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Lord Hunt of Kings Heath: I have sympathy with the point raised by the noble Baroness. My argument with her is that in terms of statutory responsibilities we already have the framework. The problem she raises is that in many parts of the country this is not being carried out successfully or effectively. The challenge is to find ways in which we can improve performance. I do not think—and I can spell this out—that there is a gap in the statutory framework for dealing with these issues.

My contention is that the enactment of the Bill will lead to a much enhanced process by the health service and local government, in which the kind of issues raised by the noble Baroness will be dealt with. She looks sceptical about that, but we are here because of the very issues raised by her today. We know what is good practice. Good practice has been enunciated time and again within a statutory framework. It makes abundantly clear the responsibility that both the National Health Service and social service authorities have towards carers.

Section 47 assessments under the National Health Service and Community Care Act should provide all the noble Baroness requires. Clause 3(11) states that assessments carried out under the Bill are to be treated as Section 47 assessments under the National Health Service and Community Care Act 1990. Therefore, information gathered during assessment for the Bill does not need to be duplicated if a Section 47 assessment takes place later, but the requirements for proper assessment under Section 47 still apply. Statutory guidance on Section 47, reinforced in statutory guidance on the single assessment process and the Discharge from Hospital: pathways, process and practice, states there should be a written care plan and that an individual should be given a copy of it.

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I put to the noble Baroness that the problem is not the statutory framework or the guidance, but putting it into practice. That is a challenge that we must accept. As part of the more general guidance that we shall give both to the health service and to local government as a result of the Bill, I assure the noble Baroness that I shall pick up the point.

Baroness Barker: Having had one and a half results today, I did not expect to go much further. I take what the Minister says about the framework being there. In return, I am glad that we have an acceptance that the practice will not happen. However, Members on this side of the Committee fail to see how setting up a system of transfer of payments between the NHS and social services—in essence a squabbling over the same amount of money—will build the capacity to develop that.

Nevertheless, I take what the Minister says about written discharge plans already being required in guidance. I shall take the amendments away and consider them before we return for the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 44 to 63 not moved.]

Earl Howe moved Amendment No. 64:

    Page 3, line 31, at end insert "and must compensate it for any expenses which it incurs if the responsible NHS body fails to discharge the patient on that day"

The noble Earl said: We come to an issue that has understandably caused no little grief among directors of social services, which is the lack of reciprocal incentives bearing down on the NHS to counterbalance those imposed on local authorities. The truth is that there is none in the Bill. That is contrary to the understanding that we had last year when the whole policy was first announced. We all expected that if local authorities were to be made to pay for failure to unblock beds, the NHS would also be financially deterred from inappropriate admissions, over-hasty discharges or, indeed, causing local authorities unnecessarily to incur costs.

However, our expectations were confounded. Nothing in the Bill will act as a disincentive to hospitals to discharge patients too early. That fundamental lack of balance is reflected in the draft regulations. Article 4(4) of the regulations gives the NHS power to inform social services if treatment is postponed or cancelled—a power, not a duty. The hospital can therefore unilaterally cancel the patient's treatment and leave the local authority to march blindly on preparing for that patient's discharge after he has been treated.

Social services need to be informed of such changes of plan as a matter of routine. If they are not, they cannot possibly plan effectively for the patient's discharge. Their time is wasted and they are likely to incur unnecessary cost. Section 2 notices obviously cease to have effect if a patient dies. Similarly, the death of the patient is one event that will stop the clock ticking on the delayed discharge period. Another is if the patient discharges himself, or if a relative takes responsibility for him.

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One would have thought that there would be an obligation on the hospital to inform the local authority of any of those events. But the regulations do not state that. Given that the local authority could be continuing to make arrangements for the patient in the meantime, that omission should be rectified.

We can also well imagine that a patient may say to a hospital that he does not want to go to the placement that the local authority has arranged for him but would rather wait until a place became available in a different home. Some hospitals would stretch a point in such a case, but there is no duty laid down in the regulations obliging them to inform the local authority, which may be undertaking unnecessary work. There is to be a right for health service staff to challenge social care assessments, but no balancing provision to enable social services to insist on a reassessment of a patient's healthcare needs. Again, that lack of reciprocal rights could well leave social services wrongly exposed to a liability.

I have been made aware of nursing staff in certain hospitals deciding for themselves that a care home with nursing, for example, is the most appropriate environment for a patient after leaving hospital as a deliberate way to avoid putting additional pressures on NHS intermediate care and community nursing services.

Article 8 of the regulations seems to enable health service staff to postpone discharge from one day to the next, and so on, without the need to restart any of the formal processes leading to discharge. Again, in such circumstances social services should be entitled to ask for how long they were supposed to hold open a vacancy, especially when someone else needed it.

