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Baroness Finlay of Llandaff: I thank the Minister for that reassurance, which clarifies the issue for me.
Baroness Andrews: Amendment No. 18 deals with the burden of the argument about consent. We understand how genuine the concern for the voice of the patient is. The Government have recognised and worked on that. The problem is that the amendment would create operational difficulties for the NHS. It would give the patient or carer a new and effective veto over social service involvement in the discharge process. The NHS would find it extremely difficult to operate under the amendment, which would place it under a new duty to gain the patient's and carer's consent to involving social services in assessing the need for aftercare.
We want to guarantee the inclusion of the patient in the discharge process, but the amendment would have unfortunate, even perverse, consequences. If a patient withheld consent, the NHS would not be able to inform the authorities how that patient was likely to need help after discharge. If the patient withheld consent and took no steps to inform social services, the community care services would not be in place although the patient might be physically well enough to leave. The patient would effectively be preventing their own discharge. No NHS patient has the right to do that. It would create an unreasonable and unsustainable situation for the NHS.
The amendment would also require the carer's consent to be given. Following what the noble Baroness, Lady Pitkeathley, said, it is inappropriate to oblige the NHS to consult a patient's carer about involving social services. Of course their views must be
My second point is that the Bill does not change or undermine any right that the patient presently has on consent. It is a complex law, but in a nutshell it amounts to common law principles plus some of the provisions of the Data Protection Act, which says that consent is the one basis on which information about an individual can be passed on. Patients have an existing right not to consent to receiving treatment. The NHS does not have the right to force services on a patient. If such services were provided without consent, there would almost be a case for civil trespass and, at worst, criminal assault. We are looking at some extremely subtle and dangerous implications. Good practice dictates that all patients should be kept informed. Once again, that is a reference to the discharge workbook and our reasonable expectation that it will be followed.
However, there is some good news. We have listened and we know that this is a very serious issue. I am confident that the statutory guidance and good practice will ensure the correct involvement of patients and carers. We are also prepared to consider a government amendment that would require the NHS to consult patients and, when appropriate, carers, before issuing a Section 2 notice. It is obviously in the best interests of all concerned that social services do not receive referrals for individuals who did not know that they have even been put forward for an assessment and so would hardly be expecting a visit from a social worker. I hope that is acceptable.
Amendment No. 34 would add a duty on the local authority to obtain the patient's consent before assessing their need for community care services. Again, the Bill does not change or undermine any existing rights, for the reasons I have explained. Patients are perfectly entitled not to participate in the social services assessment. However, social services will be expected to carry out at least a cursory assessment, even if the patient does not formally co-operate. Social services can obtain external information that can be useful should the situation change. A package of care can be refused. For the reasons I have given to the noble Baroness, Lady Finlay, those who reject all the alternatives will become self-funders.
On Amendments Nos. 44, 60 and 65, the noble Earl, Lord Howe, made a very powerful case for the information, particularly about the costs of any care and the consultation with patients and carers. Although we are unable to accept the amendments, I assure him that their aims are already clearly met under existing legislation. I referred earlier in the debate to Section 47 of the National Health Service and Community Care Act 1990, which governs assessment under this Bill. In exercising their functions, social services departments must already give all proper information to a person so that he can make an informed decision. That includes information about the costs of any care. The cases that the noble Lord brought were very graphic but one would
With respect to consent in general, the Bill makes no difference to patients' rights. We are hoping that the discharge workbook will make a big difference. We have a similar expectation that the statutory guidance will also make it abundantly plain that patients, their carers and families will be fully informed. The guidance attached to the Bill will act as reinforcement.
We have a similar response to Amendment No. 60, which would place a duty to consult carers and gain patient consent to the services being provided. The Bill does not alter the existing requirement on the NHS to gain the consent; we are happy with it as it stands.
Amendment No. 65 is, likewise, unnecessary. The proper place for information about the discharge date is in regulations rather than in the Bill, given the amount of detail that surrounds it. Putting it in the Bill would make it anonymous, especially as we know that there is much good practice in this area. Many acute trusts and social services departments issue a lot of information, advice and personal support. We hope that the amendment will be withdrawn.
Amendment No. 69 deals with control of patient information. It is difficult to see the intention behind the amendment. Section 60 of the Health and Social Care Act 2001 is about the control of patient information, but regulations made under that section broadly allow for information to be passed between NHS bodies and other bodies in relation to health matters. The amendment would disapply a body's duty of confidentiality to allow it to pass on confidential information for medical purposes in some circumstances. However, it does not apply to social services authorities or appear to have any relevance to data collected or duties undertaken in relation to the Bill. The only possible relevance would be when confidential information was passed between the PCT and the NHS trusts in compliance with their duties under Clause 3(8). Passing information in such circumstances would not breach patients' rights to confidentiality, and, in any case, Section 60 does not apply under the Bill. As I have said several times, nothing in the Bill impinges on the existing rights of patients to confidentiality. I hope that the amendment is withdrawn.
Lord Clement-Jones: The Minister's reply was as packed with information as ever. I believe that I saw a gleam of silver in there, rather than just a nugget. It may not have been gold, but things are looking up this evening.
There is a lot to be considered, and we will be reading Hansard with some attention. We have been told that there will be a code of practice on confidential information, which the Minister believes will cater for some of the issues raised under some of the amendments in this group in relation to use of personal information on patients.
Baroness Andrews: I do not want to give the impression that there will be a code of practice. There will be statutory guidance. I was addressing the
Lord Clement-Jones: I shall have to read with more attention than ever what the Minister said. As long as the statutory guidance broadly contains what we would have wanted to put in the code of practice, we shall be entirely satisfied. The statutory guidance is also intended to deal with the question of consent, but the Minister offered an amendment on Report or Third Reading to the effect that the patient will have the right to be consulted on discharge issues. That is a major step forward. We will have to consider that in the light of self-funders in particular.
Baroness Noakes: I want to clarify the exchange between the noble Lord and the Minister on statutory guidance. I may be the only person who does not understand the matter fully. Under what statutory powers will the guidance be given and what force will it have on the NHS?
Baroness Andrews: It is Section 7 guidance, as we familiarly know it. It has statutory forcelocal authorities have to follow it.
Baroness Noakes: What about NHS bodies? I thought that we were talking about requiring NHS bodies to do certain things.
Baroness Andrews: We can require NHS bodies to follow it, rather than forcing them to.
Lord Clement-Jones: I am glad that we have settled the legal basis, otherwise we would have had a sleepless night.
Lord Campbell of Alloway: I am grateful to the noble Lord for his concession. No legal basis has been settled or discussed. I am not familiar with this BillI am here for another purposebut I am interested in what has just been said. I have not read the Bill, but where is the trigger clause that will give credence and power to make either statutory provision or codes of guidance? Is there such a clause?
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