Community Care (Delayed Discharges etc.) Bill

HL Deb 10 March 2003 vol 645 cc1147-84

5.29 p.m.

Consideration of amendments on Report resumed.

Baroness Barker moved Amendment No. 4: Page 2, line 10, at end insert— ( ) a patient has limited mental capacity, a procedure exists to appoint an independent advocate.

The noble Baroness said: My Lords, we now make the transition from important international matters to rather more mundane domestic matters. Nevertheless, I believe that we return to an issue that is important and which deserves the fair consideration of this House.

With Amendment No. 4 we turn to an issue that was debated, although not to any great extent, during Committee stage—mental incapacity. Frequently, noble Lords make the point that in this country we do not have comprehensive legislation about the care of people who have reduced mental capacity—legislation that would enable a health or welfare attorney to be involved in decision-making when people are mentally frail and cannot take decisions for themselves.

Amendment No. 4 attempts to ensure that people who lack the capacity to make an informed decision are not just automatically referred to social services. Currently, there is a gap in the legal definitions of "capacity" and "protection". This is one of many instances where we address that gap. At present if a patient is unable to give consent—and I am very glad that the House took the decision that consent was required—relatives can be consulted, but no one can consent on the patient's behalf to such a referral. It is good practice to consult with relatives and carers about their knowledge of what a patient might want.

The amendment allows for existing statutory procedures for advocacy and surrogate decision-making to be brought into the framework of discharge planning. As we have said previously, fines will make a significant change to the context in which decisions about discharge take place. We on these Benches are concerned that the most vulnerable people in our society do not become—in the words of many noble Lords—"commodities".

Most patients and many carers do not realise that if they disagree with a decision they have the right to request a panel review, in particular, when the decision is that they no longer require NHS continuing care and that their discharge will be "safe". We debated the matter in Committee. Ministers talked about the issue being addressed by guidance and by common law pre-suppositions. However, the majority of good practice issued by the Department of Health is general guidance, which is not issued under Section 7 of the Local Authority Social Services Act 1970. There is no specific provision in the National Health Service Act 1977 which clarifies the status of such guidance.

As regards the issue of consent, in Committee, the noble Baroness, Lady Andrews, said that informed consent is a legal doctrine that has been developed by the courts over a number of years, particularly in the context of medical experimentation. It is hard to see how it applies to the situation of delayed discharges and the patient's onward journey into further care. It is therefore important to remember, as the noble Baroness said, that the NHS does not have the right to force services on to a patient. That is correct in so far as surrogate decisions can be made when a patient lacks the required mental capacity.

We all know in this country that there is a growing incidence of dementia, in particular of Alzheimer's disease. It is important that those people are subject to specific protection when the complex issue of discharge and future care is being considered. That is important because the Alzheimer's Disease Society has reported incidents of patients being discharged from hospital having suffered a lack of personal care.

The Alzheimer's Disease Society's report of, I believe, two years ago, cited incidents of people with Alzheimer's leaving hospital malnourished. It was not that they had not been given food, but they had not been fed. The food would be brought and left at the end of their beds. It would be assumed that because they had not touched it they did not want it. They did not touch it because they did not know it was there and what it was. That occurrence is not widespread but is on the increase. In that context it is important that we should consider having a requirement for an advocate for someone who does not have the mental capacity to make the informed choices that they would otherwise make. For those reasons, I beg to move the amendment.

Baroness Andrews

My Lords, I am very sympathetic to the noble Baroness's intention in tabling the amendment. She spoke about patients with Alzheimer's disease. That and of her appalling cases of bad practice must be addressed. They go beyond the issues of advocacy and to the heart of good nursing care and good care in hospitals in general. The amendment addresses the reality that there will be cases where patients are unable to express a preference for themselves. The normal way to proceed in such cases is for the NHS or the local authority to act on the preferences expressed by a carer in the same way that they would on the patient's own wishes.

There is no statutory guidance to the 1977 Act because the NHS does not issue statutory guidance: directions are issued and action is taken in that way. It is not surprising, therefore, that there is no statutory guidance per se. However, there is a long-standing principle in common law that public bodies must act in the best interests of people whose capacity to consent or understand the reason for certain treatment is diminished. It is reasonable to expect that the NHS and councils will continue to abide by that principle. Nothing in the Bill undermines it.

The point that this may not always work has already been recognised. We have put a new premium on patient involvement because we believe that that is better than appointing advocates for different purposes. The Department of Health already recommends that the NHS and councils should consider making independent advocacy available to service users. That can he where there appears to be a conflict of interest or opinion between the patient and their carer, or where the person involved needs this kind of support—for example, if the patient suffers from dementia or has a learning disability. Therefore, in the cases cited by the noble Baroness a procedure already exists.

In Committee, I spoke about the development of patient advice and liaison services. It is very important to recognise that it is a new development, which is definitely accessible and available in the NHS and does not need to be searched for. I know that the noble Baroness has some personal experience of the usefulness of such services. Where appropriate, PALS can refer to independent or specialist advocacy services. For hospital patients with a concern about their assessment for social care, they can provide a first point of contact. However, local authorities are required to inform people of what to expect in dealing with them and to provide information about their entitlement to services and how to complain. That is set out clearly in our Better Care, Higher Standards, published in 1999, and in Fair Access to Care Services, issued in May 2002.

I am pleased to be able to say that progress with PALS has been sustained across the country. We now know that 90 per cent of the country is covered by the service. Obviously, it will be monitored to make sure that it is working as well as we expect. However, I hope that the noble Baroness will accept that, in the absence of a specific advocacy service, we have acted to put in place an accessible and useful procedure for the patients and their families under these circumstances.

Baroness Barker

My Lords, I thank the noble Baroness for her characteristically thoughtful reply. I do not wish to go over the many arguments about PALS that have taken place in your Lordships' House. I shall ask the Minister about the independent complaints advocacy service. My understanding is that ICAS is at the moment in a pilot phase. I think there is an issue about its continuance. Perhaps the noble Baroness can write to me on that.

Baroness Andrews

My Lords, I am advised that the ICAS will be in place nationally on 1st September,

Baroness Barker

My Lords, I hear what the noble Baroness says; I am not sure in what form it will be in place, but that may be a discussion for another day.

I remain concerned that a service that has more to do with helping people to find their way in a practical way around the NHS day to day—as is PALS—is perhaps not the level of service needed. I have listened to what the noble Baroness said; I shall study her reply; and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 5 and 6 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 7: Page 2, line 22, at end insert— ( ) Before giving a notice under this section the responsible NHS body must consult—

1. (a) the patient; and
2. (b) if the body is aware of the identity of a person who )s a carer in respect of the patient and it is reasonably practicable to consult him, that carer."

On Question, amendment agreed to.

Baroness Andrews moved Amendment No. 8: Page 2, line 23, leave out subsection (4).

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 9 and 25. In some respects, the amendments are a tidying-up measure. In others, they are a response to concern expressed by noble Lords for greater clarity. In any event, I apologise to your Lordships' House that they were not available earlier.

The tidying-up elements derive from the fact that additions to the Bill have made Clause 2 over-long. Moreover, it has become more difficult to follow all the steps with reference to a Section 2 notice, the circumstances in which it will be issued and withdrawn and, indeed, the circumstances under which a fresh assessment will be made. So the three amendments bring those elements together in a new clause that includes within it the provisions of what was previously Clause 3(7). Amendment No. 25 therefore removes the repetition between existing Clauses 2 and 3 and the new clause.

The new clause also contains two changes that have been made to clarify the conditions under which Section 2 notices will be withdrawn. Again, that is in response to concerns raised in Committee. Given the possibility for confusion when reading between old and new clauses, perhaps I should explain what the changes involve. I shall try to do so as clearly as possible.

New Clause 2(3) now gives NHS bodies a blanket power to withdraw the Section 2 notice. That replaces and widens what was formerly in Clause 3(7). The regulation-making power under new subsection (3) enables regulations to set conditions under which a notice may be withdrawn. Those are circumstances in which the NHS will need to use its judgment about whether the services originally prescribed continue to be appropriate—in large measure, because they are no longer sufficient to meet the changing needs of the patient. That was previously covered in Clause 3(7) by the term, "change of circumstances".

However, under Clause 3(7), the regulations were limited to prescribing circumstances in which the notice might be withdrawn. We have now gone further. New subsection (5)(b) specifies that the regulations must also contain reference to circumstances in which the notice must be withdrawn.

There are a relatively limited number of examples of such circumstances, but we have been concerned that if it were only left to the NHS judging—or remembering—to withdraw notices, it might not happen. For example, we want to remove the possibility of a patient having died or left hospital without social services having been informed, entirely through oversight.

Sadly, that is not such a far-fetched example; such things have happened; but we believe that the new provision will ensure that there is a clearer requirement for proper communication between health and social care partners. As I said, circumstances that may be specified in the regulations as falling within the category that would require early discharge include a rapid recovery or significant change in home circumstances—for example, a patient being taken care of by a relative who had not previously been identified.

Noble Lords will also note the term "fresh notice" in new subsection (4)(b). That has been included in response to concerns that the previous term used in Clause 3(7)—"further notice"—was insufficiently clear. The subsection covers instances in which the notice would cease to have effect before the patient was discharged. Examples include where circumstances take a turn for the worse and the patient deteriorates or has a relapse that keeps him in hospital; or where his home circumstances are no longer appropriate—perhaps following the death of a spouse or a carer having to leave for some reason. In those circumstances, a fresh notice may need to be issued. That provision leaves the NHS and social services in no doubt of their duty.

The final change in new subsection (5)(a)(ii) is also proposed in response to earlier suggestions that we had not been as specific about the nature of a withdrawal of a notice as we had been about initial notification. That change will ensure that the regulations will require a similar clarity of communication in the manner in which notices are to be issued and withdrawn. Under that subsection, the NHS will have to be clear about the circumstances that dictate withdrawal of a notice and ensure that social services are fully informed.

The amendments are slightly complicated, but I hope that noble Lords will accept that we have tried to respond to legitimate concerns to clarify and expand on Clause 3(7). I beg to move.

