Examination of Witnesses (Questions 440-460)|
LEWIS MP, MR
4 JUNE 2007
Q440 Chairman: Can I just pick up
and clarify what Lord Judd raised with you. This is something
that has been troubling me through this inquiry when I heard that
people were being evicted, often with no notice at all to speak
of, the residents find out when the family is phoned to say, "Take
your mother or father away at the end of the week". I find
it extraordinary that whilst people who are tenants in the real
world, even if they are short-hold tenants, have got contractual
rights, and indeed statutory rights, not to be thrown out on the
street, at least without proper notice, but there are absolutely
no rights whatsoever as a tenant in a care home where you are
particularly vulnerable. I would have thought that basic human
rights would say that you cannot treat elderly people like that.
Are you giving any thought to trying to give people who are in
care homes a degree of security of tenure, even if it is a short-hold
arrangement or something similar, so that does not happen?
Mr Lewis: The first thing I would
say is that the commissioning relationship between a local authority
and a home or, indeed, a PCT and a home should make that kind
of thing impossible because if I was doing business with a private
provider who behaved like that I would stop doing business with
them. Clearly where we enter more difficult territory is self-funders.
We also enter difficult territory when there is a genuine dispute
between the resident or the family and the provider which gets
out of control that nobody can resolve through conciliation.
Q441 Chairman: That is no different
between a tenant and landlord; in the end the tenant can be evicted
but only after the proper notice.
Mr Lewis: I do not know enough,
and perhaps we ought to write to you on this, about the legal
nature of a contract between a self-funder and a provider. I seem
to remember that we issued some clarification about best practice
in this area recently in terms of our expectations of providers
and the contracts and clarity of the deal or agreement or contract
with the self-funder or the family. I can write to you but I cannot
give you a specific answer today on in what circumstances a home
can simply say to a self-funder, "Whatever contract we have
with you, that does not allow you to stop us evicting you".
I do not know whether it depends on the individual provider and
its standard contract that it will have with families or with
individuals. It may well be that some contracts protect people
from this abuse.
Q442 Chairman: The problem is what
clearly happens is some people become frailer, they become more
difficult to handle, and maybe they become violent because of
their condition. That is what old people's homes are there to
provide for but effectively you get this sort of cherry-picking
where if somebody gets difficult they throw them out and then
they have to be looked after another way. We have had a lot of
evidence about this and when we produce our report we can go back
and look at it.
Mr Lewis: There are some homes
that are registered to fulfil particular tasks and not others.
Let us not forget here, as well as the commissioning and contractual
framework we have a regulatory regime and as the gentleman who
used to run the regulator is now thankfully running social care
in the Department of Health he might be able to help us with this.
David, do you want to comment?
Mr Behan: You do raise an important
issue, Chairman, and I am sure you have heard many anecdotes about
how this has occurred. It will be in circumstances you have suggested
where people are becoming more dependent and may be becoming more
confused and their behaviour may be more challenging, not just
for staff but for other residents in a care home, so these quite
balanced and nuanced decisions about whether a person is well-placed
or not need to be taken. The best practice, to go back to one
of the themes of your questioning, should be that in all circumstances
there are reviews of those individuals involving their relatives,
because it is often relatives who raise the concern, who raise
the question about whether an individual's needs are changing
and whether that person continues to be well-placed in that particular
service or care home in that case. Too often where we have had
complaints come forward in exactly the circumstances you have
described it is when that changing need and changing behaviour
is managed inappropriately and not managed well. The situation
we need to get to is where best practice is beginning to apply
so that people can have their needs best met. Many people running
care homes have this balanced decision to make about whether a
person's behaviour is impacting on other people within the care
home. Where you have got frail, elderly people and not so frail
people who are confused, who happen to be violent, the difficulty
is there could be a risk to others in a particular care home.
These are some finely tuned decisions that have to be made. Going
back to one of your themes, whatever people's circumstances they
have basic rights to access appropriate care, and I am thinking
of the Office of Fair Trading's report around support fees and
transparency of the contract that began to raise some of these
issues and this one raises it as well. The best practice is that
there should be reviews carried out to ensure that people's needs
are being met in an appropriate way. Ultimately, people are not
there under a tenancy and that remains one of the issues and a
contract has got to be one of the ways that it is used.
