debate on the previous set of amendments, the Minister talked about the partial assessment which will be made in order to determine whether or not a person is fit to leave hospital. I have no problem with that. I also accept that an acute hospital is perhaps not the place in which to carry out a full assessment of a person's ongoing needs. However, there is nothing in the Bill to safeguard an older person from having that incomplete assessment done and not having a fuller assessment of their needs.
As noble Lords know, at present the single assessment process does not have a statutory basis. It exists only in guidance. It is due to be implemented in 2004 and all social service departments and NHS bodies are working towards that. However, there is a real fear that partial assessment may lead to people being discharged into care which is not suitable for their long-term needs and that people will be stuck there and left on the basis of that partial assessment.
The amendment seeks to ensure that that full single assessment process should be triggered. The National Service Framework for Older People states:
"Decisions about admission to long-term care should follow upon a multidisciplinary assessment and take account of the patient's and carer's wishes".

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Again, the section on the single assessment process states:
"If admission to long-term care is a possibility, full multidisciplinary assessment should take place to identify opportunities for rehabilitation and to reduce inappropriate admission".
That will involve assessment by the most appropriate team, such as the specialist stroke team; the old-age multidisciplinary team and the old-age mental health team.
We have debated all afternoon whether or not such multidisciplinary assessments need to be in legislation in order to make them happen. I listened with care to the Minister's response on the last group of amendments. I wish I could be as confident as she is that they actually happen. I am afraid that I am not.
Amendments Nos. 25,26,27 and 29 refer to the need for written plans. Written plans appear in regulations. I was a little surprised to see the LGA state that it is against those. Again, reading the Climbié inquiry, the failure to pass on written information between agencies had a fundamental impact on the lack of care given to that little girl. In many years of working with people who run hospital discharge schemes through voluntary organisations, I see there are two enduring criticisms of the NHS. I refer first to the inability to obtain the information that they need in order to ensure that what they are doing is correct. Secondly, when hospital discharge schemes work well, they work really well. However, there are people who slip through, who never get into the whole track of a hospital discharge plan and are then lost. That is another reason for suggesting that there should be a greater emphasis on written plans.
A third reason concerns carers. We have not spoken much about that today but we can probably all think of instances where older people who are desperate to get home and out of hospital say to doctors and nurses that they can do things when they cannot and it is only when a carer sees what is written on a patient's discharge plan that the penny begins to drop that something is badly wrong.
Amendments Nos. 32 and 33 take us back to the single assessment process. We on these Benches feel strongly that for a single assessment process to work there has to be a joint assessment. All afternoon Ministers have been talking about the NHS having the ultimate decision to discharge a person and the fact that there cannot be joint decision making between agencies. In practice, a person's health condition is very much dictated and governed by social circumstances. The Government's absolute approach towards a decision either being medical or social is wrong. There is an area in-between.
A classic example is that of a person diagnosed with diabetes. On going home one must be sure not only that he or she will have food but that he or she will be fed at regular times. That is on the borderline between what is strictly medical and what is social care. Therefore, we think that local authorities should play a greater part. That is part of the single assessment process.
The noble Baroness made a welcome concession to us on consultation before we adjourned during pleasure. She has gone some way to allay our concerns about carers having access to assessments.
Amendment No. 42 deals with care homes and their duty to assess people under the Care Standards Act. Under that Act, providers of care home places must be satisfied that they are fit for the purpose of caring for an individual. The Minister has not made me sure that that short assessment and short notice is sufficient time for care home owners to make the decision whether they will be taking people who need specialist nursing care or specialist mental health care beyond the registration of the care home. I flag u p that three days will not be long enough to make those kinds of assessments.
The Minister has made much of acute hospitals being dangerous places. We have talked a great deal about inspections. I am very sorry that the noble Baroness, Lady Masham, is not in her place to back me up on this matter. The increasing incidence of MRSA in care homes is a matter of extreme concern.
I do not know whether the Minister is aware, but last year some research was carried out with care home providers in Brighton. It showed up a number of interesting points. One example was that where patients were admitted to hospital from a care home, the care home owners regarded the home as being that person's home. We often have a perception that care home owners are unwilling to take people back from hospital. That was not true. They regarded the home as the patient's home and they very much wanted him or her back. So much so, that at times they took people back with a level of needs and dependence above their registration.
One of the most interesting, and I think frightening, matters was when the care home owners talked about their difficulty in contacting the NHS to find out exactly what the medical state was of the patients being discharged back to the home. Also, there were the frightening levels of neglect of personal care in hospitals. There were incidents of people coming out of hospital with malnutrition, not because they had not been given food but because they had not been fed. If someone has Alzheimer's and food is put at the end of the bed which is not eaten, it will get taken away. If that keeps happening that patient will wind up being malnourished. That is extremely worrying. We need to keep an eye on it. It is not just a one-way thing; it is not just care home owners being obstreperous about their rights.
Finally, these amendments address one of the key issues, which is assessment for continuing care. That is an issue to which we shall return. Many older people are confused about what care they can expect from the NHS after their discharge from hospital. That is especially true of those who continue to require NHS care—fully funded care—in a care home that provides nursing care.
Our amendments require that patients receive such an assessment; they complement the amendments proposed in relation to information about assessment for healthcare needs. Clause 3(6) merely imposes a

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duty on the NHS to consult about what services, if any, it will provide. Although the assessment of healthcare needs is implicit—as the noble Baroness, Lady Noakes, said, little is explicit—the amendment imposes a duty on the NHS to carry out an assessment of those needs.
We contend that the process of assessment is currently incomplete. That is why, through Amendments Nos. 115 and 116, we seek to include definitions of assessment of patients and/or carers. Amendment No. 70 mentions assessments being triggered within 42 days. Those who are on the ball- that undoubtedly includes the Minister—will have noticed that the requirement to carry out single assessments is currently shorter than that. They are supposed to be undertaken within four weeks. However, there is logic to our proposal within the Bill, which is to link the need for that assessment with the intermediate care period, which currently stands at six weeks.
This group of amendments is about ensuring that on-going assessment of people's continuing needs is carried out properly and fully, in the right place and at the right time, and that we do not inadvertently set up a system whereby people get partial assessment and wind up in the wrong place with the wrong care. I beg to move.
Lord Bradshaw: I support my noble friend Lady Barker in moving Amendment No. 42 and shall ask some specific questions. The problems that we in the South East face are of a grave and growing shortage of homes and a shortage of money. The recent National Audit Office report stated that we have lost 2 per cent of residential homes and 10 per cent of nursing care homes since 1998. The loss has been especially acute in the South East, because property prices have risen significantly—a subject on which the noble Earl, Lord Howe, touched earlier.
