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Lord Hunt of Kings Heath: If the noble Baroness would care to write to me, then I shall try to respond to her point. However, if a patient is registered with a GP, surely from that flows where the community services are to be provided; that is, around the GP and the primary care trust. It should be clear.

Baroness Barker: Yes, it should be, but I seek to make the point that some people are not registered with a GP, which is only one of the issues I am seeking to raise.

Lord Hunt of Kings Heath: I do not wish to delay the Committee, but there are well tried and trusted mechanisms within the NHS to deal with circumstances where a person does not have a GP. Again, I shall look into the matter. I do not think that there is a problem here.

Lord Lucas: I look forward to reading the Minister's answer should the noble Baroness write to him. I have experienced a great deal of confusion on this subject during my own life. On many occasions the NHS has been extremely uncertain as regards where I live and who should be responsible for providing me or my late wife with services.

Listening to the points made by the noble Baroness and thinking about my own history, I am not at all sure how it would have been possible to establish which local authority should have been providing services at a time when my wife and I had no particular fixed place of abode. We shuttled between other people's houses, sometimes in the country and sometimes in London.

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My wife was being treated at four different NHS hospitals for various aspects of her condition, while the GP was in a fifth place. That was because the GP happened to be someone with whom my wife got on well and wished to retain.

This point will present difficulties from time to time. I am sure that the noble Baroness understands these things better than I, but if there is a question to be clarified I shall be very interested to see the response.

Baroness Barker: Given the Minister's agreement to look further at the issue, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 111 not moved.]

The Deputy Chairman of Committees: Perhaps I may contribute to the confusion here. Amendments Nos. 109 to 111 were grouped with Amendment No. 97, which we must assume therefore were spoken to with Amendment No. 97. However, the Committee has moved on.

Clause 7, as amended, agreed to.

6.45 p.m.

Clause 8 [Regulations]:

Baroness Noakes moved Amendment No. 112:

    Page 6, line 30, leave out from "instrument" to "House" in line 32 and insert "and any such instrument shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each"

The noble Baroness said: In moving Amendment No. 112 I shall speak also to Amendment No. 114. The amendment would require the regulations made under Part 1 of the Bill to be subject to the affirmative procedure rather than to the negative procedure envisaged in Clause 8. This is a familiar debate in Committee .

We are fortunate in that for this Bill draft regulations have been published. That is always useful when considering regulation-making powers. However, I shall permit myself one small whinge. Despite the fact that the Minister said that he would share the draft regulations with Members of the Committee, he did not say that he would wait a good 10 days before sending them. My copy arrived yesterday, although I suspect that it was ready last Friday, on Valentine's Day. I wonder whether the Minister chose to save them up rather than send me a Valentine's Day card. But noble Lords are resourceful; we used the website and so did not have to rely on departmental officials to send us correspondence in a timely way. That is my whinge put out of the way.

As we expected, the regulations contain many significant aspects of how the fines will work in practice. It is the detail that will help to determine whether the new scheme will work, as many suspect, massively to the detriment of local authorities. That is why in Amendment No. 114 we have proposed that

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there should be consultation with local authorities. I should say that that is what local authorities have themselves asked for.

I know the Minister will say that his department follows good practice with regard to consultation. But even if it is doing so with the current draft regulations, there is no guarantee that it will always do so. The key issue is whether consultation is a real or a paper process. We may well see the proof of that when considering whether some of the very serious concerns that have been raised by the Local Government Association find their way into the final version of the regulations. Going forward, local authorities are concerned that the regulations will be changed without their being involved. They would like that question put beyond doubt within the Act.

Given the concerns of local authorities in regard to the procedures, we are wary of giving negative resolution powers to the Secretary of State in this case. The affirmative procedure is more appropriate. I beg to move.

Baroness Barker: I speak to Amendment No. 113, which is grouped with Amendments Nos. 112 and 114. It is a probing amendment which is concerned with regulatory powers in Wales. I wish that the noble Baroness, Lady Carnegy of Lour, was in her place to make this speech, but she is not. Therefore I shall make it, but probably not as well.