Q443 Chairman: When we were in Scandinavia
and looked at this, the way it was organised was that the elderly
people were tenants of their little flats, and they were little
flats, they were two-room flats, not like the bed-sits we have
or single rooms, they had tenure of those flats. They started
as a patient who may not be completely Alzheimer-type dependent
and they stayed in their flat no matter what their increasing
care demands were. That was how it was done. It can be done and
it was done very effectively there.
Mr Behan: The extra care has to
be balanced in this country and I think you have taken some evidence
from people from that sector and they are the arrangements that
would relate. What we have seen over recent years is a significant
increase in extra care housing where, indeed, people are tenants
and in some of the extra care villages, for instance, people will
have a tenancy and even though they may become more dependent
because they develop Alzheimer's over that period of time, they
retain their tenancy and the services begin to be increased then
to help them be supported in their own tenanted properties. In
this country, largely based on the experience in Scandinavia,
there are models of tenancy that are developing. What we have
seen over recent years is a shift that is beginning to take place
so that those people who are frail and elderly are more likely
to be living in extra care housing or sheltered accommodation
where, indeed, they have those tenancies and, indeed, some quite
innovative models where people have put their own equity into
those particular facilities so they have not just got a straight
tenancy, they have got some of the rights that owner-occupiers
have because they have got their own equity in it. Much more in
the future I think we are going to see developments like that
which begin to assert people's rights but in a different way because
they have got their own equity in those properties.
Q444 Earl of Onslow: Minister, first
of all I would like to say that what you were saying about how
you foresaw the future of care for the elderly, et cetera, I am
sure would actually give you a place in David Cameron's government.
Not only you, but you would join Lord Adonis there, which would
be very helpful. That is meant as a compliment.
Mr Lewis: It sounds like an edition
of Fantasy Island to me. The idea of a David Cameron government,
Q445 Earl of Onslow: I want to come
back to this business of the discharge because we had the case
the other day, where of course it was an exception, of the lady
who died as a result of seven doctors not giving the right answer.
If we have discharge, say, with a 48 hour rule and the person
is found to be okay on Ash Wednesday or whatever the Thursday
is, Maundy Thursday, and then they are discharged on Easter Saturdaythis
is an obvious exampleher GP presumably has to be consulted
and the GP is then off and this gap, which you rightly commented
on, struck me as something which we still have not got to the
bottom of. Will you therefore consider amending the delayed discharge
regulations to build in more flexibility before older people have
to be discharged from hospitals? At the moment it is a hard 48
hours, we have been told.
Mr Lewis: In a sense we have always
got to rely on clinicians to look at cases and make judgments,
but I think the argument will be that in the past the balance
has been that people have been remaining in inappropriate settings
for far, far too long and the system has had no incentive whatsoever
to ensure that people get out of hospital as quickly as possible,
whether that be back home or, indeed, into intermediate care.
To be honest with you, frankly, a lot of this has to be about
local protocols, local partnership working. We have made a lot
of progress in this area. Is it perfect? No.
Q446 Earl of Onslow: It is the rigid
48 hour bit. There are lots of cases in here of the difficulties
that produces where because of targets, tick boxes and all of
these things which have been introduced, somebody says, "Okay,
we must get rid of somebody within 48 hours because they are fit
to discharge", and this is producing the opposite sort of
strain to what you had before, which was the man I saw in hospital
when I was in there last who had been in there for three weeks
because social services could not find somewhere for him.
Mr Lewis: Nobody should be discharged
from hospital without appropriate arrangements being put in place
for their care, whatever those appropriate arrangements are meant
to be. I happen to suspect I have disqualified myself from a place
in Mr Cameron's cabinet because
Q447 Earl of Onslow: I did not say
Mr Lewis: Shadow cabinet!
Q448 Earl of Onslow: No, junior minister
Mr Lewis: I happen to think that
there is a place for targets, the question is what are the right
targets and what are the right objectives. They need to be smart
and they need to be appropriate. As a result of the framework
that has been put in place we have seen overall a much better
system. Do I think that we have to look at this new data that
we have on readmission? I think we do have to look at new data
on readmission but I think we have to be
careful because there are lots of reasons and
causes for readmission, a lot of which are absolutely nothing
to do with the 48 hour part of the guidance.
