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Lord Hunt of Kings Heath moved Amendment No. 22:

On Question, amendment agreed to.

Baroness Barker moved Amendment No. 23:

    Page 3, line 15, after "consulting" insert "the carer and obtaining the informed consent of the carer to the proposed care plan and after consulting"

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 23A to 25:

    Page 3, line 17, leave out from "carer" to end of line 19.

    Page 3, line 28, at end insert—

"(6A) The responsible authority must keep under review—
(a) the needs of the patient; and
(b) the needs of any carer whose needs it has assessed under subsection (4)(a),
so far as affecting the services that need to be made available in order for it to be safe to discharge him.
(6B) The responsible authority may, after consulting the responsible NHS body, alter—
(a) its decision under subsection (3)(b); or
(b) any decision taken by it under subsection (4)(b),
to take account of any change in circumstances since the assessment carried out under subsection (3)(a) or (4)(a) (as the case may be).
(6C) The responsible authority must inform the responsible NHS body of the decision under subsection (3)(a), of any decision under subsection (4)(a) and of any alteration made under subsection (6B)."
Page 3, line 29, leave out subsection (7).

On Question, amendments agreed to.

[Amendment No. 26 not moved.]

The Deputy Speaker (Lord Dean of Harptree): My Lords, I advise the House that if Amendment No. 27 is agreed to I shall not be able to call Amendments Nos. 28 to 31.

Lord Hunt of Kings Heath moved Amendment No. 27:

    Page 3, line 33, leave out subsections (8) to (10).

On Question, amendment agreed to.

[Amendments Nos. 28 to 31 not moved.]

Earl Howe moved Amendment No. 32:

    Page 3, line 38, at end insert—

"( ) The responsible NHS body must give the patient and his carer, if he has one—
(a) notice of the day on which it proposes to discharge the patient, and where informed consent is given, record that on the patient's file, or if a patient lacks the mental capacity to give such consent, record on the file what steps it has taken to ensure that the patient's best interests have been duly considered, and
(b) information about their right to request a review if they disagree with the decision to discharge."

On Question, amendment agreed to.

10 Mar 2003 : Column 1175

[Amendment No. 33 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 34:

    After Clause 3, insert the following new clause—

(1) The duties under this section apply where notice of a patient's case under section 2 has been given.
(2) The responsible NHS body, and any other NHS body which is considering whether to provide services to the patient after discharge, must consult the responsible authority before deciding what services (if any) it will make available to him in order for it to be safe to discharge the patient.
(3) The responsible NHS body must give the responsible authority notice of the day on which it proposes to discharge the patient.
(4) The notice under subsection (3) remains in force until the end of the relevant day, unless it has previously been withdrawn.
(5) The responsible NHS body may withdraw the notice under subsection (3) at any time before the end of the relevant day by giving notice of withdrawal to the responsible authority.
(6) For the purposes of this Part "the relevant day", in relation to a qualifying hospital patient, is the later of—
(a) the day specified in the notice under subsection (3); and
(b) the last day of the prescribed minimum interval after the notice under section 2 was given.
(7) Regulations may prescribe a period as the minimum interval after a notice under section 2 is given; but that period must—
(a) begin with the day after that on which the notice under section 2 is given; and
(b) be a period of at least two days.
(8) If the notice under subsection (3) is withdrawn before the end of the relevant day—
(a) the duty under subsection (3) applies again; and
(b) when a new notice under subsection (3) is given, subsection (6) applies again for the purpose of identifying a new "relevant day".
(9) Regulations may provide for—
(a) the time at which notices under subsection (3) are to be given;
(b) the form and content of—
(i) notices under subsection (3); and
(ii) withdrawal notices under subsection (4);
and the manner in which such notices are to be given;
(c) circumstances in which notices under subsection (3) must be withdrawn; and
(d) determining the day on which a notice under subsection (3) or a notice of withdrawal under subsection (5) is given (including provision prescribing circumstances in which a notice under subsection (3) is to be treated for any specified purpose as having been given on a day other than that on which it was in fact given)."

