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Baroness Andrews: My Lords, I am very sympathetic to the noble Baroness's intention in tabling the amendment. She spoke about patients with Alzheimer's disease. That and other appalling cases of bad practice must be addressed. They go beyond the issues of advocacy and to the heart of good nursing care and good care in hospitals in general. The amendment addresses the reality that there will be cases where patients are unable to express a preference for themselves. The normal way to proceed in such cases is for the NHS or the local authority to act on the preferences expressed by a carer in the same way that they would on the patient's own wishes.

There is no statutory guidance to the 1977 Act because the NHS does not issue statutory guidance: directions are issued and action is taken in that way. It is not surprising, therefore, that there is no statutory guidance per se. However, there is a long-standing principle in common law that public bodies must act in the best interests of people whose capacity to consent or understand the reason for certain treatment is diminished. It is reasonable to expect that the NHS and councils will continue to abide by that principle. Nothing in the Bill undermines it.

The point that this may not always work has already been recognised. We have put a new premium on patient involvement because we believe that that is better than appointing advocates for different purposes. The Department of Health already recommends that the NHS and councils should consider making independent advocacy available to service users. That can be where there appears to be a conflict of interest or opinion between the patient and their carer, or where the person involved needs this kind of support—for example, if the patient suffers from dementia or has a learning disability. Therefore, in the cases cited by the noble Baroness a procedure already exists.

In Committee, I spoke about the development of patient advice and liaison services. It is very important to recognise that it is a new development, which is definitely accessible and available in the NHS and does not need to be searched for. I know that the noble

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Baroness has some personal experience of the usefulness of such services. Where appropriate, PALS can refer to independent or specialist advocacy services. For hospital patients with a concern about their assessment for social care, they can provide a first point of contact. However, local authorities are required to inform people of what to expect in dealing with them and to provide information about their entitlement to services and how to complain. That is set out clearly in our Better Care, Higher Standards, published in 1999, and in Fair Access to Care Services, issued in May 2002.

I am pleased to be able to say that progress with PALS has been sustained across the country. We now know that 90 per cent of the country is covered by the service. Obviously, it will be monitored to make sure that it is working as well as we expect. However, I hope that the noble Baroness will accept that, in the absence of a specific advocacy service, we have acted to put in place an accessible and useful procedure for the patients and their families under these circumstances.

Baroness Barker: My Lords, I thank the noble Baroness for her characteristically thoughtful reply. I do not wish to go over the many arguments about PALS that have taken place in your Lordships' House. I shall ask the Minister about the independent complaints advocacy service. My understanding is that ICAS is at the moment in a pilot phase. I think there is an issue about its continuance. Perhaps the noble Baroness can write to me on that.

Baroness Andrews: My Lords, I am advised that the ICAS will be in place nationally on 1st September.

Baroness Barker: My Lords, I hear what the noble Baroness says; I am not sure in what form it will be in place, but that may be a discussion for another day.

I remain concerned that a service that has more to do with helping people to find their way in a practical way around the NHS day to day—as is PALS—is perhaps not the level of service needed. I have listened to what the noble Baroness said; I shall study her reply; and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 5 and 6 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 7:


    Page 2, line 22, at end insert—


"( ) Before giving a notice under this section the responsible NHS body must consult—
(a) the patient; and
(b) if the body is aware of the identity of a person who is a carer in respect of the patient and it is reasonably practicable to consult him, that carer."

On Question, amendment agreed to.

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Baroness Andrews moved Amendment No. 8:


    Page 2, line 23, leave out subsection (4).

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 9 and 25. In some respects, the amendments are a tidying-up measure. In others, they are a response to concern expressed by noble Lords for greater clarity. In any event, I apologise to your Lordships' House that they were not available earlier.

The tidying-up elements derive from the fact that additions to the Bill have made Clause 2 over-long. Moreover, it has become more difficult to follow all the steps with reference to a Section 2 notice, the circumstances in which it will be issued and withdrawn and, indeed, the circumstances under which a fresh assessment will be made. So the three amendments bring those elements together in a new clause that includes within it the provisions of what was previously Clause 3(7). Amendment No. 25 therefore removes the repetition between existing Clauses 2 and 3 and the new clause.

The new clause also contains two changes that have been made to clarify the conditions under which Section 2 notices will be withdrawn. Again, that is in response to concerns raised in Committee. Given the possibility for confusion when reading between old and new clauses, perhaps I should explain what the changes involve. I shall try to do so as clearly as possible.

