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Baroness Barker: My Lords, I thank the Minister for that full response. We all agree that the amendments cover an extremely complex area of law, one which has important implications for older people, for the NHS and for social services. I take some comfort from what the Minister has said, but in other areas I have to say that I have remaining doubts.
I am not convinced that within the timetable outlined by the Minister strategic health authorities will be able to determine whether judgments, often made by predecessor bodies rather than by the authorities themselves, will be Coughlan compliant. At the heart of the ombudsman's report the strong observation was made that both local criteria and the guidance from the department itself were insufficiently clear to enable those judgments to be made. I think I am correct that the Minister did not say that the work to be carried out prior to 28th March will be on the basis of new guidance from the Department of Health. Given that, I doubt whether it will be possible for authorities to go back and ensure that all cases dating from the time we are discussing are in fact compliant.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness for giving way. The strategic health authorities were asked to undertake this exercise last August because we were aware of the import of the cases being investigated by the ombudsman. They have had a certain period of time. I hope and expect that they will respond in an effective manner.
I sought to make clear that the law is not going to change; it is a question of how the law is interpreted. On a number of occasions, we have attempted to explain, in particular to the health service, what we consider the law to be. The noble Baroness will know
Baroness Barker: My Lords, I thank the Minister for those words, but I have to say that his optimism is rather stronger than mine, not least because in the days following the ombudsman's report, strategic health authorities were referring people to primary care trusts for guidance on the matter. When practice on the ground is at such a level, I think that we are facing a real problem. I repeat, older people do face real problems; the ombudsman's report was all about that.
As regards the noble Lord's point about NHS nursing care guidance, his response was perhaps less than I had hoped for. The ombudsman's report made the position clear: given the similarity of the cases, it is necessary for the guidance to be revised. That may not be reflected in the number of individual complaints being made about the level of free nursing care that people have been prescribed, although I think that that has more to do with a complete lack of familiarity with the system.
I do not think it is possible to overstate the importance of this matter. The noble Baroness, Lady Chalker, was absolutely right to draw to the attention of the House the effect of this on people with mental incapacity. The case listed as "A" in the ombudsman's report referred to a person with Alzheimer's disease. The account made detailed points, such as whether it was ancillary to that person's care that he be helped with feeding, for example.
I shall go away and read in Hansard what the Minister has said. We shall return to this issuenot least because we wish to ensure that this ombudsman's report does not suffer the same fate as the previous one of being kicked into touch for a considerable time. I beg leave to withdraw the amendment.
The noble Baroness said: My Lords, Amendment No. 11 seeks to remove from Clause 3 the current subsection (2) in relation to the withdrawal of Clause 2 notices. This is now included in the new clause that we discussed in relation to the previous amendment, which brings together all the actions associated with Clause 2 notices.
Amendment No. 27 seeks to remove subsections (8) to (10), which cover NHS duties following a Clause 2 notice. They are now included in the new clause after Clause 3, which brings together all the NHS dutiesthat is, duties in regard to consulting on the NHS services to be provided to the patient, giving notice of the proposed discharge date and details of how and when the notice of the discharge date should be given. I beg to move.
We had an extensive debate about the importance of the single assessment process in Committee. I thank the Minister for the full written reply he sent to me outlining precisely the ways in which my previous amendment on the subject was unnecessary and defective. Nevertheless, I return to the issue of the single assessment process.
It is clear to anyone engaged in the help and social care of older people that the single assessment process which is being introduced will become a fundamental part of determining the care needs of older people. It is inescapable that the failure of the legislation to trigger that comprehensive assessment creates a large gap, particularly when much of what we have been discussing and other matters depend upon the single assessment process.
I remind the noble Lord that the single assessment process does not have a basis in law; it is not based in primary legislation. The constrictions in the Bill, under which market forces are being brought to bear on judgments between health and social care, will make a distinct difference to the character of the way in which decisions are made.
In its response to me last week in regard to the single assessment process, the department pointed out that part of my amendment was unnecessary where continuing nursing care needs were met in a person's own home. Unless NHS-funded services are to provide social care as welland increasingly they do notit is important that we should reconsider the way in which the single assessment process will sit alongside that.
We are all in agreement that the single assessment process is good; some agree that it will be better when older people are actively involved in its design and implementation. It is at the crux of getting not only the right care but the best quality care for older people and it should be on the face of the Bill.
Baroness Noakes: My Lords, I speak to Amendments Nos. 26 and 29. Amendment No. 26 seeks to insert a new subsection after Clause 3(7) and requires the local authority to consider whether any other NHS bodythat is, a body other than the trust
It is a straightforward amendment. It seeks to ensure that other NHS bodies are brought into the loop. When we debated a similar amendment in Committeewhich, on that occasion, required the NHS trust to consider whether other NHS bodies should be involved and provide informationthe Minister said that it was unnecessary because Clause 3(8) made that implicit.
Amendment No. 26 takes a slightly different tack and seeks to place the responsibility for involving other NHS bodies on the local authority. That assumes that what the Minister told us on the previous occasion about the implicit requirement for NHS bodies to involve each other under Clause 3(8) is a valid statement.
The most important point is that the full range of post-discharge services is considered. Local authorities are particularly concerned about patients being discharged to their homes without the necessary NHS services being put in place. Without those services it is possible that the discharge home and the support provided by social services would be rendered non-viable. The amendment seeks to ensure that all post-discharge services are brought together. In that way, it is to be hoped, nothing will be forgotten. I hope that the Minister will welcome the amendment.
Amendment No. 29 is different. It seeks to amend Clause 3(8) to require the NHS bodies that are considering providing post-discharge services to agree those services with the local authority. If the Government's Amendment No. 27 is agreed to subsection (8) will disappear, but the substance of Amendment No. 29 will remain valid in relation to subsection (2) of the new clause contained in the Government's Amendment No. 34, to which we shall come later.
In Committee, the Minister revealed the anti-local authority sentiment that runs through the Bill. She said that requiring agreement would provide a loophole that could be exploited by local authorities in order to avoid fines. She seemed not to understand that, viewed from the local authority end of the telescope, Clause 3(8), which allows the NHS to assert its own will over local authorities, looks like a loophole to be exploited by an NHS eager to collect money from fines.
If I may say so, the Minister seemed not to understand that partnership working, which the Government claim to support, positively requires agreement about important matters such as post-discharge services.
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