HL Deb 10 March 2003 vol 645 cc1202-24

8.47 p.m.

Consideration of amendments on Report resumed on Clause 4.

Baroness Noakes moved Amendment No. 46: Page 5, line 28, at end insert— ( ) This section shall not come into force until 30 days after the Secretary of State has determined that the system of incentives within relevant NHS bodies operates to discourage NI-IS bodies from discharging patients prematurely.

The noble Baroness said: My Lords, we come again to one of the major causes of concern about the Bill. It is a one-sided Bill which punishes local authorities for delayed discharges but has no corresponding provisions to incentivise NHS bodies or to punish them if they discharge patients incorrectly.

Amendment No. 46 would add a new subsection to the end of Clause 4, deferring the implementation of the clause—that is, the imposition of fines and not any other part of the Bill—until 30 days after the Secretary of State has determined that the system of incentives within relevant NHS bodies operates to discourage them from discharging patients prematurely.

It is already clear that the incentives created by the Bill are exactly as one would expect. NHS bodies are working out how they can maximise their income from fines. I am sure that several noble Lords will have received the interesting briefing from the Local Government Association which shows how in one local authority area, a trust has virtually absented itself from discussions about how to reduce delayed discharges and has instead started to forecast a revenue stream from the new fines. I do not blame trusts for that because it is a rational response to a financial system. I blame the Government for creating the system.

The logical next step for the trusts is to accelerate the declaration of readiness for discharge so as to get fines running as soon as possible. Local authorities will, logically, try to avoid the fines by making arrangements for the patients' discharge even if those arrangements are sub-optimal.

The real sufferers are the patients. The Government have been congratulating themselves on reductions in delayed discharges, but have kept quiet about the record levels of emergency readmissions. The latest quarterly figures show more than 36,000 emergency readmissions for the over-75s—a rate of 8.2 per cent, which is up nearly one percentage point on a year earlier.

The Minister may like to reflect on the performance of Barnsley, whose low delayed discharge rate he glorified in Committee. Barnsley may get patients out of hospital quickly, but 20 per cent of them—over double the national average—go back within 28 days. That is why the Bill is so dangerous. We are talking not about statistics, but about the human misery of readmission.

The Minister said in a letter to my noble friend Lord Howe last week that there is no connection between readmission rates and speeding up discharges and that the data are suspect. However, the plain fact is that the Bill will encourage early discharge. It is simply not credible to suppose that that will not lead to more readmissions.

When we debated the amendment in Committee, the Minister confirmed that the Government intended that the new system of NHS financial flows would work from 2005–06, so that the cost of patients readmitted within a certain period could not be recovered by the trust. I think that the new system is based on the assumption that early discharges result in emergency readmissions, so I am a bit confused about the Government's real views, given the letter sent to my noble friend Lord Howe last week. Do the Government believe that there is a connection between early discharges and readmissions? If there is not, why are they introducing a complicated embellishment to the financial flow system from 2005–06?

I could go into the many question marks that hang over the scheme that will operate from 2005–06, but the purpose of the amendment is not to adjudicate on whether a system of incentives in the NHS will exist. We know that it will not exist in October 2003, when, according to the Chief Executive Bulletin two weeks ago, the Government will be implementing the Bill, notwithstanding the clear view of your Lordships' House that it should be delayed at least until April 2004. Incentives will not exist in 2004–05 and whether they will exist in 2005–06 is a matter of extreme conjecture.

The amendment would simply delay the fining aspect of the Bill until there is such an incentive system in place. That may or may not be in 2005–06, but it is unlikely to be any earlier. There is no incentive system in the Bill to ensure that the NHS does not incorrectly transfer patients out of NHS care, as highlighted in the recent report of the health ombudsman, which we have discussed a couple of times earlier today. When fining is introduced, the NHS trust will have an incentive to discharge the patient as rapidly as possible and the local authority will be seen as a convenient whipping boy. That view will be aided and abetted by the PCT, which will also want the local authority to pick up the bill. Where are the incentives in the Bill for the NHS to discharge patients properly? I beg to move.

Lord Hunt of Kings Heath

My Lords, I disagree with the analysis of the noble Baroness, Lady Noakes. I refute her assertion that the Bill is one-sided. It will not work unless the NHS and local government pull themselves together and start to act together in a way that, unfortunately, is not happening in a considerable number of places in the country at the moment. The effect of the health service and local government failing to get their act together is the problem of delayed discharges. People are suffering. We know that there are examples of good practice where health authorities and local government seem able to ensure an integrated approach, and delayed discharges are kept to a minimum.

I emphasise a point that I made in Committee. Local government is not being treated as a whipping boy, as the noble Baroness suggests. The incentives, controls and monitoring will seek to ensure that the system is as robust on the national health side as it is on the local government side. We must ensure that there are no unintended consequences from the Bill. There is nothing that I would want to see less than the NHS declaring patients ready for discharge too early.

I remind the noble Baroness of Clause 2(1)(b), which refers clearly to a situation in which, the responsible NHS body considers that it is unlikely to be safe to discharge the patient". In other words, the notification of a patient's likely need for community care services cannot kick in when the body considers that to discharge a patient would be unsafe.

We have the single assessment process, and the incentives in the Bill aim to get that process right. That should lead to a much more integrated approach between the local authority and the NHS trust.

All trusts are subject to rigorous performance management by strategic health authorities. Readmission rates are a specific performance indicator used to determine a trust's star rating. Anyone who has worked in the NHS recently or knows senior people in individual NHS trusts know that performance indicators leading to the star rating of an individual trust bite on the behaviour and actions of the senior management.

The Commission for Health Improvement has a remit to monitor quality and ensure that trusts provide a high standard of care, which they would not be doing if they discharged their patients from hospital too early. The Commission for Health Improvement provides an effective way in which to monitor what is happening.

