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Baroness Andrews: There is a difference. Ultimately the NHS has to make the decision on medical and fitness grounds. For the social services to hold the NHS to ransom would not be in the spirit of the Bill nor in the interests of the patient. It will work the other way because there will be a joint assessment—a full process is set out under the single assessment process—which will require not enforced agreement but negotiations, with input from the relevant expertise, where judgments are shared and made. There is a difference.

Lord Clement-Jones: I thank the Minister for her detailed response. It contained some interesting nuggets, particularly in relation to fuel poverty and a number of policy documents which will be coming down the track.

Her response demonstrated the limitations of what the Government are prepared to countenance in terms of partnership working. It is rather like the Government wearing a mask and saying, with an open and smiling face, "Yes, we are all in favour of partnerships and joint working"—and then ripping off the mask and saying, "What we are worried about is you holding us to ransom, so we have to make sure that all the powers and responsibilities are held by the NHS. We cannot give the right to consult to local authorities and social services". That is the underlying problem. The Bill is confrontational in that respect.

Baroness Andrews: The burden of what I said in regard to most of the amendments is that the powers

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which would facilitate a joint partnership already exist under different legislation which will be contingent on the Bill.

Lord Clement-Jones: I agree—certainly in regard to the provisions in the 1990 Act. As regards housing and fuel poverty—these are two of the nuggets to which I referred earlier—the Minister's explanation was quite useful. The fact that the ODPM and the Department of Health are putting together a paper on housing for older people is a positive development.

But, ultimately, the issue is not how can we charge people if they do not accept discharge but how we can best facilitate partnership between local government and the NHS. I am afraid that the debate on this issue has underlined the fact that the Government are not prepared to see an equal partnership between the two. This issue is very much NHS driven. The powers will be with the NHS but an awful lot of the burden will fall upon social services.

There have been other interesting areas of discussion. The right reverend Prelate was extremely eloquent on the issue of fuel poverty, on which my noble friend Lady Maddock is an authority, having steered through a Private Member's Bill on the subject. But there are wider topics than fuel poverty and housing and, whether it is called joined-up care or joined-up thinking, as a result of this Bill matters seem to have become more complicated and more punitive on social services if they do not comply.

The amendments seek to redress the balance somewhat while also introducing into the debate the issues of housing and fuel poverty. It may have been wrong to attempt to address both of those issues in the same grouping, but the fact remains that there are real problems with the Government's approach. I hope that the Minister's assurance will be followed through.

I accept what she said about beefing-up the workbook. She almost said "workshop". The Committee will probably constitute a discharge workbook after two days' debate and its members will not be sorry to discharge themselves. But the discharge workbook needs beefing-up in terms of its references to fuel poverty and to housing. It is all very well to refer to policy documents, but people have to understand the total context in which patients are being discharged. The discharge workbook can be massively improved in that respect. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 14 and 15 not moved.]

Lord Clement-Jones moved Amendment No. 16:

    Page 2, line 8, at end insert—

"( ) the responsible NHS body and the social services authority publish and operate an agreed code of practice governing the sharing of patient information;
( ) in cases where a patient has limited mental capacity, a procedure exists to appoint an independent advocate."

The noble Lord said: In moving Amendment No. 16, I shall speak also to Amendments Nos. 18, 34, 50, 69 and 96.

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Just as the Bill omits reference to the consent of local authorities, even more importantly it omits any reference to consent of the patient or carer when placing a duty on the NHS to refer a patient to social services. The amendments seek, first, to give patients a right to be properly consulted and, if they so choose, to refuse the recommended referral.

Although many patients will welcome an early referral to social services, others may consider that they are able to make adequate arrangements for themselves without intervention from social services. Without the amendment it could become normal for the NHS to make automatic referrals to social services without informing the patient of its intention to do so. In the case of an emergency admission the referral might take place at a stressful time for the patient and family and before they have had time to think what arrangements they can put into place themselves.

There is nothing in Clause 2(1)(b) to indicate who makes the decision that community care services are likely to be required or how such a decision is made. Given that hospitals are likely to prefer that all patients come under the responsibility of social services—this will mean that penalties can be imposed if discharge is delayed—it is likely that without a specific recommendation that the views of the individual are taken into account, all patients will be referred regardless of their wishes. Imposing a duty on one authority to refer a patient to another authority without the express consent of the patient goes against the patient's confidentiality and could be a breach of Article 8 of the European Convention relating to respect for private and family life, home and correspondence.

In order to comply with Standard 2 of the National Service Framework for Older People the clause must include the initial choice of whether the patient or carer wishes to have social services involvement.

The amendments, secondly, attempt to ensure that people who lack the capacity to make an informed decision are not automatically referred to social services. In the absence of long-awaited mental capacity legislation, there is a gap in the legal definitions of "capacity" and the protection of people without capacity. At present, if patients are unable to consent themselves, relatives can be consulted but no one can consent on the patient's behalf to such a referral.

However, it is good practice to consult with relatives and carers about their knowledge of what the patient would want. These amendments allow for existing procedures for advocacy and surrogate decision-making to be brought into the discharge planning process. Currently, patients are discharged home, with very short notice, and often no time is given to put care provisions into place.

A recent example of this was given by Age Concern. There was a telephone call to the family at lunchtime to say that the patient would be discharged that afternoon. In that instance, the carer had been told the previous day that there was no chance of the patient being discharged until later in the week. Most patients

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do not realise that they have the right to request a panel review if they disagree with the decision that they no longer require NHS care and that their discharge will be "safe".

