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Baroness Greengross: Much in the hospital discharge workbook is popular with many people, which is good. In response to my Amendment No. 142, which we considered yesterday, the Minister reiterated that the Bill would be equally tough on the NHS as on social services departments. He said that some parts of the workbook had been ignored by some parts of the health and social care services. I therefore understand that the new workbook will be subject to guidance from the department. The clause would provide some legislative clout, but after what the Minister said yesterday, I appreciate that he may be unlikely to accept the proposal.

Perhaps a sensible compromise would be for the workbook to be subject to a direction from the Secretary of State that it must be implemented and acted upon, rather than there being merely guidance. Perhaps the direction can be, "This is what you should do if you can do it". The new clause would not then be necessary but there would be some legislative clout and we would be certain that action would follow.

Lord Turnberg: I doubt that anyone in the Chamber is not in favour of joint close working and collaboration. Those Members of the Committee who have spoken have done so in favour of joint working. The philosophy outlined in the amendment is completely acceptable. However, I have doubts about whether one can legislate to make it a duty for people to work together closely and collaboratively. That depends on a trust between consenting adults and departments. I believe that one cannot legislate for such working, but that one must provide strong guidance, strong encouragement and strong support, coupled with the monitoring of results and accountability. That requirement does not need to be on the face of the Bill, but it should be firmly ensconced in guidance.

Lord Hunt of Kings Heath: My noble friend has put his finger on the issue. The amendment, carefully crafted by the noble Baroness, Lady Barker, follows the model which the Local Government Association and the NHS Confederation wish to see established not at the same time as the Bill but in place of the Bill. Given that the Government are going down that road,

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the noble Baroness, in seeking to make this amendment to the Bill, would do exactly what she has argued against; that is, to add another layer of central bureaucracy on the NHS and social services.

We are setting out in statute how the new system will work. Therefore, as my noble friend Lord Turnberg said, there must be a strong case, subject to statutory and good-practice guidance, for allowing local partners to work things out at local level. I have no objection to the proposition that action plans and joint protocols at local level are a good tool. They are excellent tools and build on current practice. However, I have great reservations about adding another statutory duty to the Bill. We must allow local authorities and the NHS at local level to work through how they will implement the Bill.

The noble Baroness, Lady Greengross, suggests that the workbook is made the subject of statutory guidance to local authorities and directions to the health service from the Secretary of State. However, the problem is that it is an extensive book. The impact of making its implementation subject to statutory guidance or directions would be to say in essence that the whole thing had to be implemented in full. I do not see the workbook as being quite of that status.

Statutory guidance will be available, but it will be informed by the workbook in terms of good practice. While I understand the point being made by the noble Baroness, I do not think that this is the way forward. Given that we already have in place the architecture of the statutory framework in the form of community care services and NHS responsibilities as regards the discharge of patients, we have now set out in the Bill the right incentives to encourage good performance. We need guidance and statutory guidance to help steer the NHS and local government on the way they should be working, but at that point it should be left to the bodies themselves to work it out at the local level.

Baroness Barker: I thank noble Lords for their contributions to the debate. The noble Lord, Lord Turnberg, went to the heart of the matter when he talked about "trust between consenting adults". In my view, trust between consenting adults demands the prerequisites of equality of power and the ability to influence outcomes. However, I am certain that the architecture and framework of the Bill will militate against that. I do not believe that it will bring about equality in the relationship.

The points made by the noble Baroness, Lady Greengross, about the workbook and the directions are apposite. Those noble Lords who have seen it are agreed that the workbook is full of good practice, but the question remains: what will happen to it? Will the workbook be a living document that works well or will it be consigned to sitting on shelves? For example, in the course of the debate on Second Reading a number of noble Lords spoke of the importance of patient transport. The section in the workbook covering patient transport is great, but will it happen? I do not know.

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I am not wholly reassured by the Minister's comments. I understand that producing guidance to sit side by side with that contained in the workbook is not helpful, but the proposal in the amendment provides the means by which such good practice can be implemented. That is the motivation behind the amendment.

All noble Lords are struggling to produce a Bill that is workable rather than simply adding to the canon of legislation that is happily ignored by all, not only by social services. I think that the Minister has been unduly unfair on social services as regards their part in this. I should remind him that when the Health Select Committee considered an analysis of why hospital discharges are delayed, it found that 10 per cent of those delays are due to the NHS.

Lord Hunt of Kings Heath: I am most grateful to the noble Baroness. At no point have I suggested that this is a problem solely of local authority social services departments. Over the past two or three weeks I have drawn attention to failings in the National Health Service in this area and others where the health service should be working together with local government. I have made the point that there is much for the NHS to do in order to get its act together.

Baroness Barker: That is precisely the intention behind the amendment. As the Minister has already pointed out, when proposals are made by the Local Government Association and the NHS Confederation, it is easy to ignore them and consider them as merely the products of various interest groups. However, given that the association and the confederation are two of the key interest groups that will implement the legislation, then we have a duty to listen.

I do not intend to press the amendment today, but I still believe that the approach outlined in the proposal is valid and one to which I may wish to return before we have completed our deliberations on the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

4.15 p.m.

Clause 4 [Liability to make delayed discharge payments]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne): If this amendment is agreed to, I shall not be able to call Amendments Nos. 74 to 76 by reason of pre-emption.

Baroness Barker moved Amendment No. 73:

    Page 4, line 8, leave out subsections (2) and (3) and insert—

"( ) The responsible NHS body and the responsible authority shall, in the case of each patient where a discharge notice under section 3(7) has been issued, agree—
(a) a definite day of discharge (the "relevant day");

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(b) a joint aftercare plan for the provision of relevant health and community care services following the day of discharge for an agreed period."

The noble Baroness said: We move now to a series of amendments which cover a major area of the Bill and go to the heart of our arguments. Here we address the issue of the day on which a person can be discharged from hospital, which is fundamental to this legislation.

In our debate yesterday I mentioned the difficulty of attempting to try to draw a defined line between what is medical care and the judgment that must be made by the NHS, and then defining the point at which the decision becomes the responsibility of social services departments. The decisions should be taken jointly; they vary when that is done and thus this area is one of the most critical in the Bill.

It is correct to say that a clinician can reach a decision that, on a given day, a person no longer needs to be kept in a hospital bed receiving acute care. However, another decision needs to be made concerning the circumstances into which someone will be sent when they go home or are moved elsewhere. Bearing that in mind, would the medical decision to discharge remain the same? The medical decision must take account of whether the person is to be discharged to the best place for them. Two separate and different decisions must be made by clinical practitioners. Given that, the medical decision may differ if it is taken jointly with someone who is fully informed of the conditions to which a person will be discharged. That is why we are proposing in this amendment that social services representatives should be equally involved in making the decision on what should be the day of discharge.

I have mentioned several times a situation that regularly arises. An older person is a patient in hospital; he swears blind that he will be fine when he goes home, which he does because he will say anything to get out of hospital. However, when he does go home, neither he nor his carers can manage. Later we shall discuss in more detail the issue of readmission to hospital, but I believe firmly that the number of readmissions would be cut if social services representatives were active players in the decision on the date of discharge. That is the motivation behind the amendment and I beg to move.

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