5.45 p.m.

Earl Howe

My Lords, I am most grateful to the Minister for explaining the amendments, which are welcome because they address at least some of the concern that I and other noble Lords expressed in Committee about the Bill's lack of fairness in its treatment of local authorities. It cannot be reasonable or right that a local authority, having been served a Section 2 notice, should proceed to put together a care package—with all the time and effort that that involves—only to discover that, unbeknown to it, there has been a change of circumstances and the patient no longer requires community care services after all, or requires different community care services. There must be proper communication and a duty on the NHS body to communicate to ensure that local authorities do not incur nugatory costs. I am pleased that that point has been recognised.

Of course, we do not have the draft regulations before us, but the Minister's comments suggest that there will need to be a tight procedure in hospitals to determine whether a patient's circumstances have changed—and, if so, in what way—so that the original Section 2 notice does not simply run on by default for longer than necessary. I hope that the Minister will confirm that regulation will specify a procedure to review Section 2 notices at set intervals—perhaps daily—and for the conclusion of those reviews to be recorded, along with the reasons for them.

If there is not such an automatic trigger or process for formal review, hospitals will let matters run on, ignoring what the local authority may be doing to organise a care home place, home care, or whatever, and leaving the withdrawal of the Section 2 notice until the last minute. The regulations must force the hospital to be proactive rather than reactive. I hope that the Minister will agree to ensure that that is done.

What happens if the NHS body fails to act as it should where Section 2 notices must under the regulations be withdrawn? What happens if the local authority incurs fruitless costs and has legitimate cause for complaint against the hospital for not having informed it of the change of circumstances? Can that matter be brought before a dispute panel? Will the local authority be able to claim reimbursement of its costs from the hospital? Frankly, I do not see why it should not be able to. The system is being set up to try to relieve the NHS of unnecessary costs. Why should the principle not be recognised when local authorities are affected by it as a result of NHS negligence?

Baroness Barker

My Lords. I thank the noble Baroness for her further clarification. It is extremely welcome, particularly at this time, when health and social care agencies are learning the lessons of the Climbie inquiry. I wish to ask two questions. The first, which we discussed to an extent in Committee, is the form that the notice will take. Will it be given by consultants, or will it be appended to patients' notes? The second relates to the issue of a named person. Sometimes, when discharges go wrong, a key factor is lack of understanding between the care agencies as to who they should deal with in an acute hospital—for example, is it a consultant or a discharge officer? Is it possible to take the welcome clarity a step further?

Baroness Andrews

My Lords, I understand that the form of notice is still under discussion. I shall let the noble Baroness know as soon as we know the outcome of deliberations. The person responsible for discharge is named in the regulations, so I hope that the noble Baroness is satisfied on that point.

I cannot answer the question raised by the noble Earl, Lord Howe, on the set intervals for review under the regulations, not having had advance sight of the regulations. But we will come back to him on the matter, as we will on reimbursement. I commend the amendment to the House.

On Question, amendment agreed to.

Baroness Andrews moved Amendment No. 9:

After Clause 2, insert the following new clause—

"NOTICES UNDER SECTION 2: SUPPLEMENTARY

(1) A notice under section 2 remains in force until the patient to which it relates is discharged, unless it has previously ceased to have effect by virtue of subsection (2) or (3).

(2) The responsible NHS body may withdraw the notice by giving notice of withdrawal to the responsible authority.

(3) Regulations may prescribe other circumstances in which the notice ceases to have effect.

(4) If the notice ceases to have effect before the patient is discharged—

1. (a) no further steps under section 3, (Duties of responsible NHS body following notice under section 2), or 4 resulting from the notice shall be taken and no liability (or further liability) to make a payment under section 4(4) shall accrue; and
2. (b)the responsible NHS body may (subject to section 2(1)) give a fresh notice under section 2 in relation to the patient;

but paragraph (a) does not affect any liability which accrues before the notice ceases to have effect.

(5) Regulations may provide for—

1. (a) the form and content of—
1. (i) notices under section 2; and
2. (ii) notices of withdrawal under subsection (2), and the manner in which such notices are to be given;
2. (b) circumstances in which notices under section 2 must be withdrawn; and
3. (c) determining the day on which a notice under section 2 or a notice of withdrawal under subsection (2) is given (including provision prescribing circumstances in which a notice under section 2 is to be treated for any specified purpose as having been given on a day other than that on which it was in fact given)."

On Question, amendment agreed to.

Clause 3 [Duties arising where a notice under section 2 is given]

Baroness Barker moved Amendment No. 10: Page 2, line 39, at end insert "and there has been a decision made that the patient will not require continuing NHS health care other than services provided by the NHS under section 3(8), and a record made of why the patient is considered not to meet each of the criteria for such care, and the patient has been informed of his right of review of this decision.

The noble Baroness said: My Lords. NHS continuing care has been an important issue for several years but has come to prominence in the past two weeks because of the report by the health ombudsman, NHS Funding for Long Term Care. Many discharged patients simply do not receive the continuing NHS-funded care to which they are entitled. In many cases, either the local authority or an individual ends up paying for care when the responsibility should lie with the NHS. At present, people can be treated very differently even though their circumstances—for example, the state of their health—may be similar.

It is unfortunately necessary for me to talk at considerable length about the matter. There is increasing confusion between terms with different meanings, such as NHS continuing care and nursing care. It is important that the distinction is clarified. When the discharge of a patient is reviewed, there should be an assessment for continued NHS care, with a record of how any decision has been reached, prior to any assessment by social services. This amendment, combined with a later one on the single assessment process, is designed to achieve that. Unless the initial decision is correctly made, social services could take responsibility for people who should remain the responsibility of the NHS. Although that applies equally to people who require NHS care when they are at home, it is particularly applicable to care in nursing homes.

The issue is much wider than delayed discharges. But it is essential that Parliament looks at the matter, particularly during consideration of this Bill, given the ombudsman's report. The report highlights the deficiencies in deciding when a person should be fully funded by the NHS in a nursing home and remain its responsibility, even if he or she no longer needs to be in hospital. Local authorities need to be clear that the NHS criteria used locally should be in line with the law and guidance and properly adhered to in the decision-making process. If that does not happen, local authorities might take responsibility for people whose needs are beyond the scope of a care package. They may incorrectly face fines if there is a delay in provision of social care.

We suggest that an independent body be given powers to scrutinise the criteria for NHS continuing care and its application. That would achieve consistent criteria and consistency of criteria application across the board. Such a change would be in line with the health ombudsman's recommendation to ensure that the NHS keeps clear records on how initial decisions are made on whether continuing NHS healthcare is needed. The Bill should be used to establish a duty to carry out an independent scrutiny of the criteria for NHS continuing care and its application. The Bill would also establish a clear path for patients who disagree with a decision that they do not require continuing NHS healthcare and a fast-track dispute system for patients.

The boundaries between NHS continuing care, which is free of charge at the point of use, and care provided either by social services or a self-funder are grey. However, it is a huge issue with huge ramifications for the NHS, social services and patients. The health ombudsman made clear in her recent report that there may be a widespread problem and considerable financial loss to individuals, given the cost of paying for care that should be funded by the NHS. The role of social services as a provider of long-term care is limited by statute to accommodation and ancillary services. It should not provide care services that relate to healthcare needs. Although nursing care provided by registered nurses is now the legal responsibility of the NHS, the funding regime provides only a contribution to free nursing, which is often absorbed in higher nursing-care needs; otherwise, the costs of long-term healthcare are in the main met inappropriately and sometimes unlawfully by social services charges.

In 1994, the then health ombudsman found that the NHS had retreated too far from providing long-term care. As a result of those findings, new guidance was issued by the Department of Health in HSG 1995/08. That set out the framework within which the then health authorities were to develop their own criteria for continuing care. When concerns came to light that some criteria were operated over-restrictively, further guidance in the form of an executive letter was issued.

In 1999, the Court of Appeal in the Coughlan case found that although the law allowed social services departments to take responsibility for some nursing care when a person was in a care home, it depended on whether it was, (i) merely incidental or ancillary to the provision of the accommodation which a local authority was under a duty to provide", and/or, (ii) of a nature which it could be expected that an authority whose primary responsibility was to provide social services could be expected to provide".

The Court of Appeal was clear that just because a resident at a nursing home does not require in-patient treatment at a hospital does not mean that his or her care should not be the responsibility of the NHS. Some, because of their health needs, should be regarded as wholly the responsibility of a health authority. The Court of Appeal went on to say that the difficulty is in identifying the cases which are required to be placed in that category on their facts in order to comply with statutory provision.

The issue is the degree of care that can be described as being only ancillary or incidental. Noble Lords will know, because they have spent many hours during the passage of different Bills discussing it, how difficult it is to draw that distinction. However, in her report, the ombudsman made two important findings: first, the guidance issued by the Department of Health is unclear; and, secondly, the local policies operated by health authorities include criteria that may be applied differently to people who have similar needs.

We have tabled the amendment now because, when people are being discharged from hospital, it is of fundamental importance that there should be an assessment of their continuing NHS care needs. They should have a right to appeal against any judgment not just on the basis of the application of the criteria but on the basis of the criteria themselves. In another place, on Report, the Minister, Jacqui Smith, said: the first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care … If patients want to dispute that, they can appeal to the continuing care panel".—[Official Report, Commons, 15/1/03; col. 741.] Although that is a welcome assurance, the health ombudsman's report indicates that there are two further issues: the decision that a patient does not require continued NHS healthcare could be flawed if the criteria are too restrictive; and the application of those criteria may be incorrect.

The ombudsman's report refers to the cases of people who are being denied continued NHS care when their healthcare needs are almost identical to those cited by the Government as making them eligible for the highest band of nursing care. It would be a positive step to have records of how decisions are made and to have clarity in the Bill about the dividing line between NHS-funded care in nursing homes and continuing care. At the moment, there is great confusion, and people are being treated differently—almost by lottery—from others who have exactly the same condition.

