Examination of Witnesses (Questions 1 - 19)
WEDNESDAY 25 FEBRUARY 1998
MR CHRIS
KELLY, SIR
HERBERT LAMING,
CBE, MR NICK
BOYD, DR
SHEILA ADAM
and MRS ELIZABETH
WOLSTENHOLME
Chairman
1. May I welcome you to this first evidence session for our
new inquiry into the relationship between the National Health
Service and Social Services? May I also thank our witnesses and
thank you all for being willing to come along this morning? Could
you introduce yourselves?
(Mr Kelly) I have with me Sir Herbert Laming, who
is the Chief Inspector of the Social Services Inspectorate and
probably known to the Committee, Nick Boyd, who is one of the
Branch Heads in the Social Care Branch, responsible among other
things for community care, Dr Sheila Adam, who is the Deputy Director
of the NHS Executive Health Services Directorate, and Elizabeth
Wolstenholme, who is one of the Branch Heads in the Directorate,
also responsible for community care.
2. Mr Kelly I appreciate that you have only fairly recently
taken up your current role. In a sense the Committee felt it would
be helpful at this early stage in the work you are doing in the
Department to hear some of our concerns at the outset with this
particular inquiry. May I start by asking you specifically a question
in relation to what the Secretary of State termed the Berlin Wall.
He uses this term regularly and we all understand his meaning.
I am particularly concerned about the impact this apparent barrier
has on the services at local level. We will turn to look at services
but looking in particular at your own Department, would it be
fair to say that there is a Berlin Wall emanating from the way
the Department is currently structured? One of our advisers uses
the term "the various tribes" within the Department
of Health. If we are looking at unravelling the barriers at local
level, do we not need to start by looking at the issue of how
you are organised in the Department nationally?
(Mr Kelly) Thank you for recognising my newness. I
may need to seek the indulgence of the Committee at a later stage
as a result of that; it is one of the reasons why I have brought
so many people. The question you ask, if I may say so, is a reasonable
one which clearly I have asked also in the two months I have been
in the Department. I am not sure that tribes is the appropriate
description but it is clearly the case that we are organised into
a NHS Executive, a social care group and several divisions dealing
with public health. There are good reasons for that to do with
the emphasis on delivery. We have in the past in the Department
had an alternative structure which was much more general and all
comfortably together. I am fairly convinced in my own mind that
the structure we have now is more effective in terms of making
sure that we have people accountable for delivery in the different
areas. Having said that, we clearly need to work extremely hard
at making sure that that structure, which is there for good reasons,
does not get in the way of proper joined up policy making. Ministers
have left me in no doubt that it is part of my responsibility
to make sure that we have the structures in the Department to
do that and that we are expected to work hard at it. We do have
those structures. I cannot pretend of course that they always
work perfectly because we are still learning but we do have structures.
At the top we have the departmental board which I chair which
brings the different sides of the Department together. Below that
we have separate boards for social care and public health which
also bring together people from the different parts of the Department
and so on. We need to work hard at it but I am fairly confident
in my own mind that those structures we have are the right ones.
3. Moving on from structures and again going back to the
Berlin Wall issue, is it reasonable to say that offering different
policy initiatives separately between the National Health Service
and social services such as, for example, the NHS White Paper,
the Social Services White Paper which is due in a few months'
time, the Public Health Green Paper, in a sense reinforces the
perception that we have distinct services rather than a collective
vision emanating from the top as to how services should be organised
and considered at local level?
(Mr Kelly) There is a danger of that. It is partly
a question of taking things in bite sized chunks and it is partly
the same point as before, a question of organising in ways in
which makes people accountable for delivery. The initiatives are
not separate; they are three strands. The policy agenda within
the Department is set by the NHS White Paper, the Public Health
Green Paper, to become a white paper, and the forthcoming Social
Care White Paper. These are three strands of what Ministers and
we conceive of being a whole policy agenda. We have worked very,
very hard at making sure the delivery mechanisms are there and
that the proper inter-relationships are made. There is a strong
flavour of that in the White Paper, the first of them. I am sure
you will have picked up the various interactions that are put
in there, like the way in which the health improvement plans are
to be written, like the attendance of local authority chief executives
at Trust boards and so on. The Green Paper also tries to make
the connections and so will the White Paper. I accept your premise:
there is a risk that it will look like that. It does not feel
like seperation inside the Department. I am conscious of how hard
we have to work to make sure it stays like that.
