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Division No. 1


Aberdare, L.
Ackner, L.
Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Astor of Hever, L. [Teller]
Avebury, L.
Barker, B. [Teller]
Beaumont of Whitley, L.
Biffen, L.
Blaker, L.
Blatch, B.
Bradshaw, L.
Brightman, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Buscombe, B.
Butterworth, L.
Caithness, E.
Campbell of Alloway, L.
Campbell of Croy, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chadlington, L.
Chorley, L.
Clement-Jones, L.
Cockfield, L.
Coe, L.
Colville of Culross, V.
Cope of Berkeley, L.
Craig of Radley, L.
Crickhowell, L.
Dean of Harptree, L.
Denham, L.
Derby, Bp.
Dholakia, L.
Dixon-Smith, L.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Ezra, L.
Fookes, B.
Gardner of Parkes, B.
Glentoran, L.
Goodhart, L.
Gray of Contin, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Hereford, Bp.
Higgins, L.
Hodgson of Astley Abbotts, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Jellicoe, E.
Jenkin of Roding, L.
Laing of Dunphail, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marlesford, L.
Marsh, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Molyneaux of Killead, L.
Mowbray and Stourton, L.
Moynihan, L.
Murton of Lindisfarne, L.
Noakes, B.
Northesk, E.
Northover, B.
O'Cathain, B.
Pearson of Rannoch, L.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Rawlings, B.
Reay, L.
Redesdale, L.
Renton, L.
Richardson of Calow, B.
Roberts of Conwy, L.
Roper, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Sandwich, E.
Seccombe, B.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Taverne, L.
Tenby, V.
Thatcher, B.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Trumpington, B.
Vivian, L.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Wigoder, L.
Wilcox, B.
Williams of Crosby, B.


Acton, L.
Alli, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bhatia, L.
Blood, B.
Boothroyd, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Bruce of Donington, L.
Burlison, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donoughue, L.
Dubs, L.
Eatwell, L.
Elder, L.
Erroll, E.
Evans of Temple Guiting, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gladwin of Clee, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Greengross, B.
Gregson, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Orme, L.
Ouseley, L.
Parekh, L.
Patel of Blackburn, L.
Peston, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rogan, L.
Roll of Ipsden, L.
Sainsbury of Turville, L.
Sheldon, L.
Sheppard of Liverpool, L.
Simon, V.
Smith of Leigh, L.
Stallard, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Wilson of Tillyorn, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

10 Mar 2003 : Column 1117

3.35 p.m.

Clause 2 [Notice of patient's likely need for community care services]:

10 Mar 2003 : Column 1118

Lord Clement-Jones moved Amendment No. 2:

    Page 2, line 7, after "hospital" insert "including independent hospitals which provide health care for which NHS bodies or service providers have responsibility"

The noble Lord said: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 14. They are probing amendments, based on what the Minister said in Committee, not just about the position of independent hospitals in the UK in which NHS patients are being treated but also with regard to the fact that foreign hospitals under contract with the NHS could be entitled to charge social services departments for delayed discharge. I think that it was the noble Lord, Lord Lucas—I am sorry that he is not in his place today—who managed, in his inimitable way, to elicit that interesting fact from the Minister.

The situation arises because, as long as they are ordinarily resident in England or Wales, qualifying persons will place such a duty on whatever acute hospital they are in, as long as the care has been commissioned by the National Health Service. The logic of the Bill is that Clause 3, which places a duty on local authorities to pay the NHS, will apply. That is very much the logic of what the Minister said in Committee:

    "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'". The Minister went on to say:

    "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".—[Official Report, 17/2/03; col. 942.]

The Minister nods his head, so, clearly, I have not lost all my senses yet this afternoon and that is a correct interpretation of what he said.

The implications of that ministerial statement are, as, I am sure, the Minister realised at the time, fairly large. It would involve additional administration and costs. It would mean incorporating an independent hospital abroad into legislation for England and Wales to enable it—a foreign hospital, as we should not forget—to charge an English or Welsh local authority. How will that affect the commissioning of hospitals? How will it affect the administration of the Act? What guidance will be given to social services on how to deal with a notice from Baden-Wurttemberg or wherever an NHS patient is being treated? They may find that a patient whom they had not considered for surgery has had some kind of surgery that has gone wrong or involves community care. The Minister has not foreseen such a situation, and I look forward to hearing what he has to say. It is a matter of some concern to those of us on these Benches, and the Minister should explain in some detail how the system will work.

In drawing up the amendments, we were mindful of the position of hospices. At this juncture, however, we shall not replay the hospice issue; we will return to it

10 Mar 2003 : Column 1119

at Third Reading. However, the issue underlying our probing amendments is so important that we wished to treat it by itself and get a reply on it from the Minister. I beg to move.

Lord Hunt of Kings Heath: My Lords, this question caused great excitement in our debates in Committee. Although the interjection made by the noble Lord, Lord Lucas, was helpful, the noble Baroness, Lady Barker, also took part in the debate on this important issue. I shall deal first with hospices, before turning to independent hospitals and the position of NHS-funded treatment overseas.