There is one more reason for addressing the issue now. Throughout my speech, I have spoken about health authorities, and all existing legislation refers to health authorities. However, the question of who is responsible for making the assessment for NHS continuing care is of key importance. It will no longer lie with health authorities—in future, it may lie with foundation hospitals—and it is important that the process by which the decision is made is clear and complies with national criteria. That is why we move the amendment. I beg to move.

6 p.m.

Baroness Chalker of Wallasey

My Lords, I support the amendment moved by the noble Baroness, Lady Barker, because of recent experience of trying to help an old friend who has faced exactly the circumstances that the noble Baroness described.

The greatest problems are found in cases of mental ill health, in which there needs to be the continuing prescription of fairly heavy drugs to prevent self-injury or injury to others. Social services are fond of declaring that they do not have the resources to look after such persons and that they do not have placements into which they can securely be put. In the case of a person who is sectioned and must remain in locked accommodation with nursing care, there is an ongoing battle that is revisited every six months or so by the social work department because the NHS is unwilling to pay and social services say that they do not have the money. We should not allow such a circumstance to continue. It has created great trauma in the case of a man who has tried four times—on home leave or when they tried to let him go home from hospital—to commit suicide in front of his wife. The social worker said that he needed neither nursing care nor secure care, when the consultant psychiatrist claimed that he did. That shows how bad circumstances have become.

I shall not pursue the matter at length, but, many years ago, when I dealt with such cases, we usually found an easier way to resolve matters. That may have been because I was in another place, not here. Now, it is becoming a fight. In the case to which I referred, the carer has a sick husband—a highly intelligent sick husband—to look after and suffers greatly. The carer also looks after her 94 year-old mother. In such a circumstance, the case outlined by the noble Baroness, Lady Barker, is at one with the reality faced by ordinary people, particularly in the case of mental ill health. I hope that the Minister will respond favourably to the amendment.

Earl Howe

My Lords, I support Amendment No. 10 and have added my name to it. I am grateful to my noble friend Lady Chalker of Wallasey for the vivid light that she was able to cast on an important issue.

The recent report by the health ombudsman makes for a shocking read. I am sorry to say—it emerged clearly from what the noble Baroness, Lady Barker, said—that the Department of Health comes out of the report with little credit. Since 1995, four edicts of one kind or another have emanated from Richmond House: the 1995 guidance; an executive letter in 1996; interim guidance following the Coughlan judgment; and yet more guidance in 2001. Despite all that, the ombudsman found that at local level the criteria to determine eligibility for NHS continuing care were being followed wrongly; the criteria were, in any case, not in accordance with central guidance: health authorities had done little or nothing to remedy that; and the Department of Health, in its turn, had done nothing to hold health authorities to account for their shortcomings.

In the Coughlan hearing, the Court of Appeal found that the earlier guidance was unhelpful, because it did not provide unequivocal pointers by which the rules could be correctly implemented, hence the revised guidance that followed. But in her report, the ombudsman says: The long awaited further guidance in June 2001 gives no clearer definition than previously of when continuing NHS healthcare should be provided: if anything it is weaker … I would find it even harder now to judge whether criteria were out of line with current guidance. Such an opaque system cannot he fair". That is an appalling indictment, and it is perhaps not surprising that, despite having no formal jurisdiction over the Department of Health, the ombudsman took it upon herself—unusually—to recommend that the department took certain remedial actions.

One thing is clear: the system is an utter mess. 'We need to hear from the Minister how he thinks the system of reimbursements foreshadowed by the Bill can be brought into operation smoothly and efficiently, if the procedures for assessing a patient's eligibility for continuing NHS care are in such a shambles. The answer is that it cannot. Step 1 must be to sort that out. Even if the Department of Health were to agree with the ombudsman and decide to promulgate fresh, crystal-clear guidance, the process for drafting the guidance, consulting on it, finalising it and training people up to follow it would, at best, take several months: it cannot be done in a hurry.

Therefore, for the Government to say that they are prepared to countenance only a six month delay on the implementation of the Bill, instead of the year that the House insisted upon three weeks ago, I would suggest is pie in the sky. How can a system like that be allowed to commence when the chances of a hospital making a mistake about the need for social service involvement are so high? The financial consequences of such an error—to the local authority certainly, but more importantly to the patient—are potentially so serious that it would be irresponsible to bring the Bill into force without first resolving the issue of continuing care. I put that to the Government today as they decide what to do about the amendment made in your Lordships' Committee.

On 15th January in another place, Jacqui Smith said: The first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care".—[Official Report, Commons, 15/1/03; col. 741.] I could not agree with the Minister more. That is exactly what should happen. That is why Amendment No. 10 has been tabled. Apart from the main thrust of her criticisms, the health ombudsman was concerned that in the hospitals she looked at there was no documentation to establish how the hospital reached the conclusion that the patient did or did not fall within the criteria for continuing NHS care. Proper recording procedures in every trust are surely essential. That recommendation, too, has been followed up in the wording of Amendment No. 10.

If the provisions of the Bill are to work, the whole system must be transparent and clear to everyone—practitioners, social services and patients. Transparency of decision-making depends on clear and consistent guidance being in place. Without that, we are at severe risk of encumbering and penalising local authorities unfairly, and pauperising patients without justification. That is the issue. I hope that the Minister will take note.

6.15 p.m.

Lord Hunt of Kings Heath

My Lords, this is an important matter. It may be helpful if I respond to this group of amendments by first explaining to noble Lords how the Government are responding to the ombudsman's report. I believe that it sets the context in which we can discuss these amendments. In response to the noble Baroness, Lady Chalker, I recognise that the problems concerning the boundary between health and social care, disagreements between statutory authorities which have a direct impact on the service that people receive and the risk—as the noble Baroness describes it—of people falling through the net between different statutory authorities, must be tackled with vigour.

One reason for introducing the Bill relates to delayed discharge, ensuring that health and social care work together and that there are no gaps. I believe that the introduction of the single-assessment process is one of the great foundations of trying to ensure that there is no gap between social care and the health service and that people are not treated in the way that the noble Baroness described. Certainly, I accept that the report of the ombudsman is serious and that my department should pay a great deal of attention to it.

Perhaps I may now turn to a number of recommendations made by the ombudsman. The first question is: will the department recommend that all continuing care cases since 1996 are reviewed? In August 2002, in response to a case featured in the ombudsman's report, the Department of Health instructed all strategic health authorities to review previous continuing care criteria and agree new criteria across their boundaries. The department has reiterated to strategic health authorities their responsibility to review continuing care criteria and agree with local councils one set of criteria within their area.

On 27th February, Sir Nigel Crisp, Permanent Secretary at the Department of Health, issued an instruction to the NHS to complete its work, to agree with local councils one set of criteria for continuing care in line with the guidance issued by the department in June 2001 and to report back to the department by 28th March with details of the final criteria agreed. Each strategic health authority is required to report back to the department by that same date with details of whether continuing care criteria, in use since 1996, were consistent with the Coughlan judgment. If the criteria were not consistent with that judgment, when was that identified and what action has been taken? In addition, the strategic health authority was asked to give an estimate of the number of people who may have been wrongly assessed under criteria not consistent with that judgment. The ombudsman's report has been sent to all strategic health authorities and social service inspectorate regional offices.

As regards the current guidance and the critique of it by the ombudsman, the Government are to consider the recommendations. We shall review the guidance carefully. The ombudsman's report acknowledges the difficulty of setting fair and easily comprehensive criteria. In Coughlan, the court stated that a clear line between responsibilities of the NHS and local authorities was difficult to draw. Each case should be judged on its own particular circumstance. We shall be looking at those matters very carefully.

In respect of monitoring and checking criteria, I said that all strategic health authorities have been sent copies of the report directly. We expect them to agree new criteria which reflect the Coughlan judgment and ensure a consistent approach to the issue. The Government will pay careful attention to how that is undertaken.

I turn now to the substance of the amendments. Throughout the Bill, we have been clear in our understanding that the first decision in the assessment process is whether someone needs continuing care. That should be done by the relevant NHS body before issuing a Section 2 notice. As pointed out by the noble Earl, Lord Howe, that was emphasised by my honourable friend Mrs Jacqui Smith on Report in another place. There is no doubt that the ombudsman's report highlighted not only problems in four parts of the country, it also identified problems in the assessment process. I readily accept that trusts are not always sufficiently informed of the assessment process and the eligibility criteria. That is a point which we must take seriously.

Therefore, as a result, today I am committing the Government to ensuring that in the regulations governing the form of a Section 2 notice, the NHS will be required to confirm in the Section 2 notice that an assessment for fully-funded NHS continuing care has been carried out before that notice is issued. In making that statement to your Lordships' House today, I hope that I have reassured noble Lords that we expect the assessment of continuing care to be made first, before a Section 2 notice can be issued.

It will not then be possible for anyone who could require NHS continuing care to be discharged to social services before an assessment, informed by the single-assessment process, has been carried out. By placing

what effectively amounts to requirements on the NHS in regulations to assess the continuing care, that will make it easier for us to revisit and strengthen this provision should it be necessary. Although I have sympathy with the intention of Amendment No. 10, I do not believe that it is required in the light of the commitment that I have given.

The effect of Amendment No. 33 would be to require the commission for healthcare audit and inspection to inspect the criteria for continuing healthcare and their application, along with payments for NHS-funded nursing care, and to take action where they are restrictive.

Again, while I understand completely what the amendment is driving at, I do not think it is necessary. I want to assure noble Lords that we are already acting to ensure that the criteria for continuing healthcare are inspected. We have asked CHAI if the inspection of the national service framework for older people could include reference to continuing care within the examination of person-centred care and age discrimination. I have referred already to the review being undertaken by strategic health authorities of the continuing care criteria. We shall look closely at the reports from the health service due by 28th March.

On the application of criteria, the ombudsman did not actually recommend scrutiny of the application of criteria in the future, but she did recommend that the department's guidance should he reviewed and that the assessment of eligibility for continuing care should be linked with the single assessment process. I have already explained that we are taking measures to strengthen assessment at the point of hospital discharge and that we are already taking practical action to address the issues raised by this amendment.