4. If I were arriving here from Mars or even certain parts
of Europe, I might ask fairly basic questions as to why we have
the organisation of social care and health care in separate chunks.
Certainly one does not have to go very far afield within Europe
and indeed in Northern Ireland to see health and social services
within the same organisation. Is the Department at the present
time looking at any models of collective organisational provision
in respect of these major chunks of service?
(Mr Kelly) Clearly there are different organisational
models and the man from Mars would have to have a history lesson
to understand why we have got where we are. Underlying your question
is presumably the thought of community care authorities or something
like that.
5. There are many thoughts underlying my question.
(Mr Kelly) The short answer to your question is that
Ministers have set out in the NHS White Paper their views about
what needs to be done to structures. That majored on the primary
care groups; it did not say let us have a grand restructuring
of the boundary. The reason for that was probably twofold: one
is the cost of disruption of which they are very conscious. The
other is the issue that wherever you draw a boundary, you create
other boundary problems. None of the other models are immune,
in my very limited experience, from creating other different sorts
of boundary problems than the ones we have. The path set out in
the White Paper is to have primary care groups as the principal
organisational change and then find other ways of helping work
at the boundary either by encouragement or by removing barriers.
There is a promise of a consultation paper shortly which gets
into the issues of joint finance and pooled budgets and so on.
That is where we are. Having said that, if the Committee were
strongly to recommend a major structural change then I am sure
Ministers would want to look at that carefully but it is not on
the agenda at the moment.
Julia Drown
6. As we start out on this inquiry I should like to understand
better the legal problems which prevent people working together
at the moment. In your written evidence you talked about some
of the ways that people can transfer money under section 28A of
the 1997 Act, health authorities can transfer money to local authorities
to do various things and how local authorities can make available
their staff to the health authority. When you speak to people
on the ground they say they cannot do this because of legal problems
and they cannot spend each other's money. That is what I should
like to understand. What are the real legal problems which prevent
people working together and pooling budgets and just getting on
with it?
(Mr Boyd) The first point I would make on that is
that it is actually the case that, as I think you are implying,
many people do not understand the full flexibilities they already
have, for instance the ability of the health service to transfer
money through section 28A to local authorities. There are still
places round the country where people feel that this is only restricted
to narrow limits like joint finance without understanding that
it could go further than that. There are actually some legal constraints
to local authorities and health authorities operating as one and
operating a pooled budget. To give two examples of that, it is
not possible at the moment in law for local authorities to spend
their money on health services. If their money disappeared into
a pooled budget, which also had health money in it, let us say
they both put in 50 per cent but 60 per cent of that pooled budget
at the end of the year had actually been spent on health services,
then that would actually mean that the local authority had not
had legal cover for 10 per cent of the money put in. The second
example is that local authorities have a direct responsibility
under the 1990 legislation for carrying out assessments. They
do not have the legal powers to delegate the assessment function
to another operation so to speak. They do have powers to make
use of health authority staff in order to carry out assessments
for them but the assessment would be being carried out for the
local authority under local authority powers although it would
be being done through a health authority person. If you were looking
at a genuine bit of shared working, you would really want to have
a situation where assessments could be carried out by anybody
in a team for a particular purpose. At the moment there would
need to be a change to legislation to allow local authorities
to delegate their assessment powers in that way. Those are two
examples.
Chairman
7. The issue which you have raised about where there may
be some degree of pooled working is very interesting. How does
one ensure under current arrangements that the local authority
do not go beyond their powers in the case, say, of somebody in
the community? The classic one you will be very familiar with
is the community bath issue, whether the person is a nursing bath
or a social bath, a care bath or a health bath. How does one define
those boundaries in these circumstances where you are saying that
there are clear powers and beyond that they are acting ultra
vires presumably, beyond their powers? How does one define
that in practical terms at local level?
(Mr Boyd) It is certainly the case that the current
legislative framework, which sets out health service functions
and social service functions, does not exhaustively define every
last function. It is certainly the case, as your question implies,
that there are some functions where it is actually quite difficult
to understand which part of the legislative framework they fit
into. That is most acute when care packages are being put in.
