Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 440-460)


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, I mean.

  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 Saturday—this is an obvious example—her 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 "cabinet".

  Mr Lewis: Shadow cabinet!

  Q448  Earl of Onslow: No, junior minister will do.

  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 victim—a stroke victim is somebody who is perfectly okay and then they are partially paralysed or something like that—they 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 or not?

  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 Care—Not 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. Comment. Discuss.

  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 that far!

  Chairman: Let us move on from party politics to—

  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 forget—I have tried to use the term in every other sentence but it is worth underlining—the 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.

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