The noble Lord said: My Lords, the key amendment in this group of government amendments is Amendment No. 34, which draws together a new clause about the duties of the responsible NHS body. This Bill places duties on the NHS as well as social services, so it is helpful to have a clause that brings this together, out of the previous Clauses 3 and 4. It makes it easier to read the Bill and see what NHS partners have to do.

10 Mar 2003 : Column 1176

The new clause mostly repeats what was formerly in other clauses, but also makes some minor changes to clarify procedures around the notice of discharge date, adding a regulation-making power to specify when such a notice must be withdrawn, and the manner in which such withdrawals should be made. Amendment No. 36 is consequential on this amendment.

Amendment No. 35 tightens the test for liability for payment in Clause 4 by clarifying that both notifications under Sections 2 and 3 must have been made and not withdrawn in order for the local authority to be liable for any payment. Again this ensures that the steps that underpin joint planning have taken place before there is any possibility of a charge. It will avoid the circumstances that sometimes occur, whereby the first a social services department hears of a patient is when it is informed that this is a delayed discharge for which it may be responsible.

Amendment No. 42 is to take account of the effect of Amendment No. 24, through which we empowered the local authority to change its decision under Clause 3(3)(b) or Clause 3(4)(b), in the light of a change in the patient's circumstances. If there is a change to either or both of the care packages needed by the patient or his or her carer, to facilitate a safe discharge, it is these services which the local authority must have in place in order to fulfil its duties.

Amendment No. 43 removes a subsection that is now covered with more clarity in the new clauses covering Section 2 and 3 notices.

The major effect of Amendment No. 48 is to circumscribe the power in Clause 4(4) to make regulations setting the amount of the payment. This is in response to the views of the Delegated Powers and Regulatory Reform Committee, which said:

    "We accept that it is common for Bills to leave amounts of payments to be prescribed by regulations. However, neither the amount which may be fixed under clause 4, nor the method by which it may be calculated, are limited on the face of the Bill. We do not consider that the position is appropriate in a provision which is central to Part 1 of the Bill. The Committee considers that the delegation in clause 4 would be appropriate if the Bill described at least the main factors by reference to which the amount must be assessed".

That is what we have done in the amendment.

As the consultation paper on this policy stated:

    "It is clearly important that the level at which the reimbursement should be set is neither too high nor too low. Too high a payment would be unfair on social services departments ... too low a payment would not provide enough of an incentive".

Therefore, the level of the charge is based on the cost of providing accommodation and personal care in a hospital, and is calculated from the average daily cost of treating patients in a nursing-led facility with the costs of medical input from doctors or specialist nurses, overheads and capital removed to reflect the lower costs of care once a patient is ready for discharge. The amendment also makes the drafting clearer by putting this with other provisions about payment into a separate clause, and Amendment No. 44 is consequential on that.

10 Mar 2003 : Column 1177

Amendment No. 60 puts the definition of "the relevant day" into the interpretation clause, since this is now mentioned in more than one place in the Bill. I beg to move.

7.15 p.m.

Lord Clement-Jones: My Lords, this is a rather disparate group of amendments, and we should perhaps have been more aggressive in degrouping them. I wish to speak to a rather heterogeneous group of amendments: Amendments Nos. 37, 38, 41, 45 and 47.

In Committee, we had a reasonably extensive debate on the issue of notice periods and relevant periods. The Minister responded to some extent to the comments of the noble Earl, Lord Howe. However, I am returning to the subject because the Minister was somewhat tentative in phrasing his response. I am not sure that he fully took on board the concerns expressed widely, in local government and by voluntary organisations, about the problems associated with treating weekends and public holidays as part of the relevant period. The Minister made it clear that they are not excluded.

The difficulty and cost of providing care services during weekends will be considerable. I do not believe that the Minister and his colleagues have taken that on board properly. Arrangements for simple things such as obtaining medicine in rural areas at weekends will be difficult. We in London take it for granted that pharmacies are open at weekends, but that is by no means the case in rural areas.