Not only are places difficult to find, but staff require much more pay to work in the difficult and demanding job of providing personal and nursing care. The National Audit Office reiterates what we all know: it is better to support people in their own homes. Local authorities are being dragged in several directions at once. They face higher fees—if they can find a home. Paying those higher fees means that there is less money to spend on care in the home. So authorities are having to tighten the eligibility criteria to make the money go round, but that leaves people in the community without proper care and fewer people being admitted to fewer homes.
What specifically is being done to alleviate pressure on homes, and what is being done to alleviate the pressure on local authorities, whose costs—in admission to homes and payments—in the sector are rising much faster than inflation?
We are used to the term tightening eligibility criteria. But it means that more and more people are refused necessary care and treatment in their own homes and increasing pressure is put on carers to—intolerable levels. We need answers. The Government must recognise that those problems exist and are
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probably worsening. Council tax is being increased to record levels—13.4 per cent in my case and 15.8 per cent in Suffolk—yet we know that that money is insufficient to cover our existing costs. The costs are running away on us.
9 p.m.
Baroness Noakes: I thank the noble Baroness, Lady Barker, for introducing this complex series of amendments with such precision. We on these Benches are concerned about the bureaucracy associated with this fines system. Nevertheless, we believe that there should be an adequate degree of precision and proper reference points. Therefore, there should he a more formal record, such as written discharge notices and plans, provided that the process does not become too bureaucratic.
Many of the amendments in this group are technical and relate to the nature of the assessment process. I hope that we do not hear again from the Benches opposite that the provisions are implicit. Frankly, the Bill is drafted in such general terms that it could leave both NHS bodies and local authorities unclear as to what they are intended to do. We welcome the attempt to make the Bill more precise.
Baroness Finlay of Llandaff: I wish to speak to Amendment No. 38, which is part of this group. Its purpose is to emphasise the need for joined-up thinking. The noble Baroness, Lady Barker. laid out eloquently the complexities of the need for joined-up thinking. Written plans are needed. At present, care plans are written in patients' notes, but there must be clear documentation, otherwise it will be impossible to track who has done what, and when. Those notes must he available to patients if they wish to see them, just as they have a right to see their clinical record at present.
My concern is that, when patients requiring a complex care package go home, the social services assessment cannot be taken in isolation from all their other needs. The needs of patients with rapidly changing clinical states who go home with severe, often progressive, conditions such as neurological, cardiac or respiratory disease, will fluctuate. Provision of social care needs to be an integral part of the care provided by community health services and all the NHS services. They must be dovetailed, otherwise there will he a deficit or a plethora, either of which will be ineffective in cost terms, apart from anything else. If there is a care deficit, patients will bounce hack into hospital. If there is a plethora, it will he a waste, and more will be put in than patients need.
The difficulty is that clinical states are not clear-cut—oh, that they were! It would be wonderful if one could state that a patient was purely the responsibility of social services or purely that of the health service. But they often bridge, or fluctuate between, the two. Often the patient concerned is elderly and lives with someone else with care needs. There must he a complete picture of the needs of two, perhaps three, people with different care needs that must be integrated—in the name of efficiency and streamlining, apart from anything else.
Baroness Andrews: The amendments have been dealt with with great clarity, despite the fact that they

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came in an industrial-sized group. I am grateful to the noble Baroness and to all noble Lords who spoke for making sense of them.
I shall deal first with the government amendments. My noble friend and 1 apologise for not being able to inform the Committee about them. Amendments Nos. 19 and 21 are simple amendments which are there to close a loophole in the drafting of Clause 2. Clause 2(2) states that the responsible NHS body must give the Section 2 notification to the local authority that appears to be the authority in whose area the patient is ordinarily resident. It is not certain how the NHS body would fulfil its duty to issue a notice under the clause if there was no residence—for example, in the case of a homeless person.
We do not wish such patients to remain unnecessarily in a hospital bed when they are ready to leave because we had not made clear what should be done in such a case. The amendment will remove that uncertainty by providing that the Section 2 notification should be given to the social services authority in whose area the hospital is situated. I hope that the Committee will support the amendment.
Amendment No. 17 proposes the insertion of a reference to,
"a named Discharge Officer acting on behalf of the responsible NHS body".
Amendment No. 26 would insert a requirement to include in the notice the name of the person dealing with the discharge for the NHS. The amendments are in line with our thinking but the problem is that they are not workable in their current form. The post of discharge officer is not defined elsewhere in the Bill or in any other relevant legislation. I take the point about the title: it sounds rather draconian.
The draft regulations will have the force of statute and will do the business with regard to giving the name of the person at the hospital who will be responsible for liaising with the social services authority on discharge. We are consulting on the regulations and do not anticipate removing that provision. Along with good practice, it should be sufficient. There will be as strong a duty in regulations for the NHS to include the name of the individual as there would be if it were spelt out in the primary legislation. However, without making a commitment, we will examine the matter again and consider what the noble Baroness said.
We understand Amendment No. 20 to be a probing amendment, designed to discover why we tabled our amendments in the first place. It relates to the question of having two authorities, as it were. I take the point about the complexity of establishing residence and deciding who is responsible. That is exactly the reason why, on the advice of parliamentary counsel, we wanted to make the change in the first place. The Bill is concerned with providing the right care at the right time, and we were concerned about the possibility of delays caused by confusion over the phrase "ordinarily resident". The change was made to clarify a technical drafting point.
Previously, Clause 2(2) placed a duty on the responsible NHS body to give notice of the patient's case to the social services authorities in whose area the
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patient was ordinarily resident. We thought that that left open the argument that there was no flexibility in cases in which it was difficult for the NHS to establish where a patient's ordinary residence was. We were afraid that that would lead to delays while that argument was concluded, and we felt that, rather than leave a patient in an acute bed while his case was sorted out, we should make it clear that the responsible authority was the authority that found itself caring for the patient.
The Government's intention was that any authority receiving a Section 2 notice would he responsible for the patient—possibly only on an interim basis—until the correct authority was identified. That would ensure that there was continuing care while the case was sorted out. We expect the NHS to make its best efforts to deliver the Section 2 notice to the correct authority within a reasonable period, and we will reinforce that in guidance.
Amendments Nos. 25, 27, 28, 29 and 54 have all raised the issue of written records. Various Members of the Committee have reinforced the incredible importance of the written record. Against the background of the Climbié inquiry who could argue with that? The paramountcy of good practice needs clear records.
Amendments Nos. 25 and 27 require regulations to prescribe that Section 2 notices are issued in writing. In fact, the draft regulations already prescribe a written form for the notice. That is important in terms of clarity. Amendment No. 29 requires the regulations to prescribe withdrawals of Section 2 notices in writing. At present, the draft regulations do not make that prescription and we may want to change that following the consultation. The point has been taken and we shall pay attention to the views of those responding to the consultation on the operation of the regulations.
