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Baroness Carnegy of Lour: I come back to the point made by my noble friend Lord Brooke arising from the discussions in the Delegated Powers and Regulatory Reform Committee, of which I am also a member. The last two lines of Clause 1, which we have been discussing, leave to regulations the definition of a hospital patient to whom Part 1 applies. The noble Lord keeps talking about the importance of flexibility. Would it not be much easier if the Bill contained a definition for England of the hospital patients to whom it applies, with the possibility for the Minister to extend that definition? That could be left to regulations for Wales. It seemed to the Delegated Powers and Regulatory Reform Committee that the Government had some difficulty making a definition for Wales, because, as the Minister has confirmed, Wales is not going to implement for the moment. The Government would not want to do that without talking to the Welsh Assembly. The Welsh tail is wagging the English dog in this case. The committee worries about that, because that is not the right way of using the powers that emerge from devolution. If it were not for Wales not wanting to implement, England and Wales could have a proper definition on the face of the Bill, which would make us much happier. The Minister looks puzzled, but I think it is a valid question. I understand that the point was discussed in the Delegated Powers and Regulatory Reform Committee.

Lord Brooke of Sutton Mandeville: The Minister kindly responded to my question. I am not suggesting for a moment that he missed the point, but when legislation covers England and Wales we were hoping that his department could set out in the explanatory memorandum accompanying the material that comes to us how far devolution has affected the particular recommendation that the Government have adopted on how the regulations should be dealt with procedurally. I am perfectly happy to take this in slower time. The issue does not need an answer today. We raised it because we can see that the dichotomy between England and Wales will be a continuing issue in all joint Bills.

Lord Hunt of Kings Heath: I certainly take the noble Lord's point. I shall make sure that the Select Committee's recommendations are brought to the attention of my department. Giving Members of both Houses as much information as possible about how regulations in those circumstances are to be dealt with would be extremely helpful on future legislation.

Lord Brooke of Sutton Mandeville: I was more concerned about the memorandum that comes to our committee from the department.

Lord Hunt of Kings Heath: I am so sorry. I misunderstood the noble Lord. I thought he was

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referring to the memorandum that accompanies a Bill. I assure the noble Lord that I shall make sure my department takes to heart the recommendations made by the committee. In future submissions to the committee we shall try to deal as informatively as possible with the devolution issue in relation to regulations.

In response to the noble Baroness, Lady Carnegy, I looked puzzled because I was not aware that the terminology in Clause 1 was used in deference to the National Assembly for Wales, although of course our relationship with the National Assembly is as cordial as ever. We wish to have the flexibility in regulations to define a description because we currently intend to confine the Bill's provisions to those patients who are receiving acute care. We published draft regulations to accompany the debate, paragraph 2 of which sets out our definition of acute care. We want the flexibility of regulations because we hope at some stage to extend the provisions to other classes of patient. That is why there is no definition of acute care in the Bill. I am not aware that it has anything to do with the Welsh dimension.

5 p.m.

Earl Howe: I thank all Members of the Committee who took part in this informative debate, especially the Minister for his illuminating comments.

I shall quickly add some concluding remarks. The Minister said that there was no definition of acute or geriatric care in the Bill and that, therefore, Amendment No. 5 was flawed. In fact, my amendment deliberately leaves it to the regulations to define acute or geriatric care. That was the whole point of the way in which it was phrased.

The Minister rightly drew attention to the need for investing in preventive care and action. I agree with him, but nothing in the Bill incentivises NHS trusts to invest in preventive care. That would have been to the benefit of the Bill, but I do not see it.

I do not share the Minister's enthusiasm for extending the scope of the Bill to increasingly large fines on local authorities. There will be a fundamental disagreement between us about the balance of advantage and disadvantage inherent in the charging scheme. I am all for reducing bed blocking, but not at the kind of price or risk to which this experimental scheme would give rise.

I agree that mental health waits are serious, but there is no financial disincentive on the NHS to avoid premature discharges. That is a serious aspect of the mental health dimension.

