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Lord Lipsey: I am tempted to begin by saying that the frontal attack on the citadel having failed, here come the Trojan horses. I can quite see the force behind the amendments. The trouble is that most of them take us a very long way towards the suggestion that all personal care should be free. This House considered that in the very first debate at Committee stage of this Bill and it was decisively rejected. Perhaps I may illustrate that as regards the speech made by my noble and learned friend. I very much understand the case he is making. Rougly speaking, from the estimates which I have seen, 37 per cent of those in residential care are suffering from dementia. So if the things they require are free, that is 37 per cent of the cost of free personal care. But it goes beyond that because my noble and learned friend said that there are other conditions that may be alike which should also be free. So the number starts rising and will take a bigger and bigger share of the budget. In consequence, it will chop off the money which is available--

Lord Archer of Sandwell: I am grateful to my noble friend for giving way. Lest we spend time on a misunderstanding, and I am sure it was my fault, I was not suggesting that--as my noble friend said--

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"everything that they require should be provided in this way"; I was suggesting that the additional costs of the time that would be spent on this kind of treatment should be provided in this way.

Lord Lipsey: My noble friend will find that that was the bulk of the expenditure being expended. The definition in the Bill of free nursing care is not very lovable. I accept that it has anomalies and some false distorted incentives. I worry very much that what will happen as a result will be that too much will be done by nurses and not enough by people who are equally skilled but who do not require the full list of skills of a registered nurse.

I accept that as a criticism. The trouble is that as one goes through the alternatives--I have done this exercise privately and publicly with other Members of this House and in many forums--nothing else runs that does not end up with the great bulk of the personal care coming under nursing care.

Lord Rix: I thank the noble Lord for giving way. I should like to point out that my amendment does not refer to personal or social care. It says purely and simply that if a person is in receipt of National Health Service care, another person with exactly the same condition should also be in receipt of National Health Service care. Nothing is mentioned in my amendment about personal care whatsoever.

Lord Lipsey: Those receiving national health care gets all their meals free. Is the noble Lord, Lord Rix, suggesting that that should not be charged for?

Lord Rix: I thank the noble Lord for giving way. I am suggesting that, if one is in need of National Health Service care, which includes free meals, and one is such a person in another area, then that should apply, yes.

Lord Lipsey: That is a very helpful clarification from the noble Lord. He is saying that free personal care did not go far enough; that we must have much more than that. That is a perfectly viable point of view. I am not saying that it is not. It is a terribly expensive point of view. It would not leave any money for intermediate care. If the noble Lord had tabled an amendment to that effect, I should have directly liked to address that proposition.

None of the other definitions of nursing care that have been tried comes out any better, in terms of clarity or anything else, than the one in the Government's Bill. I refer again to the speech made by my noble and learned friend Lord Archer. His definition is that a great deal of help is given to people with Alzheimer's disease but not with other conditions. There is the case of Mr Ernie Saunders, who I believe has tucked away a substantial fortune, who is getting his free care so he is jolly rich compared to someone who is just above the £18,000 limit who requires nursing care for a different condition who does not. That is a definition that would fall apart in this House.

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One could have a list of conditions. That is an approach that tempted me very much. The trouble is that when one tries to define which conditions should or should not be on the list, and to draw the line at such a place if it does not lead to unaffordable expenditure, that collapses on one. We have all had a go at finding a better definition. No one has found a definition that succeeds in keeping the costs of free nursing under control so that money is available for the improved services--that should be the priority. Secondly, we need a definition that is clearer and more defensible than the definition in the Bill.

I am absolutely certain that if someone came up with such a definition tonight the Minister sitting there would leap to his feet in joy that the hours that have been spent on this matter are needed no longer. We have solved the problem. But with every good will--

Lord Archer of Sandwell: I thank my friend for giving way. At the risk of being tiresome, could I point out that I was not suggesting resting on a definition, but empowering the Secretary of State to look at the particular conditions which he thinks should be treated in this way.

9.30 p.m.

Lord Lipsey: That simply chucks back exactly the same problem. Either he should include the conditions about which my noble friend is worried, in which the cost implications that I am worried about are brought back, or he does not include the conditions my noble friend is worried about, in which case we shall not move any further forward. The Secretary of State will still have to make essentially the same decision; namely, that it is intrinsic in the definition of nursing care being proposed as regards what should be put in and what should be left out.

I have spoken for longer than I had intended. I hope that noble Lords will forgive me, but it has been a little difficult to deploy the case because I have responded to so many interventions. Ultimately, the definition in the Bill, although, as I have said, it is not altogether satisfactory, is less unsatisfactory than anything else. In this whole area we have to consider these: choices, trade-offs and priorities. I am prepared to go along with the choices, trade-offs and priorities that have been incorporated in this Bill.

Baroness Greengross: I rise to support the amendments. I have been one of the Members of this House who has welcomed free nursing care as well as the Government's investment in intermediate care--once we are clear about how that is going to be delivered and how the funding will be arranged--along with the various changes to the charging regime for residential care.

What has just been said by the noble Lord, Lord Lipsey, points to a fundamental difficulty: we do not know how to define nursing care. So many have tried to do so, but it is difficult. Perhaps the Department of Health should have been able to achieve a definition. It has had a long time in which to think about this--since the Leeds case in 1993 and then again since the

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Royal Commission reported in 1999. Despite those difficulties, I know one thing: Clause 56 as currently drafted is not adequate. It does not include certain health services that I believe should be included.

Rather than add my own amendments, I should like to know how the Minister is going to respond tonight. That is because various views are held on a reasonably good definition of nursing care; indeed, we have heard them during the course of this debate.

I should like to refer briefly to the Minister's remarks during our debate last Thursday:


    "The NHS has a duty to provide healthcare to any member of the public as reasonably required".--[Official Report, 15/3/01; col. 1038.]

Incidentally, that is the wording used in Amendment No. 261. If the NHS has assessed a health need, then the residents of care homes or of anywhere else should already receive NHS services directly from the NHS in the same way that anyone would receive services from a GP, a physiotherapist or from other members of the health professions under the responsibility of the NHS.

On previous occasions I have tried to make this important point: the NHS should provide healthcare as reasonably required. I do not understand how this cannot include certain tasks and certain pieces of equipment provided in care homes if it is the responsibility of the NHS to provide them. I refer to items such as dressings for open wounds, the insertion of gastro-nasal tubes and the provision of some of the absolutely essential equipment that has already been referred to. The noble Baroness, Lady Masham, mentioned incontinence pads. Such items are not charged for anywhere else.

However, under the current proposals, equipment and services such as these are not considered to form a part of nursing care. That is fine. However, equipment and services like these do form a part of healthcare. It is iniquitous to deny people this kind of healthcare because people need such equipment and services: they must be made available when and where they are needed.

We have only a short time in which to get this right. Perhaps the way forward would be to accept an amendment to Clause 56 so as to give the Secretary of State powers to widen, amend or clarify the definition of nursing care. Indeed, perhaps we should ignore nursing care altogether and refer only to healthcare, as I have suggested. If such a regulation-making power is not included in the Bill, as I understand it, it will not be easy to change the law until further primary legislation on the NHS is presented to this House. I hope that the Minister will reconsider, even at this late hour.


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