The position that the Department has taken and which is shared
by Ministers is that it is actually not a practicable task for
Whitehall to set out an absolutely exhaustive list: these are
things which are health service activities and these are things
which are social service activities. At the end of the day they
need to be decided locally and it would be a symptom of good local
working if people could come to agreements about it. What I am
saying is that obviously the legislation is clear if you are carrying
out surgery of some kind which is a health service function, it
is pretty clear on medical and clinical nursing kinds of activities.
However, there certainly are functions where it is not clear from
legislation whether this is absolutely a health service function
or a social service function. There is no doubt that does cause
difficulty.
(Sir Herbert Laming) In all organisations-this is
not peculiar to health or social services or wider local government
functions it is true of all organisations-a balance has to be
struck between flexibility that everybody would wish to encourage
as much as possible and accountability which is an important issue,
especially if you are using public funds. The legislation at the
present time is framed in a way which sets out a clear framework
in generality of accountability but which allows flexibility where
there is local agreement based upon an assessment of need of the
kind that Julia Drown was referring to. Bearing in mind the range
of services which are provided by both health and social care
and the particular needs of individuals and their own home circumstances
and the fact that their position is not static, is likely to change,
it is not possible from the centre to define what is necessary
for each individual at any one time. Local managers are appointed
to have that responsibility and to make those arrangements. What
we are doing from the centre is wherever possible to issue jointly
agreed advice, joint instructions, which are there to create that
local flexibility. There ought not to be disputes about community
baths. The personal circumstances might change: immediately after
a period of hospital it might need to be provided by a nurse,
as the person's condition changes, improves, then it can be provided
by somebody else. That is what local management is about.
Julia Drown
8. The fact that Whitehall cannot say what is health and
social services points to a huge grey area in between them. We
could all end up discussing this for ever but we just want to
get on and give the services to people. Are you saying that whether
it is Health or Social Services depends who is giving the bath?
Is that how you would define it?
(Sir Herbert Laming) I would define it by the need
of the individual, what their personal need is. In other words,
somebody discharged from hospital after major surgery may need
the attention of a nurse for a variety of reasons, not just bathing.
As their condition improves, then that can be taken over by carers,
by domiciliary care assistants and the like. That is why it is
important that there are joint arrangements for assessment of
need and joint arrangements for care planning and care management.
9. I still have not quite understood whether you think that
it is always definable. You still seem to be saying that it depends
who is giving the baths.
(Sir Herbert Laming) No, it is always definable around
the needs of the individual. It is not definable around the structure
of the service.
Ann Keen
10. I would actually support that statement wholeheartedly.
It is about the need of the individual which is in constant change.
The reassessment is so important and the joint assessment and
the ability for people locally actually to manage more flexibly
than originally. There is no such thing as a social or a health
bath: in my experience it is what that individual person needs
at that time and who is the most appropriate which will change.
That is what we need: people on the ground to be aware of that
flexibility rather than to become tribal. I would say there is
a tendency for people to go very tribal and protective as to who
is doing the assessment. They have different reasons and it is
not always in the best interest of the individual who is receiving
the care. That is what troubles myself and I am sure this Committee.
(Sir Herbert Laming) That is why we are monitoring
local arrangements: to make sure the joint working is effective,
to make sure that people sign up to agreements on eligibility
criteria for different services to make sure that there is a proper
community care plan which is shared by both health and social
services as well as consulting with users of services and their
carers. The framework is there for effective joint working. There
will be parts of the country where there are difficulties and
where there are difficulties we jointly, not tribally, from the
Department of Health, address those issues through our respective
joint working of the regional offices.
Audrey Wise
11. Still pursuing this bath as an illustration-just as an
illustration-I take your point that in the beginning it may well
be an entirely nursing task, somebody has just had some complicated
surgery or treatment, then improves and may be taken over by care
assistants. We had very compelling nursing evidence when we were
doing community care inquiries that that is a risky description
because there is a real role for a continuing flexibility in that
a nurse giving a bath is not simply giving a bath but is in a
way assessing the patient and that there may be conditions which
are overlooked by care assistants or assumed simply to be a natural
consequence of ageing, something like that, which would be picked
up by a nurse. What you need is a continuing-not continuous but
continuing-nursing supervision which seems harder to cope with.
