Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Brooke of Sutton Mandeville: I speak as a member of the Select Committee on Delegated Powers and Regulatory Reform. I recall that a Select Committee was set up in another place to examine the impact of devolution on procedure. Indeed, I gave evidence to the committee. I speak to Amendment No. 6, standing in the names of the noble Baroness, Lady Barker, and the noble Lord, Lord Clement-Jones, which seeks to delete from Clause 1 the reference to regulations. My remarks refer to that particular reference to regulations.

The Minister will recall that in our report on the Bill we said that we approached each delegation on a case by case basis. We concluded that on this occasion the negative procedure was satisfactory. We went on to anticipate, however, that the impact of devolution on delegated legislation is an issue to which we shall more generally turn our attention in the coming months. The fact that the Bill covers England and Wales is the reason I raise the subject. We concluded with a statement that, meanwhile, we should find it helpful if government departments, when drawing up memoranda on delegated powers in Bills involving England and Wales, would say whether and, if so, how the devolution arrangements influenced their decision as to which parliamentary procedure should be applied in relation to instruments applying to England. I hope the Minister will indicate in his response whether this observation found favour with his department.

Lord Lucas: To return to Amendment No. 3, I recall, when happily occupying the Minister's position, receiving—quite rightly—a great deal of flak from these Benches for importing a definition from a taxes Act for use in a Bill about construction. Taxes Acts are very attractive from this point of view. They go into definitions at great length and are very consistent about them. But when one tries to apply them to the real world, they cause considerable problems. I am happy to say that, at the end of the day, I was forced to back-track and we were able to start from the principle that the Bill in question was a construction Bill and, therefore, the definition of "construction" ought to be from that point of view.

I think the noble Lord is falling into the same trap in the use of the words "ordinarily resident". This is a crusty and well-tried tax term which is immensely complex, as any Member of the Committee who has tangled with it will know. For example, I am not allowed to bring my grandmother's body back from Guernsey for at least 25 years in case she might be considered to be "ordinarily resident" in whichever

17 Feb 2003 : Column 936

piece of earth I lay her in. It is an extremely difficult piece of legislation, and it is an unfortunate term to use. The Government would do better to look at this from first principles and to ask: to whom do we really wish this to apply?

I understand, of course, that it one of the main duties of the NHS to be beastly to the Scots, and that any poor Scotsman who is idiot enough to fall ill in London deserves what he gets and should be denied the benefits of Clause 3 which would accrue to an Englishman or a Welshman. But I thought that we were under an obligation to our colleagues in the European Union not to subject them to this kind of discrimination. Given that obligation, why should a Frenchman who falls ill in London be denied the benefits of Clause 3?

Lord Hunt of Kings Heath: I certainly do not want to be beastly to the French, particularly at the present time.

As regards the definition of "ordinarily resident", I believe—although I will check and write to the noble Lord—that the health service is well used to that terminology. In debates on a great deal of legislation over the past few years we have reflected on how to deal with the NHS in terms of England, Scotland, Wales and Northern Ireland.

It will be the responsibility of the NHS body as defined in Clause 1 to determine the ordinary residence of the person in question. I do not believe that it will involve the hospital authority in arduous research, as was suggested by the noble Earl, Lord Howe. This is not the same as the "habitual residence" definition. I believe that it will be possible for the hospital authority to determine the ordinary residence without too much difficulty. If the local authority thinks that it has got it wrong, the dispute procedure—which we hope will be used reluctantly—is there to try to resolve the problem. This definition is indeed used in other social care legislation, including in the National Assistance Act 1948. Although I recognise the noble Lord's expertise on this question, in the field of health and social care legislation, as opposed to taxation legislation, it does not seem to have caused a particular problem.

