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Baroness Barker moved Amendment No. 3:



"and
(c) has consulted with the patient (and in the case of a carer in relation to assessment under the Carers (Recognition and Services) Act 1995 (c. 12) and the Carers and Disabled Children Act 2000 (c. 16) to ascertain their views and preferences, informed them of the reason for the notification, and obtained their informed consent or in the case where a patient lacks the mental capacity to give such consent, has recorded on the file what steps have been taken to ensure that the patient's best interests have been duly considered"

The noble Baroness said: My Lords, this long batch of amendments returns to an issue on which we spent a considerable amount of time in Committee; that is, the issue of consent. In introducing the amendments, it is important to begin by saying that the Bill omits any reference to consent, either on the part of a patient or a carer, when placing a duty on the NHS to refer a patient to social services. That is a flaw which features increasingly in community care legislation.

People have the right to refuse social services assistance other than in certain specific circumstances, such as individuals sectioned under the Mental Health Act. While most people will welcome the intervention of social services when they need them, and will welcome early intervention, there are those who will not do so. For whatever reason, certain people will want to make their own arrangements and they should

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have the right to refuse. Thus what lies behind the amendments, in particular Amendment No. 3, is to ensure that people, should they not wish to use them, have the right to refuse to be referred to social services.

We think that the issue of consent is extremely important. Nothing in Clause 2 indicates who is to make the decision that community care services are likely to be required, or even how such a decision is reached. Given that under the framework being set up by the Bill, hospitals are likely to prefer all patients to come under the responsibility of social services—bearing in mind the penalty system that is to come into force—it is probable that, without a specific recommendation that the views of an individual must be taken into account, all patients will be referred regardless of their wishes.

During our debates in Committee the noble Baroness, Lady Andrews, made a helpful concession about the need to consult with patients. I recognise that the provision was not included before. However, I doubt whether noble Lords are under any illusions about the key difference between consultation and the necessity to obtain consent. Fears were expressed from the Government Benches during our earlier debates that people would have to consent to the individual care package being offered to them. However, the amendments reflect our contention that people should give their consent to any arrangements made with social services on their behalf. In that we and the Government hold distinctly different views.

The notion of consent is important. Noble Lords on these Benches feel that going ahead without the express consent of a patient could contravene their right to confidentiality and could be seen as a breach of Article 8 of the European Convention on Human Rights, which as noble Lords know confirms respect for the right to private and family life, home and correspondence.

The second issue dealt with in my amendments and those standing in the name of the noble Earl, Lord Howe, is the right to carers' assessments. In Committee we discussed at length the need for an independent assessment of carers' needs and we recognise that the Bill has been changed during its passage through another place. In response to our probing in Committee, Ministers made much of the hospital discharge workbook and the good practice contained in it. While no one on this side of the House would dispute the fact that the workbook contains a great deal in the way of good practice, it does not constitute a statutory obligation or impose statutory guidance on the NHS. Indeed, I believe we had reached this point in our earlier discussions when the noble Lord, Lord Campbell of Alloway, made his welcome intervention on the issue of guidance and the NHS. Would that the noble Lord were in his place today to join in my arguments with his characteristic vigour.

We believe that the issue of consultation, together with assessment, is key to ensuring that what happens to older people and their carers is not just quick, but is also timely. It would reflect good practice. That is why

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we have taken certain elements of the Community Care and Health (Scotland) Act 2002 and the Carers and Direct Payments (Northern Ireland) Act 2002, both of which place duties to provide assessments for and make available information to carers.

Taken together, the amendments would add up to good practice while not presenting a threat either to the NHS or to local authorities. We believe, too, that the rights conferred by them would root out the bad practice which still exists, notwithstanding all the force of earlier legislation for carers passed by this Government and their predecessors. That is why we believe that the amendments would be of great benefit and that they should be included on the face of the Bill. I beg to move.

Earl Howe: My Lords, I should like to speak to Amendments Nos. 5, 6, 20, 31 and 32 tabled in my name, as well as to Amendment No. 3, to which, in the spirit of solidarity, I have added my name to that of the noble Baroness, Lady Barker.

Like the noble Baroness, I very much welcome the appearance in the Marshalled List of government Amendment No. 7 and I look forward to hearing what the Minister has to say about it. Until now the Minister has stuck to the line that an explicit legal requirement to consult the patient about a Clause 2 notice is unnecessary, but I am delighted that she has felt able to revise her view. However, I would say with respect that that change of view is essential.

