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Baroness Barker: My Lords, I thank the noble Baroness for her further clarification. It is extremely welcome, particularly at this time, when health and social care agencies are learning the lessons of the Climbie inquiry. I wish to ask two questions. The first, which we discussed to an extent in Committee, is the form that the notice will take. Will it be given by consultants, or will it be appended to patients' notes? The second relates to the issue of a named person. Sometimes, when discharges go wrong, a key factor is lack of understanding between the care agencies as to who they should deal with in an acute hospital—for example, is it a consultant or a discharge officer? Is it possible to take the welcome clarity a step further?

Baroness Andrews: My Lords, I understand that the form of notice is still under discussion. I shall let the noble Baroness know as soon as we know the outcome of deliberations. The person responsible for discharge is named in the regulations, so I hope that the noble Baroness is satisfied on that point.

I cannot answer the question raised by the noble Earl, Lord Howe, on the set intervals for review under the regulations, not having had advance sight of the regulations. But we will come back to him on the matter, as we will on reimbursement. I commend the amendment to the House.

On Question, amendment agreed to.

Baroness Andrews moved Amendment No. 9:

(1) A notice under section 2 remains in force until the patient to which it relates is discharged, unless it has previously ceased to have effect by virtue of subsection (2) or (3).
(2) The responsible NHS body may withdraw the notice by giving notice of withdrawal to the responsible authority.

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(3) Regulations may prescribe other circumstances in which the notice ceases to have effect.
(4) If the notice ceases to have effect before the patient is discharged—
(a) no further steps under section 3, (Duties of responsible NHS body following notice under section 2), or 4 resulting from the notice shall be taken and no liability (or further liability) to make a payment under section 4(4) shall accrue; and
(b) the responsible NHS body may (subject to section 2(1)) give a fresh notice under section 2 in relation to the patient;
but paragraph (a) does not affect any liability which accrues before the notice ceases to have effect.
(5) Regulations may provide for—
(a) the form and content of—
(i) notices under section 2; and
(ii) notices of withdrawal under subsection (2),
and the manner in which such notices are to be given;
(b) circumstances in which notices under section 2 must be withdrawn; and
(c) determining the day on which a notice under section 2 or a notice of withdrawal under subsection (2) is given (including provision prescribing circumstances in which a notice under section 2 is to be treated for any specified purpose as having been given on a day other than that on which it was in fact given)."

On Question, amendment agreed to.

Clause 3 [Duties arising where a notice under section 2 is given]:

Baroness Barker moved Amendment No. 10:

    Page 2, line 39, at end insert "and there has been a decision made that the patient will not require continuing NHS health care other than services provided by the NHS under section 3(8), and a record made of why the patient is considered not to meet each of the criteria for such care, and the patient has been informed of his right of review of this decision."

The noble Baroness said: My Lords, NHS continuing care has been an important issue for several years but has come to prominence in the past two weeks because of the report by the health ombudsman, NHS Funding for Long Term Care. Many discharged patients simply do not receive the continuing NHS-funded care to which they are entitled. In many cases, either the local authority or an individual ends up paying for care when the responsibility should lie with the NHS. At present, people can be treated very differently even though their circumstances—for example, the state of their health—may be similar.

It is unfortunately necessary for me to talk at considerable length about the matter. There is increasing confusion between terms with different meanings, such as NHS continuing care and nursing care. It is important that the distinction is clarified. When the discharge of a patient is reviewed, there should be an assessment for continued NHS care, with a record of how any decision has been reached, prior to any assessment by social services. This amendment, combined with a later one on the single assessment process, is designed to achieve that. Unless the initial decision is correctly made, social services could take responsibility for people who should remain the responsibility of the NHS. Although that applies

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equally to people who require NHS care when they are at home, it is particularly applicable to care in nursing homes.

The issue is much wider than delayed discharges. But it is essential that Parliament looks at the matter, particularly during consideration of this Bill, given the ombudsman's report. The report highlights the deficiencies in deciding when a person should be fully funded by the NHS in a nursing home and remain its responsibility, even if he or she no longer needs to be in hospital. Local authorities need to be clear that the NHS criteria used locally should be in line with the law and guidance and properly adhered to in the decision-making process. If that does not happen, local authorities might take responsibility for people whose needs are beyond the scope of a care package. They may incorrectly face fines if there is a delay in provision of social care.

We suggest that an independent body be given powers to scrutinise the criteria for NHS continuing care and its application. That would achieve consistent criteria and consistency of criteria application across the board. Such a change would be in line with the health ombudsman's recommendation to ensure that the NHS keeps clear records on how initial decisions are made on whether continuing NHS healthcare is needed. The Bill should be used to establish a duty to carry out an independent scrutiny of the criteria for NHS continuing care and its application. The Bill would also establish a clear path for patients who disagree with a decision that they do not require continuing NHS healthcare and a fast-track dispute system for patients.