Nothing will make the Bill into a jewel of the statute book, but it would be much more reassuring if local authorities could expect to be compensated by trusts if, after a patient's discharge, any failures in communication or breakdown of community nursing services contributed to the patient being readmitted to hospital. As it is, a local authority is unprotected against that.

We are brought full circle to the justification—or lack of it—for the Bill. I fully accept that delayed discharges are a real and sad fact of life and need to be dealt with. But the truth is that many individuals around the country are being looked after by social services while waiting to enter hospital. No thought seems to be given to the costs to local government incurred by virtue of the length of in-patient waiting lists. Only the NHS's costs appear to matter.

I think that I have said enough to indicate that I believe that the arrangements are unfairly skewed. I hope that the Minister can reassure me that the Bill and the regulations can be made to work more even-handedly. I beg to move.

10.15 p.m.

The Lord Bishop of Hereford: I do not like the amendment because it multiplies the amount of fining proposed. I do not like that principle at all. But I like the amendment because it is about the principles of

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reciprocity and equity. Those principles are conspicuously lacking in the Bill, which is one of the reasons why it has been found so unacceptable in so many quarters.

I do not expect that we shall debate Amendments Nos. 74 to 76 this evening. They deal with another area where reciprocity and equity will come into play. If we relax the time-scale—there are good reasons for doing so in those amendments—the NHS authorities will seek a reciprocal relaxation of the targets that they are expected to meet in treating acute cases. It is important to get the balance right. I support the amendment because it is about equity and reciprocity. However, I hope that it will not be necessary, because I do not want to see yet another fining process introduced to the system.

Baroness Greengross: I strongly support the noble Earl, Lord Howe, in this amendment. A reasonably simple way for the Government to demonstrate their even-handedness would be to include in the Bill a provision along those lines. I hope that the Minister will tell us that he can.

Baroness Finlay of Llandaff: I reiterate briefly the need for reciprocity. The last thing that I want is additional fining, but it is important to remember how vulnerable patients are, and that they may, once they get home, disclose information to carers that they will not have disclosed to NHS staff. Therefore, redress needs to be available to those providing care if the assessment from the hospital has been inadequate.

Lord Hunt of Kings Heath: The enthusiasm of the noble Earl, Lord Howe, for this Bill is overwhelming. He continues to sing his sad song, even though the Bill essentially seeks to establish a much tougher framework in which to get statutory authorities to work together effectively.

I understand why Committee Members feel that the Bill is unduly weighted towards local government. I am sorry that they have that impression. It is so drafted because of how legislation needs to flow, and because it is our view that the pressures and impediments on the National Health Service are all geared towards it ensuring, and having the incentives to ensure, that it approaches the discharge of patients as effectively as possible. Among those pressures are the performance management system and the performance indicator system, which impacts on star ratings. I did not agree with the suggestion by the right reverend Prelate the Bishop of Hereford about the relaxation of waiting-time targets, but he was right to suggest that those targets are one of the pressures that bear heavily on acute trusts. Equally, the financial flows, which no doubt we will discuss tomorrow, will be another incentive. If the health service messes up the system and there is an increase in readmissions, it will have to pay for it.

I say to the noble Earl, Lord Howe, that the point about the regulations is that they are in draft form. I shall consider carefully his comments. I wish to ensure that the relevant local authority is informed as soon as possible of any changes in the circumstances of a

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patient. Paragraph 8 of the regulation builds in greater flexibility for the local authority. It makes it clear, for instance, that a day will not be treated as part of the delayed discharge period if the local authority is ready to provide the services by 11 a.m. on the day after the proposed day. In other words, in the case of a three-day period, the local authority will not incur a penalty if it has the services in place by 11 a.m. on the fourth day. That is a distinct advantage to the local authority. I recognise that noble Lords will need time to study the regulations, but I emphasise that we are keen to listen to comments and will reflect on them before we come to lay the regulations in full.

The amendment proposes a penalty. If the patient is delayed because of some failure by the NHS, the social services authority would not incur any reimbursement charge, as the delay would not be its responsibility. The Bill is being misread as being one-sided towards local government. In effect, the NHS will already pay a charge in such cases because it will be providing care, board and lodging for an additional day or additional days and will not be able to recoup that cost from personal social services. There is also an opportunity cost, as the bed will not have been freed up for another patient.

Another reason why the NHS might fail to discharge on the due day could be that the patient's condition had changed. It is probable, in such a case, that that would be obvious before the day of discharge. In that case, either the NHS would withdraw the Section 3(9) notice and notify the social services of a new discharge date in a new notice or the hospital might decide to withdraw the Section 2 notice because the patient's condition had changed—deteriorated, perhaps—considerably and a new assessment was required. The noble Earl, Lord Howe, is right to make the point that it must be clear that the Health Service has a responsibility to notify and inform social services as soon as possible after any material change has taken place. I will seek to make that clear in the guidance that will accompany the Bill.

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