Community Care (Delayed Discharges etc.) Bill

Public Bill Committee, 10 December 2002.

Standing Committee D

Community Care (Delayed Discharges etc.) Bill

John McWilliam (Labour, Blaydon)

I apologise to the Committee for being late. My street is being dug up and there is a five-minute detour to get here, but no one warned us.

Jacqui Smith (Labour, Redditch)

I beg to move,

That—

(1) During proceedings on the Community Care (Delayed Discharges etc.) Bill the Standing Committee shall meet four times, namely on Tuesday 10th December at 10.30 am and 4.30 pm, and on Thursday 12th December at 8.55 am and 2.30 pm

(2) Proceedings on the Bill in Standing Committee shall, so far as not previously concluded, be brought to a conclusion in accordance with the following table—

TABLE

Proceedings

Conclusion of proceedings

Clauses 1 to 3

1.00 pm on 10th December

Clauses 4 and 5

7.00 pm on 10th December

Clauses 6 to 11

11.25 am on 12th December

Clauses 12 to 16, new Clauses, new Schedules and any remaining proceedings

5.00 pm on 12th December

I welcome you to the Chair, Mr. McWilliam, and to this Committee; I also welcome all other hon. Members. At the moment, that is all I wish to say.

Simon Burns (Conservative, West Chelmsford)

I join the Minister in welcoming you, Mr. McWilliam, and your co-Chairman Mr. Conway, to the Chair, to preside over our proceedings for the two sitting days of this Committee. I place on record the fact that, on principle, the Opposition have always opposed the idea of guillotine motions, as they stifle the opportunity for debate not only in Committee but in the House.

Question put and agreed to.

John McWilliam (Labour, Blaydon)

Starred amendments will not be accepted, so any amendments should be tabled in good time. There is a money resolution, copies of which are available. I do not intend to call any manuscript amendments either.Clause 1 Meaning of ''NHS body'' and ''qualifying hospital patient''

Clause 1 - Meaning of ''NHS body'' and ''qualifying hospital patient''

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 58, in

clause 1, page 1, line 9, leave out 'and' and insert 'or

(c) a Care Trust within the meaning of section 45 of the Health and Social Care Act 2001; and'.

I too welcome you to the Chair, Mr. McWilliam, and look forward to serving under your chairmanship during the four sittings on the Bill.

This is intended as a probing amendment. It is designed to explore the Government's thinking about the relationship between the penalty system proposed by the Bill and by the health flexibilities set out in the Health Act 1999, and the joint management arrangements such as care trusts that were set out in the Health and Social Care Act 2001. According to a written answer that I received a couple of weeks ago, 16 pooled budgets in operation around the country have been explicitly set up to deal with delayed discharge issues.

I hope that in response to the amendment the Minister will tell us how she sees those arrangements working in a system in which penalties apply. During the inquiry into delayed discharges by the Select Committee on Health, she said that four care trusts were in place to deal with services for older people, as well as those 16 budgets. Will she make it clear which bodies will be liable for the penalty? Will responsibility lie with social services departments, with the pooled budgets or, when service responsibilities have been merged into them, with the care trusts? The Bill does not make that clear. It is not obvious that the regulation-making powers elsewhere in it are sufficient to enable the fine to be directed to the agency that, within the terms of the Bill, is responsible.

For example, how will an area that operates a pooled budget or care trust share in the £100 million announced by the Secretary of State for Health on Second Reading? How will that be paid? Will it be paid to the social services department and then passported to the pooled budget? Will that be dealt with in regulations?

Will the Minister also spell out how the Department of Health arrived at the figure of £100 million? In recent written answers, she did not say clearly how it was worked out. She implied that it was in some way a capped or maximum figure, and that local authorities could not be subject to penalties that exceeded £100 million. She should give some answers on that subject, not least because it is the time of year when local authorities struggle to balance their books and make their budgets add up in time to set new budgets for the early part of the next year. It would help local authorities if they knew earlier rather than later the basis on which the money would be distributed. If they have pooled arrangements or are thinking about having them, will the money be passed to those pooled budgets? If so, on what basis?

What role will care trusts have in the system? The Bill does not deal with them at all.

Simon Burns (Conservative, West Chelmsford)

The hon. Member for Sutton and Cheam (Mr. Burstow) rightly said that this part of the Bill—it will become apparent during our proceedings that the same is true of many others—contains several issues on which there is confusion about what the Government intend. That is partly because so much of the Bill will take effect through regulations, rather than through its provisions themselves.