There is a further reason why I would suggest that the amendment would not work well. The department's current guidance states that: The Coughlan case illustrated that decisions about the respective responsibilities of the NHS and social care must be made on the basis of a careful assessment of the facts in each individual case. This should be borne in mind at all times". The law has not changed to allow us to say anything different and any actions to scrutinise the application of criteria must remember it. Is it really feasible to review the application of criteria in every single case? Surely it is better to ensure that the framework within which these decisions are made fully reflects the Coughlan judgment. Strengthening assessment and making strategic health authorities agree new Coughlan-compliant criteria will do that.

Again, the last part of the amendment on scrutinising NHS nursing care payments is not necessary. We have the system in place already. We said in guidance that people entering a nursing home after October 2001 should have their needs assessed within three months and every 12 months after that, or when there is a significant change in their health status. A formal review can be requested if people are dissatisfied with the amount of care they are receiving from a registered nurse, and a further determination of nursing care needs carried out. The strategic health authority's continuing care panel may also review any determination of care by a registered nurse.

I should also remind noble Lords that the reason we have three bands of nursing care is to ensure that people receive the care they need. During the first 12 months of the scheme very few reviews were carried out, suggesting that any complaints were resolved at the local level. So we already have a system, with reviews on a case by case basis, to provide people with the nursing care they need.

In conclusion, I do not underestimate the importance of the matters that have been raised by noble Lords in our debate. However, my assurance is that in the regulations—the draft of which noble Lords have seen already—we shall ensure that, in governing the form of a Section 2 notice, the NHS will be required to confirm in the notice that the assessment for fully-funded NHS continuing care has been carried out. Alongside that is the action we are taking in the light of the ombudsman's report, including the review of what has happened in the NHS and the reports that will be submitted to the department by the end of March. I hope that I have been able to assure noble Lords that we are taking this matter extremely seriously.

Baroness Barker

My Lords, I thank the Minister for that full response. We all agree that the amendments cover an extremely complex area of law, one which has important implications for older people, for the NHS and for social services. I take some comfort from what the Minister has said, but in other areas I have to say that I have remaining doubts.

I am not convinced that within the timetable outlined by the Minister strategic health authorities will be able to determine whether judgments, often made by predecessor bodies rather than by the authorities themselves, will be Coughlan compliant. At the heart of the ombudsman's report the strong observation was made that both local criteria and the guidance from the department itself were insufficiently clear to enable those judgments to be made. I think I am correct that the Minister did not say that the work to be carried out prior to 28th March will be on the basis of new guidance from the Department of Health. Given that, I doubt whether it will be possible for authorities to go back and ensure that all cases dating from the time we are discussing are in fact compliant.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Baroness for giving way. The strategic health authorities were asked to undertake this exercise last August because we were aware of the import of the cases being investigated by the ombudsman. They have had a certain period of time. I hope and expect that they will respond in an effective manner.

I sought to make clear that the law is not going to change; it is a question of how the law is interpreted. On a number of occasions, we have attempted to explain, in particular to the health service, what we consider the law to be. The noble Baroness will know that in Annex C of the current guidance are set out the key issues to consider when establishing continuing NHS healthcare eligibility criteria. I recognise that the ombudsman has pointed out that perhaps those criteria could be clearer. We shall look at that. However, when considering the guidance, I think it is understandable and makes clear what is expected. Furthermore, I believe that if NHS authorities had followed the principles enunciated in the guidance, they would not have got themselves into difficulties over Coughlan interpretation. We shall see. But I do not believe that it will be an impossible task for strategic health authorities to undertake a review in the light of the current guidance.

Baroness Barker

My Lords, I thank the Minister for those words, but I have to say that his optimism is rather stronger than mine, not least because in the days following the ombudsman's report, strategic health authorities were referring people to primary care trusts for guidance on the matter. When practice on the ground is at such a level, I think that we are facing a real problem. I repeat, older people do face real problems; the ombudsman's report was all about that.

As regards the noble Lord's point about NHS nursing care guidance, his response was perhaps less than I had hoped for. The ombudsman's report made the position clear: given the similarity of the cases, it is necessary for the guidance to be revised. That may not be reflected in the number of individual complaints being made about the level of free nursing care that people have been prescribed, although I think that that has more to do with a complete lack of familiarity with the system.

I do not think it is possible to overstate the importance of this matter. The noble Baroness, Lady Chalker, was absolutely right to draw to the attention of the House the effect of this on people with mental incapacity. The case listed as "A" in the ombudsman's report referred to a person with Alzheimer's disease. The account made detailed points, such as whether it was ancillary to that person's care that he be helped with feeding, for example.

I shall go away and read in Hansard what the Minister has said. We shall return to this issue—not least because we wish to ensure that this ombudsman's report does not suffer the same fate as the previous one of being kicked into touch for a considerable time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Baroness Andrews moved Amendment No. 11: Page 2, line 40, leave out subsection (2).

The noble Baroness said My Lords, Amendment No. 11 seeks to remove from Clause 3 the current subsection (2) in relation to the withdrawal of Clause 2 notices. This is now included in the new clause that we discussed in relation to the previous amendment, which brings together all the actions associated with Clause 2 notices.

Amendment No. 27 seeks to remove subsections (8) to (10), which cover NHS duties following a Clause 2 notice. They are now included in the new clause after Clause 3, which brings together all the NHS duties—that is, duties in regard to consulting on the NHS services to be provided to the patient, giving notice of the proposed discharge date and details of how and when the notice of the discharge date should be given. I beg to move.

Baroness Barker

My Lords, I speak—I hope much more briefly than before—to Amendments Nos. 12, 17, 18, 19, 28 and 68, in which we return to the issue of the single assessment process.

We had an extensive debate about the importance of the single assessment process in Committee. I thank the Minister for the full written reply he sent to me outlining precisely the ways in which my previous amendment on the subject was unnecessary and defective. Nevertheless, I return to the issue of the single assessment process.

It is clear to anyone engaged in the help and social care of older people that the single assessment process which is being introduced will become a fundamental part of determining the care needs of older people. It is inescapable that the failure of the legislation to trigger that comprehensive assessment creates a large gap, particularly when much of what we have been discussing and other matters depend upon the single assessment process.

I remind the noble Lord that the single assessment process does not have a basis in law; it is not based in primary legislation. The constrictions in the Bill, under which market forces are being brought to bear on judgments between health and social care, will make a distinct difference to the character of the way in which decisions are made.

This group of amendments includes the issue of the responsibilities of housing authorities, a matter we have debated before. My noble friend Lady Maddock will cover the issue in greater detail.

In its response to me last week in regard to the single assessment process, the department pointed out that part of my amendment was unnecessary where continuing nursing care needs were met in a person's own home. Unless NHS-funded services are to provide social care as well—and increasingly they do not—it is important that we should reconsider the way in which the single assessment process will sit alongside that.

We are all in agreement that the single assessment process is good; some agree that it will be better when older people are actively involved in its design and implementation. It is at the crux of getting not only the right care but the best quality care for older people and it should be on the face of the Bill.

Baroness Noakes

My Lords, I speak to Amendments Nos. 26 and 29. Amendment No. 26 seeks to insert a new subsection after Clause 3(7) and requires the local authority to consider whether any other NHS body—that is, a body other than the trust concerned—should consider providing services to the patient after discharge. It also requires the local authority to provide information for that purpose.

It is a straightforward amendment. It seeks to ensure that other NHS bodies are brought into the loop. When we debated a similar amendment in Committee—which, on that occasion, required the NHS trust to consider whether other NHS bodies should be involved and provide information—the Minister said that it was unnecessary because Clause 3(8) made that implicit.

Amendment No. 26 takes a slightly different tack and seeks to place the responsibility for involving other NHS bodies on the local authority. That assumes that what the Minister told us on the previous occasion about the implicit requirement for NHS bodies to involve each other under Clause 3(8) is a valid statement.

The most important point is that the full range of post-discharge services is considered. Local authorities are particularly concerned about patients being discharged to their homes without the necessary NHS services being put in place. Without those services it is possible that the discharge home and the support provided by social services would be rendered non-viable. The amendment seeks to ensure that all post-discharge services are brought together. In that way, it is to be hoped, nothing will be forgotten. I hope that the Minister will welcome the amendment.

Amendment No. 29 is different. It seeks to amend Clause 3(8) to require the NHS bodies that are considering providing post-discharge services to agree those services with the local authority. If the Government's Amendment No. 27 is agreed to subsection (8) will disappear, but the substance of Amendment No. 29 will remain valid in relation to subsection (2) of the new clause contained in the Government's Amendment No. 34, to which we shall come later.

In Committee, the Minister revealed the anti-local authority sentiment that runs through the Bill. She said that requiring agreement would provide a loophole that could be exploited by local authorities in order to avoid fines. She seemed not to understand that, viewed from the local authority end of the telescope, Clause 3(8), which allows the NHS to assert its own will over local authorities, looks like a loophole to be exploited by an NHS eager to collect money from fines.

If I may say so, the Minister seemed not to understand that partnership working, which the Government claim to support, positively requires agreement about important matters such as post-discharge services.

Amendment No. 29 is important because partnership working is the only real solution to minimising delayed discharges. The solution is not fines; it is not notices and all the elaborate paraphernalia in this dreadful Bill. At all costs, we have to preserve in the Bill as many aspects as possible of partnership working.

Baroness Maddock

My Lords, I speak to Amendment No. 13. Earlier, the Minister said that the Bill was about health and social services working together. I wish to add home improvement services to the list.

The amendments have two purposes. First, to highlight the connection between poor health and poor housing; and, secondly, to enable the Minister to reassure me today that the issue of home improvements will be regarded as important in drawing up the regulations and the best practice guidance that will follow.

I make no apology for raising this issue yet again. Thirty years ago, I went to live in Sweden. I was very impressed by the standard of health of elderly people there. It was fairly obvious that it resulted from the fact that they lived in decent homes—homes which were warm, not cold and damp as they are in this country. Here I am, 30 years later, in Britain—one of the richest nations in the world—and, still, one in 14 of our population live in homes that are unfit for human habitation.

