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The Lord Bishop of Hereford: My Lords, I support this group of amendments. They go to the heart of what many old people and the organisations that represent them have found unacceptable in the Bill. To be admitted to an acute hospital is a traumatic experience. Elderly people will be confused, uncomfortable, ill at ease and bewildered by what has been going on. The sense that they are no longer in control of their own lives is inevitably there for patients in an acute hospital.
At the end of the episode of treatment, it is absolutely vital that people are properly consulted and give their consent. I agree with the noble Earl, Lord Howe, that Amendment No. 7 is to be welcomed but simply does not go far enough. Informed consent must be written on the face of the Bill.
In representing those who try to offer the ministry of the Church in hospital, I am often frustrated by the new patient confidentiality arrangements. Parish clergy wish that they could gain access to lists of patients and all the other things that we used to be able to do but no longer can. That can be frustrating. I recognise that it is necessary to defend the rights of patients to privacy and their ability to decide about their own future. Age Concern has raised the question
that this issue could potentially breach Article 8 of the European Convention in regard to respect for private and family life, home, correspondence and so on.As the noble Earl said, not many people will want to refuse the opportunity of discussing what is going to happen with social services. Almost all will be grateful for the opportunity of at least knowing what options are open to them. But it is very important that consent is forthcoming. It is self-evident that the amendment would be a significant humanising of the Bill and would meet the objection made by so many people that the Bill does not treat elderly patients fully as human beings. The word "commodities" has been used. I know that the Minister does not like that word and resists it.
I strongly support this group of amendments. If we are to take the pastoral needs of elderly patients seriously, they must be allowed to give consent.
Baroness Andrews: My Lords, I am grateful to noble Lords who have spoken in the debate. This is an important issue and I am grateful for the conditional welcome that has been given to the Government's Amendment No. 7. I shall speak first to Amendments Nos. 3, 5 and 6 and place Amendment No. 7 in that context.
The current position is that, in exercising their functions, the NHS and social services must give all proper information to a person so that he can make an informed decision about whether or not to accept care or services. These are fundamental duties which stem from the fact that they are public bodies. Technically, therefore, there is no need to make provision for consultation on the face of the Bill.
However, bearing in mind what the noble Earl, Lord Howe, said—that we have to be careful not to be too clinical and to lose our humanity in the process—we are happy to respond to the concerns expressed in Committee and we have brought forward the Government's amendment. It will place a duty on the NHS to consult the patient and, where appropriate, his carer, prior to issuing a notice to the local authority of the patient's likely need for community care services upon discharge under Clause 2. We are all keen to avoid wasting the time of the NHS and social services by initiating assessments which are not required or involving patients in assessment without their prior knowledge. The Government's amendment will avoid that and reinforce the existing good practice which dictates that the patient must be kept informed and consulted at all stages of the assessment process.
The noble Earl is right, this would have happened in any case, but we are happy to put it on the face of the Bill. We are confident that it will make a difference and we are grateful for the support it has received.
A point was raised about the nature of a Clause 2 notice and the question of confidentiality and privacy. In Committee, I stressed that a Clause 2 notice is a very basic notice which simply requires the basic details about a patient—name and address and so forth. With regard to whether this is likely to breach Article 8 of the ECHR, I am told that the matter has been checked
and our advice is that no breach of Article 8 is implicit in the provision and we are confident, therefore, that we can protect the confidentiality of the patient.I turn now to the issue of carers. I am grateful for the support of my noble friend Lady Pitkeathley. There is no one in this House who speaks with more authority about the work of carers and the implications that the Bill will have for them.
The requirement to consult a carer is slightly circumscribed in that the NHS body has to consult a carer only if it knows who the carer is and if it is reasonably practical to find out. This avoids any question of accidental or avoidable delay, which we want to minimise as much as possible in the Bill.
In addition, the Bill will be backed up by practical provisions. The guidance will emphasise the importance of consultation. The good practice workbook emphasises, in a whole chapter on patients and carers, what we mean by consultation and the importance of it. There is already a great deal of good practice in the process from which other local authorities can learn.
Noble Lords have rightly said that there is a difference between "consult" and "consent". It is important to be clear about the difference and to understand the implications of putting "consent" on the face of the Bill—which explain our difficulty with it. The Bill does not prevent a patient from refusing to co-operate with the NHS or social services in an assessment. That is the inviolable human right that patients have. But to give a person the right to prevent the NHS from taking the first step to inform local authorities that, in its judgment, for the well-being of the patient there may well be a role for social services on his or her discharge, would be counter-productive. It would do nothing to ensure that the patient would receive the most appropriate care available. It would require extra and unnecessary bureaucracy. It would not reduce delays.
