Mrs.
Gillan: May I just tell the Minister that that relates to
my earlier question on local data
collection?
Phil
Hope: Yes. These paragraphs include provision of
diagnostic services and information gathering, including needs
assessment. Angela
Browning (Tiverton and Honiton) (Con): On the question of
diagnostic services, some of the most complex cases involve undiagnosed
adults who are in the community. They may be middle aged or even older.
In order to get the right person to make the diagnosis, an out of area
referral is often appropriate because diagnosis of autism in some of
the more complex cases needs to be done by someone who has lived and
worked autism as a professional for many years. Would the Minister take
a look at the processes for GPs and other health workers to make out of
area referrals to specialists in the more difficult types of
case?
Phil
Hope: The hon. Lady makes a very helpful contribution. We
understand that improvements are needed in how a diagnosis is made and
who makes it. The guidance will talk about the provision of diagnostic
services, but I cannot say to what extent it will cover her specific
points about out of area referrals. That must be a matter for the
strategy and then the guidance and the consultation to follow. However,
I assure her that the points she has made today can be part of that
process. In
terms of the specialisms that the hon. Lady describes, one of the
paragraphs includes a reference to guidance on work force training.
That is an extraordinarily important point. Overall, the subsection
covers diagnostic services and information gathering, including needs
assessment, which I hope addresses the point made by the hon. Member
for Chesham and Amersham. It also includes strategic planning of
services, transition planning—on Second Reading many hon.
Members spoke about the transition between childhood and
adulthood—work force training and local leadership, because we
all know that is what is required when we want to make things
happen.
Mr.
Boswell: This is turning into a constructive dialogue, so
I hope the Minister will take my intervention in that spirit. He
referred to the training of staff who provide relevant services to
adults with such conditions. That is clearly important where their
services are directly appropriate to people within the autism spectrum,
but there is a wider issue, which I hope he will relay across the NHS:
all staff in the caring services need to be aware of the possibility of
autism as a potential condition. They need to have at least a
reasonably sensitive and, if possible, a perceptive reaction to people
who present with certain difficulties so as to ensure that they then
get the diagnosis and support they
need.
Phil
Hope: I do not know whether the hon. Gentleman has seen my
speaking notes, but I was just about to say that the themes we have
identified reflect what happened in the consultation and in particular
the importance of public services coming together to assess the needs
of people with autism, and to consider what support they need to live
independently and to be included in their communities. In that process,
driving a change in attitudes and culture, particularly among all
front-line staff who come into contact with people with autism, is
particularly important. The hon. Gentleman is absolutely right and that
is our intention with these measures.
Angela
Browning: I am encouraged by what the Minister has said.
Would that approach get rid of the professional who occasionally says,
“We do not like to label.”? One comes across that
occasionally from social workers and health professionals—not as
much now as one used to. The failure to diagnose properly means that we
remove from that individual access to services. It is the passport to
the way forward and I hope that is what the Minister means in what he
has just
announced. 3.15
pm
Phil
Hope: I cannot guarantee the outcome the hon. Lady
describes, but the intention is to seek to ensure that the needs of
people with autism are not overlooked, that they are properly assessed
and services are developed to meet those needs. I hope that we might
reach that position. We are talking about cultural change, which does
not happen overnight, but the intention behind the strategy and the
guidance is to deliver that change in attitude and approach for all
staff who come into contact with people with
autism. The
list is not exhaustive or exclusive. Provisions do not preclude other
issues being included in the guidance; it is only required that those
particular issues must be.
Subsection
(6) places a duty on the Secretary of State to consult local
authorities and the NHS before issuing the guidance, as I mentioned
earlier, and before substantially revising it. Subsection (7) is
included to allow for the possibility that the parliamentary process
may mean that the consultation on the guidance begins
before the legislation comes into force and provides that the
consultation in those circumstances be valid for the purposes of
discharging the duty to consult.
I believe
that the new clause creates an airtight obligation on Government to
issue guidance to local authorities and, significantly, the NHS to
support the implementation of the autism strategy and to consult those
organisations before doing so. It gives a concrete deadline for that to
be done and it sets out some key topics that are of such importance
that they must be included in the guidance. I commend the new clause to
the
Committee. I
tabled new clause 3 to fulfil the Government’s commitment to
putting the guidance on implementation of the autism strategy on a
statutory footing as regards local authorities and NHS bodies. The
mechanism we are using to achieve that is a little complex, so I hope
members of the Committee will bear with me while I explain the approach
we have taken.
