Health and Social Care Bill

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Mr. Hutton: I have had time to reflect. The hon. Gentleman is familiar with the proceedings on the Care Standards Act 2000, so he will be aware that it is a condition of registration for someone who runs a nursing home that he should provide adequate nursing care at all times. If a nursing home fails to do so, there will be a problem with its registration. The person who runs the nursing home is responsible for ensuring that adequate nursing care is available at all times.

Mr. Hammond: I must ask the Minister to take a little trip from the fantasy world where Health Ministers live to the real world, where people have great difficulty in recruiting and retaining staff and where people get flu and go off sick. Is he suggesting that frail, elderly people should be left lying unattended on a bed because the registered nurse whom the Bill insists should be provided by the home's owner to look after them is not there?

Mr. Hutton: Of course I am not suggesting that. It is the responsibility of the person who runs the nursing home to make available suitable nurse cover to meet the assessed needs of the home's residents. Any difficulties should be addressed by, for example, the employment of bank nurses.

Mr. Hammond: I understand the Minister to be saying that the absurd example that I gave could actually happen. If a care assistant undertakes a task, perhaps under the supervision of a nurse who is unavoidably dealing with another urgent situation, the task would have to be paid for and would be subject to the means test of the person receiving the care. That seems even more absurd than some of the other scenarios that we have outlined. When the Minister thinks about that example, he must agree that that is not the right way to go.

I entirely accept that there might be difficulties in defining care

``usually or routinely of a type''

provided by a registered nurse and that such care must be defined in a precise legal way. However, we all know what we mean by that, even if we might have difficulty in writing it in a Bill.

I hoped that the Minister would at least concede that, if the care that was normally provided by a nurse was, in a particular instance and for a particular reason, provided by a health care assistant under a nurse's supervision, he would not penalise the recipient of the care. The Minister seems not to acknowledge that there might be different practices or ways of working for perfectly proper reasons and that one size does not fit all in the delivery of care. There might be tasks that are dealt with in one county, town or care home by a nurse, but which are routinely dealt with elsewhere by a health care assistant. The Minister seems not to recognise that the availability of nurses varies significantly between different parts of the country. As he and his colleagues must know, the pressures on the available supply of qualified registered nurses are intense.

The definition that we seek to write into the Bill represents a practical attempt to probe the Minister on his definition's workability. We are not seeking to expand it in a way that would lead to uncontrolled budget problems, which I am sure lie at the back of the Minister's mind, but are considering at the practical circumstances in which people work, and at situations in which health care assistants provide much care under the direction of registered nurses. We are thinking of a labour market that is very difficult in many parts of the country and asking the Minister to take a slightly more pragmatic approach and ensure that we do suffer unintended and perverse effects by forcing care home owners to hire nurses, agency nurses or bank nurses who are desperately needed elsewhere in NHS hospitals so that they carry out tasks that could be performed perfectly adequately and safely by health care assistants.

The Bill could result in charging an individual who would otherwise receive care free of charge. That would be the worst possible outcome for the individual, the care home providers, the NHS and the wider health care economy. I am disappointed that the Minister has made no gesture towards recognising that there is a problem with the definition that he has proposed, since it is based on who performs a task, rather than defining what the task is. The definition makes no recognition of regional variations or local labour market variations, and it will lead to a great deal of trouble when the Government try to implement it.

Members have tabled amendments to express their concerns, not about the principle, but about the workability of the Governments' proposals and I hope that they will join me in asking the Minister, through a vote on amendment No. 306, to think very carefully about his definition before we reach Report.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Division No. 7]

AYES
Brand, Dr. Peter
Burns, Mr. Simon
Burstow, Mr. Paul
Hammond, Mr. Philip
Swayne, Mr. Desmond

NOES
Bradshaw, Mr. Ben
Dawson, Mr. Hilton
Fitzsimons, Lorna
Foster, Mr. Michael Jabez
Hutton, Mr. John
Jamieson, Mr. David
Naysmith, Dr. Doug
Prosser, Mr. Gwyn
Stewart, Mr. Ian

Question accordingly negatived.