The impact that high numbers of readmissions will have on a hospital's capacity acts as a disincentive for a hospital to discharge patients too soon. If hospitals need to treat the same patients twice because they have come back to hospital as an emergency readmission, they will have less capacity to treat patients on waiting lists and will not meet access targets, which will damage their star rating. These incentives are powerful enough to ensure that hospitals will not discharge patients from hospital before they are ready to go.

By 2005–6, the financial flow system will enhance the incentives that we already have. I do not see what benefit would be gained from delaying the introduction of the charging element of the Bill when it is the repayment that will provide strong incentives for all local authorities to put in place the services that they need to allow the prompt discharge of older people from hospital. Without the repayment element, the Bill will not be as effective. To delay it would simply mean that in many places it will take longer before older people ready for discharge from hospital can benefit. The noble Baroness omitted to mention the £100 million that is being made available in a full year from the NHS to local government to fund the additional element in relation to the cost of dealing with the current numbers of delayed discharges.

Taken together, I believe that the incentives are right. I believe that the Bill is even-handed. To delay its introduction and the financial penalties would be a disservice to those whom the Bill is intended to help.

9 p.m.

Baroness Barker

My Lords, before the Minister sits down, I should like to deal with two points raised in his reply. I follow what he says about performance management and star ratings. However, what will be the position when a hospital has become a foundation hospital? How will this system respond to that? Some hospitals will soon be foundation hospitals. Will he also respond to the point from the noble Baroness, Lady Noakes, about the Chief Executive's' Bulletin which was circulated last week and has been the subject of some comment in professional circles?

Lord Hunt of Kings Heath

My Lords, on the Chief Executive's Bulletin, I think that the point is when the new legislation will kick in. A couple of weeks ago, in Committee, noble Lords took a decision. Although I disagreed with it, I think that I intimated then that the Government had reached the view that they would be prepared to delay the Bill's introduction by six months. The Bill will go back to another place, and another place will have to decide what it seeks to do. It may well be that we will discuss this matter further on yet another Monday. I suspect that the Chief Executive's Bulletin merely reflects the points that I made about our intent with regard to introducing the Bill at the beginning of October. As ever, however, Parliament's will will be paramount and supreme.

I cannot say any more in anticipation of legislation on foundation trusts that might be coming our way. All I can say to the noble Baroness, Lady Barker, is that I very much look forward to debating that issue with her when the time comes.

Baroness Noakes

My Lords, I thank the Minister for his reply—which was perhaps not a great surprise. May I suggest that he read the Chief Executive's Bulletin, which starts off by saying in effect that the House of Lords has decided that there will be a one-year delay, "but we, the NHS, are going to plan for implementation in October"? It sends a clear signal either that the chief executive is acting on his own authority or that Health Ministers are going to ignore your Lordships' House. I also say to the Minister that I had not forgotten the £100 million—I very rarely forget about money—I just do not think that £100 million is at all relevant to the subject that I was discussing: the incentive on the NHS.

We feel that this is a one-sided Bill because it imposes only penalties on local authorities while providing the NHS only with incentives to do the wrong thing—to act simply in a way that maximises its revenue flow. That is why we are concerned that these crude penalty and incentive arrangements will operate harmfully for patients. The Minister has fallen back on an argument to which he has often resorted in discussing many aspects of performance management, but I do not think that we are impressed by the argument that this is another matter that will end up in the star ratings. Waiting lists ended up in the star ratings. Those of us who read the Audit Commission's latest report know what happens to targets that end up in star ratings—they get fiddled. So we cannot see that as a credible solution.

While I have the greatest respect for CHI's ability to monitor what goes on in the NHS, it is not operating in real time; it comes along every so often to examine a whole range of matters. In this amendment we are asking for a very targeted and very specific provision for incentives to counterbalance the impact of the Bill's structure. We have not got that from the Minister today. I shall take it away and think about it again. However, I think that the Minister can expect to return to the subject on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 47 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 48: After Clause 4, insert the following new clause—

"DELAYED DISCHARGE PAYMENTS:SUPPLEMENTARY (1) In prescribing an amount under section 4(4) the appropriate Minister must have regard (among other things) to either or both of the following matters—

  1. (a) costs to NHS bodies of providing accommodation and personal care to patients who are ready to be discharged; and
  2. (b) costs to social services authorities of providing community care services to, and services to carers in relation to, persons who have been discharged.
(2) Any payment which the responsible authority is required to make under section 4 in relation to a qualifying hospital patient shall, subject to subsection (2), be made to the responsible NHS body. (3) In case of any description prescribed in regulations the payment shall be made to the person prescribed in relation to cases of that description.

On Question, amendment agreed to.

Lord Clement-Jones moved Amendment No. 49: After Clause 4, insert the following new clause—

"PILOT SCHEMES The Secretary of State or the Assembly may by order establish pilot schemes for the operation of this Part in selected areas.

The noble Lord said: My Lords, in moving Amendment No. 49, I wish to speak to the amendments with which it is grouped.

We have already had an interesting ministerial apologia with regard to the content of the Chief Executive's Bulletin and the planning of the NHS in relation to the official date of implementation of the Bill in October 2003, despite the amendment passed in this House. We on these Benches—I am sure that I speak for noble Lords on other Benches in this respect—are determined to see the implementation of the Bill delayed until 2004. I have no doubt that we shall spend many happy hours debating that matter in the future if the Bill returns to this House in a different form. The 2004 implementation date would allow local authorities to assess the impact of the changes on the rights and choices of older people and the services they receive. Delaying the implementation of the fines would allow for joint working between health and social care providers to develop further and could prompt the Government to see the introduction of fines as unnecessary. That is an optimistic hope but also, I hope, a realistic one.

The recent health ombudsman's report adds impetus to the call to delay implementation of the fines. It is likely to take some time for the recommendations of the ombudsman to be put into place. If there is to be a review of the guidance from the Department of Health, as suggested by the ombudsman, it is only right that it should be fully consulted on following Cabinet Office guidelines that 12 weeks should be given for such consultation. That should be the absolute minimum period. The strategic health authorities would then need to review their criteria to ensure that they were in line with any new guidance produced by the Department of Health. Staff would need to be trained to ensure that they were aware of the guidance and its effect on their decision-making. Until then, there is a danger that flawed criteria could be in use.

