HL Deb 17 February 2003 vol 644 cc985-1010

House again in Committee on Clause 2.

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 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". 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 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 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 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 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 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 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.

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 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 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 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 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 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.

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.

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 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 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.

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.

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 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 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 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.

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 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 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 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 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.


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.