I state again that, if the person involved does not want help from the social services—no matter how great his or her need, or for whatever reason—it cannot be forced upon him or her. Surely that is the most important point to bear in mind. There has to be a way of initiating contact with the social services which takes account of the patient's feelings. I believe that the requirement that we seek to add via Amendment No. 7 is sufficient to ensure that that proper balance is maintained.
I turn now to Amendments Nos. 15, 16, 20—to which the noble Earl spoke—and 23. The amendments propose that local authorities should consult with parents and carers during the assessment process. The problem that we have is that we are alarmed that such a provision would cut across the existing assessment process.
Clause 3(11) clearly ties assessments carried out in accordance with the duty in Clause 3(3) to assessments carried out under Section 47 of the National Health Service and Community Care Act 1990. We are very clear that there should be no difference in the type or
standard of the assessment to which a person is entitled. We have spent a great deal of time on the single assessment process. The amendments would differentiate an assessment carried out in accordance with Clause 3(3) from other Section 47 assessments. We are concerned about this. We believe that it would introduce confusion into the Bill which might hold up assessments, cause duplicate assessments or cut across assessments. So we do have a problem.A point which should reassure the noble Earl is that social services are public bodies exercising public functions. They are bound by fundamental duties which require them to give all the information necessary for someone to make an informed decision. That includes information about the cost of care. I know that the noble Earl is concerned about this. Local authorities have received statutory guidance to provide information about costs and as part of the care planning process for a number of years. But, more importantly, the single assessment process requires them to give all information including costs. That is important.
I turn now to some of the points made about the importance of consent in this context. The noble Earl used strong language, as did the right reverend Prelate the Bishop of Hereford, about patients being forced or cowed into choices that they did not want to make. It was suggested that they would be treated as parcels or commodities.
My noble friend said in Committee, and I reiterate, that nothing could be further from the intention or, we believe, from the practice which is presently in operation. The single assessment process which was introduced three years ago has at its heart the concerns that we have for the patient, the patient voice, what it is that we can understand when we listen to patients, and what they need.
The Bill is not about reducing or minimising the voice of the patient or what we provide according to what patients see as their need. I reiterate that because it has been stated several times in this Chamber that there is a problem. I stress that the Bill makes no difference to a patient's rights with respect to consent. Patients have a right not to consent to receive services and an absolute right not to have services forced upon them.
Amendments Nos. 30 and 31 seek to place an equivalent duty on the NHS to consult patients and carers and to gain a patient's consent to services being provided following his or her discharge. These amendments are not necessary. Just as with the treatment provided by the NHS in hospital, a patient also has the right to withhold consent to services provided by the NHS in another setting. The Bill does not alter the existing requirement of the NHS to gain consent.
Likewise, we believe that Amendment No. 32 is unnecessary. It requires the NHS to inform the patient and his or her carer of the proposed discharge date. We believe that this is a matter of detail which does not sit appropriately on the face of the Bill. Moreover, it is absolutely clear in the discharge workbook, and we
shall make it clear in the statutory guidance, that the patient is to be provided with this information so that he or she and his or her family are in no doubt about the discharge date.But the amendment would place an entirely new duty on the NHS to gain the patient's consent to discharge. We must address this very serious question. At present, no NHS patient has a right under existing law to prevent his discharge by withholding consent. It would surely be inappropriate for such a right to be given when we consider that it would effectively give a patient the legal right to remain in a hospital bed indefinitely.
The decision regarding the date of discharge must take into account all the medical and social facts. The guidance makes it plain that it must be taken in consultation with the patient and with all relevant parties.
I turn finally to government Amendments Nos. 22, 23A and 58. I apologise to the House for the fact that these amendments were laid late and there were mistakes in them. Noble Lord will have received a letter to that effect, but I reiterate that we are very sorry about the drafting errors and we hope that the amendments will clarify what is in the Bill.
The amendments add a definition of "carer" to Clause 9, which is in the part of the Bill dealing with interpretation. There have now been a number of amendments to the original Bill dealing with carers, and the term now appears in more than one clause. It was felt that the drafting would be simpler if reference was made in the body of the Bill simply to "carer" and if the term was then defined in the interpretation clause, rather than leaving it in Clauses 3 and 5. The other two amendments are consequential on this.
I hope, in view of the noble Earl's remarks, that he will not in fact be disappointed that we cannot accept some of his amendments. I hope that he will accept our views about the difficulties that they would cause and will feel able not to move them.
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