Memorandum submitted by LGA (H&SC 25)
1.1 This further memorandum sets out further information on the position of the Local Government Association (LGA) on the Health and Social Care Bill following the Public Bill Committee evidence session on 8 January 2008.
2.1 This memorandum covers three areas:
· Public health powers
· Direct payments for social care and health
3. Part 3: Public Health Protection
3.1 In our previous submission we expressed concern that the passing of powers from local authorities to Justices of the Peace (JPs) could delay responses to incidents of contamination, increase bureaucracy and create legal costs for the local authority. It has been suggested that Clause 45J (which allows JPs to make orders in relation to groups of persons, things or premises) would somehow reduce the bureaucratic burden on councils. We were also advised that, when questioned by the Public Bill Committee, the Health Protection Agency expressed no concern at the proposals.
3.2 We have considered these points and remain of the view that the new process in relation to premises and articles will cause delays that could endanger public health. The LGA is very clear that Court approval should be obtained for action against persons and turning first to the transcript of the evidence given to the Committee on 8 January 2008 by Dr Pat Trop of the Health Protection Agency we find she referred to action against persons rather than premises or articles:
Dr. Troop: At the moment, we have recourse to public health law. We have checked with our staff - there are probably around a dozen or so cases per year. This is where we have to require someone to be moved into hospital. At the moment, we do the same thing; we go to a JP. We have not found that that is a problem. If we are going to take those kind of powers and if we are going to require someone to act in a way that they think is against their interests, we think that it is right that that individual and our staff have the backing of a JP to do that. Our experience is that we can always get hold of somebody in a timely way and we have not found that to be a problem. My colleagues and I have all been involved in this situation and I do not think any of us have found that to be a problem.
3.3 We fully accept that finding a JP for action against 12 individuals per year, no doubt in different parts of the country, has not been a problem for the HPA. This should not, however, lead Members of the Committee to assume that the same would apply in a single area where many premises or articles need decontamination in a short period of time.
3.4 Turning now to group applications under clause 45J; the procedure allows for an application to decontaminate a group of premises or articles to be made to a single JP. However, the rules of natural justice would still require that the owner and/or occupier of each individual premise or thing be notified of the hearing. They have the right to attend and make their case and, in such circumstances, many would want legal representation. The JP would therefore need to be willing and able to accommodate, and have the time to deal with, all the interested parties for each individual premise or article. The group procedure would also only apply to premises or articles identified at the one time. This was not so in the Litvinenko case in Westminster, where the forty seven premises were identified over a period of time.
3.5 The additional burden on the local authority of this new process over the current system would include: serving notice of the hearing on the owner/occupier, providing evidence for each individual premise or article, instructing legal representatives and attending the hearing.
3.6 We believe that leaving these powers with the local authority would satisfy the rules of natural justice as councils have well established internal procedures that require the approval of a senior officer before formal action is commenced. We are supported in these views by the Chartered Institute of Environmental Health, the representative organisation for the front line officers who investigate and lead the response to public health emergencies.
3.7 The Department for Health has offered no cogent argument as to why the public interest is best served by removal of these powers to JPs. These provisions might have been less contentious had the Department explained the perceived problems with the current system and discussed the practical implications with those who have to use the powers before committing themselves to legislation.
4. Part 5, clause 134 - Direct payments in lieu of social care and health services
4.1 The LGA and the Association of Directors of Adult Social Services
support the extension of the direct payments scheme to adults who
lack mental capacity. This is a positive step which extends
choice and control over services and supports the transition from children's to
adult services. However, we believe the
Bill could go further.
4.2 We believe that to provide the person-centred care to which we all aspire and which must be the best value for the tax payer, there is potential to consider a scheme jointly managed by the individual, social care and health. This is because councils are partners in the provision of care for around 2 million people, the majority of whom will also be receiving substantial care from the NHS for long-term conditions, physical and/or mental.
4.3 We fully support the case for change in healthcare outlined in Our health, our care, our say and Our NHS, our future - the Darzi Interim report. We were encouraged by the interim report's recognition of the transforming effect of individual budgets and the potential lessons for NHS services. We would urge the Department of Health to use this legislative opportunity to enable NHS services to become part of self-directed care packages in the future.
5.1 The LGA and ADASS have noted the amendment to set up an 'Independent Complaints Body' and oral evidence in relation to the investigation of complaints. We recognise that there is a gap in second tier complaints provision for those who purchase their own care which is a concern. However, it is the view of the LGA and ADASS that any changes should not duplicate current complaints procedures or the work of the Ombudsman. Careful thought should be given to the relative roles of the complaint bodies, the Care Quality Commission and the local authority in which the provider is located. Any complaints system should reflect the integrated nature of services across health and social care, regardless of provider. We therefore do not support the amendment as it stands.
5.2 The LGA also supports better access to information for the public about their rights and possible avenues of complaint, including for those consumers who buy cosmetic treatments that fall outside the second tier arrangements.