Research increasingly shows that discharges on a Friday, just before the weekend, are unsound. The Minister may be familiar with research carried out in a Leicester teaching hospital over a period of three years, which showed that the relative risk of readmission for individuals discharged on Friday was three times higher compared with the mean for other weekdays. That kind of research should make the Government sit up and take notice.

In Committee, the Minister made great play of the fact that three days was the absolute minimum for the period. He went on to say:

    "I shall consider . . . whether there is a case for changing the period in the regulations . . . to cover some of the points made about weekends and bank holidays".—[Official Report, 18/2/03; col. 1046.]

We want to see whether the Minister will translate that proposal into something a great deal firmer. He was at great pains to add that it was not an undertaking. I hope that we can extract an undertaking from him either now on Report or at Third Reading. Today may not be the right hour, but we would certainly pursue that as a very important aspect of this legislation.

I turn to Amendments Nos. 38 and 47. The timing of the start of the period is a crucial aspect of this legislation. I tabled these two amendments to probe what should happen if there is a dispute about discharge or the appropriateness of community care services. It is extremely important for social services that the patient is protected in those circumstances and

10 Mar 2003 : Column 1178

that the clock does not start ticking until those issues have been resolved. The Minister may be interested in the mechanism adopted for an independent panel to adjudicate on the matter in the amendment. However, that is not the central purpose of the amendment.

I turn to Amendments Nos. 41 and 45. As the Opposition Benches have maintained throughout Committee and Report stages, the legislation as currently drafted is one-sided in placing all the burdens and liabilities for delayed discharge on social services departments. The effect is to make delays the sole responsibility of local authorities. The assumption underlying the proposal is that most delays in the system are the fault of social services, whereas in reality the causes of delay are complex and multifactorial. It is far from clear that the issue can be resolved by a one-sided charging system. For example, in some areas, appropriate hospital discharges are still being delayed because of the timing of consultant ward rounds. A one-sided system that penalises one part of the care sector to reimburse another could threaten or diminish partnership working. Indeed, we believe that it almost certainly will threaten and diminish partnership working. It is doubtful that health and social care budgets can work effectively and harmoniously together if the money is simply redistributed away from local authority social services.

The legislation also fails to establish a clear line of fault-based liability or provide for variation of the delayed discharge period. In Delivering the NHS Plan, it is clear that some parity between reimbursement mechanisms in health and social services was originally envisaged. Indeed, the plan states that:

    "There will be matching charges on NHS hospitals to make them responsible for the costs of emergency hospital readmissions, so as to ensure patients are not discharged prematurely".

Unfortunately, it has not been possible to table an amendment that falls within the Long Title of the Bill, simultaneously to introduce cross-charging arrangements for delays attributable to failure to provide timely community nursing services and for premature discharges resulting in emergency readmission.

These more limited amendments therefore seek to alter the emphasis of the legislation from a punitive "fining" regime against local authorities into a genuine partnership approach between the NHS and local government based on the whole systems approach. We on these Benches seek safeguards to ensure that expenditure can be recovered where social services departments are wrongly charged and that there is compulsory remission of the charges up to 100 per cent where it has not been possible to discharge the patient because the responsible NHS body has been unable to make available a relevant health and community care service as agreed in the aftercare plan. The social services department in those circumstances should have a right to recover money from an acute trust which has wrongly charged them for a patient who is not their responsibility.

It appears to be the intention that social services will pay the acute trust for any delay due to lack of social services. The legislation needs to engage the whole system and prevent the opportunities for gaming that

10 Mar 2003 : Column 1179

the proposed legislation may create. If there is to be any health gain from this charging system, it will be achieved by directing the charges to preventive healthcare. That means the primary care trusts.

There should also be a clear audit trail to show how the money generated is allocated and used. The money arising from the fines may well be lost in the system and therefore undermine the services and needs of older people which should remain at the heart of this legislation. The key elements of the approach in the above amendments are that any money paid by an authority as a fine for delayed discharge should go into a jointly held fund and that the money from that fund should be spent only to provide health and community care for patients being discharged from hospital. We want to ensure that money paid from social services does not leak from the system and away from community care.

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