Q449 Earl of Onslow: You do not accept
then the fact, on which we have had considerable evidence, that
this was an over-rigid system? Is there not some way that you
could say "ideally 48 hours", that is the ideal thing,
but if it has to go to 36 or whatever it may be,
Mr Lewis: I think you will find
in some areas, having done an assessment of the patient's need,
it was felt that the 48 hours would not be appropriate and I assume
that every day of the week that decision is being made. I do not
think people are being forced out within 48 hours if their needs
Q450 Chairman: There are three separate
issues here. One is in terms of good practice, and we heard when
we went to Barnet Hospital an example of good practice and an
example of bad practice in that Barnet Hospital is working very
well with Barnet Council to organise discharges properly, it is
a smooth, seamless process, whereas they have a lot of difficulty
with Hertsmere with bed-blocking basically. There are two separate
issues here. One is discharging people who are not fit to be discharged
but doing it in such a way where effectively they are having to
make a life changing decision that they are going to go into care,
about where they are going to spend the rest of their lives potentially,
in a couple of days. That is one thing that is a question of dignity
and respect and human rights. The other issue is whether they
are appropriately discharged in the first place because they were
not fit to be discharged. Those are two separate issues which
I think have to be looked at separately. If you are talking about
saying to somebody, "Okay, you leave this acute hospital
in a couple of days' time and this is where we are going to put
you", there may be very little choice, maybe little consideration,
yet that person effectively may well have to give up their own
home where they have lived for 30 or 40 years and have to make
a decision in a couple of days to go and live in an old people's
home somewhere with very little choice about it. It is a huge
life changing decision, a very traumatic decision, yet the decision
has to be made in those circumstances. Do you see the human rights
implications of that?
Mr Lewis: I do. I would hope that
people would apply appropriate sensitivity, discretion and professional
judgment in those kinds of circumstances.
Earl of Onslow: I think everybody would
agree, we all hope they would, but what is happening, as the Chairman
said, is that somebody who is, for example, a stroke victima
stroke victim is somebody who is perfectly okay and then they
are partially paralysed or something like thatthey are
fit to be discharged from hospital and they have been given two
days to do it in. It is those difficulties about which we have
been informed. We have been informed there is rigidity in the
regulations. Therefore, can you not look at a way of reducing
the rigidity so that people can, as you rightly say, take intelligent
and sensitive decisions which require time and patience without
reverting to the other side of the coin which is somebody who
is bed-blocking for three, four, five weeks?
Q451 Chairman: Professor Crome, a
geriatrician, told us this, and I will put it bluntly as a quote:
"One of the functions of a geriatrician is to try and thwart
this two-day discharge process . . . I think it is completely
ridiculous when somebody has two days to make their mind up where
they will live for the rest of their life. I do not have the words
for how stupid and how wrong such a policy is." That was
what he said to us.
Mr Lewis: If you look at quite
a number of people we are talking about, are we not talking about
them going into where there is good quality intermediate care
to enable them to then have sufficient time to make the right
decisions and the right choices.
Q452 Chairman: On the point I put
to you at the beginning about whether there was adequate intermediate
care, I think you agreed with me that there probably was not.
The difficulty we have is where you have got this chasm between
intermediate care, good practice, yes, acute hospital to intermediate
care, and trying to think about where you are going to go, doing
it properly, fine, the evidence we have had is that does not seem
to happen, that far too often we see people being discharged straight
from acute care into an old people's home where they are going
to live the rest of their lives with very little choice or consideration.
If somebody is going to have to decide where they are going to
live the rest of their lives, that is a pretty important choice,
and if there is no choice are we failing them?
Mr Lewis: It seems to me that
if in some areas we can have appropriate intermediate care because
those areas have reconfigured their services and redirected resources
appropriately we should expect that everywhere. Really that has
to be the message to managers and resource holders in the NHS.
Should we be saying to somebody, like you say, "Within 48
hours you have got to make a final forever decision about where
you are going to spend the rest of your life", I do not think
that is acceptable. What is the solution? I think the solution
is to make sure that we do have the continuum of care in every
healthcare economy that we have spoken about existing in the best.
I think that is the way forward.
