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Baroness Barker: My Lords, I thank the Minister for that forceful reply. I believe that this is perhaps one of the most important aspects of the Bill, which will affect the outcome of services for older people. It has been worth raising the issue again, not least because whatever the Minister says—earlier today in Starred Questions I listened carefully to his interpretation of the ombudsman's report, which is very different from mine—the record of the NHS so far on this matter has been extremely poor. We cannot emphasise that enough. If one considers the history, not just of the

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cases in this episode but of previous ombudsman reports, it is clear that new nursing staff come into the NHS and are not made aware of existing guidance.

None the less, I listened carefully to the Minister's reply. I believe that the guidance will be a step forward. He has helpfully put on record the need for written judgments. On that basis I shall not press the amendment today. However, the Minister should be in no doubt that this is one area of performance of the Bill that will be watched and scrutinised perhaps more than any other. I thank the Minister for his reply. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews moved Amendment No. 4:


    Page 2, line 38, after first "the" insert "responsible NHS"

The noble Baroness said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 5, 7, 9, 11, 12, 14 and 15.

The Government wish to make a number of very small tidying amendments to the Bill, which in the opinion of the parliamentary draftsman are necessary to improve the internal consistency of the Bill, to correct minor ambiguities and occasionally to put more felicitous expression.

The amendment to Clause 10 is a final amendment to ensure that services to carers are referred to in all the appropriate subsections. I beg to move.

On Question, amendment agreed to.

Clause 4 [Duties of responsible authority following notice under section 2]:

Lord Hunt of Kings Heath moved Amendment No. 5:


    Page 3, line 33, leave out from "case" to end of line 34 and insert "under section 2 has been given"

On Question, amendment agreed to.

3.30 p.m.

Lord Morris of Manchester moved Amendment No. 6:


    Page 3, line 45, at end insert—


"( ) Where the responsible authority does not carry out its duty under section 4(2)(a) within the minimum interval prescribed under section 5(6)(b), the responsible NHS body must carry out the assessment of the patient's needs on its behalf."

The noble Lord said: My Lords, the purpose of this amendment is to allow the House briefly to revisit an issue of the first importance to many thousands of the most vulnerable people in Britain today: one that was not resolved by the vote in Committee on 17th February to delay the implementation of this legislation for a year.

My amendment was prompted by representations from people now unnecessarily detained in hospital by failure to assess and meet their needs for care in the community. They put it to me that, where a local council and NHS trust cannot work together to facilitate that care and the council fails even to assess need, then the NHS trust both in its own and the public interest should be empowered to act alone in doing so. They insist that patients must not—their words not

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mine—"be left to rot in hospital" in acute beds, urgently needed by others, when they could be better cared for elsewhere.

I move the amendment as a serial legislator in this policy area for over 33 years now, both as a Back-Bench parliamentarian and a Minister, having first entered the fray with my Private Member's Bill that became the Chronically Sick and Disabled Persons Act 1970. And it was 27 years ago that I announced, as the then Minister for Disabled People, the first-ever joint funding by the NHS and local social services authorities of care in the community for people leaving hospital in need of continuing care. At the same time I promoted the legislation that introduced the severe disablement allowance, the mobility allowance, the invalid care allowance and the disabled housewife's allowance.

That experience and much else in a long involvement in working to achieve the right help, in the right place, at the right time for chronically ill and disabled people leaves me extremely unhappy with the Bill as it now stands.

The Government have provided local social services authorities with much increased funding to fulfil their responsibilities, including 1 billion earmarked for older people's services. But as amended this Bill delays for a year hard-won resources to facilitate more appropriate care for them. That delay will prolong pain and suffering among thousands of people now languishing on hospital waiting lists. Arguably the delay could endanger the lives of some of them—since it is for acute beds that they will have to go on waiting—and it will compound the distress of people now perversely described as "bed blockers" for being detained in hospital in denial of their rights to community care.

Again the Bill does nothing in its present form to acknowledge or reward the local councils, in many parts of the country, that already work so successfully in partnership with NHS trusts to achieve an integrated approach—case by complex case—to the making of humane provision for continuing care of needful people who no longer require a hospital bed.

I have no wish to question the stance taken by anyone on either side of the debate on 17th February. My purpose is not to recriminate about what happened in Committee, but to look forward to what can still be done to protect the benefits the Bill offers. Nor do I question the right of those outside Parliament who have made us aware of their concerns, least of all those of the Local Government Association (LGA) and Help the Aged. On the contrary I hold both of those organisations in high regard and read their submissions with care. In turn they for their part will, I know, understand the depth of my concern about the prospect of leaving the issue of deferred discharges in limbo for a whole year as we are in danger of doing now.