I shall not repeat all the statistics that I gave in Committee. I merely highlight two of them: the tendency to live in poor housing conditions increases with age, particularly after 80, and lone older women are more likely to live in unfit housing; and 1.7 million people need adaptations in their homes. There are all kinds of reasons for those facts, including poverty, frailty and disability. The one that concerns us in debating this Bill is the lack of information about the help that is available and how to obtain it.

Those assessing patients for discharge from hospital are in an ideal position to ascertain the problems of home disrepair—whether it be the lack of adaptations, general disrepair or a lack of suitable heating. They have the ability to ensure that patients are referred to the appropriate agencies. They might be referred to the warm front scheme if it is a question of heating. I am particularly disappointed that the Government are cutting the budget for the scheme this year—they are cutting the DEFRA budget. It might be a question of other heating schemes through the energy efficiency commitment that the Government have imposed on the utilities; or it might be a question of Care & Repair schemes.

There is one area about which I feel particularly incensed; namely, the inability of our services to enable older people to have a level-access shower in their homes. I draw attention to the Adjournment debate in another place on 27th January in which Helen Jackson, Member of Parliament for Sheffield, Hillsborough, spoke about this issue. She gave the frightening example of one of her constituents who had been turned down for a disabled facilities grant by his assessor because he was able to have a strip wash and was not incontinent. My mother was discharged from hospital following a knee operation. She did not have a shower. She was not able even to strip-wash herself because of various things that were happening.

I find it amazing that people still have to wait for up to a year for this type of adaptation when we know how much it costs to keep people in hospital. The cost of a shower pales into insignificance. Will the Minister assure me that this matter is being pursued vigorously by the health service in conjunction with other agencies?

In some areas home condition is taken very seriously when examining programmes where social services and health services are working together. I can recommend a particularly good scheme that was brought to my attention by the LGA in south Shropshire. Perhaps I may recommend to the Minister the work of the Care & Repair scheme in this field. It has put together good examples of best practice and guidelines to enable good discharge services, which include home improvement agencies. I hope that the Minister's department will draw on those.

When I raised this issue at an earlier stage, the Minister agreed that it was important. Will he reassure me that the health service is working to ensure that, when a patient comes into contact with the health service, that person will as a matter of course, every time, be asked about their home circumstances in order that they might be referred to the appropriate agencies as soon as possible? There are examples of good schemes up and down the country.

In this country we are taking far too long to recognise the role of poor housing in the ever-rising cost of healthcare. By recognising fully in this Bill the implications of poor housing, we can take the issue forward and help to tackle the very large backlog. It is not rocket science and it does not cost money. In the 21st century, we jolly well ought to be doing it.

6.45 p.m.

Baroness Greengross

I strongly agree with the remarks of the noble Baroness, Lady Maddock. I have heard her speak on this matter on other occasions, and I have been involved with some of the home repair agencies over the years.

A house has a life. At the stage when one elderly person is living there—usually an elderly woman living in a building that is in poor repair—a small amount of money will keep that home going for the few remaining years of the person's life. After his or her death, a young family will come into the house, invest in it and make more major repairs. In that way, it gets a new lease of life. So for a very small outlay of money one can help to keep people much healthier than is imagined for that small investment. When we talk about collaboration between health and social services, we usually forget how important housing is in making that happen.

Earl Howe

My Lords, I rise to speak briefly in favour of Amendment No. 28, which in many ways harks back to the previous group of amendments on the issue of continuing care. If a patient in hospital is assessed as needing nursing care in a care home when he leaves the hospital, it is unacceptable for that decision to be taken without its implications being fully spelt out to him. The main question that will occur to anyone in that situation is "How much is the after-care likely to cost me?"

The Government made a great fanfare about introducing free nursing care in care homes. As we now know, the reality is a little different. NHS nursing care in care homes is not always completely free. You have to find out what band you fall into before you can calculate how much it will cost to be looked after in a particular home. There is no current guidance about this. The previous guidance laid down that social services ought to, provide written details of the likely cost to the patient of any options which he or she is asked to consider … and that hospital and social services staff should ensure that patients receive written details of any continuing care that is arranged for them. This should include a statement of which aspects of care will be arranged and funded by the NHS". As I remarked in Committee, doing this for a patient is a matter of basic human courtesy, but the evidence is that in many, many cases it does not happen. The situation is compounded by the opaqueness of the rules surrounding the £110 band of nursing care compared to the criteria for fully funded NHS healthcare. Deciding who qualifies for one as opposed to the other requires a degree of insight denied to most mortal men. It baffled the health ombudsman and I think we can safely say that it would baffle most of us.

This really has to be sorted out before the Bill comes into effect. I am delighted that the Government have recognised in an explicit way the importance of consulting the patient, but I ask the Minister: how is it possible to consult the patient about his aftercare in the truest sense of the word "consultation" if you cannot, in so doing, tell him the basis on which he will need looking after and who will be responsible for doing what? That is the issue in Amendment No. 28. I hope that the Minister will feel able to respond sympathetically.

Baroness Finlay of Llandaff

My Lords, I support the remarks of the noble Baroness, Lady Maddock, in regard to the importance of home improvements. We have heard about home improvements in terms of whether someone is eligible. A further point is that they must be timely—they need to happen early, not late. There are many patients who have neurological diseases which are slowly progressing. If those patients are to be returned home and are to benefit from home improvements, the improvements must happen quickly; otherwise, the tragic situation arises—as we have heard in meetings with groups outside this Chamber, particularly from those with motor neurone disease—that by the time the patient has the home improvements done, his or her condition has deteriorated so much that he or she cannot benefit fully from them. Home improvements always lag behind the clinical condition. The costs of care then escalate enormously. The care services are never freed up from providing care because the improvement is not in place that would have relieved the burden on them and would have maintained people's independence for weeks, months or, one hopes, even years longer.

Baroness Andrews

My Lords, we have had a series of interesting and important discussions on this group of amendments.

On Amendment No. 12, the noble Baroness, Lady Barker, was quite right that we have high expectations of the single assessment process. It is an extremely important step forward. Particularly important is that it puts patients at the heart of the assessment process. It is very explicit in taking account of their needs and wishes. I take her point about involving them in the design and implementation of the guidance. It is not yet fully operational but I hope that as it evolves there will he opportunities to do just that—it makes perfect sense. The guidance brings together the health and social care professionals. It was issued as Section 7 guidance, which means that it must be acted upon.

In relation to the amendment, I am glad to say that the process already extends to hospital settings. It will be the means whereby assessment of all care needs over and above clinician diagnosis and discharge planning is undertaken in hospital settings for older people. We know that good work is being done on rolling out the process.

The noble Baroness made a plea that we put the amendment on the face of the Bill to act as a trigger. We have already put the local authority's duty to carry out a Section 47 assessment on the face of the Bill in Clause 3. All assessments under Section 47 will be made by way of the SAP. Having that in the Bill makes it clear that everything will be a Section 47 assessment, which is linked to the SAP. I understand why the noble Baroness makes such a strong case for this proposal, but it is not necessary because the provision is so clear in the Bill.

When my noble friend Lord Hunt wrote last week to the noble Baroness with details of how the Department of Health emphasises to the field the importance of adherence to the SAP, he spelt it out in some detail. Because of its importance, it comes under Section 7 guidance, and any attempt to avoid compliance would be quickly picked up by the strategic health authorities and the social security inspectorate.

We are encouraged by the fact that our scrutiny so far suggests that the field has taken the SAP to heart and is dealing seriously with it. That suggests that it is going with the grain of the very best practice and that people are happy to put it into effect. I hope that the noble Baroness will agree with me that it is not necessary to list the responsibilities again here. However, it will be made clear in the official guidance accompanying the Bill that the SAP is the fundamental means of assessment and that it must be followed.

Let me turn to the speeches of the noble Baronesses, Lady Maddock, Lady Greengross and Lady Finlay. The noble Baroness, Lady Maddock, made a powerful speech about the need to link home improvement services to the discharge process. Nothing divides us on the importance of this. The examples given by the noble Baroness, Lady Maddock, were as powerful as the ones she gave in Committee. At that stage, I said that we would be looking at how we could reinforce the guidance to make it certain that social services authorities would identify housing needs, informing their housing counterparts and working together to ensure that what could be done was clone. Under the Bill, social services are required to consult where there is a housing need. The responsible authority, as defined in the Bill, will not always be the housing authority, so we have to make provision for that communication to take place. I should like to reinforce what I said in Committee and to give the noble Baroness the assurance that she seeks.

We have responded to the need in a very specific way. We have put in new resources. We are aware of the difficulty of putting the disabled facilities grant in place in some local authorities. There is no question but that there are delays. However, we have put new plans in place. On 23rd July 2002, the Secretary of State said that part of the package financed through additional funding for social services would be a 50 per cent increase over the 1997 total in the number of extra-care housing places—very sheltered accommodation. The noble Baroness, Lady Maddock, spoke about home improvement agencies, and the noble Baroness, Lady Greengross, referred to the cost-effectiveness of installing a walk-in shower. A walk-in shower costs about £5,000 so that would come under the DFG. Some of the other very small adaptations, which are extremely cheap and make all the difference in the world, come under the CSDP Act. We want to see the point of connection being made between the social services and housing authorities when they are looking at the sort of conditions that elderly people will go back to when they are discharged.

Baroness Maddock

My Lords, what concerns me is that there are all sorts of services to which people can be referred. The Government say that they will talk to housing authorities, and so on, but it is becoming second nature to know where to refer people. It is not always to the local authority—other agencies are doing it.

Baroness Andrews

My Lords, the assessment process is designed not to make a virtue out of referral but to make something happen. It brings people together. The noble Baroness is absolutely right that this is a point at which information can be usefully exchanged. It may in fact be the first time that some of these people have talked to each other. We expect something to happen arising from that.