Q453 Earl of Onslow: Minister, do
you accept that there is a problem? We have been given the evidence
that there is a problem. If you accept that there is a problem,
it seems to me it is just a question of putting all your heads
together to find a solution. Do you agree that there is a problem
Mr Lewis: I think that for some
individuals you cannot be in denial about reality, even if you
are a junior member of Mr Cameron's team, although sometimes you
wonder! You have to accept what people tell you about their everyday
experiences and if people are telling us that this is the reality
we have to take notice of it and we have to act to change it.
We have a document here, Recipe for CareNot a Single
Ingredient. A Clinical Case for Change, by Professor Ian Philp,
the National Director for Older People, and I commend it to the
Committee. He is very clear about what he regards as, if you like,
excellence and best practice in terms of the kind of care services
that older people should be expecting to receive. What I would
say to you is there is no doubt for some people this is happening,
but do I believe it is happening in the vast majority of cases,
no, I do not. Do I believe it is the norm, no, I do not. Do I
believe some individuals find themselves in these circumstances,
I suspect they do, yes, because they tell us that is their reality,
and where that is happening it should not be happening.
Q454 Chairman: That is helpful. One
thing we saw in Scandinavia which we thought was very good was
they told us at the acute hospital we went to see that they start
discharge planning on the day of admission, so start thinking
about it from the very beginning. Some of the good practice when
we went to Barnet Hospital, for example, was a computer programme
which helps them plan further ahead in terms of discharge and
so forth. The other pressure on discharges is about emergency
readmissions, this is a completely distinct issue in relation
to discharge. The figures seem to show a quite worrying trend
and it seemed to kick in particularly when the two day rule started.
We see from the figures you have just given us 13.5% of aged 75-plus
on a 28 day readmission rate. I accept there may be something
else wrong with them but when you see the trend, up until those
two days coming around, at 10%, 11%, jumping up to 13.5%, that
seems to show a degree of correlation. The percentage is high,
numbers in hundreds of thousands, so that is quite a lot of people.
Mr Lewis: We know that the system
in some areas is not what it needs to be and that there are many
people in the health service who are desperately trying to make
the case for service reconfiguration locality by locality and
we know there is a significant amount of resistance to change.
We must be careful not to ascribe to the data on readmission as
being all about inappropriate discharge, I do not think we yet
have enough evidence to support that. We also have to reflect
on the fact that as people live longer and their conditions become
more complex, we are dealing with new and emerging conditions,
circumstances and challenges for the system. You talked about
the Swedish model on discharges. The irony is that we have been
accused essentially of copying best practice on discharge policy
from Sweden, so we say that we believe best practice in the NHS
is that discharge arrangements should be planned from day one,
and you cited that yourself as being the best practice. All of
the best practice guidance that we put into the system is about
this. The document that Ian Philp has produced is basically making
the case for change and the reason that we have to make the case
for change, and we have to try and do it clinically rather than
politically, is we now have a situation where some political parties
choose to put out any reconfiguration as being about cuts and
diminution or erosion in service, which is highly irresponsible
and misleading and appalling. We need clinicians to be making
the case for change. One of the most powerful factors in terms
of needing to change services in the field of older people is
that continuum of care. Where the system is working well, where
those changes have been made, on the whole I think older people
are getting a much better deal. Where there is still a lot of
change that is required there is insufficient provision. Just
to use a statistic that is probably worth noting: since 1999-2000
the total number of places and the number of people benefiting
from intermediate care has tripled and three-quarters of all of
those places are in non-institutional settings. There has been
major progress that has been made but there is still a long, long
way to go and there is rising demand. It is not just improving
the system for those who are existing users of the system, but
because of demographics we have got to recognise that demand is
growing on a daily basis.
Q455 Chairman: That is fine, and
under the most appropriate care that would not be revealing itself
in these emergency readmission rates. The point is that if you
have got an increase of more than a quarter over the period in
which the two day rule came in, it may not be an exact correlation
statistically but it does seem to show a prima facie case that
it has got something to do with it. Taking up your point about
reconfiguration and the reorganisation of the health service,
the point is I would argue we have to modernise them but modernising
is not just taking the staff with you, it is also taking the public
with you. If the public are concerned, be they patients or patients'
relatives, that that part of the reconfiguration means they are
more likely to be discharged early inappropriately that undermines
the case for change.