Section 7 of
the Local Authority Social Services Act 1970 gives the Secretary of
State powers to issue general guidance. Local authorities are then
required to exercise their social service functions in accordance with
that guidance. Over the years, a body of case law has established that
this requirement is more than simply taking account of any guidance
under section 7. Local authorities are expected to act in accordance
with such guidance unless they can show compelling reasons not to do
so. A local authority that ignored guidance issued under section 7, or
arbitrarily chose to disregard it, would be acting unlawfully and could
find itself subject to judicial review or default action by the
Secretary of State. Thus, although not law in the same way that
regulations are law, the obligation to act in accordance with section 7
guidance is very strong and such guidance is commonly referred to as
statutory.
Angela
Browning: This is an appropriate moment to raise with the
Minister a matter I raised about section 7 on Second Reading. Health
service circulars specifically relating to
autism—Asperger’s syndrome in particular—have been
ignored. I have drawn his attention before to the one issued in August
2001. Although there will be repercussions if people do not adhere to
the guidance, how will the Minister ensure that happens? To my certain
knowledge, health authorities just file the circular I have mentioned.
I have to hand out new copies to every social worker I come across to
prove it
exists.
Phil
Hope: Interestingly, a power similar to the one I have
just described for local authorities does not exist for NHS bodies.
Because of the points the hon. Lady has raised, I wanted to go further
than the guidance for local authorities. Having listened to others and
to the points people have made in debate, I wanted to issue guidance to
NHS bodies because of their key role in caring for adults with autism.
The Secretary of State can, of course, issue guidance to the NHS and
does so regularly, as the hon. Lady has just been describing. However,
as she said, nothing in health legislation places the same obligation
on NHS bodies to act in accordance with it. They must take it into
account, but can choose not to act in accordance with it after having
given it due
consideration. To
be fair, in practice most NHS bodies follow most guidance most of the
time, but the fact remains that it does not have the same statutory
status as the guidance issued under section 7 of the Local Authority
Social Services Act. For that reason, subsection (2) specifies that
guidance issued under new clause 2 is to be treated as if it were
general guidance issued under section 7 of the Act. That covers local
authorities and ensures that they would treat such guidance as
statutory. To
create the same effect for NHS bodies, subsection (3) provides that,
for the purposes of guidance issued under the Bill, NHS bodies are to
be treated as if they were a local authority to which the provisions of
the 1970 Act apply. Their functions are to be treated as if they were
social services functions within the meaning of the 1970 Act. NHS
bodies will be bound by the guidance to exactly the same extent as
local authorities.
Mrs.
Gillan: Such measures are certainly a breakthrough after
years of campaigning, particularly by my hon. Friend the Member for
Tiverton and Honiton and other members of the Committee. To put the
matter beyond doubt in our proceedings, the new clause would bind local
authorities and NHS bodies so that, in future, they cannot ignore,
either accidentally or intentionally, the needs of people with autism
and their
families.
Phil
Hope: I thank the hon. Lady for her remarks. She is
absolutely right. The body of case law that established the status of
section 7 guidance as more than just advice to be taken into account
will apply equally to national health service
bodies. John
McDonnell (Hayes and Harlington) (Lab): I congratulate
those who have been involved in the discussions on their ingenious
solution of making an NHS body a local authority. We might learn from
that point for
other legislation. Nevertheless, everyone who has dealt with
constituents or family members in their struggle with local authorities
for any form of recognition and then treatment or care know that the
process is difficult, and even more difficult with NHS trusts. That
might not be a matter for the Bill today, but offering judicial review
or the Secretary of State intervening on the basis of a default notice
is still a tortuous process. Judicial review is expensive and complex,
so within the strategy the Minister might look at what resources there
are for individuals and their families to exercise the right to ensure
that the guidance is in force.
Phil
Hope: I appreciate my hon. Friend’s point. The Bill
does not cover that sort of support. Part of me wants to say that I
hope we do not have to resort to judicial reviews to enable people with
autism to get the services that they require. However, I understand
that he is saying that that fallback position will now apply to NHS
bodies as it now applies to local authorities. I hope that we see a
cultural shift in the way in which NHS bodies act in accordance with
the guidance issued to them after the Bill is
enacted.
