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Earl Howe: My Lords, while the concessions made are not all on the face of the Bill, we now have a more patient-centred measure than before, which is a thoroughly healthy development. I retain a small measure of disquiet about possible abuse of patient confidentiality—even under the tighter rules that the Minister outlined. I add my thanks for the comprehensive letter sent by the Minister's colleague, Jacqui Smith, a few days ago.

It is important never to lose sight of patient confidentiality. We can be cavalier about it. We can even be cavalier about it within the confines of the NHS—but outside the health service, it is important to remember that sensitivities must be observed as much as possible. That said, we have taken several major steps forward and I thank the Minister for her part in that process.

Baroness Finlay of Llandaff: My Lords, I am grateful for the changes to the Bill, which is moving away from over-rigid enforcement of consent by patients—to whom the thought of signing something might seem threatening—in favour of consensus and assent.

I noted with interest the Minister's comment that the interview with the social worker would record the carer's views and the outcome of the consultation in the case notes. Can the Minister clarify whether that will be done in the clinical case notes from the patient's ward or in the case notes held by social services? That has some implications for who will audit the process and be responsible for making sure that consultations are routinely recorded—so that one can be sure that the process was one of negotiation.

As the noble Earl said, older people are often frightened about any breach of confidentiality—particularly in respect of financial issues. They are absolutely terrified of information about their assets leaking out and feel vulnerable to crime. When older people are ill, they may have a distorted perception of the world around them. Face-to-face contact with a social worker is important but we need to ensure that the audit processes are implemented, to ensure that the Bill's important provisions are continually enacted and that no shortcuts are taken—and so that if there are any local breaches, they can be acted upon quickly.

4.45 p.m.

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Baroness Howarth of Breckland: My Lords, while recognising the need to respect patient confidentiality, a huge amount of aggregated data will be created that could tell us a lot about how services are being delivered. Is there any intention of collecting that data? I was recently involved in another review where it was clear that there was a huge lack of consistent information to underpin strategic planning. It would be useful if we could capture relevant data to provide good information for the future.

Baroness Andrews: My Lords, the noble Baroness, Lady Howarth, makes an important point. Part of the task of the team working on implementation will be to work out how such information can be most effectively used—perhaps as part of the single assessment process, if appropriate.

Perhaps I may say to the noble Baroness, Lady Finlay, that we are talking only about recording the fact that a consultation has taken place—so the clinical notes would not be relevant in that context. The Section 2 notice itself will provide the record.

Baroness Barker: My Lords, in view of the Minister's response, I beg leave to withdraw the amendment.

Amendment No. 6B, as an amendment to the Motion, by leave, withdrawn.

On Question, Motion agreed to


14 Clause 3, page 2, line 41, after "consulting" insert "the patient and having obtained the informed consent of the patient or, in the case where a patient lacks the mental capacity to give such consent to the proposed care plan, having recorded on the file what steps have been taken to ensure that the patient's best interests have been duly considered, and after consulting" The Commons disagreed to this amendment for the following Reason:

14ABecause it is unnecessary to add additional requirements in relation to community care assessments under clause 3(3) and it is undesirable to differentiate between assessments under clause 3(3) and other assessments carried out under section 47 of the National Health Service and Community Care Act 1990.

Baroness Andrews: My Lords, I beg to move that the House do not insist on their Amendment No. 14 to which the Commons have disagreed for their reason numbered 14A.

The amendments in this group raise the crucial issue of informing and involving patients and carers in the performance of a social services assessments and decisions as to which services are to be provided. Amendments Nos. 14 and 15 propose that local authorities should consult patients and carers during the assessment of community care needs and obtain their consent to the care plan. Amendment No. 16 would further require the local authority to inform patients of the costs.

The Bill makes no difference to a patient's rights with respect to consent. Patients have an existing right not to consent to receiving the services that social

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services have assessed as being needed. Neither social services nor the NHS have the right to force services upon a patient who does not want to receive them.

Clause 3(11) makes it clear that the assessment and care planning process is part of the Section 47 assessment process and therefore one stage or part of the single assessment process. We do not want to undermine that connection or consistency. Singling out the assessment in the care planning process from all other Section 47 assessments and care planning would differentiate the process in the Bill from all others of assessment and care planning inside and outside the hospital—which would lead to confusion between agencies and lack of co-ordination.