Mr Lewis: I would say there are
equally as many, if not more, relatives who are angry and frustrated
by the fact that their relative is remaining in an inappropriate
setting while the system gets its act together to get them to
the place where they need or want to be. It is not a black and
white situation by any means.
Q456 Earl of Onslow: Minister, I
absolutely understand what you are saying but where I think we
are having difficulty is that you cannot accept that there may
be a correlation and it may be the system is not always working
properly and maybe there might be too much inflexibility. That
is all I am saying, and I think the rest of my Committee are saying
exactly the same thing. We are not saying it is not right to try
and discharge people within 48 hours, what we are saying is we
have had evidence that the 48 hour rule has thrown up some anomalies
and all we are asking you to do is to either say "No, that
is rubbish", or "Yes, I can see that you have got a
point behind it". I genuinely believe that there is sufficient
evidence to show that there is some more of this, of course it
is not universal, of course it is not, there is just enough of
it and, as my Chairman said, if we do not get it right we undermine
the confidence of the public and I think that is what everybody
wants to maintain.
Mr Lewis: I think that is right,
but if you look at the factors that may be at play here, it may
be about intermediate care, it may be about the local authority's
provision of adequate social care to ensure that the person does
not deteriorate. I would urge you, Lord Onslow, to speak to your
colleagues to suggest that locality by locality we could do with
an apolitical clinically led view of the need for a continuum
of services which clearly requires the redirection of resources
in a vast majority of areas to some extent from acute NHS provision
to community-based health care, intermediate care and social care.
I am afraid there are politicians not a million miles away from
here who are portraying every such reconfiguration as a cut or
reduction in service. That is highly irresponsible and older people
are going to suffer as a consequence of that in the future.
Q457 Earl of Onslow: I know the row
there is about the Royal Surrey Hospital. There always are, and
always be, rows about these sorts of things, I am afraid this
is the nature of political life. Before 1997 you guys were quite
good at stirring it up as well.
Mr Lewis: My memory does not stretch
Chairman: Let us move on from party politics
Q458 Earl of Onslow: That was not
party politics, that was historical observation.
Mr Lewis: I just lost my place
as a junior member in Mr Cameron's cabinet!
Q459 Lord Plant of Highfield: Could
I ask you about the Commission for Equality and Human Rights and
what sort of role you see it playing in the agenda for human rights
in relation to both healthcare and social care.
Mr Lewis: Look at the demography,
look at the fears, the expectations, the aspirations of the baby
boomer generation and the reality that old people are now facing.
I suspect that as it develops there will be a much greater focus
on age as an issue than there has been hitherto in the whole debate
about equality and human rights, and not before time, it is long
overdue, that is the way it should be. Inevitably, its work will
reflect our changing society and that means a much more central
place for older people and the nature of the kind of healthcare
and social care we make available to them. I do not think we should
forgetI have tried to use the term in every other sentence
but it is worth underliningthe more the demographics change,
the more responsibility and pressure that is placed on family
and carers in our society and there will be an increasing emphasis.
Quite rightly we launched the New Deal for Carers recently and
Gordon Brown launched our intention to have a consultation on
creating an entirely new national strategy for the way we support
carers and family members. This will become a growing challenge
facing our society. What about the rights of those people for
whom a significant proportion of their lives is about caring for
and looking after a relative or somebody who is close to them.
Q460 Chairman: I think that has exhausted
our questions. Is there anything you want to add before we finish?
Mr Lewis: No. I would just like
to genuinely thank you for the opportunity of giving evidence
and I hope you found it illuminating. On the question of the data
that has come to light on the readmissions, I do not think we
would want to be defensive about it, we would want to be frank
about it, and we need to go away, reflect on it, do more work
on it, and if we find that this is an unintended consequence of
policy then we ought to do something to address it. Personally,
I would regret it if we were to move away from a system where
we took the pressure away, as 0was the case at one stage, and
as a result of that people ended up languishing in inappropriate
hospital beds for weeks, months and in some cases years. We have
to get the balance right.
Chairman: Thank you for your evidence,
it has been very helpful. That concludes our evidence gathering
on this inquiry and we hope we will be producing a report in the
next few weeks. Thank you.