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2BPage 6, line 23, leave out from "regulations" to end of line 24 and insert "or an order under this Part is exercisable by the appropriate Minister by statutory instrument"
2CPage 6, line 29, leave out from beginning to "to" in line 31 and insert— "(2A) Regulations under section 1 which—

(a) prescribe care for the purposes of the definition of "qualifying hospital patient"; and
(b) are made by the Secretary of State (or by the Secretary of State and the Assembly acting jointly), may not prescribe a description of care which is, or includes, mental health care unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament. (2B) A statutory instrument which—

(a) contains regulations or an order under this Part, other than regulations which fall to be approved in draft by virtue of subsection (2A); and
(b) is made by the Secretary of State (or by the Secretary of State and the Assembly acting jointly), is subject"
2DPage 6, line 40, at end insert— "mental health care" means any health services relating to mental health which are of a description prescribed by order;"

2EPage 7, line 34, leave out subsection (5)

The noble Baroness said: My Lords, I beg to move that the House do not insist on their Amendment No. 2 to which the Commons have disagreed for their reason numbered 2A, but do agree with the Commons in their Amendments Nos. 2B to 2E in lieu thereof.

Some people have argued that mental health patients must be excluded because it is simply not possible to carry out an assessment and arrange a care plan within the minimum interval provided for patients receiving acute care. The Government do not dispute that; indeed,

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we accept that it may well be the case. If it did seem appropriate to extend reimbursement to the mental health sector in the future, we would want to consider whether the level of reimbursement or the minimum interval should be altered to reflect any additional difficulties. The Bill already allows us to do that. So, as happens in Sweden, we could allow a longer period of time.

However, despite having allowed for different time-scales, I understand that noble Lords are still concerned about this. For that reason the Government have tabled amendments to require any regulations which bring patients receiving mental health care within the definition of "qualifying hospital patient" to be subject to the affirmative procedure.

Because the amendments have been added at this late stage, the drafting is rather tortuous. Perhaps I may explain the effect of the amendments, why they are necessary and how they relate to each other.

Although we originally thought that achieving this would mean an amendment to Clause 1, we were advised by parliamentary counsel that, because the substance of the issue is more to do with the affirmative procedure, the amendment is more properly located in Clause 8. Therefore, in Clause 8 we have added a requirement that regulations which prescribe mental health care must be subject to the affirmative procedure. That has meant that we also need to define "mental health care", and to do this it is necessary to add an order-making power to deal with the problem of definition in the most straightforward way. That order will prescribe mental health care as care which is received by a patient who is under a consultant psychiatrist. Two further consequential amendments have been added to Clause 9 and Clause 11.

The implications of these changes are that the existing set of regulations prescribing care, which are currently out for consultation, will have to be slightly amended to exclude this type of care, as defined in the order, as being outwith the definition of acute care. Then, as and when it is considered appropriate, we will lay before the House regulations bringing patients receiving mental health care within the scope of the definition of "qualifying hospital patient". If the Government decide in the future that bringing such patients within the provisions of the Bill would be an effective way of tackling the delays as regards community care services suffered by people with mental illness—a point addressed several times during our debates—Parliament will then be able to debate, and disagree to, any such regulations.

I agree with what the honourable Member for Chelmsford West said in another place; namely, that this group could be included in the future but should not be included at the moment. That is the right approach. I hope that noble Lords will be able to accept the Commons amendments.

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Moved, That the House do not insist on their Amendment No. 2 to which the Commons have disagreed for their reason numbered 2A, but do agree with the Commons in their Amendments Nos. 2B to 2E in lieu thereof.—(Baroness Andrews.)

Lord Clement-Jones: My Lords, I thank the Minister for introducing the amendments in such a clear and understandable way. The drafting makes perfect sense. I do not think that it is the first time today that I and my noble friend Lady Barker will use the word "flexible". The Government have demonstrated their flexibility on this point.

This is a difficult subject. We on these Benches still have our objections to the Bill, but the noble Baroness is coming forward with a number of different inducements to take nasty medicine. That is how we are treating the Government's approach to these amendments.

Our thanks are due also to the noble Earl, Lord Howe. Intorducing the affirmative process is an elegant solution. It was, as I recall, the noble Earl's suggestion and I am grateful to the Government for taking it up.

