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Lord Lipsey: Perhaps I may make one point to the noble Baroness. As I understand it, all that the Bill does is to say what social services authorities cannot pay for; it does not say what health authorities can pay for. This is a fascinating debate on both sides. But if the Bill goes through as it stands, there will still be room for discussion as to what the health service will pay for.

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So time is not quite so short as the noble Baroness thinks. We shall have time to return to these issues after the Bill has completed its passage and to try to get a resolution that is even better than anyone has come up with yet.

Baroness Greengross: I thank the noble Lord. I hope that, between us, we can come up with a window of opportunity before it is too late. If we have a little more time, that is wonderful.

Baroness Richardson of Calow : Perhaps I may make one small point. Assessment is not merely about whether these services are to be paid for but about where they are to be delivered. Perhaps I may give an illustration from my personal experience. My husband is a resident in a Leonard Cheshire home. Under the local authority where he lives it is regarded as proper residential care that when he has an epileptic fit his drugs are administered to him through the rectum. That is regarded as ordinary social care which I could provide for him at home and which is provided for him in the care home. When it was considered earlier last year that he should be transferred for convenience to another authority, that authority judged that he was unsuitable for a residential home because that was nursing care.

There is no clear-cut definition; there are grey areas. It is not just a matter of who pays and where payment is made but of how the wholeness of life is to be lived with dignity. For most of the time, residential care is completely acceptable and right. For those occasions when it is possible to keep my husband in a reasonable situation, it is not necessary for him to have full nursing care. But these matters are fudged somehow in the definition that is already in place.

Lord Rix: Perhaps I may add one rider to my Amendment No 262. My aim is to ensure that equal needs get equal financial treatment. My approach has been to argue that if a care need is accepted as a healthcare need and is addressed by a healthcare professional for one person in one place, all people in all places ought to have the same assessment and ought to enjoy free provision whoever provides that care locally.

I am suggesting equality across the country. If a national health service is used by one patient or one resident, if someone is in another county, town or village, that person should receive the same service, if it is required, under the National Health Service.

Earl Howe: As the noble Baroness, Lady Barker, made clear, this issue is one of the three or four most important in the entire Bill. I must confess at the outset that framing amendments to this clause has been a somewhat rarefied exercise. If one interprets the clause literally, one has to ask what it is doing in the Bill. The noble Lord, Lord Lipsey, drew our attention to this. Why on earth do we need a clause specifying that community care services may no longer provide nursing care. The powers for the NHS to provide nursing care in a community setting are already in

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legislation. Indeed, the Explanatory Notes on the clause sound distinctly coy. They refer to the new arrangement as being to,

    "strengthen the incentives for the NHS to ensure effective rehabilitation after acute illness".

They go on to confirm what I have just said; namely, that,

    "the NHS in pursuance of its powers and duties under the 1977 Act will provide or arrange nursing care ... free of charge".

As an opener to these amendments, I must say that I am baffled as to the legal necessity for this clause as a means of fulfilling the promise made by the Government in response to the Royal Commission on Long Term Care. "Strengthening the incentives" of the NHS to do what it is already empowered to do is very odd language to justify the insertion of this kind of legal provision. I do not understand why, for example, the Secretary of State could not simply have used his powers of direction to require health authorities to pay for certain types of care. If he did so, I doubt whether he would find too many local authorities queuing up to pay for the care instead.

What is the answer? I hope the Minister will explain. I am sure that there is an answer. But the only answer that begins to make sense to me--and it may not suit the Government to draw attention to this--is that somehow a way had to be found of sounding a legislative fanfare on free nursing care but at the same time to delineate in a very narrow way the boundaries of the NHS's new responsibilities. The definition of what constitutes nursing care in a residential setting has deliberately been made very restrictive. It is restrictive for one reason, and one reason alone: that is funding.

Any attempt by this Committee to widen the definition of nursing care in this context will result in a very significant additional burden on the NHS budget. The Government's agenda--the trick they wanted to pull--has been to appear to accept the recommendation of the Royal Commission on the provision of free nursing care in nursing homes while in reality not doing any such thing.

Of the kind of care that in most people's eyes constitutes nursing care, only a minor part will be funded free by the NHS. It is necessary to expose that agenda if one is to understand why the Government are being so obdurate in resisting any change to the definition upon which they have decided. But in confining the definition of nursing care to "care provided by a registered nurse" I believe that they are laying up trouble.

There are two issues: fairness and practicality. The moment that you start defining nursing in terms of who actually delivers the service you are creating scope for tremendous variations in practice around the country. Registered nurses are a scarce commodity; and in some areas and in some homes their availability to deliver nursing care to all who require it will be more limited than in other areas.

On the other hand, in a residential home in which there is a sufficiency of registered nurses there will be no incentive--indeed there will be a deterrent--for any

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such nurse to delegate a task to a healthcare assistant. In normal circumstances, delegation to a healthcare assistant is the natural way of proceeding, not just for everyone's convenience but because it makes sense to use a person's skills to the ceiling of their abililty and their training. But not any more: the moment the nurse does that the patient will have to pay for the care that he or she receives; and that would create impossible pressures on the registered nurses to allocate their time not according to clinical need but according to the financial impact on the residents.