They seem to be able to cope with first one and then the other
but the continuing leapfrogging to make sure that the elderly
person, because that is what we are talking about mainly, is monitored
properly, that is harder to achieve.
(Sir Herbert Laming) We agree absolutely with that.
That is why it is a pity in a way that we talk about a bath. There
is actually nothing technical about a bath and there is nothing
specific which requires nursing skills in administering a bath.
For certain individuals the bath is a problem but it is only one
of many problems that they will have. If they have that degree
of mobility or if their wounds need dressing, need protection,
whatever it may be, then it is likely that it is not just the
bath, it is about a whole variety of things in their daily living.
The way in which the Department is viewing these matters is about
creating an atmosphere of multi-disciplinary working. This is
all about team play and it is about bringing together people's
different skills and specialist knowledge, not just around bathing
but a whole range of activities and a whole range of need. There
is no cut-off point between domiciliary care and nursing care.
People receive both of those services where they need them. Sometimes
they are getting much more domiciliary nursing care-I am not talking
necessarily about baths but domiciliary nursing care-than they
are domiciliary social care. There will be times when they are
getting both domiciliary nursing care and domiciliary social care
and that is entirely appropriate to their needs. As their needs
change, so the volume that each contributes will vary. It is actually
unfortunate that we talk about the bath because what we need to
be talking about is the way in which we ensure that people get
the services appropriate to their needs and that often means a
combination of service provision.
Chairman
12. I think it is very appropriate that we are talking about
the issue of bathing because this is where members of parliament
come in. It is ludicrous to me that I have in fairly recent times
had to referee disputes over who is responsible for bathing. Bear
in mind I have a Yorkshire constituency and people are concerned
about the use of money. It is quite ludicrous that certain people
are charged and others are not charged for a similar function.
That is what it comes down to. Obviously if any of my constituents
can have a free bath, they prefer that rather than having to pay
for it for fairly obvious reasons. We have two different structures
which do impact upon the reality, the experience of the patient/client
at the local level. You have been around looking at this in detail
for some years. Picking up the point Mr Boyd made a few moments
ago, is it not fair to say that if we went back even ten years
the role of the home carer in relation to bathing somebody in
the community will be far more restricted than it is now. What
appears to have happened in policy terms is that this one area
we are looking at as an example is a good example of the way there
has been slippage from the NHS where a free service is provided
at community level, into the local authority provision which can
be charged.
(Sir Herbert Laming) Yes, the point you make is an
absolutely good point, a very fair point. That is why in a way
it is not about the bath, it is about the fact that we have two
different structures operating here. We have a health service
structure and we have a social care structure. It does not matter
particularly about the bath: the fact is that if you are getting
social care it is likely you are going to be assessed for some
charges for a variety of services whereas if you are getting your
services from the health service it is free at the point of delivery-not
free but free at the point of delivery to the user. That is an
issue which we constantly need to address at a local level to
make sure that those systems are in place. That is the system
which was laid down in 1946-48 by parliament and it is a system
which has existed for 50 years. Although you said earlier on that
if you came from Mars and looked at Europe you would find our
system peculiar, actually our system is not replicated in any
European countries; our system is unique. There are not many countries
which have a National Health Service in the way that we have a
National Health Service and social care in the way that we have
it. It would require a major change to change that system. What
we are working on is making sure that the system works as well
as it can at local level.
13. I am coming back in a sense to Mr Boyd's point where
he was making quite clear that joint working is allowed within
certain remits. The point I am putting to all our witnesses in
a sense-and we have used bathing as an example and it is a fairly
good example because it is within the experience of all the members
of parliament who are here in that we get this representation
on a not infrequent basis-is that the picture which has occurred
in my experience in the last 10 or 15 years is that there has
been a marked move from the delivery of services by one department,
that is the nursing side, the health side, to the local authority,
without any change in statutory arrangements. As far as I have
seen, I do not think the community care legislation affected this,
but certainly what we are seeing home carers do now would not
have been done by home carers 15 years ago, yet the legal arrangements
have not changed.