Amendment No. 28 also provides a regulation-making power to prescribe a date on which notices could be issued. The Government are concerned that it could have the effect of adding days to the assessment process. That is a matter I am sure we shall discuss in more detail when we reach that part of the Bill. We consider the three days allowed as the minimum number, given that elective admissions patients will have been in hospital a considerable amount of time before then. We believe that the three days will concentrate the mind wonderfully.
Amendment No. 35 raises the issue of the initial assessment. I should like to re-emphasise that the Bill does not specify the degree of assessment, whether initial or otherwise. As regards the point made by the noble Baroness, Lady Finlay, the situation of an elderly person is very changeable. It is dynamic; it may improve or it may deteriorate within a day, not to mention a week. We want to ensure that an assessment allows flexibility for a further assessment to be made. As the noble Baroness said, often long-term needs will be better assessed either in interim care or intermediate care, if that is the arrangement, rather than in hospital, when academic judgment is being made as to the

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situation at home. We believe that while the information gathered during assessment does not need to be duplicated when the Section 47 assessment takes place, the requirements for a proper assessment still apply. It will not be acceptable for an initial assessment to be made which is not followed up. It is essentially very much the first stage. Therefore, given the requirement for assessment, this amendment is unnecessary because it is a non-existent problem.
Amendments Nos. 32, 33, 37 and 38 take us back to our earlier debate. Essentially, they are about the partnership. The noble Baroness, Lady Finlay, drew attention to the great importance of ensuring that the assessment for community health is as full, as sensitive and as flexible as possible so that the right mix of services is available.
The underlying issue raised by Amendments Nos. 32 and 33 is how patients are assessed for care required after discharge. I was interested in the example given by the noble Baroness on diabetics and how the combination of services is essential in such cases. On the surface, it appears reasonable to require joint assessment, which is what Amendment No. 32 seeks to introduce. However, there are some clear reasons why the amendment would not work.
There is a drafting error in the amendment, which requires NHS and social services to agree upon which "patients" are going to be made available. I assume that that should read "services" rather than "patients". However, the amendment requires the responsible NHS body and the responsible authority to agree what the authority will make available. It would mean that the NHS would retain the power to object to what the local authority had decided it could make available.
As with an earlier amendment, the problem arises—it is repeated here—that this could give rise to a recipe for confusion. How could the NHS and social services work well together under the circumstances because it would remove all the clarity between the respective roles of health and social care and there would be a loss of accountability? That is precisely the kind of situation we want to avoid. It is precisely the kind of situation which contributed to the catastrophe of the Climbié case.
Although the Bill has been criticised in some quarters as being unfair to social services, we believe that that is far from the truth. The Bill places new duties on the NHS to provide social services with a notice of likely patient need, and it prevents the NHS from informing a local authority that a patient is ready for discharge at very short notice. We all know of cases where a local authority has been given literally 24 hours to find a place for a patient. The Bill will prevent unjustified interference by the NHS in the operations of the local authority. We have to get the balance right and the amendment, as drafted, will not do that.
We also have to consider the fact that local authorities are by no means qualified to assess a person's health needs. That must rest with qualified health staff. In any case, in addition to the duty to assess, the Bill ensures that
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the NHS and social services should work well together. I hope that the noble Baroness will be prepared to look at the amendment again.
Baroness Noakes: Can the Minister tell me where in the Bill it ensures that local authorities and the NHS should work well together?
9.15 p.m.
Baroness Andrews: The principle of joint working runs through the Bill. It is implicit in Clause 2, which provides for an assessment. I know the noble Baroness does not like that word, but we can come back to it on Report.
Amendment No. 42 was spoken to by the noble Lord, Lord Bradshaw, and the noble Baroness, Lady Barker. The noble Lord drew attention to the situation in relation to care homes, particularly in the South East. He challenged the Government to explain what they were doing. We discussed the issue of care homes earlier in the debate. We obviously dispute some of the figures, extrapolations, which have been used.
I should explain two matters to the noble Lord. First, as my noble friend Lord Hunt of Kings Heath said, we are not simply talking about care homes. There has been a loss of beds but we are looking to much more flexible and appropriate forms of provision. Intermediate care now represents the half-way house between hospital, home and residential care. Many people will find the six weeks that they can spend in intermediate care—the old convalescence—very appropriate on discharge. We are serious about this provision and we have put more money into it, as we have with extra provision for housing as well.
We are looking for alternative forms of provision where care homes are not the only objective, the only solution. Even now, for many people, care homes are not an appropriate solution. I know from personal experience that there can be resistance to care homes and yet there can be no alternative. We see the problem as an opportunity as much as a challenge to investigate what we can do by way of modernising the options that we have for elderly people who can no longer be independent in their own homes.
Obviously we want to see a greater degree of independence and there are some extremely successful supportive care packages. For example, local authorities such as Croydon and Kingston upon Thames are carrying out extremely innovative and encouraging work in this field, although I take the point made by the noble Lord. If he agrees, I shall be happy to write to him about some of these alternative good practice examples, especially those in the South East. Much of what is proposed in the amendment is unnecessary. It is already achieved by existing legislation.
The noble Baroness raised the question of the Care Standards Act. The amendment proposes that the assessment carried out under Section 3 must include sufficient information in the care plan to allow the provider of the services to satisfy certain standards set out in the national minimum standards for domiciliary care.

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We believe that both these requirements are unnecessary. The Care Standards Act 2000 introduced minimum standards. The Act governs compliance with the standards. So local authorities already have to meet those standards and it is not necessary to include them in the Bill. The amendment refers to Standard 3 in the National Minimum Standards. Standard 3.2 makes it clear that in the case of individuals who are referred to a home by social services, a summary of the health and social services assessment and a copy of the care plan produced from the assessment will be suitable. We hope that that will be sufficient to provide the assurances sought by the noble Baroness.
I turn finally to the group of amendments referred to by the noble Baroness as necessary to trigger the comprehensive assessment: Amendments Nos. 23, 36, 45, 70, 115 and 116. We are aware of the importance that is attached to the standard assessment process. It is the key to delivering seamless, person-centred care to older people. It has no statutory basis in the sense that the noble Baroness is attempting to create, but the guidance on SAP was issued as formal guidance to the NHS and as section guidance to local councils—meaning that it has to be acted upon. For those reasons, we believe that the intention behind the amendments, while admirable, is not necessarily borne out in having the SAP written on the face of the Bill in the way the noble Baroness seeks.
A great deal of provision is in place for encouraging and enabling joint partnership working. I hope that the noble Baroness will accept that. Given the time, perhaps I may write to her about the individual elements of her amendment which relate to different parts of the provision that is already in existence. She will then be able to see in more detail how her concerns are met in different ways. If the noble Baroness is agreeable to that, it would save about 10 minutes at this stage of the evening, as the detail is considerable.
