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Baroness Barker moved Amendment No. 261:

(1) Where a person has been assessed by a National Health Service body, or any other body or suitably qualified person acting under delegation or under contract to a National Health Service body, or as part of a multi-disciplinary assessment, as reasonably requiring for health care purposes--
(a) nursing care (including any planning, supervision, or delegation of such care) which--
(i) is planned for a person by a registered nurse after assessing that person's need, and
(ii) is provided, delegated or supervised by a registered nurse,
(b) the use of any medical, surgical or nursing equipment, or personal aid including that provided by or in a residential or nursing home home, or
(c) health care wherever provided, including care provided by or in a residential or nursing home.
(2) Health care includes, the diagnosis, assessment, monitoring and delivery of any care, treatment or therapeutic intervention.
(3) It shall be the duty of the Secretary of State to provide the care or equipment or aid as described in this subsection whether directly or indirectly throughout England and Wales.
(4) For the avoidance of doubt a local authority shall not be prohibited from providing or arranging services under subsection (1) above, provided they are delivered by the delegated authority of the NHS under the provisions within section 31 of the Health Act 1999 (delegated NHS functions).
(5) In cases where services are provided under subsection (2) above, section 1(2) of the National Health Services Act 1997 (services free of charge) applies.
(6) Nothing in this section affects the provisions of the National Health Services Act 1977."

The noble Baroness said: We now come to the part of the Bill which some of us believe is the absolute heart of the matter; that is, the definition of nursing care. The purpose of the amendment is to establish the responsibility of the NHS for healthcare needs, including nursing, equipment and other healthcare in nursing homes. Many people who have read the Bill have been taken aback not just by the narrow

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definition of nursing care but also by Clause 56 and the way it is phrased. It simply requires that local authorities should not purchase nursing care. It does not endow the National Health Service with a duty to provide nursing care. That seems rather strange.

The definition of "nursing care" in this amendment mirrors that provided by the Royal College of Nursing. It is necessary because a great many older people in nursing homes will not, contrary to what was perceived originally, be eligible for what is commonly thought to be nursing care. The definition of nursing care which we have had so far is not the one put forward by the Royal Commission on Long Term Care and it is not, I suggest to the Committee, the definition which most of us would draw up if we were to try to define nursing care.

It is extremely important that within the context of this debate we define what is and what is not nursing care. So far the Government have said that nursing care is what a registered nurse does. That is not sufficient because what nurses do is changing. Over the past few years there has been--and there is envisaged within the NHS Plan--a great degree of change and a great degree of "skilling-up" of nurses. That means that most of the nursing care which is carried out in nursing homes will not be carried out by registered nurses. It is far more likely to be carried out by care assistants. Therefore, it is important this evening that we draw up a definition of nursing care which is understandable and inclusive.

I suggest that we need to define nursing care this evening because if we do not do so, I suspect that nursing care will be defined in this House but not by us; it will be defined by the Law Lords at a different time. In the Coughlan case, where the care needs were felt to be wrongly judged, and not to come within the ambit of either the NHS or social services, a legal decision was sought, and I believe that that will happen again.

I believe that the Minister's reassurances which he sought to give to the noble Lord, Lord Rix, about NHS services being delivered free need to be backed up by a proper definition of nursing care. We have put behind us for the moment governance and structures and we are now getting down to talking about what those people will do and what their responsibilities are. But there are those of us who still fear that if those new structures are not accompanied by a wider definition of nursing care, we shall begin to see the part privatisation of the NHS.

I want to speak for a few moments about equipment. The amendment deals with that. As the Committee will know from many of the discussions we have had in the past, particularly on Audit Commission reports, provision of nursing and medical equipment is extremely important. At the moment, there is a duty in residential care homes for specialist medical or nursing equipment to be provided; but often it is not. Quite often older people pay for equipment, some of which is very expensive, when, were they in any other setting--at home or in a hospital--they would have received it free of charge.

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The noble Baroness, Lady Masham, talked about incontinence pads. I support her in her arguments about that. It is not unusual for older people in nursing homes to be paying for incontinence pads. Those are not luxury items; they need them as part of their every-day lives. In addition, it is not unheard of for people to have to pay for expensive items of equipment, such as pressure beds, which they would not have to do elsewhere.

Amendment No. 261 and the one put forward on behalf of the Royal College of Nursing, which we shall debate shortly, do that which all the Ministers who have wriggled around this question of the definition of nursing care for several months also do. They have said, "Who better can define what is nursing care than a nurse?" Who better to define it in terms of poverty than nurses in the form of the RCN? That being the case, I believe that noble Lords should have no problem in accepting the amendment. I beg to move.

Lord Rix: When I tabled Amendment No. 262 I had not envisaged two substantial discussions on the same issue in Committee and the rather lengthy Amendment No. 261 being grouped ahead of mine. For the second time, the Liberal Democrats opposite have beaten me to the starting post. In the circumstances I shall be brief because the twice told tale--boiling old potatoes--tends to lack an audience, even though at the moment it can only be described as thin.