Amendment proposed: No. 298, in page 42, line 42, leave out from `care' to end of line 6 on page 43, and insert,

``or health care within the meaning of subsection (2)''.—[Mr. Burstow.]

Question put, That the amendment be made:—

The Committee divided: Ayes 2, Noes 9.

Division No. 8]

AYES
Brand, Dr. Peter
Burstow, Mr. Paul

NOES
Bradshaw, Mr. Ben
Dawson, Mr. Hilton
Fitzsimons, Lorna
Foster, Mr. Michael Jabez
Hutton, Mr. John
Jamieson, Mr. David
Naysmith, Dr. Doug
Prosser, Mr. Gwyn
Stewart, Mr. Ian

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Clause 48 ordered to stand part of the Bill.

Clause 49

Preserved rights: transfer to local authorities of responsibilities as to accommodation

9 pm

Mr. Hutton: I beg to move amendment No. 226, in page 43, line 16, leave out from beginning to `is' in line 17 and insert—

`(1A) For the purposes of this section a ``qualifying person'' is—

(a) (in relation to any time before the appointed day) a person to whom section 26A(1) or section 86A(1) applies; or

(b) (in relation to any later time) a person to whom either of those sections applied immediately before that day.

(2) Where a qualifying person'.

The Chairman: With this it is convenient to take Government amendments Nos. 267 and 268.

Mr. Hutton: The amendments will ensure that local authorities are under a duty to identify people with preserved rights, to assess their care needs and to make community care provision for them after the repeal of section 26A of the National Assistance Act 1948. Section 26A established the preserved rights scheme.

Clause 49 requires local authorities to secure community care services for people with preserved rights. It also places an obligation on them to identify people with preserved rights and to carry out care assessments on them. As worded, the clause is linked to the requirement and responsibility to people to whom section 26A applied. However, subsection (1) repeals section 26A. That would mean that if, and when, the Bill received Royal Assent and came into force, section 26A would not apply to anyone. We do, of course, want local authorities to be under a duty to identify people with preserved rights and to make appropriate provision after the repeal of section 26A. That may be necessary where the details of someone with preserved rights reach the local authority's attention only after the system of preserved rights has ended. The amendments will ensure that local authorities remain under a duty to identify people with preserved rights and to make community care provision for them after the repeal of section 26A.

These amendments are purely technical and make sure that there are no loopholes that people under the preserved rights scheme might slip through. I hope that the Committee will be able to accept them.

Amendment agreed to.

Mr. Swayne: I beg to move amendment No. 314, in page 44, line 18, at end insert—

`(8A) The relevant authority may by regulations prescribe that local authorities shall communicate such information as it shall prescribe concerning the effect of this section to persons who are likely to be qualifying persons on the appointed day, in such manner and at such time prior to the appointed day as it shall prescribe.'.

I shall not detain the Committee on a clause that has received such a general welcome. However, there is an important issue. It is proper to remember that one of the principal reasons for which preserved rights were created in the first place was to provide an assurance to those already in care homes that they would be able to remain there. As the Minister has said, there will be a duty on the authorities to identify and to assess those with preserved rights. That assessment may give rise to a quite different—though desirable, I suppose—provision of care than they are currently enjoying. The Government's response to the royal commission on long-term care states at paragraph 2.27:

``Some of the younger disabled people with preserved rights probably should not be in residential care at all.''

It goes on to outline quite desirable and proper alternatives to that. However, the paper continues, and observes in paragraph 2.30 that

``the prospect of changes to both schemes also worries people.''

In paragraph 2.31, it states:

``The Government will therefore issue guidance that people must not be moved against their will out of their existing care homes unless there is a compelling reason why they should move.''

Of course, there has to be some provision for that, but as the Government have acknowledged in their own paper, there is some anxiety. All that we seek is an an assurance from the Government that they will ensure that proper publicity and information is made available ahead of the implementation of those provisions to provide reassurance for those people who will be affected by those provisions.

 

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Prepared 6 February 2001