Following the Secretary of State's announcement on 23rd July regarding older people's services, we will in due course be announcing details of a special grant to local councils to expand community-based social care services. That will include a specific ring-fenced investment of £9.5 million over the next three years in HIAs to contribute to reductions in delayed discharge by the prompt supply of minor housing works. So direct action is being taken. Similar funding is also being made available by the ODPM. I should prefer to write to the noble Baroness about that and about the recent joint work between the ODPM and the Department of Health about the guidance. I will circulate that.

In practical terms, we know that very few discharges are delayed entirely for housing reasons, but obviously they have a direct influence on many situations. I hope, given that assurance, that the noble Baroness will accept that we have entirely taken her point.

Amendment No. 17 would remove the words "if any" from Clause 3(3)(b). The words are there because the clause requires the local authority to consult the NHS and then decide what services it will provide. There may be circumstances in which no services are necessary, perhaps because the patient has made a complete recovery. We must make it possible for the local authority not to provide services. Therefore, the insertion of "if any" provides clarity on the face of the Bill that it is valid for the local authority to provide no services. On that basis, I hope that noble Lords will feel able to withdraw their amendment.

Amendment No. 18 would insert the words, whether acting as purchaser or provider". I presume that that is intended to clarify what is meant by the local authority deciding whether to make services available. We do not think that that adds much value to the clause because the term "make available" simply indicates that the social services are ready to comply and that the services are ready and available. There may be reasons why the services are not provided on the day of discharge—for example, the housing provision may not have been made—and the patient cannot be discharged, but we believe that "made available" encompasses preparation and availability.

Amendment No. 19 would add: commensurate with the patient's needs". Assessments carried out by the NHS or local authorities are not simply an academic exercise. The point is that the patient's health or social care needs should be met. As public bodies, local authorities are under a public law duty to do that, but there is a clear statement in the single assessment process that this is a system of care management that covers assessment, planning and service delivery. That package of care will test and secure good working relationships between all the health and social care professionals involved. The Bill reinforces that by requiring the local authority to consult the NHS when it is planning the patient's care package. It means mutual information and a commitment to making sure that the patient's needs are met. We have backed that up with a wide range of extra resources for the NHS and social services in relation to discharge.

We have tabled Amendment No. 24 to make the Bill fairer to local authorities and clearer and more sensitive to individual circumstances. I hope that it mitigates to some extent what the noble Lord said about our unfairness to social services. We already have the power in regulations to begin the assessment process again if the situation changes so markedly that what the NHS or social services planned to provide is no longer enough. That has gone into our new clause. The amendment covers a situation in which, during an extended hospital stay, the patient's condition improves beyond expectation, or perhaps their personal circumstances change so that they will find a relative in support when they go home. In those circumstances, a completely new assessment is probably not necessary, but the patient does not need all the services that social services had planned to provide. For example, a patient who has had a stroke and has a poor prognosis in the early days may make a rapid recovery and may not need physiotherapy that had been planned. The amendment allows social services, after consultation with the NHS, to change their decision about what services to provide to enable a safe discharge. It builds in flexibility and sensitivity to changing needs. Given the proviso that the local authority will not be able to make such a change without consulting the NHS body, I hope that noble Lords will accept that.

Amendments Nos. 26 and 29 are intended to cover the provision of services by other NHS bodies, such as primary care trusts, and to require that the relevant bodies agree with each other. I am afraid that we still feel that the amendments do not add anything to what is already in the Bill. They would require the NHS body to consider whether any other NHS body should provide services. The NHS body already needs to consider whether the trust or another NHS body has to provide services to the patient on discharge. Clause 3(8) states that the responsible NHS body, and any other NHS body that will he involved in providing health services, will need to consult the local authority. That will primarily be the primary care trust. The noble Baroness is right that the full range of services considered necessary should be available. The PCT will be providing those services and ensuring that, whether it is physiotherapy, speech therapy or dressings to be changed, the nursing support is there, the health visitors are organised and the physiotherapists are available. That depends on the PCT knowing what its task is and having liaised with the NHS. Following on from the acute trust's decision that the patient will need community health services, they will have to provide appropriate information to the other NHS bodies—otherwise nothing will happen—so that they can comply with their duties under subsection (3). I repeat that we do not think that anything needs to be added to the Bill, as this will happen as a matter of course and of logic.

Amendment No. 29 then states that the responsible NHS body must come to an agreement with the social services authority. I am sorry if I gave the impression of being anti-social services. I am certainly not and I did not intend to give that impression. The noble Baroness is right that agreement is essential before anything can be achieved. Our problem is that to include a duty on the face of the Bill in the way that she wants would, in the worst circumstances, offer a reason for failing to act or to come to an agreement. In that case the loss would be borne by the individual patient. We think it is right to try to protect them from that. It is a worst case analysis, but we have a duty to make sure that it does not happen. Subsection (8) as drafted is simpler and better.

The noble Earl, Lord Howe, spoke to Amendment No. 28. If he will forgive me, I shall not reopen the debate that we have already had this afternoon on NHS nursing care. We have difficulty with the amendment because we do not want to identify or single out in the Bill particular services that we think the NHS should be considering To address the noble Earl's basic point, existing guidance is clear on NHS-funded nursing care. Anyone who is assessed as needing care in a care home providing nursing care will have a registered nursing care contribution carried out. Patients will be told the level of need and funding that the NHS will be paying on their behalf in the care home, regardless of the setting that a person is in—a hospital or wherever. The discharge good practice workbook will also make it clear that there will be a potential need for nursing care after a period of hospitalisation.

I hope that noble Lords will not press their amendments.

On Question, amendment agreed to.

[Amendments Nos. 12 to 14 not moved.]

7 p.m.

Baroness Barker moved Amendments Nos. 15 and 16: Page 3, line 4, after "consulting" insert "the patient and having obtained the informed consent of the patient or, in the case where a patient lacks the mental capacity to give such consent to the proposed care plan, having recorded on the file what steps have been taken to ensure that the patients best interests have been duly considered, and after consulting Page 3, line 4, after "body" insert "and the qualifying patient

On Question, amendments agreed to.

[Amendments Nos. 17 to 19 not moved.]

Earl Howe moved Amendment No. 20: Page 3, line 5, at end insert— ( ) Before making a decision under subsection (3), the responsible authority must—

1. (a) consult the patient and his carer, if he has one;
2. (b) inform them of the cost of the proposed care plans; and
3. (c) obtain the consent of the patient and any carer and, where informed consent is given, record that on the patient's file, or if a patient lacks the mental capacity to give such consent, record on the file what steps it has taken to ensure that the patient's best interests have been duly considered."

On Question, amendment agreed to.

[Amendment No. 21 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 22: Page 3, line 8, leave out from "person" to end of line 9 and insert "who is a carer in respect of

On Question, amendment agreed to.

Baroness Barker moved Amendment No. 23: Page 3, line 15, after "consulting" insert "the carer and obtaining the informed consent of the carer to the proposed care plan and after consulting

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 23A to 25: Page 3, line 17, leave out from "carer" to end of line 19. page 3, line 28, at end insert— (6A) The responsible authority must keep under review—

1. (a) the needs of the patient; and
2. (b) the needs of any carer whose needs it has assessed under subsection (4)(a),

so far as affecting the services that need to be made available in order for it to be safe to discharge him. (6B) The responsible authority may, after consulting the responsible NHS body, alter—

1. (a) its decision under subsection (3)(b); or
2. (b) any decision taken by it under subsection (4)(b),

to take account of any change in circumstances since the assessment carried out under subsection (3)(a) or (4)(a) (as the case may be). (6C) The responsible authority must inform the responsible NHS body of the decision under subsection (3)(a), of any decision under subsection (4)(a) and of any alteration made under subsection (6B). Page 3, line 29, leave out subsection (7).

On Question, amendments agreed to.

[Amendment No. 26 not moved.]

The Deputy Speaker (Lord Dean of Harptree)

My Lords, I advise the House that if Amendment No. 27 is agreed to I shall not be able to call Amendments Nos. 28 to 31.

Lord Hunt of Kings Heath moved Amendment No. 27: Page 3, line 33, leave out subsections (8) to (10).

On Question, amendment agreed to.

[Amendments Nos. 28 to 31 not moved.]

Earl Howe moved Amendment No. 32:

Page 3, line 38, at end insert—

"( ) The responsible NHS body must give the patient and his carer, if he has one—

1. (a) notice of the day on which it proposes to discharge the patient, and where informed consent is given, record that on the patient's file, or if a patient lacks the mental capacity to give such consent, record on the file what steps it has taken to ensure that the patient's best interests have been duly considered, and
2. (b) information about their right to request a review if they disagree with the decision to discharge."

On Question, amendment agreed to.

[Amendment No. 33 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 34:

After Clause 3, insert the following new clause—

"DUTIES OF RESPONSIBLE NHS BODY FOLLOWING NOTICE UNDER SECTION 2

(1) The duties under this section apply where notice of a patient's case under section 2 has been given.

(2) The responsible NHS body, and any other NHS body which is considering whether to provide services to the patient after discharge, must consult the responsible authority before deciding what services (if any) it will make available to him in order for it to be safe to discharge the patient.

(3) The responsible NHS body must give the responsible authority notice of the day on which it proposes to discharge the patient.

(4) The notice under subsection (3) remains in force until the end of the relevant day, unless it has previously been withdrawn.

(5) The responsible NHS body may withdraw the notice under subsection (3) at any time before the end of the relevant day by giving notice of withdrawal to the responsible authority.

(6) For the purposes of this Part "the relevant day", in relation to a qualifying hospital patient, is the later of—

1. (a) the day specified in the notice under subsection (3); and
2. (b) the last day of the prescribed minimum interval after the notice under section 2 was given.

(7) Regulations may prescribe a period as the minimum interval after a notice under section 2 is given; but that period must—

1. (a) begin with the day after that on which the notice under section 2 is given; and
2. (b) be a period of at least two days.

(8) If the notice under subsection (3) is withdrawn before the end of the relevant day—

1. (a) the duty under subsection (3) applies again; and
2. (b) when a new notice under subsection (3) is given, subsection (6) applies again for the purpose of identifying a new "relevant day".