My amendment addresses the issue quite simply that, in dealing with complex high-dependency needs, in some places a nurse or other health professional will be tackling the need, whereas elsewhere somebody else will be doing it. My argument is for common ground across the country and in all individual cases in all settings in assessing health needs and meeting those needs free of charge. Lesser availability of hands-on health professionals in one area should not mean that people in that area get possibly both a poorer service and a dearer service.

My amendment addresses all three of the desirable elements on which I believe we are agreed: quality, financial equity and getting away from the postcode lottery. Not even Manchester United can manage three goals simultaneously.

9.15 p.m.

Lord Archer of Sandwell: The noble Lord, Lord Rix, has many virtues which I cannot emulate. On this occasion it is the conciseness with which he stated his case. Included in this group of amendments are my Amendments Nos. 263 and 266. I make no complaint of their inclusion in the group. I certainly do not wish to imply any opposition on my part to the other amendments in the group. But in the interests of clarity, I begin by pointing out that my amendments address a much narrower point. I repeat the declaration of interest which I made at Second Reading.

I am privileged to be President of Methodist Homes for the Aged. One of our activities concerns the care and treatment of dementia patients. It is not by any

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means our only activity, but it is a field in which we have acquired some knowledge and expertise. We have dementia sufferers in a number of our residential homes. At Second Reading I referred my noble friend the Minister to the report of the Audit Commission published last year entitled Forget Me Not. A section was devoted to Methodist homes, particularly to the residential home at Mayfields in the Wirral, which is devoted specifically to the care of dementia patients. I do not know whether my noble friend was able to include that in his reading list. From my recollections of being in office, one's reading of anything but briefs, press reports and official documents goes into suspended animation. I see from the expression on my noble friend's face that he has not succeeded in reading it. I do not in any way complain about that.

The commission stated:

    "Staff training and support are fundamental to the regime of the home in which relearning and maintaining living skills is emphasised at all times".

I attempted to deploy the argument for the amendments at Second Reading. Subsequently, my noble friend generously spent some time discussing them with me. I can state the point at issue relatively briefly, although, as I have said, I cannot hope to emulate the noble Lord, Lord Rix.

Clause 56 relieves local authorities of the obligation to pay for nursing care. The reason, as I understand it, is that in future the cost will be provided by the health service, and that is very much to be welcomed. It is not intended that social care should be provided from that source. As I said at Second Reading, I recognise the disagreement between those who support the distinction and those who believe that no such distinction should or can be made. I see that the noble Earl, Lord Howe, has tabled an amendment on that point at a later stage. I am not addressing that dispute. For the purpose of this argument I assume that the distinction will be made, although I wish the noble Baroness well.

The distinction spelled out in the Bill is between nursing care provided by a registered nurse, which includes planned, supervised or delegated care by a registered nurse, and care which is not nursing care, which is that provided either by someone who is not a registered nurse or by someone who is, but it does not need to be provided by a registered nurse.

The implication appears to be that services within the definition in Clause 56, which will no longer be provided by local authorities, will be provided by the health service while other services will not. Unless I have overlooked it, that is not spelled out in the Bill. Therein lies the difficulty, because there are some conditions requiring services which any of us, using English words to mean what they normally mean, would call "treatment for the patient's condition" yet they may not be provided by a registered nurse.

The condition with which I am concerned for this purpose is dementia. At Second Reading the noble Lord, Lord Rix, referred to a number of other conditions of which perhaps the same might be said. I shall not repeat the examples which I gave, but

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sometimes a dementia patient will respond not to medication but to someone spending time with them, stimulating conversation, evoking their memories or their interests. That person may not be a registered nurse, but as the Audit Commission pointed out, although the treatment is not being administered by a registered nurse, it is being provided by someone trained and skilled in that form of treatment.

I appreciate that if the treatment consisted of administering medication it would probably be appropriate for that to done by, or under the supervision of, a registered nurse. If the patient were in a hospital or a nursing home, that is likely to be the treatment that would be administered. I appreciate that the type of home does not form part of the distinction in the Bill but it is a factual one: what kind of treatment is likely in fact to be administered where the patient resides. In a residential home the treatment may well be different, but it is frequently more effective. If my noble friend is in any doubt about that I can give him a list of people to whom he could refer.

One consequence of the distinction in the Bill is that the patient or his family may say, "Of course, he or she would be better off in a residential home and the treatment would probably be more effective, but that would cost money. If he or she were in a nursing home the treatment would be free, so we shall opt for the more costly and less effective option because the Government are paying for it". That is the point of my amendments.

My concern is with dementia. I know that there are other conditions which may raise a similar question, but what I am proposing is a formula which would not tie the hands of the Secretary of State but give him power to prescribe the condition or conditions which should be provided for in this way. I am not wedded to that form: what matters is the substance.

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