Perhaps I may refer to Amendments Nos. 115 and 116. I take the point as to why the noble Baroness has linked the proposal to the intermediate care period. The problem is that the amendments introduce definitions that are not necessary. Amendment No. 115 introduces a definition of "assessment-, We have already defined the assessment carried out under this Bill as either a Section 47 assessment or as a carer's assessment; and in Clause 3(5) "the carer" is defined as a person who is entitled to ask for an assessment.
With the proviso that I shall write to the noble Baroness and respond in more detail to the individual elements of her proposals, I hope that she will accept the need to withdraw the amendment.
Baroness Barker: The noble Lord, Lord Clement-Jones, used the phrase "silver lining" in relation to the noble Baroness's previous response. I think that "light cloud" would be my description—with the odd ray of sunshine.
I thank the noble Baroness for her characteristically comprehensive reply. I thank her for taking the amendments in the spirit in which they were tabled. I
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appreciate that. I take heart from her remarks about the need for there to be a named person and from the fact that the regulations will amplify that.
I took the noble Baroness's answers to my amendments relating to "ordinary residence" in less good heart. I understand the point that is being made by the parliamentary draftsperson about determining people who have no obvious address. I have read the consultation paper on the determination of ordinary residence. I do not think that the Minister dealt with the issue of authorities being party to the decision about whether a person is within their area. I can quite understand that the NHS can decide which hospital or PCT area someone is in, but that is not the point. The point is about liable authorities. For once, unfortunately, the Minister did not answer my question.
I take the Minister's point about withdrawing in writing. I listened to what the noble Baroness, Lady Noakes, said about bureaucracy. As ever, it is a balance. Given that many of the people we are talking about will be mentally frail, there is a lot to be said for having things in writing, although anybody who has had to read doctors' writing might want to go further and say that it has to be in electronic form. I duck from the gaze of the noble Lord, Lord Turnberg, at this point.
On Amendment No. 28 and the days on which notices can be issued, it is one thing to talk about an expectation that services will be provided seven days a week. However, to think that there will be co-ordination and management of services seven days a week is not the same thing. The necessity to have that, as the Bill provides, adds another layer of cost. One of the things that came out of the Climbie report was the over-reliance on duty and agency staff. It happens with children; so, too, does it happen with older people.
I listened with great care to what the Minister said about partial assessments. People will have to carry out full assessments under Section 47 and will not be allowed to get away with not doing them. Again, I really wish I had her confidence. She is confident that partial assessments will be non-existent, but I do not share her view. Nevertheless, I will go away and look at what she has said.
I think that the Government are turning a blind eye to care home availability. If we look back, one of the reasons for delayed discharge, time and time again, is the lack of care home availability, as my noble friend Lord Bradshaw said. As he said about Oxfordshire, it is not a question of not being willing to pay—there are not the places to be bought. The National Audit Office has shown that in parts of the South East, care home capacity is reaching over 100 per cent. The places are simply not there to be bought. I will go and look at the examples of Croydon and Kingston, which the Ministers are clearly taken with. They are places I know fairly well from my work.
I return to a point I made on Second Reading. The Ministers can quote to us the Government's performance on delayed discharge, but they cannot tell us what they have sacrificed in order to achieve that and what they are

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not funding within their PCT areas. When we are talking about care home places, particularly for those who need dementia care, three days is not long enough to make an assessment. I think that Ministers are overestimating the availability of care home places for people with complex needs. To think they can be bought at three days' notice is not fully to understand the genuine difficulties that people have. Colleagues who were chairs of social services way before this legislation was on the horizon talked about how, in their authorities, they had to operate a policy of two out, one in. That is how tight things are on the ground, and I think that three days is excessively optimistic.
I got a partial assessment of my efforts on the trigger for the single assessment process. Perhaps it is best that the noble Baroness did not subject us to the fuller version. I know that the amendment is based on existing guidance. I would have thought that would commend it to the Minister. That is the point. It represents good practice. It is not a question of whether the definitions are right or whether it is right to repeat it. The key question is whether it is going to happen. I do not have a great deal of faith that it will happen in many places. Great efforts have been made in some areas to give people a single and comprehensive assessment process. I know that it will not formally be introduced until 2004, but some people are making great strides towards it because they see it as good practice. If I believed that it was common practice and full assessments were in place, we would not have bothered to repeat the legislation, but I do not.
I listened to the noble Baroness with great care. Whatever we may think about the motivations behind the Bill and the extent to which it has to be explicit, if the Bill is not explicit on the big issues, including consent and assessment, the Minister's claims for its overall thrust do not stand up. If nothing else comes out of this, even if people do not get services—and I suspect that they may not—if they cannot walk away from the process with a full assessment, the Bill is worth very little in practice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.30 p.m.
[Amendment No. 18 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 19:
Page 2, line 10, after first "to" insert "(a)"
On Question, amendment agreed to.
[Amendment No. 20 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 21:
Page 2, line 12, at end insert "or
"(b) if it appears to them that the patient has no settled residence, to the social services authority in whose area the hospital is situated"
On Question, amendment agreed to.
[Amendments Nos. 22 to 31 not moved]
Clause 2, as amended, agreed to.
Clause 3 [Duties arising where a notice under section 2 is given]:
[Amendments Nos. 32 to 39 not moved.]
Baroness Barker Baroness Barker moved Amendment No. 40:
Page 2, line 42, leave out "make available" and insert "commission"
The noble Baroness said: We now come to another series of amendments that may at first sight appear to be pure pedantry, but they are not. They are designed to raise an issue to which my noble friend Lord Bradshaw alluded. As many social services departments move along with the Government's current reforms, few of them are providers of services as they were and few operate their own in-house services, although some still do. As social services departments increasingly take on the role of being strategic planners and commissioners and are responsible for the scrutiny of services, they no longer have at their disposal vast armies of people to provide care services as they once did. Therefore, the flexibility with which they can respond to demand is different and perhaps more limited than it was in times gone by. They cannot simply absorb extra bits of work as they go along. I raise again the point made by my noble friend Lord Bradshaw. What do social services do in an area in which it is simply not possible to buy the services that they need?
The noble Earl, Lord Howe, alluded to another point that lies behind this set of amendments. Throughout our discussions we have referred to the fact that social services departments will have to respond to a need. When that need comes to them through the NHS, how can they determine in advance what the need will be? What will be the mechanism by which they manage the level of need? Lying behind the Bill is an as yet unquantified demand on social services. We have not yet reached that point in our discussions.
This group of amendments was designed for those reasons. We have gone past the days when social services departments had at their disposal armies of home helps willing to take on extra responsibilities and to be carers. Most of what they do is not made directly available by them but commissioned. What do they do when there are no services to be commissioned in their area? I beg to move.