In Committee, I went into some detail about the fact that the system introduced by the Government in the Bill for fining for delayed discharge is untested and untried and has been used only in Sweden in very different circumstances. In Committee, the Minister justified resisting the introduction of pilot schemes by saying: The first point is that already the NHS and social care services have existing responsibilities to discharge patients in a safe and responsible way. We are not introducing new responsibilities in that sense".—[Official Report, 18/2/03; col. 1065.] His second reason—also stated at col. 1065 of Hansard—was that, the best performing authorities … are already working well together to reduce delayed discharges". The noble Baroness, Lady Noakes, pricked the bubble of the Barnsley experience. The Minister referred to the experience of both Barnsley and Bristol to justify not introducing pilot schemes. The Minister may regret choosing those examples. Perhaps we should further investigate Bristol's emergency readmission track record.

Is the argument that the best authorities are working so well in partnership that we do not need pilots? Does that mean that the Government can set up—as they seem to be doing under the Bill—a completely unworkable scheme or, indeed, a dangerous scheme without regard to the consequences, and that therefore no pilot scheme is needed? The Minister's logic appears somewhat convoluted; namely, that the implementation of the Bill's provisions is theoretical as they will not bite on the best authorities and that therefore no pilot scheme is needed. Surely one should have a pilot scheme not in the best local authorities but in less-well-performing local authorities, where the provision of a pilot might well bite. One would then see the practicality of the Bill. I suggest that as soon as the Bill's practicality and impact on partnership working are assessed, it will be quickly seen as a wholly unworkable and undesirable piece of legislation. I beg to move.

Baroness Andrews

My Lords, I have just been assured that the best arguments are the old ones. There will be an echo of some such arguments in my response.

We have serious reasons for believing that pilots are not the appropriate step at this stage. Our main objection is that many local authorities have responded to the challenge that has been laid down and are already creating and following good practice. A pilot project has traditionally tended to involve the small-scale, radical investigation of new ways of working that have not been put into practice. Health and social care partners already have responsibilities to discharge patients in a safe and responsible manner. The reform is simply about ensuring that they do so more effectively and more rapidly. We want health and social care partners to consider how they can invest in and provide better services and to do so now in preparation. I go so far as to say that we need the opposite of a pilot scheme; we need to universalise best practice. There are many developments in the field.

I shall risk giving another example. The noble Lord would be interested in the example of Kirklees, where a discharge service has been established to support vulnerable adults who have been identified as needing rehabilitation back into their home. That team was established using skilled in-house managers who manage focused-care programmes. The care providers are a combination of in-house staff and carers who are contracted from agencies. It is an interesting and effective example.

The Department of Health is committed to making the arrangement work—there is a practical implementation team that is being led by an ex-director of social services and assisted by practitioners seconded from the field to develop the programme. That practical support is extremely important in terms of getting it right, establishing a way in which reimbursement will work and providing a link between the department and the field. We are making as much good practice available as widely as possible. For example, last week we put model documentation on to the website, which is already active and very popular. We are trying to assist local authorities by providing as much information as possible. We are promoting best practice. People in the field say that they have never seen such an emphasis on getting it right. Attention has been concentrated on this matter. To go back to piloting the proposal would send all the wrong signals. We have been overtaken by events in terms of implementation and good practice. The implementation team is working—

Baroness Barker

My Lords, I hope that the noble Baroness will forgive me at this late stage. I agree with her that the change agent team is a fascinating part of the Department of Health website—I spent much time studying it. I do not believe that any noble Lord on this side of the House is in any way trying to undermine what the department is trying to do about the dissemination of good practice. I go back to an example that the Minister gave when we were in Committee; that is, Kingston. What has been missing from the discussion throughout is an attempt to find out why some things work in some areas and why other things do not work in others.

In Committee the Minister quoted three examples: Barnsley, Bristol and Kingston. I have found out a little about why the situation in Kingston works. First, it is a small authority so its percentage decreases are large. Secondly, like Barnsley and Bristol, it happens to be an area in which much of the property is significantly cheaper than in the surrounding areas, so there are many care homes in comparison with other areas. Thirdly, not only have they conducted much joint planning, but they have also invested in hospital discharge schemes, some of them with the voluntary sector and some with organisations with which I work and others.

Missing from the department's analysis as put forward to us is the contextual information about why some things work and others do not. The only argument the department has come up with time and time again is the lack of a power to force recalcitrant social services departments to do what the NHS wants. That is the flaw in the argument. In no way does that underestimate what is being done with the change agent team in relation to good practice.

9.15 p.m.

Baroness Andrews

My Lords, one reason why the Bill is being introduced is to address variable performance across the country. Some authorities are much better than others at reducing their discharge rate and at promoting better learning. I am interested in what the noble Baroness says, but I would expect the implementation team to be able to analyse the information coming from good authorities, and to ensure that that understanding and the variable context are factors by which we can identify the common good principles from which people can learn.

To conclude, the change agents are working together with the Department of Health and we believe that the time for pilots has certainly come and gone. Now we must support best practice in the field and the work of the implementation team. I hope that the noble Lord will feel able to withdraw his amendment.

Baroness Noakes

My Lords, before the Minister sits down perhaps I can clarify what the change agents will do. I understand that they will disseminate best practice, which we all agree is good. The idea of pilot schemes is to learn the behavioural impact of a new scheme; in this case putting money flows in. Can the Minister say what, if anything, the change agents will do to ensure that people learn about the effects of the Bill? That is the essence of pilot-scheme learning.

Baroness Andrews

My Lords, the change agents and others working with them are finding out where the blockage is or where the passage is accelerating and where we need to focus our attention to prevent delays. That is their key contribution.

