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Earl Howe: My Lords, I support Amendment No. 10 and have added my name to it. I am grateful to my noble friend Lady Chalker of Wallasey for the vivid light that she was able to cast on an important issue.

The recent report by the health ombudsman makes for a shocking read. I am sorry to say—it emerged clearly from what the noble Baroness, Lady Barker,

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said—that the Department of Health comes out of the report with little credit. Since 1995, four edicts of one kind or another have emanated from Richmond House: the 1995 guidance; an executive letter in 1996; interim guidance following the Coughlan judgment; and yet more guidance in 2001. Despite all that, the ombudsman found that at local level the criteria to determine eligibility for NHS continuing care were being followed wrongly; the criteria were, in any case, not in accordance with central guidance; health authorities had done little or nothing to remedy that; and the Department of Health, in its turn, had done nothing to hold health authorities to account for their shortcomings.

In the Coughlan hearing, the Court of Appeal found that the earlier guidance was unhelpful, because it did not provide unequivocal pointers by which the rules could be correctly implemented, hence the revised guidance that followed. But in her report, the ombudsman says:

    "The long awaited further guidance in June 2001 gives no clearer definition than previously of when continuing NHS healthcare should be provided: if anything it is weaker . . . I would find it even harder now to judge whether criteria were out of line with current guidance. Such an opaque system cannot be fair".

That is an appalling indictment, and it is perhaps not surprising that, despite having no formal jurisdiction over the Department of Health, the ombudsman took it upon herself—unusually—to recommend that the department took certain remedial actions.

One thing is clear: the system is an utter mess. We need to hear from the Minister how he thinks the system of reimbursements foreshadowed by the Bill can be brought into operation smoothly and efficiently, if the procedures for assessing a patient's eligibility for continuing NHS care are in such a shambles. The answer is that it cannot. Step 1 must be to sort that out. Even if the Department of Health were to agree with the ombudsman and decide to promulgate fresh, crystal-clear guidance, the process for drafting the guidance, consulting on it, finalising it and training people up to follow it would, at best, take several months: it cannot be done in a hurry.

Therefore, for the Government to say that they are prepared to countenance only a six month delay on the implementation of the Bill, instead of the year that the House insisted upon three weeks ago, I would suggest is pie in the sky. How can a system like that be allowed to commence when the chances of a hospital making a mistake about the need for social service involvement are so high? The financial consequences of such an error—to the local authority certainly, but more importantly to the patient—are potentially so serious that it would be irresponsible to bring the Bill into force without first resolving the issue of continuing care. I put that to the Government today as they decide what to do about the amendment made in your Lordships' Committee.

On 15th January in another place, 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".—[Official Report, Commons, 15/1/03; col. 741.]

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I could not agree with the Minister more. That is exactly what should happen. That is why Amendment No. 10 has been tabled. Apart from the main thrust of her criticisms, the health ombudsman was concerned that in the hospitals she looked at there was no documentation to establish how the hospital reached the conclusion that the patient did or did not fall within the criteria for continuing NHS care. Proper recording procedures in every trust are surely essential. That recommendation, too, has been followed up in the wording of Amendment No. 10.

If the provisions of the Bill are to work, the whole system must be transparent and clear to everyone—practitioners, social services and patients. Transparency of decision-making depends on clear and consistent guidance being in place. Without that, we are at severe risk of encumbering and penalising local authorities unfairly, and pauperising patients without justification. That is the issue. I hope that the Minister will take note.

6.15 p.m.

Lord Hunt of Kings Heath: My Lords, this is an important matter. It may be helpful if I respond to this group of amendments by first explaining to noble Lords how the Government are responding to the ombudsman's report. I believe that it sets the context in which we can discuss these amendments. In response to the noble Baroness, Lady Chalker, I recognise that the problems concerning the boundary between health and social care, disagreements between statutory authorities which have a direct impact on the service that people receive and the risk—as the noble Baroness describes it—of people falling through the net between different statutory authorities, must be tackled with vigour.

One reason for introducing the Bill relates to delayed discharge, ensuring that health and social care work together and that there are no gaps. I believe that the introduction of the single-assessment process is one of the great foundations of trying to ensure that there is no gap between social care and the health service and that people are not treated in the way that the noble Baroness described. Certainly, I accept that the report of the ombudsman is serious and that my department should pay a great deal of attention to it.

Perhaps I may now turn to a number of recommendations made by the ombudsman. The first question is: will the department recommend that all continuing care cases since 1996 are reviewed? In August 2002, in response to a case featured in the ombudsman's report, the Department of Health instructed all strategic health authorities to review previous continuing care criteria and agree new criteria across their boundaries. The department has reiterated to strategic health authorities their responsibility to review continuing care criteria and agree with local councils one set of criteria within their area.

On 27th February, Sir Nigel Crisp, Permanent Secretary at the Department of Health, issued an instruction to the NHS to complete its work, to agree

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with local councils one set of criteria for continuing care in line with the guidance issued by the department in June 2001 and to report back to the department by 28th March with details of the final criteria agreed. Each strategic health authority is required to report back to the department by that same date with details of whether continuing care criteria, in use since 1996, were consistent with the Coughlan judgment. If the criteria were not consistent with that judgment, when was that identified and what action has been taken? In addition, the strategic health authority was asked to give an estimate of the number of people who may have been wrongly assessed under criteria not consistent with that judgment. The ombudsman's report has been sent to all strategic health authorities and social service inspectorate regional offices.