The LGA is concerned, in particular, that the 100 million per full year the Government have made available for assessing need is limited to three years and falls short of their estimate of 133 million a year. While

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this rightly concerns them, is it not a matter for continuing dialogue and negotiation, rather than justification for blocking an attempt to deliver the right care in the right setting? The LGA is rightly concerned too—like Help the Aged—to ensure "person centred" care for older people and to prevent them being treated as "commodities". But that is how many of them—wrongly and avoidably denied the dignity of living in their own homes—feel they are being treated now. As my noble friend Lord Hunt frankly stated on 17th February:


    "Poor-quality practice in many health services and in local government has led to a disastrous position for older people. They are stuck inappropriately in acute NHS beds and risk the dangers of infection, of becoming institutionalised and of losing their independence. As a result, it becomes much more difficult for them to return either to their own homes or to appropriate community care".—[Official Report, 17/2/03; col. 952-953.]

Sadly that is how they will go on being treated if this Bill remains as now drafted and it should not be beyond the wit of parliamentarians, working together, to make it an effective instrument for the achievement of objectives we can all support.

The problems of delayed discharges from hospital are not new. Nor are the debates on the provisions of this Bill the first attempt to solve them. What is new is that substantial extra money has now been found and the Government deserve credit for having accepted this as a prerequisite of meaningful progress towards a solution.

I am much reminded today of Michael Barry, an elderly and severely disabled man, whose case was brought to this House in February/March 1997 on appeal by Gloucestershire County Council and the then Secretary of State for Health (R v Gloucestershire County Council and Another ex parte Barry). They sought to reverse a judgment in Mr Barry's favour given by the Court of Appeal on 27th June 1996.

Following a stroke Michael Barry had been taken into hospital. He had previously had several heart attacks and could not see well. After being discharged from hospital he lived alone and got around with the aid of a Zimmer frame, having fractured his hip some years earlier. Without reassessing his needs, Gloucestershire County Council withdrew the cleaning and laundry services he had been receiving under Section 2 of the Chronically Sick and Disabled Persons Act on the grounds that:


    "Central government has reduced by 2.5 million the money allocated to us for services for disabled people",

and that the council was left with,


    "nowhere near enough money to meet demand".

When he heard this Michael Barry could have been excused for thinking that perhaps even some commodities were treated with more care than him. For Gloucestershire County Council and the Secretary of State for Health the issue was,


    "keeping the lid on public spending".

For Michael Barry, then 82, it was about personal survival.

No one was more unquestionably vulnerable and acquainted with grief than him; and few of those officially involved in his case can look back with any pride on the way he was treated. But happily one

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person who can is here this afternoon: the noble and learned Lord, Lord Lloyd of Berwick, who spoke so perceptively in giving this House his opinion about the case of Michael Barry. He clearly saw through the old Spanish customs used to deprive the 1970 Act's beneficiaries of their rights to services. He saw that assessment and reassessment of need were often delayed and avoided because, once need has been assessed, it is the duty of the local authority to meet it by providing services under the Act; and that thus the way to cut expenditure was to delay or avoid assessment or reassessment.

The noble and learned Lord also saw more clearly than legal colleagues, first, that help under the Act depended not on where the disabled person lived but strictly on the extent of individual need; and secondly, that local authorities were not entitled to say that assessment of need must have regard to their overall resources. The solution he said lay with central government:


    "Having willed the end, Parliament must be asked to provide the means".

He was eminently correct as well to say categorically that:


    "Parliament never intended there should be different standards for measuring the needs of disabled people in Bermondsey and Belgrave Square".

The noble and learned Lord described the Chronically Sick and Disabled Persons Act 1970 as one of "noble" purpose. My response is to say that he enhanced its nobility. His humanity shone through every sentence of his statement here in March 1997 on the case of Michael Barry.

That different standards still exist today, dependent on where a disabled person lives, demeans Parliament and must not be perpetuated by new legislation. The benefits of this Bill are urgently needed and I believe it is not too late to avoid delaying their delivery. I hope profoundly that this can be achieved without party animus and after full consideration by the Government of all matters of legitimate concern, irrespective of by whom they have been raised. There is still time for consensus to be reached on this Bill and those it seeks to help deserve no less. I beg to move.


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