I take note of the Minister's comments. We shall undoubtedly return to the issue.

Lord Lucas: Will the Minister write to me on the question of European obligations, since he did not cover it in his reply?

Lord Hunt of Kings Heath: I would be happy to do so. My understanding is that we are not causing

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problems in Europe with this legislation, but I am happy to examine that point to reassure the noble Lord.

I should answer the question whether the clause will apply when an NHS patient is sent abroad under the scheme that we have for that purpose. It could apply, because the clause says that a qualifying hospital patient means,

    "a person being accommodated at—

    (a) a health service hospital; or

    (b) an independent hospital in pursuance of arrangements made by an NHS body".

On that basis, the clause could apply to an NHS patient sent abroad. In that context, the NHS body would be a primary care trust.

That surely makes sense. If an NHS patient was treated abroad under the NHS, we would want to ensure that appropriate arrangements were in place when they came home.

On Question, amendment agreed to.

Baroness Finlay of Llandaff moved Amendment No. 4:

    Page 1, line 12, after "hospital" insert "or hospice"

The noble Baroness said: In speaking to this amendment, I speak also to Amendments Nos. 30, 39, 53, 55, 56, 86 and 117.

These are probing amendments, and I hope that the Minister will give me some reassurance. I must declare an interest, as I am a hospice doctor, and the amendments focus on patients in hospices. In the light of the Minister's remarks on the European question, I hope that a similar reassurance will be forthcoming.

It is worth remembering that most patients admitted to hospices express a wish to die at home. In 2001–02, there were slightly more than 25,000 in-patient deaths in hospices in the UK and 33,000 deaths of hospice patients in their own homes. More than 50,000 were admitted to hospices, so we are talking about a large number of patients.

Many patients do not die in a hospice on their first or even on subsequent admissions, but achieve death at home. The risks of not including hospices in the clause are that hospital patients will be prioritised over hospice patients. If hospice beds were blocked, patients wishing to go home will probably miss the boat to get home, and patients needing to enter a hospice will not be able to get in for the symptom control that would be essential to improve their last days or weeks of life.

In December 2002, Hazel Blears, the Minister for Public Health, said that the,

    "new funding arrangement will ensure more patients are able to live and die in the place of their choice, and better support for carers and their families".

One difficulty is that the Bill does not make it clear whether hospices are included at the outset. The vast majority of patients in hospices are referred by an NHS agency—a primary care or hospital trust.

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Jacqui Smith, another Health Minister, stated in Committee in another place that,

    "patients in independent hospices would technically be excluded from the Bill in any case, as they are accommodated in neither a health service hospital nor an independent hospital in pursuance of arrangements made by an NHS body".—[Official Report, Commons Standing Committee D, 10/12/02; col. 16.]

However, Clause 9 states that an,

    "'independent hospital' has the same meaning as in the Care Standards Act 2000".

Clause 3 of that Act states that palliative care is included in the definition of "independent hospital".

Will the Minister make it clear whether hospice in-patients in hospice units are included from the outset? It is worth remembering that not all hospices have a consultant in palliative medicine but have doctors of other grades, who have received training and are delivering high standards of palliative care at almost a specialist level. Therefore, they should all be included. I beg to move.

Lord Clement-Jones: The noble Baroness described these as probing amendments. I simply want to express our strong support for the spirit of the amendments.

It is vital to ensure that patients accommodated in hospices are not given a lower priority for discharge than are people receiving acute care in hospitals. Our concern is that social services will prioritise NHS patients over those in hospices, in an example of precisely the kind of perverse incentive that we discussed on Second Reading, on which the noble Earl, Lord Howe, was so eloquent this morning on the radio.

The amendments also seek to clarify the regulations. Many hospice patients receive intensive medical treatment that meets the definition of acute care given in the draft regulations. Such care most often goes unsupervised by consultants. It is often impossible for hospices to offer consultant supervised care. That is another reason for the Minister to consider the amendments carefully, even though they are probing amendments.

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