Lord Clement-Jones

My Lords, with the greatest respect to the Minister, I am afraid that the arguments put forward by her are no more plausible the second time around than they were the first time. I believe that we have managed to tease out more flaws in the argument than were obvious before. It is precisely because the responsibilities are unchanged, that spreading best practice, the change agent team and so on are of enormous value. Of course that is within the existing framework.

I am in favour of best practice, but the noble Baroness makes the point that the behavioural issues involved, where one has a penalty on local government, make the whole pattern entirely different. The Minister is saying that we need to universalise the penalty which then risks upsetting all the best practice that the change agents are trying to put into effect. That strategy appears to be extraordinarily high risk. I do not know of any organisation that would try to put in a completely unproven set of penalties in the face of some great progress, great best practice and extremely useful partnership working that has been taking place over the years. That seems to be organisational anomie, to use an anthropological term. It is absolutely extraordinary that the department thinks that is the best way to proceed.

The responsibilities in law may not have changed, but, whatever the Minister says, these penalties will alter the way that all the agencies involved will behave. I do not believe that the Minister is able to gainsay that, precisely because there has been no pilot scheme to establish whether or not that is the case. But one would suppose that the behaviour of the agencies involved ipso facto will change.

This is not to decry the skills and so on of the members of the change agent team, nor indeed the quality of the website, but we are working in uncharted waters. Piloting would send the right signals. It would show that the department really is prepared to listen and that it understands that these charges will have a profound effect on behaviour. Indeed, why else would the Government be introducing the Bill if it was not for the fact that they intended the Bill to have an effect on behaviour? Our case is that they are not piloting that change of behaviour to see whether it is beneficial or adverse to the patient.

The hour is getting late. I will not pursue the argument further. But I can guarantee that we will bring back further related issues at a later stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Dispute resolution]:

Lord Hunt of Kings Heath moved Amendment No. 50: Page 5, line 41, leave out subsections (1) and (2) and insert— (1) Regulations may make provision for panels appointed by Strategic Health Authorities in England and by Local Health Boards in Wales to assist in the resolution of disputes between two or more public authorities about matters arising under or in relation to this Part. (2) The persons forming a panel for the purpose of a particular dispute must be appointed by a Strategic Health Authority or Local Health Board from lists of persons required by the regulations to be kept by the Authority or Board. (2A) The regulations must contain such provision as the appropriate Minister considers appropriate for ensuring that each social services authority situated (or any part of whose area is situated) in the area of a Strategic Health Authority or a Local Health Board is consulted about the persons whose names appear on any list kept by the Authority or Board for the purposes of subsection (2). (2B) The regulations may make provision about the panels, including in particular—

  1. (a) provision for determining who is to appoint a panel in the case of a dispute between public authorities which are not all situated in the area of a single Strategic Health Authority or Local Health Board;
  2. (b) provision specifying the descriptions of disputes which may be referred to a panel;
  3. (c) provision about the recommendations (including recommendations relating to the payment of any amount by one party to another) which may be made by a panel in relation to any dispute referred to it."

The noble Lord said: My Lords, we had a debate about the panels. Some noble Lords said that the provision was perceived perhaps to be unfair, giving the wrong impression to local government because it was a requirement placed upon strategic health authorities to establish those panels. We went down that route because there is no strategic equivalent in local government. If, for instance, one placed the duty on a local authority one would end up with a situation where each strategic health authority would need to set up a panel jointly with five or six local authorities.

We have discussed with local government and others what the local agencies which may bring disputes to this panel want from the system. The feedback is that they want a panel in which they have confidence. They do not want to be involved in further bureaucracy around jointly setting up panels, but they want to know that a panel will be selected from a group of men and women whose judgment they trust and who have no axe to grind in the particular case.

In Committee, I listened very carefully to the comments made. As a result I have tabled Amendment No. 50 and the consequential Amendment No. 55. Essentially, we believe that confidence in the panel will best be achieved by requiring the panel to be set up in consultation with local authorities within the strategic health authority area. We intend to make it clear in guidance that this will include allowing all parties to propose names for the list of members so that they can have confidence in that list.

The draft regulations that we published on 5th February for consultation show that we intend the panel to consist of one NHS representative, one local authority representative and an independent chair, and that for any particular dispute neither of the panel members should be drawn from the body in dispute. That is a very satisfactory outcome. It will, I believe, be perceived to be fair. By requiring consultation to take place with the relevant local authorities it will, I am sure, assure those local authorities that the panels to be established are those in which they can have full confidence. I beg to move.

Earl Howe

My Lords, the Minister's comments in support of the amendment are most welcome. I thank him for taking on board the concerns expressed on the issue in Committee by noble Lords from all sides. We all agree that no dispute panel will work unless each party to a disagreement has confidence in the individuals who constitute the panel.

Amendment No. 50 provides a means to ensure the sense of ownership that we want to engender among health service bodies and local authorities. However, I wonder whether it is really enough—and here I turn to my Amendments Nos. 51 to 54, which are grouped. The Minister mentioned the forthcoming guidance and said that the Government will make clear that the consultation that a strategic health authority must carry out among the relevant local authorities is designed to ensure that all parties have confidence in the dispute resolution panel. That is an exemplary aim, but I confess that I am somewhat disappointed that the Minister does not envisage building a suitable provision into the regulations to that effect.

To incorporate that into the guidance seems to me second or even third best, because guidance is not binding. As the Minister is aware, I should ideally like to see in the Bill—or, failing that, in regulations—a specific provision to the effect that the setting up of the panels should he the joint responsibility of the strategic health authority and local authorities. In Committee, the Minister did not advance any real objection to that idea beyond saying that it would be more straightforward if we gave the responsibility to the strategic health authorities. That sounds more like expediency than anything else.

I note that when referring to the make-up of the panels the draft regulations mention one representative of the NHS and one representative of local authorities. If I could be sure what the word "representative" meant, I might feel a little more comfortable. A local authority representative does not carry the connotation of someone who has been nominated by the local authority. The right reverend Prelates in your Lordships' House often represent other faiths; but they have not been nominated by those faiths. The two are different concepts. For local authorities merely to be consulted on who is chosen—welcome though that is—does not guarantee that they will be happy with whomever is chosen.

