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Earl Howe: I thank the Minister for introducing Amendments Nos. 3 and 10 which seem straightforward and uncontroversial until one thinks about the practical implications. At what point is a hospital to determine whether someone is or is not ordinarily resident in England and Wales? How is a hospital supposed to do that? My understanding is that the definition "ordinarily resident" is not met just by confirming the street address where someone was last living: it is a matter of law. It will be necessary to determine how long a person has been living in this country and whether that period has been continuous. I am sure that the Minister will correct me if I am wrong. However, if that is right, it would be inordinately burdensome for hospitals to determine the information and the process would not be easy if a patient were in a vulnerable condition.

What happens if a Section 2 notice is issued to a local authority which then goes to a lot of trouble on the patient's behalf, only for it to emerge later that the patient is ordinarily resident outside England and Wales? There does not appear to be any provision for the costs of the local authority to be reimbursed in those circumstances. One can imagine that that situation could arise quite often. Will the Minister comment on those issues before we move on to further amendments?

Lord Lucas: For instance, would the Minister's right honourable friend Gordon Brown be considered to be ordinarily resident in Scotland, or not?

Lord Hunt of Kings Heath: I should have thought this a straightforward matter, but your Lordships will always analyse these issues. That is right. Again, I apologise for not giving due warning. As far as I understand the issue, if a patient who was ordinarily resident in Scotland were treated in an English NHS hospital, the Act would not apply. And it would be the same if a patient who was ordinarily resident in England were treated in a Scottish NHS hospital—the Act would not apply.

The definition of a person "ordinarily resident" takes its normal meaning. It would be a matter for the hospital concerned to determine when a Section 2 notice was being issued.

4.15 p.m.

Earl Howe: I am grateful to the Minister. That situation could give rise to practical difficulties in certain cases. If the Minister is able, perhaps he could consult on this and either write or speak to me.

I turn now to Amendments Nos. 5 and 11. The Minister will be under no illusions of the views held on these Benches about Part 1 of the Bill. We believe that

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it is misconceived. We wish that the Government would think again. Nevertheless, it is not right for this House either to kill or wreck the Bill. We shall let it go through. In doing so, its effects should be mitigated and confined in specific ways. The amendment that I am now moving is a means to that end.

We know—or we think we do—that the Government's main concern in seeking to impose financial penalties, or the threat of penalties, on local authorities, is to bear down on delayed discharges relating to patients who have received any type of acute care in hospital. Many—though not all—such patients will be elderly. Above all, they are the groups of patient whose delayed discharges make the greatest impact on a hospital. They are the groups on whom Ministers have particularly focused their remarks when speaking to the Bill's provisions—and understandably so.

The regulations just published in draft form restrict the definition of "acute care" to:

    "intensive medical treatment provided by or under the supervision of a consultant which is for a limited time after which the patient no longer benefits from that treatment".

Setting aside the rather strange idea that a patient no longer benefits from treatment after it has finished—I should have thought that the opposite is true in most cases—one can understand what the definition is getting at. The Bill does not refer, for example, to intermediate care, mental health treatment, rehabilitation or palliative care, but as framed it would be open to the Government to extend the scope to any category of NHS patient if they so chose in the future. I am not happy about that.

I make a simple point. The larger the group of patients caught by the Bill, the more serious will be the negative effects ensuing from it. I shall not repeat all the objections that I set out at Second Reading, but one of my main worries is the knock-on effect of the financial penalties for other groups of patients. The more local authorities are obliged to prioritise their efforts on to hospital patients of one sort or another, the more they are in danger of disadvantaging elderly people living at home who may be in need of domiciliary care, as well as other individuals in the community. Above all, local authorities will want to ensure that they do not incur fines. Therefore, the efforts of social workers will be disproportionately concentrated on patients blocking beds. The needs of patients who do not give rise to fines will inevitably become secondary. That is my worry.

This distortion of priorities will manifest itself in other ways. I shall read a short section of the Audit Commission report, Fully Equipped 2002. It states:

    "In the case of community equipment service in particular, social services departments were finding themselves under increasing pressure to cope with the demands of people being discharged earlier from acute hospitals. The policy to support the immediate needs of the NHS was putting pressure on other parts of social services home care budgets and driving up eligibility criteria for those who needed less intensive support to help them to stay at home—risking unnecessary hospital admissions and increasing demands on the NHS".

The argument is taken a stage further: people who need less intensive support at home are increasingly not receiving it because it is becoming more difficult for them to qualify. The result is that such people have

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to be referred to hospital. Therefore, the whole process is circular. Indeed, it is self-defeating and the Bill will promote that self-defeating process.