Earl Howe: My Lords, I join the noble Lord in thanking the Government for what I see as a very significant concession. I thank the noble Lord for what he has said as regards the small part that I have played in bringing it about.

Thanks are more properly due to the noble Baroness and her colleagues in the department. They have recognised that extending the scope of the Bill to patients in receipt of mental health services is a matter of considerable concern, particularly among those in the voluntary sector. This mechanism will provide a safeguard to ensure that, if any such extension does occur, Parliament has an automatic opportunity to examine it in close detail.

On Question, Motion agreed to.


5Clause 2, page 2, line 5, after "hospital" insert "after 1st April 2004" The Commons disagreed to this amendment for the following reason:

5ABecause it is necessary for the Bill to come into force before 1st April 2004.

Baroness Andrews: My Lords, I beg to move that the House do not insist on their Amendment No. 5 to which the Commons have disagreed for their reason numbered 5A. I shall speak also to Amendment No. 47.

Noble Lords have argued throughout our debates on the Bill that it should not be introduced until April 2004. I understand concerns that we should not set up an unworkable scheme without regard to the consequences. I believe I can address those concerns and am pleased to do so. We have thought long and hard and want to be both fair and equitable, meeting the concerns articulated by noble Lords.

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Something upon which we in this Chamber are all agreed is that patients—they are mainly older patients—should be supported in leaving hospital when they are medically ready and that when current arrangements let them down, as occurs all too often, we have to act to put that right. Our problem with a further six months' delay beyond October this year is the very real risk that the benefits of the concentrated efforts already made by health and social partners will be lost. We know that much good work has already been done. Instead of local authorities and trusts across the country continuing to work together we are afraid that there could be additional delay.

I wish today to assure noble Lords that although the Government still intend to commence the provisions which implement the process—that is, the giving of the notices and the assessment—in October, they will not commence the provisions dealing with charging until 1st January 2004.

In addition, noble Lords will remember the commitment announced by the Secretary of State in November to transfer an extra 100 million to councils' budgets for each full year of the scheme's operation. I can confirm now that councils will proportionately receive 50 million for 2003–04. This will be paid as soon as practicable so that councils can invest these extra resources in expanding older people's services as fast as possible so that they can be well prepared for implementation in January. There will then be 100 million in 2004–05 and again in 2005–06.

We have delivered, therefore, a period of grace. It means that the NHS and local authorities will have a three-month period over the winter to prepare for full implementation during which the charging operates only in shadow form and no charges for delays will change hands. I believe that this will bring health and social care partners together and, crucially, allows for proper planning without the loss of momentum. Part 2 of the Bill will come into effect on Royal Assent.

I turn to the sunset clause, Amendment No. 47. We are still convinced that it is not an appropriate use of a so-called sunset clause. While delayed discharges are a serious matter for the patients and families, they can hardly be called a matter of national emergency. Neither is there any inherent reason for the Bill to come to an end in five years' time other than the Opposition seeking to limit its effect.

It is an important point. Are we really saying that noble Lords should be able to put a time limit on a Bill which the elected Government have brought forward? Constitutionally, I believe that that sets an extremely unfortunate precedent. In a previous debate, the argument was made elegantly by the noble Earl that it would be no bad thing if all Bills had a sunset clause. In certain cases, such as national emergency or where civil liberties are affected, that may be appropriate. But in the case of the majority of Bills there are already procedures for repeal or amendment. We have dealt with that. To require Parliament to revisit legislation without a very good reason for doing so places a fetter on Parliament's ability to legislate and to do so in this Bill would set an unfortunate precedent.

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We recognise that policies and Acts have a natural lifespan. However, in this Bill our goal is to encourage a reduction in delays through joint working and our expectation is that that will be achieved in the way we have set out with the additional funding. In the unlikely event that in some areas the Bill does not work as well as we believe that it will, we have reliable and well-established procedures and monitoring systems which will give us an early indication of what is going wrong.

On those grounds, I hope that noble Lords are able to accept our changes and to reject the amendment.

Moved, That the House do not insist on their Amendment No. 5 to which the Commons have disagreed for their reason numbered 5A.—(Baroness Andrews.)

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