I do not want to press the Minister unreasonably because he seems to have conceded the principle at issue, which I am sure that we all appreciate. However, it would be excellent if he could undertake to reconsider the draft regulations to see what scope there may be to provide further reassurance to local authorities in the sense that I have just described.

Lord Clement-Jones

My Lords, I add the voice of these Benches both to thank the Minister for the distance that he has travelled in Amendment No. 50 and to support Amendment No. 51 and others tabled and spoken to eloquently by the noble Earl, Lord Howe.

The issue is whether the Minister cannot see his way to move that extra yard. I think that we are close to something that would be acceptable. The current government amendment does not quite fit the bill, but it would not take a great deal of alteration to reach agreement on it.

Lord Hunt of Kings Heath

My Lords, I always endeavour to be helpful and I am certainly prepared to reconsider the matter between now and Third Reading, although my amendment goes an awful long way to meet the point of concern.

If we consider the draft regulation, the problem with assigning a joint responsibility is that we run the risk of establishing a bureaucratic approach to determining how a strategic health authority shares responsibility with several local authorities. If they cannot sort that out and reach agreement, that would cause problems. It would be best to place the responsibility on one statutory agency—which, none the less, had to consult with relevant local authorities.

In response to the noble Earl, of course I want local authorities to have confidence in the panels. Indeed, given that they are, in a sense, advisory, it would not make sense to advance a proposal that did not command the local authorities' confidence. I also accept that, where we seek one representative of local authorities, we will want local authorities to propose names for the list of members. I readily accept that local authorities should have confidence in the names on the list. It is the same for NHS authorities. But, having said that, I will look at the matter again to see if I can give local authorities any further comfort, I understand that local authorities recognise that there has been a change in emphasis, and they welcome it.

On Question, amendment agreed to.

[Amendments Nos. 51 to 54 not moved.]

9.30 p.m.

Lord Hunt of Kings Heath moved Amendment No. 55: Page 6, line 10, leave out "established" and insert "appointed

On Question, amendment agreed to.

Clause 8 [Regulations]:

Lord Hunt of Kings Heath moved Amendment No. 56: Page 6, line 36, at end insert "and different provision for different areas

The noble Lord said: My Lords, this is a minor amendment intended to tidy up the drafting to pm it beyond doubt that the regulations that set the rates of payment may make different rates of payment for different areas. I referred to the matter earlier. I beg to move.

Baroness Noakes

My Lords, I shall speak to Amendments Nos. 57 and 61. They deal with the regulation-making powers in Clauses 8 and 12 and require the regulations to he drawn up in consultation with local government.

The Minister and I will doubtless disagree on the analysis that the Bill punishes local authorities for delayed discharges. That is certainly how it feels from the local authorities' perspective. They have, therefore, a real interest in the content of the regulations because they could affect profoundly the working practices and finances of local authorities.

The Government issued draft regulations recently, only a few weeks before they had initially planned to implement them. I shall read what the Local Government Association said about those draft regulations: It is already clear that there are significant issues which are still clouded in uncertainty. These include defining the scope of the scheme; the giving, receiving and withdrawing of notices; the circumstances of exemption from financial liability and the process for establishing disputes panels". In other words, practically everything about the scheme remains unclear.

This amendment only asks that local authorities are consulted. I have no doubt that they are consulted at present—whether or not they are listened to remains to be seen. But the important point is that there is no guarantee that local authorities will be consulted on any future regulations issued under the Bill, but they will have a vital interest in it.

In Committee, the Minister said that his department, hardly moves an inch without consulting local authorities on social care issues", and urged local authorities to have no worries on that score. But, significantly, he did not commit to consulting local authorities on any future regulations under the Bill. Will he reconsider that position?

Lord Hunt of Kings Heath

My Lords, I hope that I can reassure noble Lords that we will continue to consult local government on all those matters. We have good procedures for involving local authorities in the work that we do. The Local Government Association is part of our stakeholder group for the Bill. Regular meetings take place between my department and local government. The two draft regulations that we are discussing have been the subject of public consultation. There are frequent meetings with the Local Government Association.

We have made our intentions in respect of the regulations for both parts of the Bill clear to everyone, including local government. As the Bill is implemented and we gain experience, we may wish to revise the regulations. I have no doubt that, at that time, we will again be happy to consult local government.

On Question, amendment agreed to.

[Amendment No. 57 not moved.]

Clause 9 [Interpretation]:

Lord Hunt of Kings Heath moved Amendment No. 58: Page 7, line 2, at end insert— "carer", in relation to a qualifying hospital patient, means a person who—

  1. (a) provides or intends to provide a substantial amount of care on a regular basis for the patient; and
  2. (b) is entitled to ask for an assessment under section 1 of the Carers and Disabled Children Act 2000 (c. 16);"

On Question, amendment agreed to.

[Amendment No. 59 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 60: Page 7, line 10, at end insert— 'the relevant day" has the meaning given in section (Duties of responsible NHS body following notice under section 2)(6)

On Question, amendment agreed to.

Clause 12 [Free provision of services in England]:

[Amendment No. 61 not moved.]

Clause 13 [Free provision of services in Wales]:

Lord Thomas of Gresford moved Amendment No. 62: Leave out Clause 13 and insert the following new Clause—

"FREE PROVISION OF SERVICES IN WALES (NO. 2) The Assembly may by regulations made by statutory instrument require that any community care services provided by local authorities in Wales, in discharging any statutory function, may be provided free of charge to the person to whom they are provided.

The noble Lord said: My Lords, with the leave of the House, I move the amendment on behalf of my noble friends Lady Barker and Lord Clement-Jones. I apologise for intruding upon your Lordships' deliberations so late in proceedings, but if the Bill seeks to amend the constitutional arrangements in Wales, it would be a matter of considerable concern to us.