The boundaries between NHS continuing care, which is free of charge at the point of use, and care provided either by social services or a self-funder are grey. However, it is a huge issue with huge ramifications for the NHS, social services and patients. The health ombudsman made clear in her recent report that there may be a widespread problem and considerable financial loss to individuals, given the cost of paying for care that should be funded by the NHS. The role of social services as a provider of long-term care is limited by statute to accommodation and ancillary services. It should not provide care services that relate to healthcare needs. Although nursing care provided by registered nurses is now the legal responsibility of the NHS, the funding regime provides only a contribution to free nursing, which is often absorbed in higher nursing-care needs; otherwise, the costs of long-term healthcare are in the main met inappropriately and sometimes unlawfully by social services charges.

In 1994, the then health ombudsman found that the NHS had retreated too far from providing long-term care. As a result of those findings, new guidance was issued by the Department of Health in HSG 1995/08. That set out the framework within which the then health authorities were to develop their own criteria for continuing care. When concerns came to light that some criteria were operated over-restrictively, further guidance in the form of an executive letter was issued.

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In 1999, the Court of Appeal in the Coughlan case found that although the law allowed social services departments to take responsibility for some nursing care when a person was in a care home, it depended on whether it was,

    "(i) merely incidental or ancillary to the provision of the accommodation which a local authority was under a duty to provide",


    "(ii) of a nature which it could be expected that an authority whose primary responsibility was to provide social services could be expected to provide".

The Court of Appeal was clear that just because a resident at a nursing home does not require in-patient treatment at a hospital does not mean that his or her care should not be the responsibility of the NHS. Some, because of their health needs, should be regarded as wholly the responsibility of a health authority. The Court of Appeal went on to say that the difficulty is in identifying the cases which are required to be placed in that category on their facts in order to comply with statutory provision.

The issue is the degree of care that can be described as being only ancillary or incidental. Noble Lords will know, because they have spent many hours during the passage of different Bills discussing it, how difficult it is to draw that distinction. However, in her report, the ombudsman made two important findings: first, the guidance issued by the Department of Health is unclear; and, secondly, the local policies operated by health authorities include criteria that may be applied differently to people who have similar needs.

We have tabled the amendment now because, when people are being discharged from hospital, it is of fundamental importance that there should be an assessment of their continuing NHS care needs. They should have a right to appeal against any judgment not just on the basis of the application of the criteria but on the basis of the criteria themselves. In another place, on Report, the Minister, Jacqui Smith, said:

    "the first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care ... If patients want to dispute that, they can appeal to the continuing care panel".—[Official Report, Commons, 15/1/03; col. 741.]

Although that is a welcome assurance, the health ombudsman's report indicates that there are two further issues: the decision that a patient does not require continued NHS healthcare could be flawed if the criteria are too restrictive; and the application of those criteria may be incorrect.

The ombudsman's report refers to the cases of people who are being denied continued NHS care when their healthcare needs are almost identical to those cited by the Government as making them eligible for the highest band of nursing care. It would be a positive step to have records of how decisions are made and to have clarity in the Bill about the dividing line between NHS-funded care in nursing homes and continuing care. At the moment, there is great

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confusion, and people are being treated differently—almost by lottery—from others who have exactly the same condition.

There is one more reason for addressing the issue now. Throughout my speech, I have spoken about health authorities, and all existing legislation refers to health authorities. However, the question of who is responsible for making the assessment for NHS continuing care is of key importance. It will no longer lie with health authorities—in future, it may lie with foundation hospitals—and it is important that the process by which the decision is made is clear and complies with national criteria. That is why we move the amendment. I beg to move.

6 p.m.

Baroness Chalker of Wallasey: My Lords, I support the amendment moved by the noble Baroness, Lady Barker, because of recent experience of trying to help an old friend who has faced exactly the circumstances that the noble Baroness described.

The greatest problems are found in cases of mental ill health, in which there needs to be the continuing prescription of fairly heavy drugs to prevent self-injury or injury to others. Social services are fond of declaring that they do not have the resources to look after such persons and that they do not have placements into which they can securely be put. In the case of a person who is sectioned and must remain in locked accommodation with nursing care, there is an ongoing battle that is revisited every six months or so by the social work department because the NHS is unwilling to pay and social services say that they do not have the money. We should not allow such a circumstance to continue. It has created great trauma in the case of a man who has tried four times—on home leave or when they tried to let him go home from hospital—to commit suicide in front of his wife. The social worker said that he needed neither nursing care nor secure care, when the consultant psychiatrist claimed that he did. That shows how bad circumstances have become.

I shall not pursue the matter at length, but, many years ago, when I dealt with such cases, we usually found an easier way to resolve matters. That may have been because I was in another place, not here. Now, it is becoming a fight. In the case to which I referred, the carer has a sick husband—a highly intelligent sick husband—to look after and suffers greatly. The carer also looks after her 94 year-old mother. In such a circumstance, the case outlined by the noble Baroness, Lady Barker, is at one with the reality faced by ordinary people, particularly in the case of mental ill health. I hope that the Minister will respond favourably to the amendment.

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