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19 Mar 2003 : Column 997—continued
Clause 2
Lords amendment: No. 6.
Jacqui Smith: I beg to move, That this House disagrees with the Lords in the said amendment.
Mr. Deputy Speaker (Sir Michael Lord): With this we may discuss Lords amendment No. 9.
Jacqui Smith: These amendments raise the crucial issue of involving and informing patients and carers during the notification under clause 2. I am sure that those hon. Members who have taken a close interest in the Bill as it has gone through its stages will be aware that I am referring to the notification from the hospital to social services that starts the process of assessment that identifies to a social services department that the hospital believes that an individual may need community care services so that it is safe to discharge him from hospital. It is an important new responsibility on hospitals to ensure that they improve communication with social services departments.
The current position is that, in exercising their functions, the NHS and social services must give all proper information to a person so that he can make an informed decision about whether to accept care or services. Those are fundamental duties that stem from the fact that they are public bodies exercising public functions. However, we noted the concerns of both Houses that there is no duty for the NHS to consult the patient prior to referring him to social services.
Government amendment No. 9, with which I hope the House will agree, will place a duty upon the NHS to consult the patient and, where appropriate, his carer before issuing a notice to the local authority of the patient's likely need for community care services on discharge under what will be section 2. That avoids wasting the time of the NHS and social services by initiating assessments that are not required, and ensures that patients are not involved in an assessment without their prior knowledge and that of their carers.
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The Government amendment reinforces the existing good practice that has been built through experience and emphasised in guidance for section 47 assessments, the single assessment process and the recently published discharge workbook. All those processes are built on the premise that the patient should be kept informed and will be consulted at all stages of the assessment process. Even in the context of the Bill, how could the NHS body decide whether the patient is likely to need community care services in order to be safely discharged without consulting the patient? Lords amendment No. 9 puts the matter beyond doubt by writing the requirement into primary legislation.
The same applies to involving carers, although the requirement to consult the carer is slightly circumscribed in that the NHS body must consult the carer only if it knows who the carer is, and if it is reasonably practicable to do so. That is to avoid placing a blanket duty on the NHS body that it cannot meet
without incurring further delay. The Government have concerns about amendment No. 6 because it is quite a different matter for the NHS to require consent before informing social services. That would be a new right that does not exist elsewhere in the NHS.Although to us, discussing the matter in the Chamber, consent may seem a simple, straightforward matter, it may not seem so when presented to older people. They may be confused and fearful, possibly having just had a fall and having come into hospital by ambulance. They may not have any experience of social services or know what an assessment entails, and may not feel able to give consent. The amendment would mean that that had to happen before social services could be involved.
In situations where older people are not able formally to give or withhold consent, it is important that health and social care professionals can begin talking to the patient, explaining options, understanding their home situation and forming a view about what services they may need for a safe discharge. None of that could happen if the NHS could not notify social services without clear and informed consent to notification. A week or more could go by and the patient might nearly be ready for discharge before they felt ready to give a definite yes, which by that time would probably be a yes to social services providing services.
Many people have rightly argued for faster and more timely assessment. The difficulty with amendment No. 6 is that it could work against that. The Bill does not prevent a patient from refusing to co-operate with the NHS or social services in assessment; that is their human right. But it would be deeply counterproductive to give a person the right to prevent the NHS from taking the first step to inform local authorities that, for their own well-being and safety, there may be a need for social services. Most importantly, it would do nothing to ensure that people receive the appropriate care and support when they need it and in the right setting. To add the need for consent would require extra and unnecessary bureaucracy, requiring the NHS to gain, record and pass on the record of that consent to social services.
Ms Munn: Is my hon. Friend aware that since the National Health Service and Community Care Act 1990 came into force, many social services and health authorities have had in place systems whereby, as soon as a person is admitted to hospital, the relevant social services authority is notified that an assessment will be needed, so that the procedures can quickly be put in place? Does my hon. Friend agree that the amendment would cause considerable difficulties for authorities that already have sound, quick procedures that operate effectively?
Jacqui Smith: As we have seen from previous debates, my hon. Friend understands the real world in this matter and she has put her finger on the difficulty. We recognise the need to ensure that patients are consulted about a notification of their needs going to social services. That seems reasonable, and the Government amendment will ensure that that happens. However, we fear that the Lords amendment could put a spoke in the wheel of the sensible arrangements to which my hon. Friend refers, and that would not achieve what all of us want to see, which is a more timely and appropriate assessment for
people in hospital in order to provide them with the necessary support. As I emphasised earlier, people will still have the right not to participate in that assessment and to refuse the services, but to place individuals and organisations in a position where they have to obtain full consent before a notification could even take place would not deliver the sort of improvements that we want.
Mr. Burstow: I want to persuade the House that it should not agree with the Minister but instead should agree with Lords amendment No. 6, and I shall explain why.
First, I welcome Lords amendment No. 9 because it provides a movement in the direction that I think hon. Members on both sides of the House wish to see, recognising the need for a process that ensures that carers and patients are consulted.
The crux of the debate is about whether consent puts a spoke in the wheel, or whether it should be a legitimate part of the Bill. Many hon. Members, and many people outside the House, are concerned that, by not referring at all to patients' rights in terms of being consulted or being able to exercise their right to informed consent, the Bill is not patient centred. In many ways, the Bill could be described, uncharitably perhaps, as regarding patients as passive recipients of a process of care, establishing a process and set of mechanisms whereby they are merely passed from one authority to another. I do not think that that is what it should be about.
In Lords amendment No. 6, my noble Friends in the other place sought, I think succinctly, to include in the Bill the much-needed right of carers to be consulted, which is important, not least in the light of research by Carers UK, which found, when it surveyed carers on their experiences of delayed discharge and the management of a person's discharge, that their views were taken into account less in 2002 than they had been in 1998. It is on that basis that I and my noble Friends came to the conclusion that simply relying on the hospital's discharge workbook would not be enough. It may well contain excellent practice or good practice, but we want clear law, not just guidance, to NHS and other practitioners.
The amendment seeks to place a proactive duty on the NHS and social services to offer assessments of care to carers, not just to wait for the carer to ask. That was an important concern that we had when the Bill left this place.
The other point that the amendment seeks to raise, which the Minister did not really address, concerns mental capacity. The Minister referred to that at least in passing by suggesting that professionals would be hamstrung if they were unable to obtain informed consent. Yet the reality is that the amendment would include in the Bill a requirement that, where a person lacks the mental capacity to give such consent, a record should be placed on the file of the steps taken to ensure the patient's best interests. That places on record within the NHS the process by which the clinicians came to a decision that it was in the person's best interest for social services to be involved and for other decisions to be made.
As we do not have in our law a recognition of mental incapacity in respect of a person's right to advocacy or surrogate decision making in terms of health care, this is a way of encouraging the Government to consider the matter now, because it is an integral part of making the Bill effective and patient centred. That is why we make the proposal.
To conclude, I want to touch on one other issue. I hope that, even at this late stage, the Government will be prepared to consider finding a way by which further amendments can be made to address this concern. That is what my noble Friends were seeking to achieve, and that was the opportunity that they presented. I regret that that opportunity has not been taken. There is a serious issue in relation to how we ensure that those who do not have capacity can have their wishes reflected on, acted on and properly documented, and how those who do have capacity can have a say on whether they wish social services to intervene and make an assessment of their needs. Surely that is their right, although, currently, the Bill does not reflect that. I hope that hon. Members will establish that right clearly in the Bill today, and not accept the Government's dissent from the amendment.
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