Clause 13 would limit the regulations that may be made by statutory instrument by the Assembly to precisely the same provision as may be made by the Secretary of State under Clause 12 with regard to local authorities in England. The amendment tabled by my noble friends has the support of the coalition partnership government in the Welsh Assembly. As I understand it, the amendment has the support of the Minister for Health and Social Services in the Welsh Assembly. I hope that the noble Lord, Lord Hunt of Kings Heath, will assure me that there has been some consultation with the Welsh Assembly on the issue.

The policy pursued by the Liberal Democrats in Wales is to have free care for the elderly across the board, wherever it may seem to be applicable. In the manifesto on which we are to fight the forthcoming Assembly elections, we seek an extension of current financial thresholds to £60,000, and we would like to eliminate thresholds in the case of care for the elderly. We feel that we should have the power to do that. Where the money will come from is the interesting question, and it may not be immediately available. However, the power to make such provision and to advance services for the elderly and others—community services, generally—in Wales should remain with the Welsh Assembly. For example, the Assembly, with Liberal Democrat support, has created a scheme, unique to Wales, of free six-week post-hospitalisation care, and it is important that similar provision should be made in other areas.

There is one further matter. I understand that there is shortly to be a vote in the Welsh Assembly on the provision of free personal care. That policy has executive approval and has been worked out in some detail. As I have said on many occasions, the way in which the National Assembly for Wales approaches the making of regulations is far superior to the way in which regulations are promulgated in this Parliament. Considerable consultation and thought has been put into it.

It would appear from Clause 12 as currently drafted, which binds the National Assembly for Wales through the wording of Clause 13, that the Assembly would be unable to do what it wanted and that its powers therefore will be effectively fettered. It is important that when a clause relating to Wales is included in what perhaps I may describe as an "English" Bill the constitutional implications are thought through. This is an issue which Welsh Peers and Members of Parliament frequently discuss among themselves. It forms part of the submissions being made by all parties to the commission that the noble Lord, Lord Richard, is considering. I look forward, with interest, to the views that the Minister will express on this topic. I beg to move.

Lord Hunt of Kings Heath

My Lords, I always welcome the opportunity to debate Welsh constitutional issues with your Lordships. Those of us who have been happily debating the Health (Wales) Bill, which is going through your Lordships' House with as eager support as this Bill, will be aware of debates concerning the relationship between the National Assembly for Wales and the regulations that must be made in this House and another place.

The noble Lord, Lord Thomas, mentioned the commission being led by my noble friend Lord Richard on constitutional issues, which I believe is due to report later this year. I have no doubt that it will prove to be extremely interesting and we shall look forward to it with keen anticipation. I should say to the noble Lord, Lord Thomas, that at present the position is that Wales has no power to provide free personal care. In a sense, rather than taking power away from the Assembly, Clause 12 is giving a new power, but ensuring that it is consistent with the power being given in England.

Limitations have been placed on Clause 12 because it has never been intended to make personal care free. We had what I regard as a Second Reading debate in Committee on this issue. We had the Royal Commission. We considered the recommendations. We considered the recommendations of the minority report. We decided that we did not believe that the additional resource that would be required to finance free personal care would be justified. We considered that it would be much more effective to spend the money on intermediate care.

Therefore, the emphasis is on providing support for people to enable them to go back into their own homes or into community care, rather than effectively providing financial incentives for what, in many cases, would be residential care. I believe that there is a real issue about resources and priorities. It is easy to say that we believe that free personal care is good. But when it comes to the question of how resources should be spent, I believe that it is much more sensible and cost-effective to spend that resource—which, as far as England is concerned, is approximately £1 billion a year—on ensuring that as many people as possible are able to live full lives in the community. Hence, the restriction in Clause 12.

Of course, I understand the discussions that have taken place in the National Assembly for Wales on this matter. I read the comments of Members of the Assembly and the comments of Jane Hutt, the Minister responsible. In an earlier debate, she promised to approach the UK Government to fund and implement free personal care. She reported that the UK Government are presently maintaining their position that the priority for spending on long-term care should, as I have said, be on investment in improving the range and quality of services for older people.

If the Welsh Assembly wishes to introduce a policy specific to Wales, then as in other matters where primary legislation is required, the proposals should be discussed with the Wales Office, which in turn could table a Bill so that they could be treated in the same way as any other proposed legislation. That would be a matter for the Welsh Assembly. But I do not see that Clause 12 restricts the powers of the Welsh Assembly, rather that the provisions add to those powers, making them consistent with what is proposed should take place in England.

9.45 p.m.

Lord Thomas of Gresford

My Lords, in response to the noble Lord, when he says that he is making the provisions consistent with those in England, in fact he is putting a fence around the powers of the Welsh Assembly. When he says, "We have decided this or that" and, "Our priorities are this or that", he speaks as the Minister with responsibility for healthcare in England, not the person with responsibility for healthcare in Wales.

It may well be that when the National Assembly for Wales considers its priorities and how to spend across the board the limited cake allowed it by the Barnett formula, it may be that the Assembly will come to the same conclusion as the noble Lord. Members of the Assembly might then say, "We have decided this or that and these are our priorities". But essentially it is for the National Assembly for Wales to decide those priorities in the light of the resources available to it and having regard to the policies which were put forward to the people of Wales when the Assembly was elected.

The Minister has conceded that the Minister for Health in Wales has knocked on the Chancellor's door and asked for specific provision for free personal care and has been turned away. That is typical of the way in which the Chancellor deals with Welsh problems. When a Labour and Liberal Democrat partnership government comes to the door of the Chancellor, he turns them away. That is not satisfactory.