I want to re-emphasise and reiterate our solution, given in a statement by my honourable friend the Minister in another place, for how we will tackle the concerns expressed in the amendments for all Section 47 assessments. Section 47(4) of the National Health Service and Community Care Act 1990 contains a power for the Secretary of State to issue directions as to the manner in which assessments are carried out. We will therefore issue a direction under this power to make it clear that the local authority, having assessed the needs of the patient, should consult the patient before deciding which services to provide, gain agreement to the care plan where possible and provide information about the costs of that care plan to the patient.

This will be the first time that this direction-making power has been used in 12 years. Through this direction we will require all Section 47 assessment processes to reach this standard on consultation and agreement. Therefore the effect will be far greater than an amendment to the Bill. Since it will affect all Section 47 assessments it will bring consistency to the assessment process, including the single assessment process, and it will be equally legally binding on all Section 47 assessments.

The direction would cover all the points made in Amendment No. 16 apart from an absolute duty to gain consent to the care plan and the exact wording on mental incapacity. This is because the use of the word "consent" could mean that the council spend months trying to gain consent to a care plan from someone who was unreasonably withholding consent. Since the 1990 Act it has been practice that assessor and user should agree the care plan and we would propose that the directions should carry the wording,

    "take all reasonable steps to reach agreement",

which gives the right balance of reasonableness to both parties; the patient and the council.

We would not use the wording in Amendment No. 16 on mental incapacity because the exact form may cut across forthcoming legislation on mental incapacity. But we would certainly make the general statement that the council must ensure that the patient's best interests have been duly considered where they lack mental capacity. This reflects councils' current legal duty. I hope that having strengthened the Bill and the process, with that assurance noble Lords will not press their amendments.

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Moved, That the House do not insist on their Amendment No. 14 to which the Commons have disagreed for their reason numbered 14A.—(Baroness Andrews.)

Baroness Barker rose to move, as an amendment to the Motion that this House do not insist on their Amendment No. 14 to which the Commons have disagreed for their Reason No. 14A:

14BLeave out "not".

The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 15B, 16B and 18B with which it is grouped. Throughout the Bill's passage we have fought tooth and nail for consent. The basis for our arguments has been in many ways the Bill's architecture, which we on this side of the House have found far too weighted in favour of the NHS and against patients. There has been a sort of pendulum process. We saw that the Bill was weighted one way, we tabled a number of amendments that took it in the opposite direction, and perhaps now the pendulum has begun to swing back.

What we have done and why we have done it have been open to misinterpretation. Throughout our discussions we were trying to reach the key word in the Minister's statement: agreement. I am glad that she has come forward with a proposal for directions that are about agreement. In our discussions we have been motivated by a wish to empower patients. I confess that during our discussions the Government were slightly unlucky in that they caught me at a time when a friend who was in hospital took a bath only to return to find someone else in her bed. That rather coloured my views of some of the speeches.

I also want to take issue with a remark made in another place on 19th March. The Minister said:

    "Whether hon. Members in another place are the people in the real world is questionable, but we have listened to people who operate in the real world".—[Official Report, Commons, 19/3/03; col. 975.]

I have a piece of evidence that will prove that that is not true. As everyone knows, in "The Archers", Mrs Antrobus has just returned home from a period of intermediate care, and the whole of Ambridge and the rest of us are desperate to know whether Roy and Hayley are going to manage to enable her to stay at home. I am afraid that it does not get more real than "The Archers".

These amendments, particularly the one on assessment, are about enabling older people to go through a process that is time-linked, centred on their needs, and at the end allows them to say if the services provided for them were not right. Throughout our discussions we have talked a great deal about where and when assessments will happen. I have accepted what Ministers said: that acute hospitals full of MRSA are not places in which to make decisions about the

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continuing needs and support of older citizens. "The Archers" had it absolutely right the other day: Mrs Antrobus was wondering whether she could manage.

I think it is true that the BBC is party to a political conspiracy. How it knew that in these two weeks in Parliament we would be focusing on Iraq and delayed discharge I do not know, but it is marvellous that it did. I am being flippant, but I am trying to hit at the heart of the Bill, which is about older people being in a process in which they are able to play a part rather than having things done to them for the convenience of others.

I take to heart what the Minister said about all reasonable steps. It was never our intention that family members could hole older people up in hospital so that they could never leave. We were talking about setting standards in reaching agreement with older people about their care packages. I listened to what the Minister said about mental incapacity. I am slightly disappointed and remain convinced that old people with Alzheimer's or dementia or who have had strokes may find themselves disadvantaged by this process. We will look at the important mental incapacity legislation with extreme care. I welcome what the Minister said about consent and I shall welcome the contribution of other noble Lords.

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