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Baroness Cumberlege: I support my noble friend and his amendments; and, indeed, the remarks made by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Masham. It is important for us to try to define what nursing care is. There is a distinction here between "nurses" and "nursing". I shall not give another Second Reading speech; I shall stick most firmly to the purpose behind Amendment No. 267. However, before I continue, I should like to thank the Minister for his kind words about nurse prescribing. I am most grateful to him.

I am not as far down the road on this issue as the noble Lord, Lord Lipsey, who, I suspect, has lived with it for some time. However, in trying to define "nursing care", I asked the RCN if it could draw up a six-case study for me. I shall not go into those studies in detail, but they were most interesting to read. One could see quite clearly where the nursing input was, and where the registered nurse was required to delegate and supervise the work of the healthcare assistant. It seemed to me that it was the healthcare assistant receiving that support who could provide the service, not someone who was just an untrained lay person. I believe that there is a real hierarchy in the work that nurses undertake.

I met Christine Hancock today and asked her for a definition. In a quite philosophical way she said that she felt that "nursing" could be described as "invisible mending". In a way, that is the great difficulty. It is not like medicine or surgery where one has a cut and a thrust; similarly, it is not like very strong therapeutic drugs where one gets an immediate reaction. It is something very holistic. That is why it is so difficult to get hold of and to define. I agree with other noble Lords who have said that to have a list of tasks is a

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snare and a delusion; and that one should not go in that direction. We tried it years ago, and we know that that fails. So we return to the assessment given by nurses, which is so important.

The amendment that we have put forward is quite clear. It shows exactly what the role of the registered nurse is and the sort of care that needs to be provided. I agree strongly with the noble Baroness, Lady Barker, who said it is much better that we define the matter here in Parliament rather than have the Law Lords attempt it. There is a wealth of experience and expertise in this Chamber that might not be reflected in a decision taken by three Law Lords.

I want to pick up the inverse incentives that the noble Lord, Lord Lipsey, mentioned. They are very real. We are very short of nurses. We are trawling the world to try to attract nurses to this country. To build in an inverse incentive is a very rash thing to do, especially at this time.

My last point concerns fairness, which the Committee has addressed. I reflect on what is happening in the community services now. These issues were addressed in the community care Act. Community nurses have sorted out what happens as regards care assistants. It has been quite easy for them because healthcare assistants are provided free to those living at home. That is an extraordinary situation in that people who are less dependent are being looked after at home and receive free nursing care and free healthcare assistance. Yet when those people go into residential care they have to pay for healthcare assistants. If they are cared for by a registered nurse, a better qualified person, that is free, but if they are looked after by someone who is perhaps less expert and less qualified they have to pay for that. That seems to me quite extraordinary.

I believe that the amendments should be accepted. I think that at the very minimum the Government should undertake to fund all the nursing care identified by a patient's nursing assessment as being necessary for that patient irrespective of whether that care is delivered by a registered nurse or by a healthcare assistant.

Baroness Masham of Ilton: I just cannot see how nursing care and social care can be divided. Scotland has recognised that, but then the Scots would; they have a lot of common sense. The noble Baroness, Lady Richardson of Calow, has given a good example of how complicated this matter is. Why have care assistants been left out of the Bill when everyone knows that they carry out a large percentage of nursing these days? I say to the noble Lord, Lord Lipsey, that surely decisions should be made on the basis of need, whatever conditions apply. Unless the Committee can get this message over to the Government there will be a monumental muddle on the ground. The Royal College of Nursing understands that, so I hope that the Minister will.

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10 p.m.

Lord Hunt of Kings Heath: I am glad to respond to the debate. I certainly agree that these are difficult issues in relation to definitions. No one can wave a magic wand and come up with a definition that finds universal approval. Like my noble friend Lord Lipsey I believe that we have come up with just about the only workable definition, which I shall seek to identify.

I also believe that despite the anxieties and concerns that have been expressed--I listened closely to the noble Earl, Lord Howe--we are making a real advance by ending the anomaly that only people in nursing homes can be charged for the care they receive from a registered nurse which would be free through the NHS in any other setting. It is worth saying that we calculate that the measure will help about 35,000 people at any one time who currently have to pay for their nursing care and who could save up to about £5,000 a year during their stay in a nursing home. I believe that that is a real advance.

As the noble Earl, Lord Howe, suggested, the clause as currently drafted sets out the care which local authorities will not in future be able to provide. It does not define the care which the NHS will arrange as that is already provided for in the NHS Act 1997 which imposes on the Secretary of State a duty to provide health services including nursing.

It may be helpful if I explain how we envisage that this will work. We shall set out in directions how the NHS would fulfil its duty in respect of nursing home residents. We shall ensure that the same approach to assessing the need for registered nurse input to a person's care in a nursing home is used throughout the NHS in England. So the assessment is clearly key to ensuring that the correct levels of nursing care are provided.

The Royal Commission has been quoted in aid. It discussed the possibility that the creation of free care would increase demand. It stated that assessment of need must control use and, therefore, cost. Our intention is to provide NHS nurses with guidance and training in the assessment process. That will define the registered nurse input into that care package. The intention is that, wherever they live in England, individuals with similar nursing needs will receive similar levels of care from a registered nurse.

Once the assessment had been made, the NHS would arrange for the registered nurse input to be provided in the nursing home. The NHS would ensure that the nursing home where the person was living could supply the registered nurse input, if needed. If that person had a specialist nursing need, such as stoma care, the NHS may arrange for that to be provided by visiting specialist NHS nurses.

The NHS and social services would contract with the nursing home for a certain level of service. Residents responsible for paying their own fees would pay such fees as would take account of the NHS's financial contribution to that care. There is no intention to charge residents based on time sheets or

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other bureaucratic processes. The intention is that the NHS, through the contract with the nursing home, would monitor the nursing care received.