All we seek with the amendment is for Wales to be given its rightful chance to decide how to spend the money made available to it by the Chancellor. At this time of night it may not be appropriate to seek the opinion of the House, but I hope that the Minister will go back to the National Assembly for Wales to discuss the matter with his colleagues—colleagues from the same party whom his administration, through its decision making here, is letting down. I hope that when we reach Third Reading, he will be able to put a more positive view of the policy of this Government, as well as a better view of the constitutional position of Wales under devolution. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 [Consequential amendments]:

Baroness Barker moved Amendment No. 63: Page 9, line 25, at end insert— ( ) In section 7 of the Health and Social Care Act 2001 (c. 15) (function of overview and scrutiny committees), after subsection (2) there is inserted— (2A) The overview and scrutiny committee shall agree and adopt with local NHS bodies in their area, joint local protocols as regards the discharge of hospital patients, to include—

  1. (a) action plans to prevent and reduce delayed discharges,
  2. (b) administrative and practical arrangements for the implementation of the Community Care (Delayed Discharges etc.) Act 2003, defining the roles and responsibilities of all parties,
  3. (c) local targets for reducing delayed discharges,
  4. (d) joint administrative arrangements for the local implementation of the duties in sections 2 to 5 of the Community Care (Delayed Discharges etc.) Act,
  5. (e) named persons responsible for co-ordinating all stages of the patient journey up to and beyond discharge, and ensuring that all necessary arrangements are put in place at the right time,
  6. (f) joint agreement on how payments made under section 4 of the Community Care (Delayed Discharges etc.) Act are used to encourage an inter-disciplinary approach to services for older people, and to ensure that all stakeholders are involved in deciding how the payments are spent.
(2) An action plan under this section is a document drawn up by the relevant bodies specifying the action intended to reduce delayed discharges, and to change procedures and arrangements which may cause or contribute to the failure to comply with duties under section 3 of the Community Care (Delayed Discharges etc.) Act."

The noble Baroness said: My Lords, I thank my noble friend for withdrawing the amendment. It would have been wholly wrong to have held a discussion on this matter without the noble Lord, Lord Lipsey, present to make his contribution.

I return here to an issue that we discussed in Committee; that of local protocols. I do not wish to speak at length because many of the issues covered by the amendment are those which we have debated at all stages of the Bill. They are recurring themes covering the need for joint planning on the part of the NHS and local authorities; the need for joint understanding of how the administration of the schemes is going to work; and for there to be joint agreement on the practicalities and the respective roles of the two different organisations.

I take to heart two points made by the Minister during our debates in Committee: first, the absolute aversion to one statutory authority being in a position to tell another public authority what to do; secondly, the point made quite forcefully about not having an extra layer of bureaucracy.

The Minister will notice that the amendment is framed in a different way to the one considered in Committee. We have addressed the point by seeking to make this the responsibility of the overview and scrutiny committees of local authorities, which they are required to have under the Local Government Act 2000 and which already have a statutory role in monitoring local health trusts by virtue of the Health and Social Care Act 2001.

If it was evident that the Bill will work in practice in the way described by the Minister and be equally as hard on the NHS as it will be on local authorities, there would be no need for the amendment. But, in practice, it is difficult—sometimes impossible—for people from local authorities to argue their case with the NHS. The amendment seeks to place a positive incentive on both sides to come up with joint agreements about how money generated through the scheme will be used to encourage whole system approaches and how locally devised dispute management processes would work for the benefit of older people.

Finally, it seeks to cement joint working relationships. It does not take a huge hammer to them, as the Bill does through the mechanism of fines. It is not about trying to delay deferral and dodge the provisions of the Bill; it is about trying to make it work in a positive fashion within the existing local framework. It is in that spirit that I commend the amendment. I beg to move.

Lord Hunt of Kings Heath

My Lords, the noble Baroness said that she is trying to meet the point I raised in Committee about the risk of creating bureaucratic layers. However, the impact of the amendment would be to impose another layer of bureaucracy on the NHS and social services. That is the last thing that either the NHS or local government requires.

There seems to be a misunderstanding of the role of an overview and scrutiny committee. Those bodies are there to scrutinise what is happening on health issues. They are not there to be executive bodies—which they would become if the amendment were accepted. The amendment states: The overview and scrutiny committee shall agree and adopt with local NHS bodies in their area, joint local protocols as regards the discharge of hospital patients". It is not the role of overview and scrutiny committees to agree and adopt with local NHS bodies joint protocols. That is the responsibility of the local authority and the NHS bodies. Of course I would encourage as much joint agreement as possible, but it is not the role of the overview and scrutiny committees to enter into such arrangements. Of course overview and scrutiny committees may well wish to inquire from time to time into the arrangements for delayed discharge and the performance of their own local authorities and relevant NHS bodies. I should very much welcome that. I believe that the local authorities' overview and scrutiny committees would have valuable insights to offer into how the system was running. But it is one thing to scrutinise; it is quite another to take executive decisions. On that ground, I strongly resist the amendment.

Baroness Barker

My Lords, perhaps I should have anticipated the Minister's reply. He may be correct that the locus for planning should be a partnership board. It does, however, mean that the role of the formal body within a local authority—the overview and scrutiny committee—will necessarily be reactive. I am not sure that that is the foundation on which to build the partnerships which the noble Lord has said throughout our debates on the Bill should be in place in order to make this work.

It is important to bear in mind recent announcements such as that made within the past month that there is no longer a requirement for local authority areas to have a community care plan, although health improvement plans are still required.

I continue to disagree with the Minister that his approach is right. I continue to think that his is a negative and destructive approach. I am searching, as he can see, for ways in which to build a positive approach to planning these matters at local level. This may not be the precise amendment to achieve that. I shall take it away and consider it. However, I shall continue to try to find a positive way to build those local arrangements which we agree are necessary, but we wholly disagree on the way to find them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Short title, commencement and extent]:

[Amendments Nos. 64 to 66 not moved.]

Earl Howe moved Amendment No. 67: After Clause I7, insert the following new clause—

"DURATION (1) Subject to subsection (2), Part 1 of this Act shall cease to have effect at the end of five years beginning with the date on which it comes into force. (2) If the Secretary of State is satisfied that it is necessary for social services authorities to continue making payments in cases where the discharge of patients is delayed for reasons relating to the provision of community care services or services for carers, he may make an order providing that Part I of this Act shall continue in force for a further five years. (3) An order may not be made under subsection (2) unless a draft of that order has been laid before, and approved by resolution of, both Houses of Parliament.