Lord Hunt of Kings Heath: I am concerned about the amendment, although it is partly a probing amendment. The word "commission" would not make things clearer but add a loophole into the Bill. The normal use of the word "commission", particularly in service provision, is to refer to the long-term strategy of deciding on the different types of care and capacity needed locally, and contracting with local care providers to ensure that that can be provided.
If we used the word "commission" in that context, social services would say that they had commissioned the service needed, such as a care home bed—to take the example that Members of the Committee seem keen to discuss—but that the patient was on a waiting list.

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Under the terms of the noble Baroness's amendment, social services would have fulfilled their responsibility to commission the service but the patient would still be delayed in the hospital bed. That is simply not good enough. We cannot simply say that, because the local authority is in one way or another inadequate to its task, it can get off the hook and evade its responsibility.
The other problem with the word "commission" is that it could be taken to mean arranging the service to be provided by someone else, such as a private provider. I understand the noble Baroness's point. Social services are now a mixture of running their own services and commissioning from other providers. However, the terms that she uses in her amendment would probably preclude social services from providing care themselves. Therefore, there is a problem with the philosophy and wording of the amendment. The term "make available" is all embracing. It does not mean that the social services department has to provide all those services, but it makes it very clear that it has a duty to make those services available. Clearly, that is where we want to be.
At the end of her speech, the noble Baroness asked about the local authorities' responsibility to determine needs in advance. I think that there is something in that. There has to be an individual assessment of each patient following notification by the NHS. However, in order to sort out this problem and work together local authorities must make an overall assessment of the type of demands likely to be made over time, and then put in place arrangements that enable them to deal with that type of demand. Some of the good practice that I have quoted in local authorities suggests that they have been very successful in making those assessments and arrangements. I cite as an example a local authority that comes to a long-term arrangement with a nursing home to provide a certain number of beds over a lengthy period.
The other advantage of such an approach is that it will bring much greater stability to the residential care market, something for which owners of residential homes have long been asking. That immediately creates a win-win relationship between the local authority and the care homes and is entirely consistent with how we see health, the local authority and the independent sector working together in this legislation.
I turn to government Amendment No. 85, which corrects a drafting error to make Clause 4(5) consistent in using the term "make available" also for services for the carer which need to be in place to allow safe discharge. Use of the word "provide" is inconsistent both with the points I have just outlined and with the intention of the Bill—which is that if social services have the services ready to be provided, they have met their duty, even if they do not begin to provide them because the patient's discharge is delayed for some other reason. I again apologise to noble Lords opposite for not giving advance notice of this government amendment.
Baroness Barker: I think that we will forgive the Minister for not giving written notice of his intentions. I thank him very much for that explanation.
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I was not seeking to put forward our philosophy in these amendments at all; I was trying to indicate some of the realities that lie behind them. Commissioning managers in PCTs and in social services departments have essentially two jobs: to make an estimate of need, and to make contracts for provision. In these amendments I seek to highlight the fact that the Bill will present them with difficulties in both those jobs.
I accept that, in individual cases, the NHS notice may give managers a far greater understanding of individuals' needs and demand levels. However, I return to the point about their being able to commission services. It is interesting that Members of the Committee mentioned two outer London boroughs where, to the best of my knowledge, there already exists a certain level of care home availability. What happens in areas where there is no such availability? My honourable friend in another place, Mr Andrew Stunell, represents the constituency of Hazel Grove, where there is very substantial care home availability. Indeed, his local hospital was informed by the SSI that it had overshot its discharge targets. He is not alone. Other MPs have been in a similar position. That is going to happen where there are large properties available that are comparatively cheap.
I shall not press the amendments; I never had any intention of doing so. However, I flag up the issue. I say to the Minister that I believe that some social services departments which are not in the slightest recalcitrant simply may not be able to buy the services they are being asked to buy. I am not convinced that the sum of £100 million will enable them to buy those services. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Barker Baroness Barker moved Amendment No. 41:
Page 2, line 42, at end insert "; and
(c) inform any person where it appears to them that they may be entitled under section (1) of the Carers (Recognition and Services) Act 1995 (c. 12) (assessment of ability of carers to provide care: England and Wales) and section 1 of the Carers and Disabled Children Act 2000 (c. 16) (right of carers to assessment) to request an assessment of their ability to provide and continue to provide care."
The noble Baroness said: I return to an area that is comparable to one which we discussed earlier and which to a certain extent has been obviated in part by the noble Baroness's proposal to undertake consultation. One of the key deficiencies of the Bill was that there was no requirement for older people and their carers to be informed of their right to an assessment. They could have asked for an assessment, but few carers wind up in acute hospitals holding a copy of the Carers (Recognition and Services) Act 1995. We seek to adopt measures in the Community Care and Health (Scotland) Act 2002 and the Carers and Direct Payments Act (Northern Ireland) 2002 which place a duty on local authorities to offer an assessment and to make that good practice UK-wide.
The noble Baroness, Lady Pitkeathley, will be the first to tell me whether I am right, but I believe that Carers UK has done a great deal of research into discharge policies. As regards discharge, carers tend to go to the

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back of the queue even though they have a legal right to have their needs assessed separately from those of the patient. The amendments in this group try to probe that matter. No doubt the Minister will tell me that they are no longer necessary. However, it is not wrong to address an issue which is often overlooked and is often an integral part of the reason behind readmission. I beg to move.
9.45 p.m.
Baroness Noakes: I wish to speak to Amendments Nos. 51 and 59 which are grouped with the amendment we are discussing. The noble Baroness, Lady Barker, mentioned Amendment No. 51. It seeks to ensure that carers are aware of their right to have their needs assessed. It is worth remembering why we are handling these amendments here. It is one of the curiosities of the way in which Bills are handled in another place that, despite many amendments being tabled for the Committee stage, they somehow never get debated. That is, indeed, what happened. The Government, having been pressed on the issue of carers, introduced amendments into the Bill in another place to deal with carers, but the amendments that the Opposition wished to discuss were never discussed properly. We are now trying to complete that process of looking at how the needs of carers need to be reflected in the Bill.
Amendment No. 51 asks that carers be informed of their rights. I expect that we shall be told again that that is unnecessary and that it is implicit or required elsewhere. When dealing with a Bill of this nature we should try to make matters explicit in the Bill so that anyone reading it will know what their rights and obligations are without having to consult half a dozen other statutes enacted in the past few years.
Amendment No. 59 continues the theme of involvement of the carer by seeking to insert a new subsection after subsection (8) of Clause 3. Amendment No. 59 states:
"The responsible NHS body must take into account the views of the patient's carer … before deciding what services",
should be provided to the patient following discharge. I am sure that the Minister will be aware that there is a close relationship between what the NHS, or, indeed, local authorities, have to provide and what carers can be relied upon for. Carers have a much better understanding of what patients can do for themselves. It would be folly to assess services without involving the carers. Amendment No. 59 does not require the NHS to comply with the views of the carers; that would be going too far. However, it requires the NHS to take their views into account.