I return to the perverse incentives that are likely to be created. The larger the cohort of individuals directly affected by the Bill, the greater those perverse incentives will be. The example that I gave at Second Reading was that of a GP trying, without success, to find a care-home bed for a patient. The obvious answer is to refer that patient to hospital as an acute case. Hey presto, the problem is solved! At Second Reading, the Minister said that that type of eventuality was never the Government's intention. Of course it was not the Government's intention, but that is precisely the point: the unintended consequences must be confronted and dealt with.

Finally, Amendment No. 11 proposes that the ambit of the Bill should not be extended to include mental health patients. There is a real problem of delayed discharges in the mental health sector. The problem is not something to be welcomed in any way. It is damaging to patients and costly to the NHS. However, assessing whether a psychiatric patient is fit for discharge involves a complex set of considerations; for example, the potential for self-harm and the risk of harm to others. In the opinion of MIND, the charging scheme set out in the Bill carries a serious risk of inappropriate and premature discharges. Local authorities would be forced to take responsibility for patients without the necessary support services being in place. The Government have acknowledged that the key reason for delayed discharges in mental health is a lack of capacity in specialised mental health services in the community.

The way to overcome that, to revert to our earlier debate, is to have a working partnership between health and social services. Many NHS mental health services already operate with a high degree of integration between health and social services, with pooled budgets and joint commissioning arrangements. It makes no sense whatever to disrupt those arrangements, which inevitably the Bill would do if it were extended to this sector. Apart from anything else, if the charging scheme were extended to mental health, managers with pooled budgets would undergo the odd experience of having to fine themselves.

Those are some of the practical reasons why, in my view, we should seek to limit the scope of the Bill as the amendments propose. On a more philosophical level, we need to ask ourselves whether this system of financially driven imperatives is what we want to see pervading the fabric of our public services wherever the NHS and social services interact. I am clear that it should not.

Baroness Barker: I speak to Amendments Nos. 6, 8 and 9, which are grouped with the amendments of the noble Earl, Lord Howe. The Minister's amendments seek to clarify the meaning of "ordinarily resident". Can I take it from what the Minister said that the discharge arrangements will not extend to hospitals abroad to

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which NHS patients are sent for treatment? It will be interesting if they do not. I should like clarification on that.

Like the noble Earl, I, too, wish to comment on the extension of the Bill to mental health. Time and time again it has been said that the Bill reflects a model of care adopted from Sweden, which in itself was a corruption of a model that pre-existed in Denmark. We on these Benches have chastised the Government for what we call "health tourism", and this is one of the first examples of that. If Members of the Committee had gone to Sweden with the architects of the Bill to look at the system there, they would have discovered that in Sweden the system of reimbursements applies only to geriatric care transfers. It has not been deemed appropriate to extend that principle more widely and specifically to mental health.

For once we are in the happy position of having draft regulations when we discuss a Bill. The definition of "acute care" in the regulations is quite helpful, although it does not exclude paediatric care, which I thought it might do.

Under the current draft regulations, local authorities will not be made liable for charges if the patient is awaiting another NHS or community care service, such as psychiatric or mental health after care assessment, but cannot move on because the availability of such NHS services is blocked due to lack of social care provision. However, as the Explanatory Notes to the Bill make clear, it is the intention of Ministers eventually to apply the reimbursement regime to other NHS services, including mental health.

But there is a clear difference. There is no intermediate care in the field of mental health. NHS mental health services now operate in an integrated structure between health and social care, with varying degrees of pooled budgets and legal responsibility. We are getting into a situation where different departments of the NHS will be claiming back money from each other.

Assessment of a psychiatric patient's fitness for discharge and the putting together of an appropriate after care package is perhaps more complex than dealing with many of the physical disabilities of older people. Considerations such as the risk of self-harm, risk to other people and the need for appropriate accommodation have to be taken into account, and I very much doubt whether such arrangements can be put into place within three days. It will be interesting to see how any decisions made under this Bill will fit in with the provisions of the forthcoming mental health Bill.

There is one other key reason why the Bill should not be extended to mental health service users. That is the danger that this legislation will put pressure on local authorities to take discharged patients earlier than they should, without proper accommodation and essential support services in place. There is also a risk that medication will be used to manage symptoms to achieve earlier discharge without proper consideration being given to therapeutic intervention. We have often discussed in the House how mental health becomes an issue only when there is a crisis. I believe that this is the context in which such decisions can lead to severe risk.

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As to Amendment No. 8, the issue of self-funders is small and technical but it is one of the most important issues in the Bill. It arises several times in the Bill in relation to eligibility for continuing care and unlawful practices by social services departments to make NHS continuing care cases self-funders, as in the case of Coughlan.