The noble Earl said: My Lords, after all our debates today, I am sure that it will not surprise the Minister that I move this amendment with a considerable measure of enthusiasm.

As the noble Lord, Lord Clement-Jones, said a few minutes ago, this is a Bill which brings us into experimental territory. I and other noble Lords have flagged up our concerns on it throughout these debates. We believe that the Bill will not work: it will militate against patient choice; it will distort priorities, to the detriment of elderly patients in the community; it will create all kinds of perverse incentives, some of which may make the problem of discharges worse, not better; and we believe that it will establish a confrontational culture between trusts and social services instead of a creative and collaborative one.

The idea of fining social services for failing to free up blocked beds originated in Sweden. But if we look at what happened there, we see that Sweden, even after operating the scheme for a number of years, still has a higher incidence of delayed discharges in both relative and absolute terms than we do in the UK.

The Government should acknowledge that there is a risk of this measure not working as they predict. As we have said on several occasions, it is the unintended consequences that are often not foreseen. If the Bill were to succeed in freeing up substantial numbers of acute beds without causing unmanageable problems in the community; if it succeeds in encouraging investment into new care homes and in preventive and community care facilities; if patients by and large receive the care that they want and need when they want and need it, then no one will be happier to eat his words than I. But I think that any experiment should have a finite life. After that, it should be subject to a thorough appraisal to see how well or how badly it has worked. That should be a fundamental principle of just about all legislation but never more so, I suggest, than in this case.

If we believe, as I think the Government do, that we should not regulate unnecessarily, that should certainly apply to a Bill which creates burdens for the public sector and incurs unproductive costs. That is why Amendment No. 67 has been tabled. If the Bill has to be passed into law, we should, at the outset, grant it a life of five years in order to prove its worth. If, at the end of that time, Ministers are satisfied that it is necessary, all things considered, to maintain the system of financial incentives in place, well and good. Let them come to Parliament with an affirmative resolution and we will debate it in the normal way.

That is all I ask—it is not so very much. The new clause ought, by rights, to commend itself to Ministers. I beg to move.

10 p.m.

Lord Clement-Jones

My Lords, I support the amendment of the noble Earl, Lord Howe. If the Government will not accept pilot schemes to see whether the mechanisms in the Bill will work and will be productive rather than counter-productive, the logic of the noble Earl's comments is irrefutable. Since the Government do not have a clue whether the Bill will work, it seems that a review after five years is the right way to go.

If the Government accept a five-year span for the Bill, they do not have to put it to the test now. As it happens, almost every Member on every Bench in this House believes that if the Bill were a plane it would crash, and in fairly short order. However, by accepting the noble Earl's very sensible amendment, the Government could sidestep that matter altogether, with very attractive consequences.

Lord Hunt of Kings Heath

My Lords, the noble Lord, Lord Clement-Jones, says that the Government do not have a clue whether the Bill will work. I really must say that that is quite unwarranted. We would hardly bring a Bill of such seriousness before your Lordships' House if we were not confident that it put in place the right incentives to enable delayed discharges to become a problem of the past.

We must think about those thousands of people every day who are stuck, unnecessarily, in hospital wards, risking the dangers of institutionalisation, infection and of losing their independence. That is very often down to poor practice between statutory agencies. We hear a lot from the opposite Benches about the problems of these poor statutory agencies who are unable to get their act together. However, I say to the noble Lord, Lord Clement-Jones, and to the noble Earl, Lord Howe, that unless we get to grips with the situation, many thousands of people over the years ahead will still be suffering from the seeming inability of statutory agencies to perform effectively and in the public interest. That is why we are bringing the Bill before your Lordships' House.

I believe that the Bill is even-handed and has the right incentives to make the system work effectively. I have no doubt that once it is introduced, we will see dramatic improvements in the way in which individuals are assessed and community services are provided, and a reduction in the number of delayed discharges.

I know that noble Lords opposite do not welcome the Bill, but that does not justify adding what is generally known as a sunset clause to it. Such clauses are generally used only in Acts passed because of national emergencies, such as the Import, Export and Custom Powers ( Defence) Act 1939—I have a list—or in Acts that impinge on individual civil liberties, such as the Terrorism Act 2000. As a resident of Birmingham, I am glad to see the Football (Disorder) Act 2000 on the list. Sunset clauses are not generally used in other legislation and it is not justified in this case.

I am confident that this is a good Bill. I am convinced that it will lead to better performance in the health service and local government. It deserves to be passed unfettered by a condition such as a sunset clause.

Earl Howe

My Lords, I have no difficulty with the Government's aim. We all acknowledge that there is a problem of delayed discharges and agree that we need to get a grip on the situation.

However, the direction of travel since the Government came to office in 1997 has been towards partnership working. I applaud that. They have introduced some innovative and imaginative measures, such as the duty of partnership between the NHS and local government and the ability to pool budgets. Perhaps above all they have encouraged a culture of partnership that is genuinely bearing fruit in a number of ways. None of us could fail to welcome that. We have only to look at the delayed discharge figures for the third quarter of 2002, which were published last week, to see that the trend is downward.

I therefore find it all the more surprising that the Bill moves in the diametrically opposite direction to the measures that I have just cited. The Government have nothing to be afraid of in our sunset clause. If the Bill works as they believe it will, it will be easy to demonstrate that fact to Parliament. I do not suppose that they would receive much opposition in doing so. If the Bill fails to work, there is no case for keeping it on the statute book. I fear that the damage it will do will be self-evident and there will be a general call to scrap it.

I am not sure why the Government are so reluctant to accept a sunset clause. Nevertheless, it being past sunset today, I do not propose to press the amendment. I have listened with care and appreciation to everything that the Minister has said today. I shall read what he has said between now and next week. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

House adjourned at nine minutes past ten o'clock.

Back to