The Minister is well aware of the role and importance of carers, and I hope that he can agree to the amendments.
Lord Hunt of Kings Heath: Although I am afraid that I cannot go so far as agreeing to the amendments, I accept that the noble Baronesses, Lady Noakes and Lady Barker, are absolutely right to bring to our attention—
Baroness Finlay of Llandaff: I would like to speak to the amendments, particularly to Amendment No. 61, which I tabled.
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As has been outlined, there is a requirement for a carer's assessment to be undertaken on request and for account to be taken of a carer's decision. However, there is a real problem for carers, which is that they do not get taught a lot of the issues about which they need to know.
Amendment No. 61 specifically deals with the problem of safe lifting and handling techniques. When patients are in hospital, carers are not taught such techniques. Indeed, the risk assessment in a hospital mitigates against carers learning manual handling techniques most of the time, for several reasons. One is that if the patient should slip or fall to the floor, the hospital itself could be liable. The other problem is that very few staff are currently trained and are therefore permitted to teach manual handling. As well as a lack of personnel, the time is not available either.
What happens is that patients are discharged home. It is reasonable and sensible to teach carers how to use a hoist if one is required in the home, but it is not sensible for a patient to be discharged, a hoist then to be delivered and carers then be taught how to use it to move that patient safely in their own home. Patients slipping to the floor is a common reason for calling out the ambulance service, either to help lift patients back into bed or sometimes to readmit them to hospital. When patients fall to the floor, carers feel that they simply cannot cope.
Anyone who has done domiciliary visits will be appalled at how carers often help their relatives sit up. They are well meaning, but their manual handling techniques are appalling. I have seen many a patient hauled up by their wrists, which is not safe for the patient or the carer. There is an old adage, "See one, do one, and teach one". I am sure that many carers could help in the teaching process once they have learnt safely some manual handling techniques for patients at home.
The other difficulty is that hospital beds go up and down, but domestic beds do not. Hospital beds are almost always single beds. Many people sleep in the middle of a rather saggy mattress in a large double bed that is quite low on the ground and often pushed against the wall. It can be extremely difficult for carers to get around and help people to move. It is because of the difficulties and the danger of back and other injuries to the carers themselves that Amendment No. 61 has been tabled.
Lord Hunt of Kings Heath: The speeches have been very interesting, and I have two points to make. As suggested by the noble Baroness, Lady Barker, part of the debate, particularly that on the question of consulting, is covered by the response that my noble friend made to an earlier amendment. The noble Baroness said that she would look at the issues raised. The same point arises in relation to carers, so far as consultation is concerned.
The second point to make is that the booklet on discharge from hospital has a very good section on involving patients and carers. Clearly, much of what has appeared in this debate is covered by the philosophy enunciated in the booklet.

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I know that it is frustrating for noble Lords that I am resisting some of the amendments put forward. I do so because, as I said earlier, the Bill covers no new ground in relation to statutory responsibilities. It seeks to encourage health and local authorities to do the job that they should have done over many years but did not do, despite much guidance from governments from this and the opposite side of the Chamber.
Therefore, I resist accepting amendments for which there is no basis because the existing provisions cover the ground very clearly. For example, in respect of carers' assessments, under the Carers and Disabled Children Act 2000, local authorities have a statutory duty to carry out an assessment upon request. The Bill then ensures that the local authority provides any necessary service to the carer in time for discharge or pays a charge if the patient is delayed.
Further statutory guidance issued in conjunction with the 2000 Act informs local authorities that they are expected to make carers aware of their rights. In addition, under Clause 3(5)(b) of this Bill, any carer who has requested an assessment from a responsible authority in the previous 12 months will automatically receive an assessment of his needs without having to ask for it. I am glad that noble Lords made reference to the amendments made to the Bill during Report stage in another place. The amendments in respect of carers ensure that carers' needs are properly assessed and taken account of during the discharge process. I believe it is important to retain the link to existing legislation, which sets out the responsibilities of local authorities and other public bodies towards carers.
I turn to the interesting questions raised by the noble Baroness, Lady Finlay. I believe that she is right to raise, in particular, the question of lifting. That is a problem not only for carers but also for staff in the NHS generally, judging by the number of back injuries that our staff have suffered over the years. I do not believe that this is an issue which is capable of being dealt with on the face of the Bill.
However, I accept that a number of issues need to be teased out by the health service and by local government in relation to carers in this area. I believe that there is a risk in saying, for example, that if the carer has not received training, a person cannot be discharged. That could risk enormous delay entering the process. On the other hand, there is a risk in asking carers to do things that they should not be asked to do.
Those are two very important points. The noble Baroness, Lady Finlay, will see that I do not consider the Bill to be the right place to deal with those matters. I believe that guidance on good practice is the right place. I should be very happy to discuss that point with the noble Baroness between Committee and Report stages because it is clearly an important issue.
Baroness Finlay of Llandaff: I appreciate the Minister's response and I look forward to those discussions. However, he referred to things that carers should not be asked to do. I want to point out that carers have enormous capacity to care and are very
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keen to learn safe ways of caring. But something must be done to force recognition that educating carers adequately forms part of the duty of care.
Baroness Barker: With these amendments, as with many others, I find myself returning to the dilemma of the Hospital Discharge Workbook and the force that that document will carry. I have no doubt that it represents good, or best, practice. But I am unsure about the extent to which good practice should be tied up in a document such as that rather than in regulations and in guidance. I know that the Minister has written to me today saying that the document will be followed up with guidance.
Even with the announcement we have had today about consulting carers, I retain concerns as to whether in practice services will follow from such consultation. However, on that basis I shall take away the Minister's comments and carefully read Hansard tomorrow. I have every sympathy with the noble Baroness, Lady Finlay. I believe that she gets right to the heart of a difficult problem. She may not be giving us ideal legislation but she may, in effect, be saving the NHS a great deal of money in the longer term by preventing inappropriate actions by carers. On that basis, I beg leave to withdraw the amendment but shall return to it at a later stage.
Amendment, by leave, withdrawn.
10 p.m.
[Amendment No. 42 not moved.]
Baroness Barker Baroness Barker moved Amendment No. 43:
Page 2, line 42, at end insert "; and
(c) have a written discharge plan, including an undertaking that an assessment of community needs within the meaning of section 47 of the National Health Service and Community Care Act 1990 (c. 19) (assessment of needs for community care services) will continue according to patient needs, and arrangements for aftercare.
( ) Where the patient has an intending carer, within the meaning of section 1(1)(b) of the Carers (Recognition and Services) Act 1995 (c. 12) or section I of the Carers and Disabled Children's Act 2000, an assessment and a written plan of support services will be provided."