I wish to ask the Minister a few questions in regard to Wales. Why does the National Assembly for Wales come under the remit of the Secretary of State in making decisions on these matters? Will the National Assembly have its own powers to determine the way in which relationships between the NHS and local authorities should work? Will the Assembly have the power to do what many of its members wish it to do, and that is to come to its own decisions in regard to personal care and the extent to which it should be free?

Lord Hunt of Kings Heath: As to the issue of Wales, I am almost tempted to invite the noble Baroness to join us in debating the Health (Wales) Bill next week, where she would have many happy times discussing these great constitutional issues.

As regards the question of the making of regulations, if and when Wales introduces Part 1 of the Bill, any regulations which need to be made to cover cross-border issues can be made jointly. This approach has been agreed with the National Assembly. But regulations in general fall for the Welsh Assembly to deal with, as it does with regulations for all primary care legislation.

The question of free provision of services and personal care in Wales is covered by Clause 13. That clause refers to Clause 12, which deals with the matter in relation to England.

I turn now to the more general issue of regulations and our old favourite of affirmative as opposed to negative resolution. I apologise to the noble Baroness, Lady Noakes, for the delay in sending by post the draft regulations. Knowing how much the Committee

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enjoys discussing regulations, I am sure that noble Lords would much rather receive a regulation than a Valentine's card on Valentine's Day.

The matter has been considered by the Delegated Powers and Regulatory Reform Committee which, as we heard from the noble Lord, Lord Brooke, yesterday, commented on the question of Wales and on the regulations under Clause 4(4) which prescribe the daily amount that a local authority must pay for the delayed discharge period. Other than that, the Select Committee did not draw attention to any concern about the way in which the regulations would be dealt with.

It is appropriate that the regulations should be introduced under the negative procedure. It would of course still be open for noble Lords to pray against the regulations if they wished to debate the issue.

As to the question raised by the Delegated Powers and Regulatory Reform Committee in relation to Clause 4, I shall bring forward an amendment on Report to deal with that point.

Baroness Noakes: I did not hear the Minister respond to the issue of consultation with local authorities.

Lord Hunt of Kings Heath: I apologise. My department hardly moves an inch without consulting local authorities on social care issues. We do not need to put it on the face of the Bill. We are consulting local government and will continue to do so. Local government should have no hesitation or worries on that score at all.

Baroness Noakes: I thank the Minister for his wholly predictable response to the amendments. Today is not the day to pursue the matter. I shall consider his response and perhaps return to it on another day. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 113 and 114 not moved.]

Clause 8 agreed to.

Clause 9 [Interpretation]:

[Amendments Nos. 115 to 119 not moved.]

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Power to extend the application of Part 1 to NHS patients in care homes]:

Earl Howe moved Amendment No. 120:

    Page 7, line 22, at end insert "; and

(c) make it contingent on an assessment that continuing NHS health care is no longer required and that the patient has been informed of their review rights."

The noble Earl said: In moving Amendment No. 120, I shall speak also to Amendment No. 121.

Clause 11 allows the provisions of Part 1 to be extended at some time in the future to NHS patients in care homes—in other words, patients receiving intermediate care outside hospital. In this context, I

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note that intermediate care received within a hospital setting is specifically excluded from the scope of the draft regulations.

I shall make some general observations about the clause in a moment but, as regards Amendment No. 120, if a proposal is made to transfer a patient from a care home where he or she is receiving NHS-funded care to another care home where his or her care will be paid for by the local authority—indeed, there may not be a transfer involved; the patient may stay put—we must ask ourselves in each case who is to say that that individual is no longer eligible for, or in need of, NHS-funded care? Who will make that inevitably subjective judgment, bearing in mind that the kind of care the patient may receive after being discharged by the NHS may not be qualitatively all that different from the care received under the heading of "intermediate"? The term "fit for discharge" may not be as clear cut as it is for a patient on an acute ward of a hospital.