I will not try your patience by elaborating on that, Mr. McWilliam, as there will be far better opportunities to do so later. However, I will say now

that the Bill contains a fundamental flaw; I shall leave aside its content as a whole for now, as we believe that the Bill is deeply flawed. In many ways, it is a mere skeleton that will be fleshed out by regulations that no member of the Committee has seen in advance, so we are somewhat in the dark about exactly what the Government intend to do about the fine detail, through the regulations.

That brings me back to the hon. Gentleman's point about flexibility in the health service. The Bill goes counter to the trend established in previous legislation towards giving greater powers to health trusts, primary care trusts and social services departments. I have welcomed the increasing reduction, in the past decade or so, of barriers between social services departments and the health service in the provision of community care and social care. However, the Bill is centralising, over-prescriptive and controlling, and introduces the concept of fines. The Minister owes it to the Committee to tell us in greater detail what she is expecting—

John McWilliam (Labour, Blaydon)

Order. The amendment is narrow, and the hon. Gentleman is making a clause stand part point.

Simon Burns (Conservative, West Chelmsford)

I am grateful for your guidance, Mr. McWilliam. I shall abide strictly by it. Can the Minister explain, with regard to a care trust such as that mentioned in the amendment, how the sum of £100 million announced by the Secretary of State will be distributed? Will it be distributed to a PCT or shared between a PCT, a care trust and an acute trust in a local area? How, as the hon. Member for Sutton and Cheam has already asked, was the figure of £100 million arrived at? Is it a blanket £100 million per annum for three years, or is it up to a maximum of £100 million?

Given that the Government have assessed that the cost of delayed discharge to care trusts, PCTs and acute trusts runs at about £180 million per year—a figure that has been reinforced by our research with social services departments—and that the level of fines anticipated by social services departments at current levels will be a similar figure, why £100 million? What will happen after three years, if there are still problems with delayed discharge and the money is not made available? I hope that the Minister will deal with all those points. They are an important factor in our consideration of how effective this part of the legislation will be.

Jacqui Smith (Labour, Redditch)

It is important to outline the role that we see for incentives in the Bill. Incentives must be put in the right place to ensure that patients do not have to wait for services, and are not trapped in hospital—because the system is slow, or because the NHS and social services are arguing about which services are needed—when they would be most appropriately served out of hospital. In some cases, the poor funding experienced by many social services departments in the years preceding 1997 meant that social services had an incentive to slow down the system to protect their budgets. As I outlined on Second Reading, we have made progress on tackling delayed discharge not only through investment but through top-down performance management.

However, performance is still patchy, and the Bill will enable us to put in place a new approach, which will work at a local level.

The hon. Member for West Chelmsford (Mr. Burns) accuses the Bill of centralising arrangements, but it does precisely the opposite: it puts in place the necessary incentives at local level to ensure that the significant extra investment that the Government are putting into social services is spent on the community alternatives necessary to ensure that older people are given the choices that they need and the opportunity to leave hospital at the appropriate time.

Nigel Waterson (Conservative, Eastbourne)

Does the Minister accept that partnership working in areas such as mine has proved its worth, and targets for reducing delayed discharges have been over-achieved? The problem is that the Bill simply sets everyone at each other's throats again. It does not discriminate between areas where partnership is being implemented constructively and those where it is not. Surely the Minister can see that.

Jacqui Smith (Labour, Redditch)

I shall go on to talk in a little more detail about how the Bill promotes partnership—but I fundamentally disagree with the hon. Gentleman. First, of course, partnership is about results. In combination with the £100 million transfer, about which I shall talk in a little more detail, the Bill will provide rewards and incentives for areas that have good partnerships at local level and already achieve good results. It will do that by focusing on individuals and on the way in which they are processed through the system.

Secondly, partnership depends on a clear understanding of the roles and responsibilities of the different sections of the system. If there is a criticism of the system, it is, I am afraid, that there has sometimes not been clarity about social services departments' responsibility towards people—particularly older people—who are leaving hospital. The Bill will ensure that there is clarity. That will promote partnership, not undermine it.

The hon. Members for Sutton and Cheam and for West Chelmsford mentioned the £100 million. It is worth remembering that the Bill is being introduced in the financial context of a significant increase in resources for social services departments over the next three years. Indeed, the annual real-terms rate of growth of investment in social services will be doubled. In addition, we have recognised the need for a reward element in the Bill, which is about incentives. That will ensure that we put in place the resources necessary for social services departments to build capacity so that older people get the right care in the right place at the right time. The important point about the Bill is not that there will be charges but that it will give incentives for the sort of behaviour that ensures that social services departments will not have to pay charges. It is about providing the right services in the right place at the right time.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

On the subject of building capacity, will the Minister tell us whether the Department has examined how long it will take to commission the

additional services that will be available as a result of the new investment?