Alongside that, the National Care Standards Commission would ensure that the home had adequately qualified staff at correct levels to deliver individual care plans. Reassessment would take place three months after placement in the home, and then not less than annually, except--I am pressed on this matter, as I was in our debate a week ago-- that reassessment would be needed much sooner if there had been serious illness or changes in circumstances; and those triggers for reassessment would be outlined in the guidance to the NHS.

Our proposals for the NHS to take responsibility for the provision of care by registered nurses in nursing homes would bring the NHS provision of care in nursing homes into line with the care received by people in residential care homes. The provision of care would be consistent, irrespective of the setting in which they happened to reside.

I believe that some of the amendments would seek to bring bathing, dressing and other daily care routines within the sort of nursing care that local councils cannot provide, with the assumption that they would then become the responsibility of the NHS. But the NHS would not necessarily be able to pick up that responsibility, particularly if it applied to long-term care provided in residential homes and people's own homes. Although the NHS can, and does, provide services ancillary to those of the NHS when there is a need for a high level of help or nursing care, it is not obliged to provide such support services in settings where there is no need for high levels of NHS care.

As my noble friend Lord Lipsey suggested, in one way or another, many of the amendments that we are considering seek to broaden the definition of nursing care. However that is achieved, it seems to me that the distinction between nursing and personal care then becomes blurred, making it much more difficult to draw a line between the care provided by a nurse and that provided by other support workers. The fact is that once that was done, it would add considerably to the costs that we have already committed to improving other people's services.

I hesitate to mention costs, but I do not believe that any of the noble Lords who have moved amendments gave an estimate of the additional cost of their proposals. That takes us back to our Second Reading debate. The Government have decided that, alongside our decision on the definition of a registered nurse, we want to commit the additional resources that we are spending to intermediate care, because we think that that is where the money would be best spent. Any of the amendments in this group would put up the cost, which would beg the question of where the resources would come from.

This is a genuine debate about priorities. The Government have decided where their priorities should be. Everyone brings well considered views to the table. There is a difference between us in principle, but those who are suggesting different definitions owe

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it to us to accept that they would be likely to cause extra costs and that they are then obliged to say what impact that would have on other priorities.

Amendments Nos. 261, 264 and 267 would all include within the definition of nursing care all the care planned by the registered nurse, regardless of who provides it. Our definition of nursing care is much closer to that provided by the NHS in residential homes. It is not clear from the amendments what such care would cover. Inevitably, it might cover issues such as washing, dressing and toileting. If those functions were included--which, because of the drafting of the Bill, councils could not provide for some people because of the nursing assessment, even though they were still expected to provide them for others in the same circumstances--we would run into problems. Some noble Lords have suggested that our definition will be difficult to operate, but I believe that it is the only definition that will be capable of practical implementation. However worthy the other definitions may be, they would run into many more problems.

The inclusion of healthcare would also extend the definition. The NHS already has a duty to provide healthcare to any member of the public as is reasonably required. Residents of care homes should already receive NHS services direct from the NHS in the same way as any one of us would receive services from our GP, physiotherapist or dentist if we needed them. I see some noble Lords shaking their heads. The fact that that principle is being breached in some parts of the country does not prove the case for more legislation. My department must ensure that the NHS fulfils its responsibility for those services. I accept that we have to face up to that challenge.

Clause 56 does not prevent local authorities exercising the functions of NHS bodies under the partnership arrangements under Section 31 of the Health Act 1999. In those arrangements, there may be a pooled fund for the exercise of certain functions by a local authority on behalf of the NHS body, including the provision of community care. In such cases, we expect local councils and their NHS partners to use that flexibility to ensure that placements in nursing homes are handled in the most effective way possible.

The aim of Amendment No. 262 is to make any community care that is available to other people without charge available to all at NHS expense. That would mean all community care services being provided by the NHS on the same basis as hospital services are currently provided. Following on from the debate between the noble Lord, Lord Rix, and my noble friend Lord Lipsey, I believe that in the end that would lead to the NHS providing board and lodging for those in nursing and residential care. The implications of that are even wider than those in relation to personal care.

Amendments Nos. 263 and 266 suggest that free personal care should be made available to some groups of people but not to others. Such a proposal is based, for example, on the level of need, the diagnosis of particular conditions or the setting in which care is to be delivered. I

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understand why my noble and learned friend makes that proposal. However, again, I believe that it would bring with it large problems. It would create perverse incentives, and there would be an all-or-nothing assessment of need under which the individual received everything or nothing. There would be a huge cliff-edge, and that would place enormous pressure on the assessment process, with challenges to diagnosis or professional judgment.

I also believe that it ignores the fact that people with a condition may suffer from it in a very serious or a very mild way. However, because a person has the condition, he will be eligible for the free provision. Surely an assessment should be based on need rather than on a particular condition.

I turn to Amendments Nos. 265, 268 and 269. I repeat that the NHS has a duty to provide healthcare to any member of the public as is reasonably required. If the NHS has assessed a health need, residents of care homes should already receive NHS services direct from the NHS in the same way that any of us would receive services from a GP, a physiotherapist or any other member of the health professions under the responsibility of the NHS.

In conclusion, I recognise that this is a genuine debate and that genuine concern exists as to how the definition will operate. I have examined the issue time and time again. I believe that, finally, the definition that we have is the only one that is workable unless, in the end, we return to our previous debate and make personal care free. The Government have decided not to do that. We believe that the priorities are to regularise the position in relation to care provided by registered nurses and to invest in intermediate care, where I am sure that we shall bring about a great deal of improvement in the lot of many people.

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