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19 Mar 2003 : Column 1000—continued

Glenda Jackson: I have listened to the arguments of my hon. Friend the Minister. Although I am not necessarily especially moved by the Lords amendments, I would like to mention some issues that have been raised with me by constituents in relation to health professionals and social services listening to carers, as well as the issue of mental capacity, which has been touched on.

I know that the Government have made major moves in relation to incorporating the opinions of carers when creating a truly effective care package for an individual. I hope, however, that they will consider a problem, which, although not massive, is real for the individuals and families concerned, and which has caused difficulties in my constituency. The problem is that, on some occasions, health service professionals and, in other instances, social services suddenly get very exercised about issues of confidentiality, which seems to me to be absolutely unacceptable.

In the case of someone who has a mental incapacity, it is very unusual in my borough of Camden for there not to be an extremely efficient, caring advocate, whether that is an official or someone who has simply taken it on themselves to become a carer for an elderly person without a family. If the issue of confidentiality is raised, however, and that involves the input of the individual carer—whether a family member or an advocate for someone with a mental incapacity—it slows the system down. Under the Bill, there can be fines—[Interruption.] I know that my hon. Friend the Minister does not like that word. None the less, financial penalties can be incurred if there is what is deemed to be a delay in the discharge. It may be that the issue of confidentiality is being exercised because people believe that that is in the best interests. Indeed, sometimes, they may erroneously believe that they will be infringing some kind of ethical, if not legal, embargo.

I understand the Government's arguments against the Lords amendment, but I ask them to consider this issue. I am happy to furnish my hon. Friend the Minister with anecdotal evidence from my constituency, as the

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Government should be aware of it. As I have said, not only can the process be delayed but real difficulties can be caused for families, for the individual for whom they are caring, and, most particularly, for those who suffer from a mental incapacity, in relation to their advocate. It is not unusual, in the first instance, for attempts to be made to sideline their contribution. Importantly, too, those people who are closely engaged with an individual can offer good ideas as to what would be the best possible care package for that person.

Although I will not vote for the Lords amendment, I hope that my hon. Friend will take on board the points that I have made, and I am happy to provide her with even more details if they can be of help.

4.15 pm

Mr. Waterson: I shall be brief because we have much ground to cover. The basic challenge to any Opposition is the extent to which they should strive to improve a measure that is fundamentally unimprovable. However, the central objection has always been that the Bill is not patient centred. Almost everybody in the world, except Health Ministers, takes that view. It is a tribute to the sustained opposition from all quarters, not only parliamentary, that the Government have been dragged kicking and screaming towards at least nodding in the direction of patients.

The Minister claims that the amendment would grant a new right that does not exist in the NHS. She may be right. However, the Government are taking some draconian new powers, which do not yet exist, over the NHS and social services. It is only fair that those powers, which are misconceived and bound to trigger the law of unintended consequences, are counterbalanced by stronger rights for patients.

In an ideal world, consultation would mean an unhurried attempt to sit down with the patient, carer or both, discuss the options, ensure that the patient has all the available information, and reach a consensus. However, how can we guarantee that in the real world? The only way is to include the word "consent" in the Bill. There would thus be an absolute requirement to obtain the consent—hopefully informed—of a patient or carer before the shift to some other form of care.

In the majority of cases, obtaining consent should not present a problem. All too often, the patient clamours to get out of hospital into more appropriate care. However, in a small minority of cases, there will be a clash of views between the patient, the family, the carers and the aims of the health professionals. Those aims will be driven by the financial penalties—incentives, as the Minister calls them, fines as everybody else, including the Secretary of State refers to them—that the Bill imposes.

It would be churlish not to welcome the Government's deathbed conversion to the patient having some role. Until now, the patient has been regarded as a commodity, to be shunted back and forth in the system as rapidly as possible in a bizarre game of pass the parcel to ensure that whoever has the patient when the music stops pays a fine. For once, the Government are beginning to acknowledge that a patient plays a genuine role in the process.

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It is only fair to record that Age Concern has welcomed the Government's comments about consultation, guidance and so on. However, Age Concern is not alone in the view that it expressed in its latest briefing, which states:

That does not mean setting out a requirement in regulations or guidance.