(9) Regulations may provide for—

1. (a) the time at which notices under subsection (3) are to be given;
2. (b) the form and content of—
1. (i) notices under subsection (3); and
2. (ii) withdrawal notices under subsection (4); and the manner in which such notices are to be given;
3. (c) circumstances in which notices under subsection (3) must be withdrawn; and
4. (d) determining the day on which a notice under subsection (3) or a notice of withdrawal under subsection (5) is given (including provision prescribing circumstances in which a notice under subsection (3) is to be treated for any specified purpose as having been given on a day other than that on which it was in fact given)."

The noble Lord said: My Lords, the key amendment in this group of government amendments is Amendment No. 34, which draws together a new clause about the duties of the responsible NHS body. This Bill places duties on the NHS as well as social services, so it is helpful to have a clause that brings this together, out of the previous Clauses 3 and 4. It makes it easier to read the Bill and see what NHS partners have to do.

The new clause mostly repeats what was formerly in other clauses, but also makes some minor changes to clarify procedures around the notice of discharge date, adding a regulation-making power to specify when such a notice must be withdrawn, and the manner in which such withdrawals should be made. Amendment No. 36 is consequential on this amendment.

Amendment No. 35 tightens the test for liability for payment in Clause 4 by clarifying that both notifications under Sections 2 and 3 must have been made and not withdrawn in order for the local authority to be liable for any payment. Again this ensures that the steps that underpin joint planning have taken place before there is any possibility of a charge. It will avoid the circumstances that sometimes occur, whereby the first a social services department hears of a patient is when it is informed that this is a delayed discharge for which it may be responsible.

Amendment No. 42 is to take account of the effect of Amendment No. 24, through which we empowered the local authority to change its decision under Clause 3(3)(b) or Clause 3(4)(b), in the light of a change in the patient's circumstances. If there is a change to either or both of the care packages needed by the patient or his or her carer, to facilitate a safe discharge, it is these services which the local authority must have in place in order to fulfil its duties.

Amendment No. 43 removes a subsection that is now covered with more clarity in the new clauses covering Section 2 and 3 notices.

The major effect of Amendment No. 48 is to circumscribe the power in Clause 4(4) to make regulations setting the amount of the payment. This is in response to the views of the Delegated Powers and Regulatory Reform Committee, which said: We accept that it is common for Bills to leave amounts of payments to be prescribed by regulations. However, neither the amount which may be fixed under clause 4, nor the method by which it may be calculated, are limited on the face of the Bill. We do not consider that the position is appropriate in a provision which is central to Part 1 of the Bill. The Committee considers that the delegation in clause 4 would be appropriate if the Bill described at least the main factors by reference to which the amount must be assessed".

That is what we have done in the amendment.

As the consultation paper on this policy stated: It is clearly important that the level at which the reimbursement should be set is neither too high nor too low. Too high a payment would be unfair on social services departments … too low a payment would not provide enough of an incentive".

Therefore, the level of the charge is based on the cost of providing accommodation and personal care in a hospital, and is calculated from the average daily cost of treating patients in a nursing-led facility with the costs of medical input from doctors or specialist nurses, overheads and capital removed to reflect the lower costs of care once a patient is ready for discharge. The amendment also makes the drafting clearer by putting this with other provisions about payment into a separate clause, and Amendment No. 44 is consequential on that.

Amendment No. 60 puts the definition of "the relevant day" into the interpretation clause, since this is now mentioned in more than one place in the Bill. I beg to move.

7.15 p.m.

Lord Clement-Jones

My Lords, this is a rather disparate group of amendments, and we should perhaps have been more aggressive in degrouping them. I wish to speak to a rather heterogeneous group of amendmets: Amendments Nos. 37, 38, 41, 45 and 47.

In Committee, we had a reasonably extensive debate on the issue of notice periods and relevant periods. The Minister responded to some extent to the comments of the noble Earl, Lord Howe. However, I am returning to the subject because the Minister was somewhat tentative in phrasing his response. I am not sure that he fully took on hoard the concerns expressed widely, in local government and by voluntary organisations, about the problems associated with treating weekends and public holidays as part of the relevant period. The Minister made it clear that they are not excluded.

The difficulty and cost of providing care services during weekends will be considerable. I do not believe that the Minister and his colleagues have taken that on hoard properly. Arrangements for simple things such as obtaining medicine in rural areas at weekends will be difficult. We in London take it for granted that pharmacies are open at weekends, but that is by no means the case in rural areas.

Research increasingly shows that discharges on a Friday, just before the weekend, are unsound. The Minister may be familiar with research carried out in a Leicester teaching hospital over a period of three years, which showed that the relative risk of readmission for individuals discharged on Friday was three times higher compared with the mean for other weekdays. That kind of research should make the Government sit up and take notice.

In Committee, the Minister made great play of the fact that three days was the absolute minimum for the period. He went on to say: I shall consider … whether there is a case for changing the period in the regulations … to cover some of the points made about weekends and bank holidays".—[Official Report, 18/2/03; col. 1046.] We want to see whether the Minister will translate that proposal into something a great deal firmer. He was at great pains to add that it was not an undertaking. I hope that we can extract an undertaking from him either now on Report or at Third Reading. Today may not be the right hour, but we would certainly pursue that as a very important aspect of this legislation.

I turn to Amendments Nos. 38 and 47. The timing of the start of the period is a crucial aspect of this legislation. I tabled these two amendments to probe what should happen if there is a dispute about discharge or the appropriateness of community care services. It is extremely important for social services that the patient is protected in those circumstances and that the clock does not start ticking until those issues have been resolved. The Minister may be interested in the mechanism adopted for an independent panel to adjudicate on the matter in the amendment. However, that is not the central purpose of the amendment.

I turn to Amendments Nos. 41 and 45. As the Opposition Benches have maintained throughout Committee and Report stages, the legislation as currently drafted is one-sided in placing all the burdens and liabilities for delayed discharge on social services departments. The effect is to make delays the sole responsibility of local authorities. The assumption underlying the proposal is that most delays in the system are the fault of social services, whereas in reality the causes of delay are complex and multifactorial. It is far from clear that the issue can be resolved by a one-sided charging system. For example, in some areas, appropriate hospital discharges are still being delayed because of the timing of consultant ward rounds. A one-sided system that penalises one part of the care sector to reimburse another could threaten or diminish partnership working. Indeed, we believe that it almost certainly will threaten and diminish partnership working. It is doubtful that health and social care budgets can work effectively and harmoniously together if the money is simply redistributed away from local authority social services.

The legislation also fails to establish a clear line of fault-based liability or provide for variation of the delayed discharge period. In Delivering the NHS Plan, it is clear that some parity between reimbursement mechanisms in health and social services was originally envisaged. Indeed, the plan states that: There will be matching charges on NHS hospitals to make them responsible for the costs of emergency hospital readmissions, so as to ensure patients are not discharged prematurely". Unfortunately, it has not been possible to table an amendment that falls within the Long Title of the Bill, simultaneously to introduce cross-charging arrangements for delays attributable to failure to provide timely community nursing services and for premature discharges resulting in emergency readmission.

These more limited amendments therefore seek to alter the emphasis of the legislation from a punitive "fining" regime against local authorities into a genuine partnership approach between the NHS and local government based on the whole systems approach. We on these Benches seek safeguards to ensure that expenditure can be recovered where social services departments are wrongly charged and that there is compulsory remission of the charges up to 100 per cent where it has not been possible to discharge the patient because the responsible NHS body has been unable to make available a relevant health and community care service as agreed in the aftercare plan. The social services department in those circumstances should have a right to recover money from an acute trust which has wrongly charged them for a patient who is not their responsibility.

It appears to be the intention that social services will pay the acute trust for any delay due to lack of social services. The legislation needs to engage the whole system and prevent the opportunities for gaming that the proposed legislation may create. If there is to be any health gain from this charging system, it will be achieved by directing the charges to preventive healthcare. That means the primary care trusts.

There should also be a clear audit trail to show how the money generated is allocated and used. The money arising from the fines may well be lost in the system and therefore undermine the services and needs of older people which should remain at the heart of this legislation. The key elements of the approach in the above amendments are that any money paid by an authority as a fine for delayed discharge should go into a jointly held fund and that the money from that fund should be spent only to provide health and community care for patients being discharged from hospital. We want to ensure that money paid from social services does not leak from the system and away from community care.

Lord Smith of Leigh

My Lords, I speak to Amendment No. 38A which is in my name. I apologise to noble Lords for returning to the health service ombudsman's ruling on continuing care. However, I shall approach it from a different perspective and try to avoid repeating earlier comments. First, however, I declare an interest as a leader of a local authority and as vice president of the LGA.

The four cases considered by the ombudsman involved individuals who had made contributions for their continuing care, which was essential to enable them to be discharged. They should have been the responsibility of the health service. While it was right for the ombudsman to consider first the cases involving individuals who had made personal contributions to their care, those personal contributions were dependent on the fact that they had savings of more than £16,000. We cannot expect that the forthcoming review will not find cases where individuals have savings of less than £16,000 and responsibility for paying continuing care costs lies with the local authority rather than the individual concerned. As we assume that this misinterpretation and misapplication of the guidance has, as the ombudsman's report states, affected all individuals, there are bound to be cases where health authorities should reimburse local authorities.

The ombudsman suggested a review, and the Minister has said that an appropriate review is taking place. I am sure that we will find cases where health authorities should pay money back to local authorities because of previous mistakes. The Bill provides for payments by local authorities for the problems it has caused the health authorities. However, I think it would be equitable if, before we embarked on new issues, we could resolve the continuing care problems. I hope that my noble friend the Minister will listen carefully and respond on those points.

Earl Howe

My Lords, I rise very briefly to speak to Amendment No. 39. Amendment No. 37, which proposes that weekends and public holidays should be discounted in relation to the defined period of notice for the discharge of a patient, closely reflects my own Amendment No. 39—although, in all honesty, I do not think that Amendment No. 39 sits quite so easily in the clause as does my own amendment. However, the noble Lord, Lord Clement-Jones, has put the case extremely well. I propose to do nothing except underline everything that he said, not least the strength of feeling in local government circles on this issue.