As regards the point raised by the noble Lord, Lord Brooke, I wish that the noble Lord had been present when we debated the Health (Wales) Bill some two weeks ago, when an interesting discussion about the NHS in Wales developed to include far greater issues to do with constitution and the devolution settlement. I have learnt, on all those questions, to say that the commission chaired by my noble friend Lord Richard is, on behalf of the Welsh Assembly, looking at many matters to do with devolution. I understand that he will be reporting at the end of the year, and I am sure that we will all read the findings with a great deal of interest.

My understanding is that Wales will develop its own regulations through Part 1. On the timing, my understanding is that Wales does not intend to implement at this stage, so I do not yet have a date for implementation in Wales. If the Welsh Assembly were to

17 Feb 2003 : Column 937

implement this, they would be responsible for considering the regulations and how they would be adopted in Wales. I hope that answers the question.

On the more general questions raised in this group of amendments, I know that noble Lords are concerned about the impact of the Bill on the general provision of social care services. The argument is put by the noble Earl, Lord Howe, and the noble Lord, Lord Chan, that if a great deal of emphasis is placed on sorting out the problem of delayed discharges, it will detract from the general provision of social care services. I reiterate that that is not the Government's intent. Indeed, in our guidance on good practice in delayed discharge procedures, we have made it clear that we expect the health service and local authorities to take a whole systems approach.

I listened with care to what the noble Earl, Lord Howe, said about the risk that people requiring less intensive support will not get support. I would be worried if that then led to them being admitted to hospital in the future because there had been no early and quick intervention to prevent that from happening. However, we will stress the need for preventive action in all the guidance. The first way to deal with the problem of delayed discharge is to prevent people from entering hospital in the first place if they have no need to do so. That is why we will emphasise that constantly to local government in particular.

The noble Lord, Lord Chan, asked whether a particular person who was vulnerable would be affected by the Bill. I do not think that person would be affected adversely by the Bill. The Bill aims to incentivise the health service and local government to put together a cohesive package of arrangements to ensure a seamless and integrated approach to health and social care. That takes us back to why the Bill is being introduced. It is because of the experience in so many parts of the country where assessment takes an awful long time to happen: people wait in hospital unnecessarily until the local authority undertakes their assessment; there are long waits for domiciliary packages of care; disagreements between the NHS and social services; waits for social services funding; and waits for care home places. When two authorities in a locality have not been able to get their act together, the person who suffers is the vulnerable patient. That is why we have to sort it out and ensure that there is clear responsibility with clear incentives.

Some noble Lords are concerned that the Bill will distort the priorities of local government. Amendment No. 5 would remove the power to extend the provisions later to other services. If these measures work for older people in acute or geriatric care, should we in principle deny the benefits of the Bill to other services where, as noble Lords have indicated, there are problems of delayed discharges? Of course we intend the Bill to extend initially to the acute sector only. We will exclude mental health, learning disability and maternity care because we are taking a pragmatic approach to the scope of the Bill. We want to minimise the costs in setting up the system and the size of the task of implementation. But I do not think that means that we should at all times rule

17 Feb 2003 : Column 938

out extending the Bill to other services. The amendments would prove to be unworkable in their current form as there is no definition of either "acute" or "geriatric" care in the Bill, but I am sure that these are being posed as probing amendments.

We come again to self-funders. The noble Baroness, Lady Barker, asks how patients who will be responsible for funding their own community care after discharge are identified as such. I agree that it is an important question; we believe that it is best covered by statutory guidance, which we will be issuing to accompany the Bill, and is not suitable for regulations. That is because the regulations will prescribe the type of care that the person is receiving in order to be within the scope of the Bill—that is, acute care. The regulations do not define who receives services provided by the state and who does not. That is covered by other legislation.

On the specific points raised by the noble Baroness, let me make it clear that the Bill allows the NHS to charge local authorities for delays in instances when the only reason for the delay is that a local authority has not completed an assessment of patient need or provided the services that it had agreed to provide. When the NHS admits a patient who appears likely to require community care services after discharge, the NHS and, indeed, the patient may not be aware that the patient's financial situation is such as to make him a self-funder under the local authority criteria and should therefore notify social services on the basis of the likely need for services after discharge. However, the NHS cannot be allowed to assume that a patient is a self-funder and therefore not notify social services at all. That would run the risk of denying community care services to people who need them.

