HL Deb 27 March 2003 vol 646 cc975-8

6 Page 2, line 8, at end insert— and

  1. (ii) has consulted with the patient (and in the case of a carer in relation to assessment under the Carers (Recognition and Services) Act 1995 (c. 12) and the Carers and Disabled Children Act 2000 (c. 16)) to ascertain their views and preferences, informed them of the reason for the notification, and obtained their informed consent or in the case where a patient lacks the mental capacity to give such consent, has recorded on the file what steps have been taken to ensure that the patient's best interests have been duly considered"

The Commons disagreed to this amendment for the following reason:

6A Because it is unnecessary to require consent for the giving of notices containing no personal information and because Lords Amendment No. 9 makes more appropriate provision for consultation.

Baroness Andrews

My Lords, I beg to move that this House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A.

At Report stage we agreed a government amendment that places a duty on the NHS to consult the patient, and where appropriate their carer, prior to issuing a notice to the local authority of the patient's likely need for community care services under Section 2. That reinforces the existing good practice, supported by statutory guidance for Section 47 assessments as well as the single assessment process and the recently published discharge workbook. It is a key principle that the patient should be kept informed and be consulted at all stages of the assessment process. This amendment puts the matter beyond doubt by placing that requirement on the face of primary legislation.

Our amendment goes further, however, and requires consent. I understand that where the patient clearly gives or withholds consent to the question of whether social services should be notified, that would appear to be straightforward. In a previous debate, the noble Earl, Lord Howe, stated that he thought that few people would not want at least to have advice from social services on what services they might need when leaving hospital. The problem with the word "consent", however, is that the matter is not always that clear cut.

There are cases where the patient may refuse, thinking that he wants nothing to do with social services. He may be unaware of what social services can do, or afraid because he has never had any contact with social services. He may be concerned about the implications for his family, his privacy and his future life. There may be other cases in which an older person does not feel able to give a clear answer but wants to wait for a family conference before agreeing or wants someone to explain what is involved. In such cases the lack of consent would stop the NHS contacting social services. It would even prevent the social worker based in the hospital visiting, causing several days' delay in discharge planning. If consent were eventually given, it could still substantially reduce the time that social services had to assess and plan. Our amendment— which means that the NHS body must consult both the patient and their carer, if they have one, before issuing the notice—will mean that the patient knows that social services is involved.

As we said, in the majority of cases patients will be happy at least to have the options explained. For those who are concerned about what social services might do in their case, the social worker may be the very person to reassure the patient. However, that process must be given a chance. The NHS body must be able to start planning for discharge and needs to be able to notify social services. I reiterate again that all that is being given to the local authority with the Section 2 notice is the patient's name. So if the social worker arrives on the ward but the patient does not agree to social services involvement, they still have a right to refuse to co-operate or to accept the services on offer. That is why we believe that the government amendment was appropriate.

Guidance for the Bill will also clearly tell the NHS what steps that consultation should involve. We have made clear in guidance exactly what steps have to be taken. I can tell noble Lords that we would also be prepared to include in regulations that the Section 2 notice must briefly record the patient's or carer's views and the outcome of the consultation. We have therefore listened to the concerns, and we believe that that proposal will meet them. It will make clear to the NHS the importance of involving patients and families at that stage and of keeping them fully informed as to what happens next in the discharge process.

I hope that, with those reassurances, the noble Baroness will feel able to withdraw her amendment.

Moved, That the House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A.—(Baroness Andrews.)

Baroness Barker rose to move, as an amendment to the Motion that this House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A:

6B Leave out "not".

The noble Baroness said: My Lords, I thank the Minister for that statement and for the helpful letter which the department sent last week to my noble friend Lord Clement-Jones. That letter set out many of the points that she has just made. I am glad that we have moved on from the position outlined in the draft regulations which seemed to give older people no say at all in the process. I believe that it is right to enable older people to have some influence in the process.

Always at the back of my mind was the fear that older people seeing the new system in operation as described at earlier stages would believe that if they went to hospital, nothing could be done to stop them going into an old people's home. That might seem an irrational fear to your Lordships but it is real to many older people. I am glad that it will be possible to explain to older people that such will not happen to them but that they or members of their family can be active participants.

I agree that many older people would like the opportunity of help from social services. Social workers can be of enormous help in explaining what is available. I hope that when the new system comes into force, there will still be room for flexibility and a human approach to older people in hospital—that we will not take away from nurses the ability to treat their patients holistically, which is part of good nursing. I am heartened by the Minister's comments. We have almost reached the point where I wanted us to be.

Moved, as an amendment to the Motion that this House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A, leave out "not.—(Baroness Barker.)

Earl Howe

My Lords, while the concessions made are not all on the face of the Bill, we now have a more patient-centred measure than before, which is a thoroughly healthy development. I retain a small measure of disquiet about possible abuse of patient confidentiality—even under the tighter rules that the Minister outlined. I add my thanks for the comprehensive letter sent by the Minister's colleague, Jacqui Smith, a few days ago.

It is important never to lose sight of patient confidentiality. We can be cavalier about it. We can even be cavalier about it within the confines of the NHS—but outside the health service, it is important to remember that sensitivities must be observed as much as possible. That said, we have taken several major steps forward and I thank the Minister for her part in that process.

Baroness Finlay of Llandaff

My Lords, I am grateful for the changes to the Bill, which is moving away from over-rigid enforcement of consent by patients—to whom the thought of signing something might seem threatening—in favour of consensus and assent.

I noted with interest the Minister's comment that the interview with the social worker would record the carer's views and the outcome of the consultation in the case notes. Can the Minister clarify whether that will be done in the clinical case notes from the patient's ward or in the case notes held by social services? That has some implications for who will audit the process and be responsible for making sure that consultations are routinely recorded—so that one can be sure that the process was one of negotiation.

As the noble Earl said, older people are often frightened about any breach of confidentiality—particularly in respect of financial issues. They are absolutely terrified of information about their assets leaking out and feel vulnerable to crime. When older people are ill, they may have a distorted perception of the world around them. Face-to-face contact with a social worker is important but we need to ensure that the audit processes are implemented, to ensure that the Bill's important provisions are continually enacted and that no shortcuts are taken—and so that if there are any local breaches, they can be acted upon quickly.

4.45 p.m.

Baroness Howarth of Breckland

My Lords, while recognising the need to respect patient confidentiality, a huge amount of aggregated data will be created that could tell us a lot about how services are being delivered. Is there any intention of collecting that data? I was recently involved in another review where it was clear that there was a huge lack of consistent information to underpin strategic planning. It would be useful if we could capture relevant data to provide good information for the future.

Baroness Andrews

My Lords, the noble Baroness, Lady Howarth, makes an important point. Part of the task of the team working on implementation will be to work out how such information can be most effectively used—perhaps as part of the single assessment process, if appropriate.

Perhaps I may say to the noble Baroness, Lady Finlay, that we are talking only about recording the fact that a consultation has taken place—so the clinical notes would not be relevant in that context. The Section 2 notice itself will provide the record.

Baroness Barker

My Lords, in view of the Minister's response, I beg leave to withdraw the amendment.

Amendment No. 6B, as an amendment to the Motion, by leave, withdrawn.

On Question, Motion agreed to