In the Second Reading debate in another place the Secretary of State said:

    "Self-funders effectively pay for their own care and are not the responsibility of social services".—[Official Report, Commons, 28/11/02; col. 511.]

That implies that they are outwith the system of fines. The statement is somewhat misleading. Social services departments have a responsibility to assess individuals who may have a need for community care services, and until such an assessment is carried out the social services will not know what kind of service a person requires. That has been made quite clear in the Fair Access to Care practice guidance, which states:

    "The carrying out and completion of a community care assessment should not be contingent on whether or not an individual can pay for care services, be they provided in a care home or the individual's home".

So if a social services department delays on the assessment then fines could be imposed.

In the case of those who require care services at home, the guidance goes on to state:

    "With respect to individuals receiving services at home, a council should arrange those services irrespective of the resources or capacity of the service user, if that is what the service user wants the council to do. Where an individual is to receive services under Section 29 of the National Assistance Act 1948 and is ordinarily resident in a council area, that council has a duty to arrange services on his/her behalf".

Therefore social services remain responsible for all those who are defined as requiring care at home and cannot use the argument that a person can arrange his or her own care.

The practice has grown up that where a person has capital of more than 19,000 the local authority does not have a duty to arrange care unless he or she is not able to arrange it for himself or herself and there is no one willing to do so on his or her behalf. In general, this has come to be interpreted as meaning that local authorities retain responsibility where the person lacks capacity to make his or her own arrangements with the care home.

However, a recent case in the House of Lords—Robertson v Fife—has thrown considerable doubt on this approach. Although the case referred to Scottish law, it relied heavily on English case law in coming to its conclusion. The judgment stated:

    "But the guiding principle is that the provision of community care services to a person who is in need of them is not related to the ability of the person to meet the costs. The assessment of need and decisions as to whether they call for the provision of any community care services to a person who is in need of them is not related to the ability of the person to meet the costs . . . The assessment of means, and the requirement to pay what the person can afford comes afterwards".

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So if, as many community care and public law lawyers agree, this has effect in England and Wales, then social services departments are responsible for arranging the care for many more people than they currently do and they will be brought into the regime of fines. If the costings for the Bill have been done on the basis that there are people outside the system of fines, then they could be severely underestimated.

Even if there is a group of people who are not the responsibility of social services, given the ethos of swift discharge that these fines will foster, hospitals may pressurise self-funders into accepting the first place in which there is a vacancy, whether or not it meets their needs. For example, people could feel impelled to take a place in a care home which is miles away from their family or social contacts, or which may be far more expensive than other homes in the area which do not have vacancies. So self-funders could, yet again, be doubly disadvantaged.

I said earlier that it was useful to have the draft regulations before us—and, indeed, it is. It was alarming to have frequently to ask questions about regulations.

There is a blithe assertion that if patients turn down the first care package offered, they will be deemed to have made themselves a self-funder. People in hospital may turn down a care package because they believe that it does not meet their needs. It is not simply a question of choice. There is a small, but significant, group of people who stand at great risk of being disadvantaged under the terms of the Bill as stands. That is the reason for our amendments.

4.30 p.m.

Lord Chan: I support Amendments Nos. 5 and 6, 8 and 9 and 11 in this group. They are in line with experience in our primary care trust on Merseyside. The first priority being laid upon social services is to invest in intermediate care beds. There is no doubt that the extra funding provided by government for the requirements under the Bill will be used in that way. Negotiations are presently taking place regarding the use of beds in acute hospitals for intermediate care, and the money will be invested in that way.

That will produce a problem. The best place for a discharged person, particularly an older person, is his or her home. That is the setting that he or she is used to. However, that would require the co-ordination of several services, including some social services departments, and responsibility for support at home as regards cleaning, meals, etc, and other services in the NHS through the primary care trusts.

Concern is being expressed about the Bill. I received a letter today from an older person who lives in St Helens, on Merseyside, and who is very worried about the effect of the Bill, with its emphasis on delayed discharges. The letter asks:

    "will there be a withdrawing of services for very vulnerable people, old, sick, disabled, living alone"?

It asks whether their services will suffer, given that social services are already stretched and that their efforts will need to go into meeting the terms of the Bill in order not to incur fines. I look forward to an

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assurance from the Minister that there will be some kind of protection for people such as this unfortunate person, who is already very worried as a result of what he has read in the newspapers.

Finally, there is no doubt that the field of mental health offers an example of good practice. As a result of the very good NSF in mental health, we see the development of an integrated service—both NHS and social services. I feel strongly that it should not be included in this consideration.

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