New Clause 2(3) now gives NHS bodies a blanket power to withdraw the Section 2 notice. That replaces and widens what was formerly in Clause 3(7). The regulation-making power under new subsection (3) enables regulations to set conditions under which a notice may be withdrawn. Those are circumstances in which the NHS will need to use its judgment about whether the services originally prescribed continue to be appropriate—in large measure, because they are no longer sufficient to meet the changing needs of the patient. That was previously covered in Clause 3(7) by the term, "change of circumstances".

However, under Clause 3(7), the regulations were limited to prescribing circumstances in which the notice might be withdrawn. We have now gone further. New subsection (5)(b) specifies that the regulations must also contain reference to circumstances in which the notice must be withdrawn.

There are a relatively limited number of examples of such circumstances, but we have been concerned that if it were only left to the NHS judging—or remembering—to withdraw notices, it might not happen. For example, we want to remove the possibility of a patient having died or left hospital without social services having been informed, entirely through oversight.

Sadly, that is not such a far-fetched example; such things have happened; but we believe that the new provision will ensure that there is a clearer requirement for proper communication between health and social care partners. As I said, circumstances that may be specified in the regulations as falling within the category that would require early discharge include a

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rapid recovery or significant change in home circumstances—for example, a patient being taken care of by a relative who had not previously been identified.

Noble Lords will also note the term "fresh notice" in new subsection (4)(b). That has been included in response to concerns that the previous term used in Clause 3(7)—"further notice"—was insufficiently clear. The subsection covers instances in which the notice would cease to have effect before the patient was discharged. Examples include where circumstances take a turn for the worse and the patient deteriorates or has a relapse that keeps him in hospital; or where his home circumstances are no longer appropriate—perhaps following the death of a spouse or a carer having to leave for some reason. In those circumstances, a fresh notice may need to be issued. That provision leaves the NHS and social services in no doubt of their duty.

The final change in new subsection (5)(a)(ii) is also proposed in response to earlier suggestions that we had not been as specific about the nature of a withdrawal of a notice as we had been about initial notification. That change will ensure that the regulations will require a similar clarity of communication in the manner in which notices are to be issued and withdrawn. Under that subsection, the NHS will have to be clear about the circumstances that dictate withdrawal of a notice and ensure that social services are fully informed.

The amendments are slightly complicated, but I hope that noble Lords will accept that we have tried to respond to legitimate concerns to clarify and expand on Clause 3(7). I beg to move.

5.45 p.m.

Earl Howe: My Lords, I am most grateful to the Minister for explaining the amendments, which are welcome because they address at least some of the concern that I and other noble Lords expressed in Committee about the Bill's lack of fairness in its treatment of local authorities. It cannot be reasonable or right that a local authority, having been served a Section 2 notice, should proceed to put together a care package—with all the time and effort that that involves—only to discover that, unbeknown to it, there has been a change of circumstances and the patient no longer requires community care services after all, or requires different community care services. There must be proper communication and a duty on the NHS body to communicate to ensure that local authorities do not incur nugatory costs. I am pleased that that point has been recognised.

Of course, we do not have the draft regulations before us, but the Minister's comments suggest that there will need to be a tight procedure in hospitals to determine whether a patient's circumstances have changed—and, if so, in what way—so that the original Section 2 notice does not simply run on by default for longer than necessary. I hope that the Minister will confirm that regulation will specify a procedure to

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review Section 2 notices at set intervals—perhaps daily—and for the conclusion of those reviews to be recorded, along with the reasons for them.

If there is not such an automatic trigger or process for formal review, hospitals will let matters run on, ignoring what the local authority may be doing to organise a care home place, home care, or whatever, and leaving the withdrawal of the Section 2 notice until the last minute. The regulations must force the hospital to be proactive rather than reactive. I hope that the Minister will agree to ensure that that is done.

What happens if the NHS body fails to act as it should where Section 2 notices must under the regulations be withdrawn? What happens if the local authority incurs fruitless costs and has legitimate cause for complaint against the hospital for not having informed it of the change of circumstances? Can that matter be brought before a dispute panel? Will the local authority be able to claim reimbursement of its costs from the hospital? Frankly, I do not see why it should not be able to. The system is being set up to try to relieve the NHS of unnecessary costs. Why should the principle not be recognised when local authorities are affected by it as a result of NHS negligence?


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