Ms Munn: Community care legislation has been in place for nearly 10 years. Expectations about agreement to care packages have also existed for that time. We are not discussing anything that is new or relates specifically to the issues that the Bill tackles.

Mr. Waterson: If that is a point in favour of patient consent and agreement between everyone, who am I to disagree? Of course, there should be agreement, and I said that the problem will affect only a minority of cases.

Age Concern's briefing, reflecting the point that the hon. Member for Hampstead and Highgate (Glenda Jackson) made, continues:

The hon. Lady was right. Problems with confidentiality may slow down the process. That is not a matter for us; it is for Ministers and civil servants to tackle so that there is no extra cause of delay. Age Concern concludes:

I think that Age Concern is absolutely right.

The combined opposition to the Bill from within and outside Parliament has persuaded the Government to look at the rights of patients. They have not gone far enough down that road, however. They should go the whole hog and withdraw their opposition to this eminently sensible and fair Lords amendment.

Jacqui Smith: With the leave of the House, I should like to respond to the hon. Member for Eastbourne (Mr. Waterson) first. Most of his contribution was about consenting to a care package. He has, therefore, misunderstood the section of the Bill that we are discussing. The two amendments in question relate to the process whereby the NHS body, the hospital, notifies social services that someone might need community care services, thereby starting the process of assessment. We have not yet reached the question of the care package, although I hope that we shall do so when we discuss the next two groups of amendments. It would, therefore, have been better if the hon. Gentleman had saved some of his arguments for later.

I reiterate the point that I raised earlier about amendment No. 9, which is that it ensures that, even before that notification happens, the patient and carer will need to be consulted about the fact that the assessment process has started. That is an important step forward.

Mr. Burstow: I want to seek clarity on amendment No. 9, in which paragraph (b) refers to the

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circumstances in which carers should be consulted if it is "reasonably practicable" to do so. Will the Minister amplify what would be meant by "reasonably" in those circumstances, so that we can help those outside who will have to live with this amendment in future?

Jacqui Smith: As I started to outline in my introduction, this provision is intended to avoid a situation in which an inability to find a carer—perhaps because a patient was not clear about who their carer was, for example, or because the carer was away or uncontactable at the relevant time—would put a brake on the ability to notify social services and start the assessment. In such circumstances, we would not want the notification of the assessment to stop.

The point of difference between us is whether we should make it a requirement for the patient to consent to the notification of social services to start the assessment. My hon. Friend the Member for Hampstead and Highgate (Glenda Jackson) raised some important issues about capacity—as did the hon. Member for Sutton and Cheam (Mr. Burstow)—and confidentiality, which seemed to go to the heart of the need to have in place a better way for those without capacity to have determined in advance who might take these decisions on their behalf. I am pleased that the Parliamentary Secretary, Lord Chancellor's Department, my hon. Friend the Member for Doncaster, Central (Ms Winterton) is on the Front Bench today to hear these concerns. Hon. Members will be aware that the Lord Chancellor's Department is currently working on draft legislation on incapacity, and I understand that my hon. Friend has also set up a mental incapacity forum to deal with some of these issues. The Government are, therefore, considering them in detail.

To return to the crux of the matter of obtaining consent, I would ask hon. Members to imagine the position in which we might place a hospital if, for example, someone had come in following an accident in which they had fallen over and were confused, and it was clear that they would almost certainly need community care services in order to be able to be discharged from hospital. Under amendment No. 6, the patient would have to give their informed consent before the social services could even be notified to start the process. My concern is that, for a variety of reasons, they might not be able to do that. In addition, all the bureaucracy involved in obtaining consent would, in such a case, increase the period of time between the patient being admitted and social services being informed of the possible need for care. That could reduce the time available to social services departments to plan and arrange a care package.

Nothing changes the fact that patients need not co-operate with assessments. They can refuse the package offered to them. Nevertheless, professionals must be involved at every stage to ensure that patients understand the consequences of refusing care, rather than a box being ticked for "consent given" or "consent not given".

While it is unlikely to add to the process of consulting patients, what is proposed in the amendment might add to both the problems involved and the time taken before

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health and social care professionals can start working together to assess people's needs and to ensure that the necessary services are available. I hope that Members will disagree with Lords amendment No. 6, and agree with Lords amendment No. 9.

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 328, Noes 198.

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