The noble Baroness said: Noble Lords will guess what I am about to say. The consultation paper suggests that notice of the discharge process should be contingent on a care plan being produced. That does not appear in the draft Bill, although it does state that there will be a set length of time to put together a care plan for discharge. We suggest three days including weekends and public holidays. We shall return to that matter in due course.
That plan will summarise the care and setting which the patient will need, or is likely to need, in the case of elective treatment as soon as treatment in the acute hospital setting is complete. Contained within the amendments is a service plan for carers. None of the other amendments so far discussed has touched on the point that when an elderly person leaves hospital, the likelihood is that the carer will be an elderly person who, although not needing care may need services to

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help them through the process of enabling the person who has been in hospital to regain health or to adjust to reduced circumstances, for example following a stroke.
I came across an example the other week of an 87 year-old carer of an 88 year-old who had been discharged. She wanted meals on wheels on just two days per week; the days on which she wanted to do the washing. However, in that borough, one could have meals on wheels seven days per week or not at all—an all too familiar problem. I rather suspect that if we were to realise that one of the many keys to successful discharge and rehabilitation is to have planned services for a person's care and for that to be written down, we might move forward.
That is the gist of the amendments. Much of what we have said so far about the fact that the proportion of carers being consulted has fallen in recent years and that only half of carers are being told the sort of care that will be needed on discharge shows that there is still a long way to go. It is right to have something in writing for the protection of all carers, and for their protection alone. Their needs are different from those of the people being discharged. That is the aim behind the amendments. I beg to move.
Lord Hunt of Kings Heath: I have sympathy with the point raised by the noble Baroness. My argument with her is that in terms of statutory responsibilities we already have the framework. The problem she raises is that in many parts of the country this is not being carried out successfully or effectively. The challenge is to find ways in which we can improve performance. I do not think—and I can spell this out—that there is a gap in the statutory framework for dealing with these issues.
My contention is that the enactment of the Bill will lead to a much enhanced process by the health service and local government, in which the kind of issues raised by the noble Baroness will be dealt with. She looks sceptical about that, but we are here because of the very issues raised by her today. We know what is good practice. Good practice has been enunciated time and again within a statutory framework. It makes abundantly clear the responsibility that both the National Health Service and social service authorities have towards carers.
Section 47 assessments under the National Health Service and Community Care Act should provide all the noble Baroness requires. Clause 3(11) states that assessments carried out under the Bill are to be treated as Section 47 assessments under the National Health Service and Community Care Act 1990. Therefore, information gathered during assessment for the Bill does not need to be duplicated if a Section 47 assessment takes place later, but the requirements for proper assessment under Section 47 still apply. Statutory guidance on Section 47, reinforced in statutory guidance on the single assessment process and the Discharge from Hospital: pathways, process and practice, states there should be a written care plan and that an individual should be given a copy of it.
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I put to the noble Baroness that the problem is not the statutory framework or the guidance, but putting it into practice. That is a challenge that we must accept. As part of the more general guidance that we shall give both to the health service and to local government as a result of the Bill, I assure the noble Baroness that I shall pick up the point.
Baroness Barker: Having had one and a half results today, I did not expect to go much further. I take what the Minister says about the framework being there. In return, I am glad that we have an acceptance that the practice will not happen. However, Members on this side of the Committee fail to see how setting up a system of transfer of payments between the NHS and social services—in essence a squabbling over the same amount of money—will build the capacity to develop that.
Nevertheless, I take what the Minister says about written discharge plans already being required in guidance. I shall take the amendments away and consider them before we return for the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 44 to 63 not moved.]
Earl Howe Earl Howe moved Amendment No. 64:
Page 3, line 31, at end insert "and must compensate it for any expenses which it incurs if the responsible NHS body fails to discharge the patient on that day"
The noble Earl said: We come to an issue that has understandably caused no little grief among directors of social services, which is the lack of reciprocal incentives bearing down on the NHS to counterbalance those imposed on local authorities. The truth is that there is none in the Bill. That is contrary to the understanding that we had last year when the whole policy was first announced. We all expected that if local authorities were to be made to pay for failure to unblock beds, the NHS would also be financially deterred from inappropriate admissions, over-hasty discharges or, indeed, causing local authorities unnecessarily to incur costs.
However, our expectations were confounded. Nothing in the Bill will act as a disincentive to hospitals to discharge patients too early. That fundamental lack of balance is reflected in the draft regulations. Article 4(4) of the regulations gives the NHS power to inform social services if treatment is postponed or cancelled—a power, not a duty. The hospital can therefore unilaterally cancel the patient's treatment and leave the local authority to march blindly on preparing for that patient's discharge after he has been treated.
Social services need to be informed of such changes of plan as a matter of routine. If they are not, they cannot possibly plan effectively for the patient's discharge. Their time is wasted and they are likely to incur unnecessary cost. Section 2 notices obviously cease to have effect if a patient dies. Similarly, the death of the patient is one event that will stop the clock ticking on the delayed discharge period. Another is if the patient discharges himself, or if a relative takes responsibility for him.
One would have thought that there would be an obligation on the hospital to inform the local authority of any of those events. But the regulations do not state that. Given that the local authority could be continuing to make arrangements for the patient in the meantime, that omission should be rectified.
We can also well imagine that a patient may say to a hospital that he does not want to go to the placement that the local authority has arranged for him but would rather wait until a place became available in a different home. Some hospitals would stretch a point in such a case, but there is no duty laid down in the regulations obliging them to inform the local authority, which may be undertaking unnecessary work. There is to be a right for health service staff to challenge social care assessments, but no balancing provision to enable social services to insist on a reassessment of a patient's healthcare needs. Again, that lack of reciprocal rights could well leave social services wrongly exposed to a liability.
I have been made aware of nursing staff in certain hospitals deciding for themselves that a care home with nursing, for example, is the most appropriate environment for a patient after leaving hospital as a deliberate way to avoid putting additional pressures on NHS intermediate care and community nursing services.
Article 8 of the regulations seems to enable health service staff to postpone discharge from one day to the next, and so on, without the need to restart any of the formal processes leading to discharge. Again, in such circumstances social services should be entitled to ask for how long they were supposed to hold open a vacancy, especially when someone else needed it.
Nothing will make the Bill into a jewel of the statute book, but it would be much more reassuring if local authorities could expect to be compensated by trusts if, after a patient's discharge, any failures in communication or breakdown of community nursing services contributed to the patient being readmitted to hospital. As it is, a local authority is unprotected against that.
We are brought full circle to the justification—or lack of it—for the Bill. I fully accept that delayed discharges are a real and sad fact of life and need to be dealt with. But the truth is that many individuals around the country are being looked after by social services while waiting to enter hospital. No thought seems to be given to the costs to local government incurred by virtue of the length of in-patient waiting lists. Only the NHS's costs appear to matter.