The amendment proposes that an NHS patient in a care home should be entitled to a formal objective assessment on the question of whether he or she is or is not eligible for continuing NHS funding. The patient should also be told what avenues are open to have the decision reviewed if he or she does not agree with it. I have heard of cases in which fairly maverick and ill thought out decisions have been made by clinical staff that a patient was fit for discharge and where only later did it transpire that that was a bad clinical judgment.

Amendment No. 121 would amend Clause 11 by replacing the existing requirement for an order under the clause to be subject to the negative procedure with one which requires an affirmative procedure. My noble friend Lady Noakes has waxed eloquent on this issue already, but we all know that Ministers, given half a chance, will opt for the easy life of negative procedures. But it is the duty of the Committee not to allow that where the subject matter of the order deserves proper scrutiny. I believe that this is a case in point.

One has to conclude from Clause 11 that the Bill is a Trojan horse because it was introduced under the guise of the problem of delayed discharges of elderly people from acute hospitals caused by the lack of proper services provided by local authorities. But it is clear from the Bill that Ministers see a longer-term use for it. They appear rather to like the idea of fines and want to have powers to extend them. Clause 11 allows them to extend the fines to delayed discharges from care homes.

We on these Benches are far from convinced that even the narrow purpose of the Bill is necessarily its initial purpose. But we are absolutely certain that any extension of the Bill beyond those initial purposes should be subject to proper scrutiny. That is why the affirmative procedure is appropriate, notwithstanding the recommendation of the Delegated Powers and Regulatory Reform Committee. I beg to move.

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7 p.m.

Baroness Andrews: I am grateful to the noble Earl for setting out so clearly the case for his amendment. It seeks to make any extension of the Bill to qualifying care home patients contingent on an assessment being carried out of the patient's need for continuing healthcare and on the patient being informed of his or her review right. It may help if I briefly explain the purpose of Clause 11—especially as it has been described as a "Trojan horse"—and why we cannot agree with the amendment.

Essentially, the aim of Clause 11 is to allow for the Bill to be extended to all those who are receiving intermediate care in the future, should we wish to do so. I should explain that intermediate care is a rehabilitation or therapeutic service which lasts, at most, for six weeks and which is intended to maximise individual independence, so that people can resume living at home. It is a very specific form of provision which leads—according to the Audit Commission, for example—to 60 per cent, or even 90 per cent, of people going home at the end of, or even before the end of, the six-week period. So it is a very positive and intense intervention. It can sometimes be provided in a care home as much as in a hospital. That is why the inclusion of care homes in the Bill is necessary—to ensure equitable treatment between these two groups of people.

I assure the noble Earl that the Bill will apply only to qualifying care home patients who are in intermediate care. It will not apply in any sense to any care home patient who is in need of continuing NHS care—such patients are in a very different position; they are chronically sick and have a continuing need for observation, support and medical assistance. Were it considered that a patient receiving intermediate care might need NHS continuing care because his or her condition had deteriorated, there is no need to state that on the face of the Bill. It would happen automatically by the normal intervention of the medical staff responsible for the case.

Perhaps I may address the question of assessment. The NHS must consider, when the patient leaves hospital to go into intermediate care in a care home, whether an assessment should be carried out, and indeed whether an assessment should be carried out before that judgment is made. If a patient needs continuing care, his or her discharge would be the responsibility of the NHS. However, in the light of the debate, we believe that it would be useful to look hard again at the guidance that will accompany the Bill, to ensure that it deals with the issues raised in relation to intermediate care and continuing care. I hope that on those grounds the noble Earl will be able to withdraw the amendment.

I turn to the affirmative procedure—on which we had a full exchange in a previous debate. This matter was obviously considered by the Delegated Powers and Regulatory Reform Committee and was found to be consistent with the principles that govern negative procedures. It is appropriate because it does not

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amend the Bill or bring forward new principles. What it does is to allow for the extension of existing provisions in the Bill.

The noble Earl declared that he has a problem with that, but it is not one that would justify reference to the affirmative procedure. Essentially, we are merely providing for the care to be the same, whether it is provided in a hospital or in a care home. I hope that the noble Earl will take that argument in the spirit in which it is intended.

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