Finally, Amendment No. 69 is designed to find out just what impact Section 60 of the Health and Social Care Act 2001 will have on the exchange of information between the NHS trust and the local authority. What precisely are the duties on the NHS and on social services? How can the exchange of information take place between the two in a way that will not adversely impact on the patient and which will allow both social services and the NHS to take the necessary decisions? I beg to move.

7 p.m.

Earl Howe: Perhaps I may speak to Amendments Nos. 22, 44, 60 and 65. This Bill has the imprint of the Treasury all over it. That has had a dire effect. So intent have the Government been on achieving their aim of freeing up NHS bed space and putting the onus for this on local authorities, that one very important person has been forgotten; namely, the patient occupying the bed.

The Bill is all about processes, mechanisms and authorities. It forgets that there is a human being at the centre of it all. I believe that we have to amend the Bill to ensure that the patient's views and those of the carer, if there is one, are squarely in the middle of the decision-making process on every single occasion.

The Minister will no doubt say that it is only good practice to involve patients and carers in the discharge process. Of course it is good practice, and it may well continue to happen automatically in a large number of cases. But the Government have to realise that we are in a new game. Just as the Government are not prepared to rely on local partnerships between health and social services but are introducing statutory disciplines, so, equally, we should not be prepared to rely on mere good practice when it comes to the patient's own wishes and interests. Those wishes and interests must be protected on the face of the Bill. If they are not, they will be statutorily irrelevant—which will leave the patient, in the worst case, at the mercy of the system and no more than a parcel.

Between the patient and those looking after him there should be a partnership. It is sobering to see that, between 1999 and 2001, re-admissions of patients within two months of being discharged more than doubled—from 19 per cent to 43 per cent. The proportion of carers who believed that early discharge was to blame for this rose from 23 per cent to 45 per cent; 77 per cent of carers said that they were not given a choice about taking on caring responsibilities.

We shall debate the one-sidedness of the Bill in relation to a later group of amendments—although the noble Lord, Lord Clement-Jones, was eloquent on the subject. Suffice it to say that under the Bill as drafted the NHS will have nothing to deter it from accelerating the discharge of a patient to the maximum extent possible.

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For much of the time that may not matter; but on occasions it will—the health service will err on the wrong side and the patient will have to be re-admitted. In the absence of financial disincentives on the NHS that might prevent that, we must build in checks and balances. The most essential is to ensure that on every occasion the mechanisms set out in Clause 2 are invoked and that the patient and his carer are consulted.

One of the casualties in the mad rush to implement the scheme is patient confidentiality. There is nothing in the Bill which even suggests that the NHS body has to obtain the patient's consent before disclosing private details about him to someone in the local government offices. Indeed, Clause 2(2) states:

    "It is the duty of the responsible NHS body to give notice of the patient's case . . . to the social services authority".

This point was made by the noble Baroness, Lady Barker. Clause 3 states:

    "The responsible authority must . . . carry out an assessment of the patient's needs".

There are no "if"s or "but"s; a statutory duty is placed on both parties. That, I respectfully say, is not good enough for the patient. No one should have his medical confidentiality breached by a hospital; and if confidential information is disclosed to someone outside the NHS, then the patient should agree to that disclosure. If he or she lacks the mental capacity to do so, the hospital should, as a matter of law, formally consider the patient's best interests and record that on his file. That is the point of the word "consent" in Amendment No. 22.

After the local authority has been notified, it will carry out an assessment. At that stage, too, I would argue that the patient has to be involved in the decision-making process. The patient needs to be aware of what will be provided to him on discharge in order to know whether he is happy with the plan. Under Clause 3(3) as drafted, there need be no involvement with the patient when it comes to identifying the community care services that he will supposedly require. It would not take much to change that. My amendment is simply one suggestion.

My Amendment No. 44 also mentions the need to inform the patient of the cost of the proposed care plan. This provision is included because I have been made aware of some distressing and regrettable cases in which that has not happened. The patient has been discharged into a care home. Top-up fees have been charged by the care home, and these have come as a complete bombshell to the individual, who has found himself unexpectedly under financial pressure. Or it may be that the patient is discharged to his own home, little realising that the cost of his continuing care will prove financially burdensome. I have heard of other cases where a hospital has decided, quite wrongly, that a patient is not entitled to free continuing care on the NHS and that he must be means-tested by social services. The patient has then had to sell his home and spend large sums of his own money on the care

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package, when all along he should have been looked after free of charge on the NHS. That sort of thing has happened in a number of parts of the country.

Step one is to discuss the question of cost with the individual. It is a matter of elementary human courtesy, apart from anything else, to make those matters known to a patient. The patient needs to be able to say that he thinks the financial burden is affordable or, on the contrary, that it will be too much for him.

I turn finally to Amendment No. 65. There is a further element to the discharge process which needs to involve the patient. Once the hospital has decided on a discharge date, the patient should be informed of this and given the chance, if he disagrees with the decision, to ask for a review. The Minister may well say that it is inconceivable that a patient would not be told when he was due to be discharged and that it is standard practice. Perhaps in the majority of cases that is so. But I repeat: the Bill proposes that normal standard practice on the part of hospitals and social services is not good enough when it comes to discharging patients. By exactly the same token, we should not expect the patient to have to rely on standard practice laid down in guidance. Standard practice should be on the face of the Bill.

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