That, by any standards, will be a perverse outcome of this new regime. It occurred to me that there could be a way out of this. Let us consider how in practice the cost of nursing care for each patient will be logged and billed to the relevant health authority. How will the funding actually work?

There are two possibilities. One is that every time a registered nurse carries out a task for Patient X she will log the time taken to do this on a clipboard. That is not a method of billing that holds any attractions--certainly not to me and, I suspect, not to the NHS. It would be bureaucratic in the extreme.

The other possibility is that each patient will be assessed on the extent of his or her daily need for nursing care. Based on that assessment, the health authority would agree to fund a certain number of hours of registered nursing care per week. That approach, to me, makes a lot more sense; but let us consider its consequences. It would result effectively in a lump sum being paid to the nursing home in respect of the time required by the nurse to deliver the assessed level of care.

Who will be concerned and who will check whether the care is delivered by a registered nurse or by a care assistant, with the nurse's approval or under her supervision? In practice, under this model of NHS funding the strict definition of "nursing care" as laid down in the Bill would fall away and become redundant. In practice in the real world it would be overridden. In other words, whoever delivered the care would be funded.

What this does is to transfer the problem of definition from the question of who delivers to what should or should not be counted in an assessment as constituting nursing care. That is the entree to Amendments Nos. 264 and 267, to which I have added my name. These amendments seek to get away from the question of who delivers and to define nursing care by what it is that is being delivered. The analogy that springs to mind is that a loaf of bread is still a loaf of bread even if it is delivered by the milkman. For me, this approach is much more in tune with the conclusions of the Royal Commission. The Royal Commission defined nursing care as

    "care using the skill and knowledge of a nurse".

This is quite different from the definition of nursing based on the qualification of the person delivering it. My approach would optimise the use of available staff and thus deliver efficiency. By contrast, I believe that the Government's definition will be unworkable. It will put nurses in an impossible position in trying to

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allocate their time. It will risk unfairness by allowing the same care function to be free on one occasion but not on another, depending whether or not it is carried out by a registered nurse. Effectively, it would place a cap on the amount of nursing care that could be delivered based purely on the availability of registered nurses and with no regard to needs.

One can imagine a winter epidemic when the need for nursing care would rise but many patients would end up paying for their care if registered nurses were in short supply. How is it possible to call that situation anything other than perverse?

The conclusion is clear. We need a definition of nursing care that is workable and one that is equitable. My proposed amendments represent a broadening of the definition so as to be both those things. They would focus on the care given rather than the care giver as the appropriate criterion for determining eligibility for NHS financing. I commend the amendments to the Committee.

9.45 p.m.

Lord Clement-Jones: I shall not repeat the arguments made earlier about personal care. I want to address the issue of the definition of nursing care under Clause 56 even though, on these Benches, we believe that with a better definition of nursing care the solution would still be second best. At best, the current definition of nursing care is defective and highly artificial. Effectively, it is a legal definition--not nursing care as we know it. In that sense it is highly deceptive. It does not mean that the nursing care delivered in a nursing home will be free in the future under this Bill--far from it. It is a far more restrictive interpretation.

We are helped in interpreting the Government's intentions as regards nursing care by the publication of the department's National Minimum Standards. The crux of the matter is contained not in the Bill but in those standards. I suggest that the Committee considers Standard 3.5 which sets out the way in which assessments are to be carried out:

    "The registered nursing input required by service users in homes providing nursing care is determined by NHS registered nurses using a recognised assessment tool, according to Department of Health guidance".

That is more restrictive than the Bill. It means that the Department of Health will define "nursing care" tightly. It will be assessed by a registered nurse; it will be according to Department of Health guidance; and it will only be that provided by a registered nurse.

That point did not arise in the previous consultations. I suggest that this is very much the cuckoo in the nest; it is a Treasury-inserted guideline. We have certainly heard the authentic voice of the Treasury tonight in the shape of the noble Lord, Lord Lipsey. Perhaps the noble Lord had something to do with that particular insertion.

It is not just anyone assessing what could be defined as "nursing care", this is a registered nurse undertaking the task. How long will that assessment take, how will it work and, indeed, what will the health

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service actually agree to pay for? This situation raises all sorts of different issues. I believe that the noble Earl, Lord Howe, teased out extremely well what the future might hold in that respect. For example, what will the future of nursing homes be? They can no longer provide nursing care from a registered nurse because that will be provided by the NHS, although the exact duty of the health service in those circumstances is not clear. However, they can provide it from a healthcare assistant, and charge accordingly.

But what will distinguish a nursing home from a residential home? Probably nothing. They can both have visiting registered nurses, who will provide the nursing care as assessed by the very tight definition contained in Standard 3.5 of the National Minimum Standards to which I referred. The noble Earl posited various scenarios, but I very much doubt whether the NHS will be handing over lump sums to care homes. I suspect that it will send along community-based nurses to nursing homes, care homes, and so on, who will provide the very restricted level of care that is assessed as being necessary. This is a very deceptive clause: it does not deliver what most people believe it delivers. I believe that this will rebound on the Government. Indeed, they will find some very angry people on their doorstep when they find out what the Government are actually providing versus the propaganda to date.

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