As regards the current guidance and the critique of it by the ombudsman, the Government are to consider the recommendations. We shall review the guidance carefully. The ombudsman's report acknowledges the difficulty of setting fair and easily comprehensive criteria. In Coughlan, the court stated that a clear line between responsibilities of the NHS and local authorities was difficult to draw. Each case should be judged on its own particular circumstance. We shall be looking at those matters very carefully.

In respect of monitoring and checking criteria, I said that all strategic health authorities have been sent copies of the report directly. We expect them to agree new criteria which reflect the Coughlan judgment and ensure a consistent approach to the issue. The Government will pay careful attention to how that is undertaken.

I turn now to the substance of the amendments. Throughout the Bill, we have been clear in our understanding that the first decision in the assessment process is whether someone needs continuing care. That should be done by the relevant NHS body before issuing a Section 2 notice. As pointed out by the noble Earl, Lord Howe, that was emphasised by my honourable friend Mrs Jacqui Smith on Report in another place. There is no doubt that the ombudsman's report highlighted not only problems in four parts of the country, it also identified problems in the assessment process. I readily accept that trusts are not always sufficiently informed of the assessment process and the eligibility criteria. That is a point which we must take seriously.

Therefore, as a result, today I am committing the Government to ensuring that in the regulations governing the form of a Section 2 notice, the NHS will be required to confirm in the Section 2 notice that an assessment for fully-funded NHS continuing care has been carried out before that notice is issued. In making that statement to your Lordships' House today, I hope that I have reassured noble Lords that we expect the assessment of continuing care to be made first, before a Section 2 notice can be issued.

It will not then be possible for anyone who could require NHS continuing care to be discharged to social services before an assessment, informed by the single-assessment process, has been carried out. By placing

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what effectively amounts to requirements on the NHS in regulations to assess the continuing care, that will make it easier for us to revisit and strengthen this provision should it be necessary. Although I have sympathy with the intention of Amendment No. 10, I do not believe that it is required in the light of the commitment that I have given.

The effect of Amendment No. 33 would be to require the commission for healthcare audit and inspection to inspect the criteria for continuing healthcare and their application, along with payments for NHS-funded nursing care, and to take action where they are restrictive.

Again, while I understand completely what the amendment is driving at, I do not think it is necessary. I want to assure noble Lords that we are already acting to ensure that the criteria for continuing healthcare are inspected. We have asked CHAI if the inspection of the national service framework for older people could include reference to continuing care within the examination of person-centred care and age discrimination. I have referred already to the review being undertaken by strategic health authorities of the continuing care criteria. We shall look closely at the reports from the health service due by 28th March.

On the application of criteria, the ombudsman did not actually recommend scrutiny of the application of criteria in the future, but she did recommend that the department's guidance should be reviewed and that the assessment of eligibility for continuing care should be linked with the single assessment process. I have already explained that we are taking measures to strengthen assessment at the point of hospital discharge and that we are already taking practical action to address the issues raised by this amendment.

There is a further reason why I would suggest that the amendment would not work well. The department's current guidance states that:

    "The Coughlan case illustrated that decisions about the respective responsibilities of the NHS and social care must be made on the basis of a careful assessment of the facts in each individual case. This should be borne in mind at all times".

The law has not changed to allow us to say anything different and any actions to scrutinise the application of criteria must remember it. Is it really feasible to review the application of criteria in every single case? Surely it is better to ensure that the framework within which these decisions are made fully reflects the Coughlan judgment. Strengthening assessment and making strategic health authorities agree new Coughlan-compliant criteria will do that.

Again, the last part of the amendment on scrutinising NHS nursing care payments is not necessary. We have the system in place already. We said in guidance that people entering a nursing home after October 2001 should have their needs assessed within three months and every 12 months after that, or when there is a significant change in their health status. A formal review can be requested if people are dissatisfied with the amount of care they are receiving from a registered nurse, and a further determination of

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nursing care needs carried out. The strategic health authority's continuing care panel may also review any determination of care by a registered nurse.

I should also remind noble Lords that the reason we have three bands of nursing care is to ensure that people receive the care they need. During the first 12 months of the scheme very few reviews were carried out, suggesting that any complaints were resolved at the local level. So we already have a system, with reviews on a case by case basis, to provide people with the nursing care they need.

In conclusion, I do not underestimate the importance of the matters that have been raised by noble Lords in our debate. However, my assurance is that in the regulations—the draft of which noble Lords have seen already—we shall ensure that, in governing the form of a Section 2 notice, the NHS will be required to confirm in the notice that the assessment for fully-funded NHS continuing care has been carried out. Alongside that is the action we are taking in the light of the ombudsman's report, including the review of what has happened in the NHS and the reports that will be submitted to the department by the end of March. I hope that I have been able to assure noble Lords that we are taking this matter extremely seriously.

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