I think that I have said enough to indicate that I believe that the arrangements are unfairly skewed. I hope that the Minister can reassure me that the Bill and the regulations can be made to work more even-handedly. I beg to move.
10.15 p.m.
The Lord Bishop of Hereford: I do not like the amendment because it multiplies the amount of fining proposed. I do not like that principle at all. But I like the amendment because it is about the principles of
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reciprocity and equity. Those principles are conspicuously lacking in the Bill, which is one of the reasons why it has been found so unacceptable in so many quarters.
I do not expect that we shall debate Amendments Nos. 74 to 76 this evening. They deal with another area where reciprocity and equity will come into play. If we relax the time-scale—there are good reasons for doing so in those amendments—the NHS authorities will seek a reciprocal relaxation of the targets that they are expected to meet in treating acute cases. It is important to get the balance right. I support the amendment because it is about equity and reciprocity. However, I hope that it will not be necessary, because I do not want to see yet another fining process introduced to the system.
Baroness Greengross: I strongly support the noble Earl, Lord Howe, in this amendment. A reasonably simple way for the Government to demonstrate their even-handedness would be to include in the Bill a provision along those lines. I hope that the Minister will tell us that he can.
Baroness Finlay of Llandaff: I reiterate briefly the need for reciprocity. The last thing that I want is additional fining, but it is important to remember how vulnerable patients are, and that they may, once they get home, disclose information to carers that they will not have disclosed to NHS staff. Therefore, redress needs to be available to those providing care if the assessment from the hospital has been inadequate.
Lord Hunt of Kings Heath: The enthusiasm of the noble Earl, Lord Howe, for this Bill is overwhelming. He continues to sing his sad song, even though the Bill essentially seeks to establish a much tougher framework in which to get statutory authorities to work together effectively.
I understand why Committee Members feel that the Bill is unduly weighted towards local government. I am sorry that they have that impression. It is so drafted because of how legislation needs to flow, and because it is our view that the pressures and impediments on the National Health Service are all geared towards it ensuring, and having the incentives to ensure, that it approaches the discharge of patients as effectively as possible. Among those pressures are the performance management system and the performance indicator system, which impacts on star ratings. I did not agree with the suggestion by the right reverend Prelate the Bishop of Hereford about the relaxation of waiting-time targets, but he was right to suggest that those targets are one of the pressures that bear heavily on acute trusts. Equally, the financial flows, which no doubt we will discuss tomorrow, will be another incentive. If the health service messes up the system and there is an increase in readmissions, it will have to pay for it.
I say to the noble Earl, Lord Howe, that the point about the regulations is that they are in draft form. I shall consider carefully his comments. I wish to ensure that the relevant local authority is informed as soon as possible of any changes in the circumstances of a

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patient. Paragraph 8 of the regulation builds in greater flexibility for the local authority. It makes it clear, for instance, that a day will not be treated as part of the delayed discharge period if the local authority is ready to provide the services by 11 a.m. on the day after the proposed day. In other words, in the case of a three-day period, the local authority will not incur a penalty if it has the services in place by 11 a.m. on the fourth day. That is a distinct advantage to the local authority. I recognise that noble Lords will need time to study the regulations, but I emphasise that we are keen to listen to comments and will reflect on them before we come to lay the regulations in full.
The amendment proposes a penalty. If the patient is delayed because of some failure by the NHS, the social services authority would not incur any reimbursement charge, as the delay would not be its responsibility. The Bill is being misread as being one-sided towards local government. In effect, the NHS will already pay a charge in such cases because it will be providing care, board and lodging for an additional day or additional days and will not be able to recoup that cost from personal social services. There is also an opportunity cost, as the bed will not have been freed up for another patient.
Another reason why the NHS might fail to discharge on the due day could be that the patient's condition had changed. It is probable, in such a case, that that would be obvious before the day of discharge. In that case, either the NHS would withdraw the Section 3(9) notice and notify the social services of a new discharge date in a new notice or the hospital might decide to withdraw the Section 2 notice because the patient's condition had changed—deteriorated, perhaps—considerably and a new assessment was required. The noble Earl, Lord Howe, is right to make the point that it must be clear that the Health Service has a responsibility to notify and inform social services as soon as possible after any material change has taken place. I will seek to make that clear in the guidance that will accompany the Bill.
Earl Howe: I thank all noble Lords who spoke in support of the amendment. To the right reverend Prelate, I say that one man's fine is another man's reimbursement. I suppose that that is the way of things throughout the Bill.
I remain unconvinced. I do not see why the arrangements must be quite so one-sided. Local government, as I said, might say that it had a legitimate cause for complaint against the NHS because of the length of in-patient waiting lists, which burden local government finances in ways that cannot be recouped from the Health Service. It is swings and roundabouts. The Bill is designed to lift some of the burden from the NHS. Sometimes, we should think of the burden incurred by local authorities.
The point about the flexibility allowed by paragraph 8 of the regulation—what counts and does not count in the delayed discharge period—was not really the one that I wished to highlight, although I accept what the Minister said about that. As the noble Lord will
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have gathered, the thrust of my remarks is that, whereas when the NHS incurs nugatory costs the local authority, in effect, pays for those under the terms of the Bill, when local authorities incur nugatory costs because of the failure of the NHS to communicate, those costs are borne by the local authority. That is decidedly unfair.
Nevertheless—
Baroness Barker: I know that this is perhaps somewhat unusual, but I anticipate that the noble Earl, Lord Howe, is going to withdraw his amendment at this stage. Before he does so, during earlier discussions the Minister made a very significant statement: that this Bill applies to NHS services carried out in hospitals abroad. At the moment that means in France and in Germany. That was such a gobsmacking statement that we on this side of the House were somewhat taken aback.
When one considers the potential implications of the remarks made by the noble Earl, Lord Howe, whose amendment, I believe, was framed in relation to establishments in this country, it becomes a matter of a different degree. I am sure that the noble Earl will withdraw the amendment, but I sense that before the Bill completes its passage through this place, we perhaps need further illumination from the department as to exactly how the relationship and responsibilities between social services departments in this country and hospitals abroad will work. I apologise for interrupting, but I offer that to the noble Earl, Lord Howe, as an issue to consider alongside his other comments.
Earl Howe: I am extremely grateful to the noble Baroness, Lady Barker. That is a point which we must not lose sight of. I, too, was extremely surprised by the Minister's answer as regards NHS patients being treated abroad. It would be of enormous help if between now and Report stage the Minister were able to enlighten us and give further details on that aspect of the Bill. We shall want to think through its implications.
As time is moving on, it remains for me only to thank the Minister. Although I reserve the right obviously to return to this matter at a later date, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 65 and 66 not moved.]
Baroness Andrews: I beg to move that the House do now resume.
Moved accordingly, and, on Question. Motion agreed to.
House resumed.
House adjourned at twenty-nine minutes past ten o'clock.