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Column Number: 341
Standing Committee A
Thursday 4 November 2004
(Morning)
[Mr. James Cran in the Chair]
9.30 am
Clause 36
Duty of NHS body to seek advice before providing accommodation
Amendments made: No. 226, in
No. 227, in
The Minister of State, Department of Health (Ms Rosie Winterton): I beg to move amendment No. 228, in
The Chairman: With this it will be convenient to discuss Government amendments Nos. 229, 230 and 234.
Ms Winterton: Clause 36 deals with the duty of a national health service body to seek the advice of the independent consultee when it proposes to move an unbefriended person who lacks capacity into or between a hospital or care home. Clause 37 places a similar duty on local authorities.
Amendments Nos. 228 and 230 have been introduced to clarify the fact that all unbefriended people without capacity who move into care homes or residential accommodation arranged or funded by either the NHS or local authorities will have access to an independent consultee after eight weeks.
Clause 36(2) provides that the independent consultee safeguard applies unless the accommodation arranged or provided by the NHS is likely to be for a continuous period of less than 28 days. That includes accommodation in either a hospital or a care home. Under clause 37, which deals with accommodation provided by local authorities, the safeguard applies after eight weeks' residential accommodation. That means that we have two different time periods for people who may be in the same accommodation.
Two identical patients could end up in residential care homes, one placed by an NHS body and one placed by a local authority. One would have an independent consultee if the period was expected to be more than 28 days, whereas the other would have an independent consultee only if the period was more
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than eight weeks. We cannot justify that distinction. The amendments therefore bring the time limit under clause 36 in line with clause 37 for all people in care homes or residential accommodation. The time limit will remain at 28 days for people in hospitals.
Mr. Tim Boswell (Daventry) (Con): I am grateful to the Minister for explaining the amendments so clearly. Will she clarify the position on assessments, either now or later in our discussions? The duties imposed under clauses 36 and 37 are about seeking advice, but I take it that they do not cut across the professional duty of the NHS body or the local authority to seek professional assessment of the person's condition before even suggesting a placement.
Ms Winterton: I can give the hon. Gentleman that assurance. We will also be considering annual reviews of accommodation.
Government amendments Nos. 229 and 234 ensure that all unbefriended people without capacity who move into hospitals or residential accommodation arranged or funded by the NHS or local authorities will have access to an independent consultee as soon as it becomes apparent that they are likely to be accommodated for longer than 28 days or eight weeks. When deciding on care arrangements, a health or social care professional may well consider at the start that the likely stay will be less than 28 days or eight weeks, but the period may turn out to be much longer. Under the Bill as drafted, P would not have the benefit of the independent consultee. The two amendments will put that right. I hope the Committee accepts them.
Amendment agreed to.
Amendments made: No. 229, in
clause 36, page 20, line 34, at end insert—
'( ) If the NHS body—
(a) did not seek advice from an independent consultee before making the arrangements because it was satisfied that subsection (2)(a) or (b) applied, but
(b) subsequently has reason to believe that the accommodation is likely to be provided for a continuous period—
(i) beginning with the day on which accommodation was first provided in accordance with the arrangements, and
(ii) ending on or after the expiry of the applicable period,
it must seek advice from an independent consultee.'.
No. 230, in
clause 36, page 21, line 4, at end insert—
'( ) ''Applicable period'' means—
(a) in relation to accommodation in a hospital, 28 days, and
(b) in relation to accommodation in a care home, 8 weeks.'.—[Ms Rosie Winterton.]
Question proposed, That the clause, as amended, stand part of the Bill.
The Chairman: With this it will be convenient to take the following: New clause 22—Right to an advocate in connection with the provision of accommodation—
'(1) The specified circumstances in which independent advocacy must be made available shall include consideration of a major change in a person's accommodation and or support where the accommodation on support is to be paid for in whole or in part from public funds, or would be but for the fact the person's resources
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exceeds those set in regulations under section 22 National Assistance Act 1948 and where it appears to the relevant authority that P may lack capacity in relation to that major change in P's accommodation and/or support arrangements.
(2) A major change for the purposes of this section means any change
(a) to accommodation for a continuous period intended to or likely to exceed 28 days, or
(b) any new contractual arrangements for providing support, for a person who lacks capacity to agree to the changes, where the accommodation or support is to be paid for in whole or in part from public funds or
(c) where the arrangements need to be made a matter of urgency.
(3) Any NHS body or local authority must seek and take into account representations from in independent advocate if it is liable to provide an assessment or assessments under any of the following for the person P where it appears to the relevant authority that P may lack capacity in relation to specific matters connected to that assessment or assessments:
(a) section 47 NHS and Community Care Act 1990 (and for the avoidance of doubt this includes those assessments under section 3 of the Community Care (Delayed Discharges etc) Act 2003,
(b) section 117 Mental Health Act 1983,
(c) section 1 and section 5 Carers and Disabled Children Act 2000,
(d) assessment under the Continuing Care (National Health Service Responsibilities) Directions 2004 or Delayed Discharge (Continuing Care) Directions 2004
(e) any assessment for services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) or any assessment for support under the Supporting People (England) Directions 2003, the Supporting People Grant (England) Guidance 2003 or assessment for charges under the Local Authorities (charges for Specified Welfare Services) (England) Regulations 2003 or
(f) any care planning for in-patient care, care following discharge or continuing care under the Care Programme Approach.
(4) Where emergency accommodation and support arrangements have to be made, these arrangements shall be reviewed as soon as possible, taking account of representations made by the independent advocate.
(5) ''NHS body'' has such meaning as may be prescribed by regulations made for the purposes of this section by
(a) the Secretary of State, in relation to bodies in England, or
(b) the National Assembly for Wales, in relation to bodies in Wales.'.
New clause 25—Duty on public body to assess capacity—
'(1) Where it appears to the relevant authority that a person (''P)'' may lack capacity in relation to matters connected to—
(a) the assessment of P's needs for services which may be provided or arranged by the relevant authority (''assessment of needs'') or
(b) the provision of services to P which may be provided or arranged by the relevant authority (''service provision decision'')
no part of this Act will authorise a person to do an act connected with the assessment of needs or service provision decision unless the steps set out in subsection (3) are followed.
(2) For the purpose of subsection (1) and (3) a ''relevant authority'' means either—
(a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990,
(b) a local housing authority within the meaning of the Housing Act 1985, or
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(c) a Health Authority, Health Board, Special Health Authority, Primary Care Trust or National Health Service trust.
(3) The relevant authority must:—
(a) make arrangements for P's capacity, in relation to the matter in question, to be assessed;
(b) notify P of the help available from, and assist P (if P so requires in contacting, an independent advocate under the arrangements under section 34, (such help may include assisting P in communicating his views);
(c) consider whether P requires any additional assistance in communicating his views (whether by talking, using sign language or other means); and
(d) where P has been assessed to lack capacity in relation to the matter in question, to make such enquiries as are necessary to be satisfied that the matter does not fall within the scope of the authority of—
(i) a donee of a Lasting Power of Attorney granted by P,
(ii) a deputy appointed by the court, or
(iii) an advance decision to refuse treatment (where treatment is being considered).
(4) In carrying out an assessment under (3)(a) the relevant authority must take into account the views of:
(a) P with or without the assistance of an independent advocate providing support in accordance with subsection (3)(b), and
(b) anyone named by P as someone to be consulted on the matter in question or on matters of that kind, and
(c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and
(d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.'.
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