Baroness Greengross

My Lords, I shall speak briefly on Amendment No. 35 and touch on Amendments Nos. 37 to 39. In Committee, I was heartened to hear the Minister say that this Bill will be as tough and rigorous on the NHS as it is on social services departments. In Committee, I suggested that one way of achieving that may be to make the terms of the newly updated NHS workbook on hospital discharge subject to a direction from the Secretary of State and to delay the Bill's implementation until the Department of Health is reassured that that is indeed the case. More still can be done, especially given the recent findings which we have discussed today of the health ombudsman's regarding the NHS's responsibilities to fund continuing care. However, this new clause seems very good news.

I turn to Amendments Nos. 37 to 39, which were tabled by noble Lords on the Opposition Front Benches. As we heard, this group of amendments relates to the timing of a Section 2 notice. I am sympathetic to the arguments, which are those of the organisations rather than the older people themselves, that the period should not include weekends and bank holidays. But the truth is that if the procedures are good it should allow enough time in all but a few very complicated cases; for instance, when no suitable care home place can be found locally or where the person's home needs substantial alteration.

Therefore, I think it is right that social services departments should work to meet the deadlines imposed by the Bill as that will benefit older people who do not want to be left in acute hospitals for any longer than necessary. That is what the Bill is about, not the convenience of organisations, although I accept we must ensure that we do not place unworkable obligations on them.

In Committee, the noble Lord, Lord Turnberg, rightly pointed out that the moment a person enters hospital, plans should be put in place for his or her eventual discharge. It should be obvious then which cases are likely to be complex and need social services department involvement. Listening to the arguments on that point, I wonder whether a compromise might be to require the NHS body to give some kind of pre-notification notice—that sounds dreadful!—say, at five days, that it is minded to issue a Section 2 notice in three days' time. In most cases that would not be necessary as the various agencies should already be co-operating with one another, but it might be an extra safeguard to avoid early, unexpected or inappropriate discharge. I believe that the average stay in hospital is 11 days, which would give time for the process to be gone through and would ensure that social services departments are never surprised by a complicated discharge case. It would also allow time to take account of bank holidays and weekends, as Amendments Nos. 37, 38 and 39 suggest.

7.30 p.m.

Lord Hunt of Kings Heath

My Lords, I welcome the support of the noble Baroness, Lady Greengross, for the government amendments. She is right to suggest that the reordering of the clauses makes the position much clearer in terms of NHS responsibility. I have sought to reassure noble Lords that that responsibility is in my view as stringent as that of local government. I refer to the noble Baroness's suggestion in the context of good practice. It will be up to local bodies—NHS bodies and local government bodies—to work through the Bill's statutory provisions in practice.

I certainly accept that the whole question of weekends and bank holidays is important. I say to the noble Lord, Lord Clement-Jones, that we need to remember that the test for the discharge date is that it will be safe for the patient to be discharged on that day. Currently, the medical part of that decision is unlikely to be made at the weekend, but it is an important point as regards the discussion of which days count. I shall return to that matter in a moment.

Amendment No. 39, in the name of the noble Earl, Lord Howe, seeks to lengthen the amount of time that local authorities have to assess and make services available to patients. Although it sounds reasonable, we have to take into account what that means in practice. In practice it would mean that when a weekend falls within that period, the minimum compliance period would be five days and, in the event of public holidays which fall next to weekends, the minimum period could extend to six or even seven days. I have real concerns about stating on the face of the Bill that it is acceptable for local authorities to take a minimum of seven days to assess a patient and make services available for that patient. The minimum compliance period on the face of the Bill is a minimum, but there is a risk that the minimum will become the norm. I am concerned that the noble Earl's amendment could in some cases result in worse practice than is currently available in some parts of the country.

I stress that the minimum compliance period on the face of the Bill is a minimum. We have taken powers in the regulations that allow us to specify the minimum period. I shall discuss those later. The number of days on the face of the Bill should be the number we expect all local authorities eventually to achieve for all patients and as soon as possible for the majority of patients.

Of course, working practices in both the NHS and social services will have to change to achieve that. But they ought to do so. That is the whole point. I refer to the poor performance of so many statutory agencies in parts of the country. Working practices must change. The whole purpose of the Bill is to provide the right incentives to ensure that that will happen. I understand the points that were made about bank holidays in particular and, to a certain extent, also weekends. In Committee, I said that the Government were considering those points. We have not yet reached a conclusion. I shall take into account the further points made today. I have no doubt that we shall discuss the matter again at Third Reading.

I hope that noble Lords will accept that, although I am still prepared to consider the issues concerning bank holidays and weekends, I shall not give a commitment tonight. I am certainly wary of putting anything on the face of the Bill to suggest that we are moving away from the minimum compliance period. We are aware that the aim of the Bill may pose real challenges for statutory organisations. However, delaying individuals' discharge from hospital inappropriately can have a very negative effect on their future lives. Therefore, we need to be careful that we do not allow statutory agencies to make excuse after excuse after excuse and to walk away from what the Bill is intended to achieve.

I turn to Amendments Nos. 38 and 47, which appear to want to introduce a complaints procedure for both NHS and social services which must be completed before the patient is discharged. I wish to repeat a point I have already made; namely, that the Bill does not affect the right of an individual to make a complaint to the NHS or social services about the care he or she has received. We shall make it clear in guidance that any complaints by patients about the NHS decision on whether or not they are eligible for fully funded continuing NHS healthcare should be dealt with promptly before any dispute under this part of the Bill commences. We have already discussed the steps we shall take to ensure that those decisions are made promptly and at the correct stage in the discharge process. If such a complaint arises after the Section 2 notice has been given—the steps we are taking, and the step I announced in a previous debate will mean that that should be the exception rather than the rule—the social services authority will at that point effectively assess the patient as not needing any community care services from it because he or she needs continuing services from the NHS instead. That means that the delayed discharge clock will not start and the patient will remain in hospital until the dispute about eligibility for continuing NHS care has been resolved.

I turn to Amendments Nos. 40 and 41. They are intended to provide local authorities with an incentive to fulfil the responsibilities they already have. The language in the Bill is clear and unambiguous in describing the circumstances in which the local authority will be required to make a payment. Subsection (4)(b) of Clause 4 states that if by the end of the relevant day, it has not been possible to discharge the patient because, and only because", the responsible authority, has not made available for the patient a community care service which it decided under section 3(3)(b) to make available for him", the responsible authority must make a payment of the amount prescribed in regulations for each day of the delayed discharge period. That is, local authorities will become liable for a reimbursement payment only where the delay is solely their responsibility. I believe that we have in the Bill a clause that is a great deal simpler and leaves less room for dispute than the suggested amendment. It is unambiguous that the local authority either makes a payment or it does not.

I turn to Amendment No. 45, in the name of the noble Lord, Lord Clement-Jones, which seeks to add to the money flows around reimbursement; it deals with where reimbursement payments should go and how the money should be spent. As I said in Committee, this amendment misses the whole point of the Bill. The point is to provide a financial incentive for social services to invest in community care services that are needed to prevent delayed discharge in the first place. It is not to establish a fund to spend on community service. It detracts from the very sharpness and clarity of relationships and responsibilities that the Bill will provide. The noble Lord, Lord Clement-Jones, wants to fudge the situation by creating a cosy community fund so that the money goes round and round but no individual statutory body will feel responsible for implementing the provisions effectively. In their own right, local authorities, acute trusts and primary care trusts could set up agreements and decide how to spend any resource. However, that would be for local decision and it is a far cry from the clarity that we wish to see in the provision.

I turn to the amendment tabled by my noble friend Lord Smith. He has enormous experience in this regard. I know that this involves a case in his own area but there is no doubt that overall his own authority and the health service in his area have done much good work in relation to delayed discharges. However, his amendment has already been covered by some of our discussion. First, I made it clear that in the case of continuing care, we will be directing the NHS to carry out a continuing care assessment prior to the issue of the Section 2 notice. That means that any dispute in this regard would already have been resolved. I have already spoken in detail to that point earlier.

In the case of the registered nursing care contribution, that would unnecessarily restrict the process and the incentives for the local authority to act quickly and—this is my real concern—could encourage local authorities to dispute every decision to avoid charges. That is why it is much better that any charges should be incurred and adjustments made retrospectively, following the outcome of the relevant reviews and appeals. The emphasis in the Bill must be on getting on with it and on sorting out what the individual patient requires and ensuring that that patient receives it. The issue may fall to dispute resolution but the key point is to ensure that the patient comes first.

That concludes my comments on the amendments. I believe that while I accept that legitimate points have been raised, we should resist the temptation to move away from the clarity in the Bill.

On Question, amendment agreed to.

Clause 4 [Liability to make delayed discharge payments]:

Lord Hunt of Kings Heath moved Amendments Nos. 35 and 36: Page 4, line 12, leave out subsection (1) and insert— ( 1) This section applies where notice of a patient's case under section 2 and notice of the proposed discharge day under section (Duties of responsible NHS body after notice under section 2)(3) have both been given (and are in force). Page 4, line 17, leave out subsections (2) and (3).

On Question, amendments agreed to.

The Deputy Speaker

My Lords, because Amendment No. 36 has been agreed to, I cannot call Amendments Nos. 37 to 39 or 47.

[Amendments Nos. 37 to 41 not moved.]

Lord Hunt of Kings Heath moved Amendments Nos. 42 to 44: Page 5, line 8, at end insert— ( ) The references in subsections (5) and (7) to services "decided under" section 3(3)(b) or (4)(b) are, in a case where the decision in question has been altered under section 3(6C), to any services specified in the altered decision. Page 5, line 14, leave out paragraph (c). Page 5, line 24, leave out subsections (9) and (10).

On Question, amendments agreed to.

[Amendment No. 45 not moved.]

Baroness Andrews

My Lords, I beg to move that the further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.