The legal position, as laid out in Section 47 of the National Health Service and Community Care Act 1990, is that everyone, regardless of means, is entitled to request a local authority assessment. If the NHS issues a notice for the local authority under Clause 2 of the Bill, informing the local authority that the patient requires assessment, the Bill places a duty on the local authority to carry out that assessment. If the local authority has not started or completed that assessment within the time limit allowed and the patient's discharge is delayed as a result, the local authority is liable to pay the reimbursement charge. That is the case even if it later becomes apparent that the patient is not entitled to local authority support and is a self-funder. If that has already become apparent, the local authority will have decided not to provide any services and its duties under Clause 3(3) will have been met. The local authority must be satisfied that the patient is capable both financially and mentally of arranging his own onward care before it can inform the NHS that it will not be providing any services for the patient and that it has therefore discharged its duty towards the patient.

Some patients may decide that they do not want to be assessed by social services or they do not want to accept the services which the local authority has offered to provide. That is the patient's choice. No one is under an obligation to accept social services assistance. But in

17 Feb 2003 : Column 939

those circumstances the local authority must make all reasonable efforts to assess and meet the patient's need in a way that is acceptable to the patient. The noble Baroness, Lady Barker, referred to an individual being given one choice, and one choice only. Offering only one kind of service and not allowing for any discussion of any alternative with a patient would not count as a reasonable effort. Only if the patient then continues unreasonably to object to the services offered, despite attempts to find a compromise, can the local authority regard itself as having discharged its duties towards the patient, who then becomes a self-funder. Once this has happened, patients become responsible for arranging their own onward care. Any delay in their discharge from hospital is not the local authority's responsibility. However, a self-funding patient does not have the right to occupy an acute bed indefinitely. Hospitals need a clear protocol and communication policy to ensure that patients and families are clear about the need for them to make arrangements for care after discharge.

I emphasise that local authorities' existing responsibilities towards individuals in need of community care services are not affected by the Bill. However, I accept that the kind of details that I have outlined are eminently suited to being addressed in the statutory guidance, which will be published with the Bill. I shall be happy to have further discussions with the noble Baroness on the matters she has raised, which will no doubt inform our discussions on that statutory guidance.

Amendments Nos. 9 and 11 deal with the interesting question of patients with a mental health condition. I have already said that we do not intend to extend the Bill to those patients in the first instance and we do not currently have a timetable for doing so. A decision on whether to apply reimbursement to the mental health sector will be taken after the system has had time to bed down in the acute sector.

I understand the points raised by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, about patients with mental health problems having complex needs. Whatever the complexity, waiting in hospital inappropriately because the package of measures required in the community is not available is as unacceptable to those with a mental health condition as it is to those with an acute health condition. If the legislation is successfully implemented, as I believe it will be, it would not be right at this stage to exclude mental health patients from the system. Let us monitor the effects of reimbursement in the acute sector. We can then decide, if appropriate, to include the mental health sector in the light of experience. The Bill already gives us the flexibility to do that.

If we then decided to extend the scope of the Bill to mental health, we would have to examine whether the reimbursement was set at an appropriate level. We would also have to consider whether it was appropriate to use regulations to extend the minimum compliance period. If the noble Baroness and the noble Earl are right that the difficulties that might arise when assessing mental health patients or putting services in place are of a different order compared with

17 Feb 2003 : Column 940

those for acute hospital patients, we can use the flexibility in the Bill which means that we do not need a one-size-fits-all system.

Delayed discharge affects many people, not all of them acute patients. There is eminent justification in allowing the flexibility to introduce an extension to the Bill at some stage, but continuing to focus particularly on those patients in acute beds.

Next Section Back to Table of Contents Lords Hansard Home Page