Mr.
Boswell: I have to nip down the Corridor for another
meeting for a few moments, so I shall now make a point that I had
intended to raise later as it is equally germane now. First, will the
Minister assure us that when local authorities and NHS bodies act
jointly, they will be jointly and severally bound to meet that duty and
that they cannot get out of it—for example, by passing it on to
their neighbour? Secondly, the Minister will know from the whole
business of community care that such issues are very fraught, so in
cases when a statutory body—to use shorthand—involves a
private sector agent, or more likely a voluntary body, to deliver the
service, can we be assured that its delivery will be equally bound by
the duties as if it were carried out
in-house?
Phil
Hope: I am hoping that inspiration will arrive on whether
joint commissioning between local authorities and NHS will be covered
jointly so that there is no game playing. I am pretty sure that is the
case, but I may need to write to the hon.
Gentleman— [Interruption.] I can now tell
him that when the guidance requires something of both a local authority
and a national health service body, the answer to his question is
yes.
Mr.
Boswell: That is a helpful answer, but the other point
that I need to clear up—we shall take it as being covered,
unless the Minister needs to write to the Committee to the
contrary—is a case in which, for example, two bodies in the NHS
or, separately, in the local authority have merged their functions.
They might have a joint board if they want to carry something out. Are
they just as much bound as if they were individual local
authorities?
Phil
Hope: We are delving into detail that I cannot answer at
the moment. I may have to write to the hon. Gentleman to clarify the
position. As
a result of all those approaches, NHS bodies will be able to be held to
account for compliance with the guidance in the same way as local
authorities. My hon. Friend the Member for Hayes and Harlington
described
the solution as ingenious; we of course considered alternatives for
achieving the same outcome, but that was the clearest and most sensible
way to ensure that the guidance would have the same status across the
piece. The arrangements will need to be explained in the guidance
document, and that may be the opportunity to cover the detailed points
raised by the hon. Member for
Daventry. Mr.
Boswell: I do not expect a pat answer now, but to ensure
that the letter is sufficiently comprehensive for the Committee, will
the Minister also look again at the issue of what I shall call, in
shorthand, private sector non-statutory bodies delivering? It is
terribly important that there is no perceived loophole in that
area.
Phil
Hope: I shall need to confirm that to the hon. Gentleman.
I am not sure that the legislation will directly cover a third party
commissioned by an NHS body or local authority, because the
responsibility will be on the local authority or the NHS body to ensure
that in commissioning its services in that way, the contract with the
third party is robust enough to deliver the outcomes. The normal
processes of contract compliance would apply, in order that the local
authority or the NHS body fulfils its obligations under law. If I have
got that wrong, however, I shall confirm
otherwise. I
am satisfied that the new clause effectively discharges the
Government’s commitment to place the guidance on implementation
of the strategy on a statutory footing and I commend it to the
Committee. I
have tabled new clause 4 in consequence of new clauses 1 to 3, to
define terms used in those clauses. Much of the content of subsection
(1) of new clause 4 is self-explanatory, but I shall draw the
Committee’s attention to a couple of points. First, the
definition of “local authorities” has been put together
specifically to ensure that only English councils are included; the
same is true of the definition of “NHS bodies”. It is
important to ensure that the Bill does not unintentionally
extend to
Wales. The
Committee will notice that “NHS bodies” does not include
NHS foundation trusts. That is deliberate; NHS foundation trusts have
greater autonomy than other NHS trusts and, therefore, we have had to
distinguish in the Bill the status of guidance in relation to NHS
bodies from its status in relation to NHS foundation trusts. Although
new clause 2 provides for guidance to be issued to NHS bodies, NHS
foundation trusts and local authorities, the guidance will be what is
normally referred to as statutory guidance only in relation to NHS
bodies and local authorities. That means that NHS foundation trusts
must take into account the guidance, but they are not required to act
in accordance with it at all times. However, NHS bodies, as defined in
the Bill, and local authorities will be required to act in accordance
with the guidance, unless they have very good reason not to, and a
failure to act in accordance with the guidance in any other
circumstance would be unlawful. That reflects the Government’s
wider policy in relation to the greater autonomy of NHS foundation
trusts.
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