As regards hospices, I shall be meeting the noble Baroness, Lady Finlay, to discuss the issue she raised in Committee. I am sure that that will inform any debate at Third Reading. Essentially, Amendment No. 2 repeats the point made in Clause 1(1). The qualifying patient may be accommodated in,

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

The key words are,

    "in pursuance of arrangements made by an NHS body".

Hospices would be treated just as any other independent hospital. If the Bill applied to patients in hospices, patients would have to be in the hospice,

    "in pursuance of arrangements made by an NHS body".

The Government intend the Bill to cover any patient whose care is arranged and funded at an independent hospital by the National Health Service.

I turn now to patients who receive NHS-funded treatment in hospitals overseas. This issue needs to be put into perspective. A small number of patients—approximately 200—have been treated either in France or Germany as part of efforts to reduce the length of time that they may have to wait for treatment in the United Kingdom. We do not expect a dramatic expansion in numbers of people receiving treatment overseas due to limits on capacity in European hospitals to treat extra patients. However, we accept that some overseas treatment can be effective—when the patient agrees and the treatment offers value for money—in reducing the length of time that a patient waits for elective treatment.

Currently, patients treated abroad fall within the scope of the Bill, similar to NHS patients being treated by private providers. The reason is that the definition used of a "qualifying hospital patient" in Clause 1 includes people being treated at an independent hospital as defined in the Care Standards Act 2000. As noble Lords know, the Act does not specify that independent hospitals must be located in the UK.

I want to reassure noble Lords on how this might work. Patients selected for overseas treatment are carefully screened to check that there are no reasons, such as social care or housing needs, which would complicate their discharge. Furthermore, patients receive extra rehabilitation, which can be extended if required, as part of the in-patient stay. The overseas hospitals are all clear that patients should not be discharged until they are able to carry out daily life

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activities, unaided, in their own home. Therefore, patients treated overseas are unlikely to have social care needs on return to the UK. However, should the patient's condition change and community care needs become necessary, it is highly unlikely that an assessment could not wait until the patient returns to the UK. That would not therefore need to be done abroad.

As a point of good practice, the lead commissioners of Kent and Medway already advise local hospitals to alert social services that patients are going abroad under the scheme and inform them of their expected return date. Therefore, social services are involved from the beginning. The commissioners take NHS trusts through the possible situations that may arise so that they are prepared in advance.

On the basis of the operation of the scheme so far, the best information is that it is highly unlikely that a patient treated overseas will require an assessment of community care services before he returns home. The care taken should ensure that patients are more fully recovered before returning home. However, should the scenario arise, it would not be fair to separate this group of NHS acute patients from others. Each trust or PCT which is sending patients abroad retains the responsibility for co-ordinating patient discharge requirements, just as though the patient had been treated in the UK.

Turning to the issue of practicalities raised by the noble Lord, of course I recognise that it would be more complicated for social services to carry out an assessment overseas if that really were required. Therefore, the Government will obviously be considering whether to allow a longer minimum period for overseas assessment. That can be done through regulations under Clause 4. Clause 8 allows that regulations make different provision for different cases and circumstances.

I emphasise that the Bill does not mean that reimbursement charges will be paid to overseas hospitals. Any payment for delays caused by social services will go to the NHS trust or the primary care trust which had commissioned the treatment in the first instance.

In conclusion, I confirm what I said in Committee about the provisions of the Bill extending to patients treated overseas. Based on the experience of the 200 patients, the problems suggested by the noble Lord seem unlikely. The Bill as drafted extends to patients treated overseas because of the construction made in Clause 1.

3.45 p.m.

Lord Clement-Jones: My Lords, I do not know whether to be reassured or surprised by the Minister's reply. He has erected a rickety structure around the proposition that patients treated abroad are brought within the ambit of the Bill. In a sense, that exemplifies the ramshackle nature of the Bill.

The Minister said that although a limited number of patients will be treated abroad, some of them could be affected. Moreover, the intention is that only

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patients who are not expected to have any complications will be treated overseas and that extra rehabilitation is provided for those patients. That means that those patients receiving treatment overseas will have treatment different from patients treated in independent hospitals in England and Wales. There is a special provision. Presumably, teams of lawyers will write contracts with the independent hospitals in Baden-Wurttemberg or wherever. They can carry on their activities unaided. Therefore, different discharge provisions apply to patients who leave those independent hospitals, as opposed to other independent hospitals.

A whole series of exceptions is building up in order to make the Bill work. That exemplifies a key issue expressed by Members on the Opposition Benches. Every time the Minister replies, even to an innocuous probing amendment such as this, contradictions in the Bill emerge. But the Minister relies on the fact that it is highly unlikely that these patients will not be fully recovered—and there will be another exception. Under the regulations, instead of ensuring that care is available after three days, a longer period of time may be specified. There will be another set of provisions which relate solely to those patients treated in hospitals abroad.

I have elicited enough information from the Minister, but it does not reassure me. It may give rise to a series of future amendments at another stage. In the mean time, with some perplexity, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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