(Sir Herbert Laming) Yes, but we have during that
period also had two factors which have influenced the way in which
services are provided, the first being a big increase in the very
old people, the demographic changes you are all familiar with
and most of those people wish to live as long as they can in their
own homes or in some sheltered housing provision. The second thing
is that we have responded to the fact that hospitals are not healthy
places for most people to live, they are institutions. Most people
want to be in the community. The services have actually changed
to meet change in needs within the community. What you say is
absolutely right. Nowadays domiciliary care services operate from
early morning to late at night and they can operate 24 hours a
day if necessary. A great deal of support is available for carers
who are doing much more caring now sometimes than in the past.
Therefore the services have changed. What is important is that
people should get the services appropriate to their needs. If
they wish to live in the community then the services should provide
for them within the community and therefore the services have
changed.
14. But the statutory framework has not changed. It is very
interesting to me that people are working in positive ways quite
obviously but perhaps in some instances-and this might be tested
legally at some point-not within the statutory framework established
by government.
(Sir Herbert Laming) There has been a big change in
the transfer of social security money that supported people in
residential care into local government in order to make sure that
people's needs were assessed and if there needs were not for residential
care there would be appropriate domiciliary care. That was a very,
very significant change. Care in the community has become a very,
very important part of the network of services in this country.
Audrey Wise
15. You said that the bath was not an appropriate or a particularly
good example because if a person needed more care it would be
obvious anyway. That is exactly the point. The point that worries
me is not just about the money, although I know that is a very
important consideration, it is that this affects or can affect
the actual care which is given to a person. The whole point about
using the bath as an illustration for the need for at least intermittent
skilled trained nursing is that they can pick up things before
it becomes obvious. It is using a natural need in order to give
a means of observing. If you wait until there is all sorts of
other things which are obvious then (a) it might not be so easy
to do something about it and (b) it will certainly cost more.
If we could build in this kind of regular nursing supervision
in a more regular way and a more taken for granted way it would
actually be part of the preventive approach.
(Sir Herbert Laming) We agree absolutely with that.
16. It does not happen.
(Sir Herbert Laming) We are working very hard to make
it happen. We agree absolutely because it seems clear to us that
there are more and more people who need not only a multi-disciplinary
assessment but also a team approach to meet their needs. Reference
has been made earlier on to the NHS White Paper. The NHS White
Paper put primary care very much in the lead of service provision.
Primary care is not just about GPs, important though they are,
it is about primary care teams of which domiciliary nursing is
a very, very important part. My belief is that the illustration
you have given is an indication of the need that when somebody
either has a deteriorating condition or they have just been discharged
from hospital, we need to get a clear understanding in the system
that it is highly unlikely that any one service can meet all of
their needs. What we need is this multi-disciplinary team approach
and therefore if the bath would help a person in need that is
fine, but it must be in the context of proper assessment of all
the needs in the person's total social circumstances and agreement
in the team.
17. Following on the Chairman's point about home carers doing
a lot more different things from what they would have done a few
years ago, that has not only affected the nursing care, it moved
so that home carers are doing things which nurses would have done.
Another result of that is that a whole other service has just
dropped off the edge. I refer to a proper home help service which
does not now exist. Local authorities are so involved in doing
things that the health service would have done they now do not
provide a home help service. I can say that with confidence because
I have asked every local authority social services witness whether
they in their authority have a proper home help service and the
answer is always no. This is not about having assessed the full
needs because for many elderly people the keeping of the place
clean for them, the basic home help function, is enormously important.
Yet now it is not met as it used to be met by home help service.
What is your comment about that?
(Sir Herbert Laming) We actually agree with that in
that we think the pendulum may have swung too far in that moving
from what might be called a domestic service to a personal care
service has been at the expense of some absolutely essential support
for some people who, whether because of disability or frailty,
actually cannot maintain their home to an adequate standard. It
does not seem to us to be sensible to put somebody at risk because
their home condition is deteriorating. What we are doing is that
we are asking when community care plans are drawn up between health
and social services and in consultation with users and carers
that these plans reflect the width of need, the variety of need
and that includes a measure of preventive work. That does not
mean opening the doors to everybody; I mentioned the demographic
factors. However, we do think that it is very important that there
is a breadth of service, particularly for people who are frail
or in some way may even be bedridden. They need their home care
too.