This is an instance where one could argue with perfect cogency that existing legislation and good practice are quite sufficient to ensure that patients will be consulted as regards what will happen to them; ergo, there is no need to clog up the Bill by reinforcing those requirements. But that is the clinical argument which misses the point about the balance of the Bill as currently drafted and the messages it will send out. The Minister knows that one of the things I find distasteful about the Bill is that, amid all the process and procedure it will impose on NHS trusts and local authorities—as well as all the time constraints—the patient's right to speak is nowhere acknowledged. That balance is wrong.

The Bill is all about speeding up discharges and getting patients out of the door as quickly as possible. We must not allow patients to become, or to risk becoming, the property of the system. Although the Minister may still insist that her amendment is unnecessary in strict terms, I say to her that that is why it is not.

As the noble Baroness, Lady Barker, emphasised so forcefully when introducing her amendment, there is still an important gap here; that of patient consent. I am sure the Minister is aware that no little controversy rages about the fuzziness of the rules surrounding the disclosure of confidential patient data between doctors and staff within the health service. That debate has not been concluded and no doubt has some way to run. However, I simply do not think that we should countenance a situation whereby a duty is imposed on

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the NHS to refer a patient to an authority outside the health service without at the same time ensuring that the patient's rights of confidentiality are respected. That is basic.

A national service framework provision on patient-centred care specifically relates to this area. But Clause 2 as currently drafted, combined with Amendment No. 7, show that the wording does not reflect the NSF provision which speaks of,


    "enabling older people to make informed choices, involving them in all decisions about their needs and care".

One can argue that a Clause 2 notice does not involve detailed decisions relating to future care—it involves an initial decision as to whether a patient requires, or is likely to require, the assistance of social services—but the disclosure of confidential patient data follows automatically from a decision to notify. Once social services have been notified, it is then their legal duty to assess the patient and prepare a care package for him. It is impossible to ask a local authority to carry out such a duty without allowing it free access to the patient's medical history.

But these are private matters. I have said that we must not allow patients to become, or risk becoming, the property of the system. If we say to the NHS that it has carte blanche to disclose confidential medical details to social workers, that is exactly what we will be doing.

The Minister said that a Clause 2 notice formalises what already happens in many parts of the country. It would be instructive to hear from her what existing regulations or guidance allow a hospital to inform a local authority about a patient without that patient knowing about it. If that does happen, it should not. The fact that it may or does happen is no reason to enshrine the practice in legislation.

The Minister has made it clear that patients ought not be allowed a veto. I understand what underlies that viewpoint in the NHS. Patients have rights, but those rights are not all encompassing. We do not say that every citizen of this country has the right to receive from the NHS any medical treatment that he or she may demand, but we surely do say that patients have the right to refuse medical treatment. Why should not we also say that patients have the right to refuse the opportunity to become clients of social services?

Most people would not want to turn down that opportunity, but some might. Are we really saying that the requirement of the NHS to free-up blocked beds is so urgent, so overriding, that we cannot allow patients to exercise that choice? Surely not.

My amendments go further than those of the Minister in several respects, not only on the issue of the initial consent in Clause 2 but also on whether the patient is consulted about the care package eventually offered to him. As the noble Baroness, Lady Finlay, said so well in Committee, the NHS insists on consent—and, indeed, properly informed consent—in almost every other area of patient treatment, why not here as well?

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If unamended, the Bill will mean that care packages have to be put together in a hurry; it will mean patients being forced or cowed into accepting things that they do not want. I do not believe that that is acceptable. Why, at the very least, do we not specify explicitly that the patient should be consulted about the care package and what that package is likely to involve for him?

Now that the Government have taken the welcome step of conceding the principle of consultation as regards Clause 2 notices, it is surely no giant leap to concede the principle of consultation during the later stages of the process. Many would regard that kind of consultation as being of equal importance. It will do something to guarantee that the patient is not treated as a parcel. The "like it or lump it Bill" is not an attractive tag to attach to this legislation, but if they are not careful the Government will find that that is exactly the tag it will acquire. I ask the Minister to go further than she has; I hope that she will.

4 p.m.

Baroness Pitkeathley: My Lords, it is important for carers as well as for patients that discharge planning starts upon, or preferably before, admission. Carer organisations have made this point time and again and it is good to note that so many noble Lords have taken the issue on board.

The Government's amendments provide adequate safeguards for carers. I have a slight concern about the word "reasonably" in Amendment No. 7, but the needs of carers are sufficiently covered in these amendments, especially when the requirements of other Acts of Parliament relating to carers and the guidance in the discharge workbook are taken into account.


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