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Baroness Barker: My Lords, before the Minister sits down, I want to leap forward quickly to the next amendment. Can he clarify where responsibility for carrying out NHS continuing care assessments lies?

Lord Hunt of Kings Heath: My Lords, I believe we shall debate that matter when we come to the next amendment. However, clearly the direction that we shall issue, which will ensure that the continuing care assessment takes place before a Section 2 notice is issued, will be directed to a National Health Service body. It is clearly for that NHS body to ensure that the direction is carried out.

Baroness Barker: My Lords, again before the Minister sits down—

Lord Hunt of Kings Heath: My Lords, I believe we are out of order here. Perhaps I may suggest that we discuss that matter when we come to the amendment which deals with continuing care.

On Question, amendment agreed to.

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

Baroness Barker moved Amendment No. 3:

"(c) a decision has been made that the patient will not require continuing NHS health care other than services provided by the NHS under section 5(2), a record has been 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, as has been said, we are returning to one of the key elements in our debate thus far—that is, the subject of NHS continuing care.

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During an earlier stage of the Bill, we talked at some length about the ombudsman's report into continuing care. I believe that a key part of that report bears repetition at this point. The ombudsman said:

    "The long awaited guidance in June 2001 gives no clearer definition than previously of when continuing NHS health care should be provided; if anything it is weaker, since it simply lists 'factors authorities should bear in mind' and 'details to which they should pay attention' without saying how they should be taken into account. I have criticised some authorities for having criteria which were out of line with previous guidance: except in extreme cases I fear I would find it even harder now to judge whether criteria were out of line with the current guidance. Such an opaque system cannot be fair".

The amendment deals with the lack of clarity in the guidance both nationally and in relation to its implementation locally. It seeks to ensure not only that an assessment for NHS continuing care is carried out before a Section 2 notice is issued but that such an assessment is written down, that the person concerned knows the basis on which he has been refused continuing care and that there is a record of that.

The health ombudsman strongly recommends that there should be documentation and that it should be available not only to patients but to successor bodies. We believe that the criteria should be clear; they should be consistently applied; and there should be records stating whether that has or has not happened. That is the purpose of the amendment. I beg to move.

Earl Howe: My Lords, I support the noble Baroness and can add little to what she has so ably said. We debate this Bill against the background of the ombudsman's recent report. If hospital staff are to take informed and correct decisions in implementing the provisions of the Bill, it seems to me self-evident that they must first take informed and fair decisions about whether or not patients are eligible for NHS continuing care. The ombudsman found not only that the department's guidance on continuing care was unclear but also that it was being interpreted and implemented differently in different hospitals and often wrongly.

In 2000, the Royal College of Nursing carried out a review of the eligibility criteria being applied in about a quarter of health authorities in England and Wales. They found that up to 90 per cent of health authorities were acting unlawfully in the way that they assessed people for long-term care funding. There is no evidence that the situation has improved.

In that context, I believe it is right to include in the Bill an explicit requirement for a continuing care assessment to be carried out for every patient and for there to be a record of the reasons for the decision one way or the other. We know that that is what the Government agree should happen. If it is an uncontentious requirement, there can be no reason for omitting it from the Bill, bearing in mind not only its critical importance for patients but also its importance for the smooth operation of the Bill.

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3.15 p.m.

Baroness Finlay of Llandaff: My Lords, I, too, support the amendment for all the reasons that have been laid out so eloquently by the noble Baroness, Lady Barker, and the noble Earl, Lord Howe. The importance of recording a decision cannot be understated, particularly if there is ever to be an appeal against the way that the patient's discharge has been handled.

With explicit criteria for continuing care, which one hopes will be in place everywhere, it should not be too difficult for those who arrange the discharge to detect immediately whether the patient is or is not potentially eligible. Simply recording that step in the process will complete the way that all the data are collected. For patients where assessment must be carried out, it is important to document the date and the pathway of the assessment process. This is an important amendment for reasons of completeness, in order to protect patients from potentially unnecessary over-assessment, and to save social services the time involved in making arrangements for a patient who may then turn out to be eligible for continuing care.

Lord Hunt of Kings Heath: My Lords, I have some sympathy with the substance of the points raised, although I do not believe that it is necessary to accept the amendment. However, I want to respond to the points mentioned by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, in relation to the departmental guidance issued in 2001. As I said during the Starred Question earlier today, we shall consider the guidance in the light of the review currently being undertaken by strategic health authorities, which have been asked to report back to the department by the end of March. We shall consider those matters and study the ombudsman's report carefully.

Equally, I do not deny that, when it comes to individual decisions about whether or not a particular patient is eligible for continuing care, hard decisions must be taken by practitioners at local level. But I believe that the departmental guidance issued in 2001 and, in particular, Annex C of that guidance, gives a great deal of assistance to NHS authorities on the issues that they should be discussing with local authorities when establishing their eligibility criteria.

I shall not go through the seven points listed in the guidance but I believe that they set out helpfully the type of issues that need to be discussed and decided. While individual cases will always involve difficult decisions and there will always be borderline areas, I question whether the fundamental principles contained in the current guidance are as far off the point as has been suggested. However, we shall consider that matter carefully.

However, from my own reading of the conclusions of the ombudsman's report, which has been, and will be, very helpful in thinking through what we need to do in the future, I believe that much of the problem stemmed from the failure of NHS bodies locally to develop eligibility criteria in accordance with the guidance that had already been established and set out.

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That is another matter that we shall have to consider closely before deciding whether to make any changes to the guidance.

Having said that, as I said on Report, I have a great deal of sympathy for the intent behind the amendment. We have made clear throughout our debates on the Bill that the first decision in the assessment process has to be whether someone needs continuing care. We have also made clear that that should be done by the relevant NHS body before issuing a Section 2 notice. My colleague in another place, Jacqui Smith, emphasised that on Report when she said that the first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care.

The ombudsman's report highlighted that trusts are not always sufficiently well informed of the assessment process and eligibility criteria. That is why I responded last week with a commitment to issue regulations and, following from that, directions to make clear to the NHS what is required. The approximate form of words that we intend to use for the regulations in respect of a Section 2 notice is, "confirmation that an assessment for continuing care has been carried out in accordance with the directions issued to NHS bodies at some time during 2003".

The legally binding requirement will be placed in directions to the NHS. We shall consult on those directions and issue them at the same time as regulations come into force. The directions will require NHS bodies to carry out an assessment for continuing care for any qualifying patient before a Section 2 notice is issued. The direction will meet the points that I believe have been raised in our debates. It will specify that the assessment for continuing care is to be carried out, that a record is to be made of that assessment, and that the patient was informed of the right to ask that that decision be reviewed, and of the outcome of the review.

That shows our seriousness of purpose in that area. I believe that the combination of the regulation and the strength of the direction to be issued to the NHS shows that we have listened and that we have met the concerns. In the spirit of our debates in this House I believe that noble Lords will recognise when a point has been accepted, that the Government, indeed, are keen to ensure that this matter is dealt with effectively by the NHS and that everyone will be assured that the assessment in relation to continuing care will be carried out before a Section 2 notice is issued.

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