Mr Lansley
18. It seemed to me that Sir Herbert was making the point
about demographic change and the change in the place in which
much of the care is now provided at home rather than in NHS institutions.
Is not the corollary to that that although the implication might
be that health service resources would change in their distribution
in order to follow that, that in fact that has not happened to
the same extent and the demography and the demand has shifted
but the responsibility has also shifted. Our Chairman is absolutely
right that not necessarily in statutory terms but in practical
terms and in financial terms they have shifted, partly in order
to shift the responsibility into a charging regime as opposed
to a non-charging regime and to offset some of these additional
cost pressures. In a sense my question is: do you agree that has
occurred, that there has been this shift in the boundaries even
though not in a statutory sense but in a practical and a financial
sense between the two? Linked to that you talked earlier about
flexibility and multi-agency working and everybody designing appropriate
care at appropriate times and it will shift between different
agencies. A very large constraint within that is that from the
perspective of the user it makes a very big difference whether
it is nursing care or social care because charging impacts directly
upon that as well as a whole other range of factors from the users
point of view. The flexibility is not as clear as you would present
it to be. It does not work in quite the way you describe.
(Dr Adam) One of the changes we see is also the transfer
from work going on in hospital to work going on in primary care
so a shift in the secondary to primary care boundary within the
health service. The White Paper and also Our Healthier Nation,
the Public Health Green Paper, recognises very much the importance
of looking at integrated care pathways, looking at the sort of
packages of care which Audrey Wise has been talking about, emphasising
the importance of multi-disciplinary assessment but also not doing
that as a one-off thing, keeping service users under regular review
and not only delivering the services which we feel to be appropriate
but actually making sure that users and carers understand which
services are being provided, and why they are being provided by
one agency rather than another. Certainly in the White Paper through
the development of primary care groups we are very much wanting
to tackle looking across not only health and social care but also
primary care, community health services and secondary care to
make sure within the envelope of finite resources that we are
using those as effectively as possible. As members of the Committee
will know, there are new flexibilities coming in, in terms of
the work of general practitioners for example working with community
nursing staff, which we think will help to provide more flexible
packages of care for the most vulnerable people who do want to
be looked after at home rather than admitted to some form of long-term
institutional care.
(Mr Kelly) We are not ignoring your point about charging
which is clearly a very important one which gives bite to the
whole of this and to which there is no very obvious and easy solution,
hence one of the reasons for the Royal Commission.
Mr Walter
19. Sorry to come back to the bath but it is actually quite
a good frontier of what we are talking about between the two services.
What concerns me and the patient or the client or however you
want to describe it, whichever service you are coming from, is
generally a very vulnerable person who is the user of this service
and is not quite sure who it is who should be providing which
particular service. It is all very well to talk about joint working
but at the end of the day the people who are drawing up these
plans are actually fighting a turf war based on how much resourcing
they have. What concerns me is who ultimately to your mind, in
the eyes of the patient, should be the referee?
(Sir Herbert Laming) It is very difficult to answer
that kind of question in the generality as though everybody were
the same and their circumstances were the same. Quite clearly
the decision-let us take somebody who has been discharged from
hospital-to discharge from hospital is a decision which is made
within the hospital about the ability of the person to move from
the hospital. That should be based upon an inter-departmental
assessment of need and there should be a handover to the primary
care team which can include follow-up work from hospital but within
the domiciliary care arrangement. It depends what you are asking
about. Clearly the primary care team has the responsibility to
make sure that the person's health needs are met and that includes
their nursing needs as well as their medical needs. A care manager
from social services should be linked with the primary care team
who would be involved in putting together a care plan which everybody
signs up to around the needs of that individual. I think that
what we are working towards-members may feel we are not quite
there yet and that we would fully understand-is a recognition
that none of these different services can actually operate in
a unilateral way; it is not in their interests, let alone the
patient's interests to operate in a unilateral way because they
actually each need each other, as does the patient but they need
each other in different ways at different times and different
volumes. Therefore the decision has to be made around an assessment
of need. I hope that there would not be a turf war over the needs
of an individual patient because the responsibility rests with
the team as a whole and if one partner in that team does not play
their part, then not only is the patient at risk but each of the
services is at risk.
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