John McWilliam (Labour, Blaydon)

Order. I have given hon. Members considerable latitude, but the clause is very narrow and deals mainly with definitions. The hon. Gentleman is making a Second Reading point.

Jacqui Smith (Labour, Redditch)

In that case I shall not be tempted down that route, Mr. McWilliam—much as I would like have liked to respond.

The hon. Members for Sutton and Cheam and for West Chelmsford referred to the £100 million, and it would be helpful if I worked through the process by which we arrived at that figure.

Social services departments have already benefited from the £300 million building care capacity grant that has been available since last October. They have also have set a target for delayed discharge, which they expect to reach by next March. It reflects their ability to build capacity as a result of that £300 million. The figure is 4,200. Let us assume—I think it is a fair assumption, if not somewhat generous to social services—that 60 per cent. would be the responsibility of social services, and let us also assume a certain breakdown of the 4,200 between the areas outside London and the south-east, where the daily charge will be £100 a day, and the areas in London and the south-east, where the daily charge will be £120 a day. On that basis, we can calculate for each of those areas what the figure, multiplied by the proportion that is the responsibility of social services, multiplied by the total, would be. It equals approximately £100 million.

It is understandable that Opposition Members want some reassurance about the basis of that calculation, not least because our estimates range from £49 million—

Simon Burns (Conservative, West Chelmsford)

Off the back of an envelope.

Jacqui Smith (Labour, Redditch)

Something even smaller.

Simon Burns (Conservative, West Chelmsford)

A postage stamp?

Jacqui Smith (Labour, Redditch)

Yes, a postage stamp—which nevertheless formed the basis of a Liberal Democrat press release. The hon. Member for West Chelmsford seems to have plucked another figure out of the air—£180 million.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister give way?

Simon Burns (Conservative, West Chelmsford)

Will the Minister give way?

Jacqui Smith (Labour, Redditch)

I give way to the hon. Member for West Chelmsford.

Simon Burns (Conservative, West Chelmsford)

I am sure that the Minister would not want to do me down, and I must point out that my figures were not calculated on the basis that she suggests. If she had read my speech on Second Reading properly, she would realise that my figures were calculated after telephoning social services departments and asking them what they estimated the fines would be.

Jacqui Smith (Labour, Redditch)

I think that I have spelled out the process by which we calculated that £100 million per

full year of the scheme's operation is a reasonable estimate of the likely fines. I have not seen the details of the questions that the hon. Gentleman asked social services departments, and in view of some of his behaviour on Second Reading, I am unsure whether he made it completely clear to social services departments who was telephoning and what he was asking them. However, it is for the hon. Gentleman to explain the basis of his calculation. I have explained the basis on which we made ours.

Mr. Burstow rose—

Jacqui Smith (Labour, Redditch)

Now the hon. Gentleman will tell us the details of what was on his postage stamp.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I think that you would rule me out of order if I did that now, Mr. McWilliam, but I shall gladly do so during the clause stand part debate.

The Minister has spelled out the assumptions that she and her Department made in arriving at the £100 million figure, but what was the split between the £120 a day area and the £100 a day area? What proportions were assumed?

Jacqui Smith (Labour, Redditch)

We assumed that of the 4,200, 1,900 would be in the £100 a day area and 2,300 would be in the £120 a day area. I hope that answers the hon. Gentleman's question.

On the issue of reward, we made the calculation of £100 million on the assumption that after March 2003 no local authority will make any further progress in reducing the levels of delayed discharge—but that is unlikely to be the case. We have therefore ensured that there will be an element of positive reward for local authorities. As they make progress, they will be covered for what we believe the fines might cost them and they will be able to benefit from the progress that they are making. In that way, the areas that tackle delayed discharge effectively will be able to benefit from the system that we set in place.

Hon. Members have raised issues relating to flexibilities under the Health Act 1999 and care trusts, and I now turn to the detail of those issues. The amendment seeks to add care trusts to the list of NHS bodies in clause 1. Technically, that is unnecessary, as a care trust is either an NHS trust or a PCT. Clause 1 details the definitions of both the trusts and patients in question that qualify under the Bill.

The hon. Gentleman's probing amendment is about how particular partnership arrangements would work under the Bill. It is worth pointing out, as I did to the hon. Member for Eastbourne (Mr. Waterson), that we cannot assume that partnership automatically brings results, although it is an extremely important contributor to results. Therefore, it is important that those incentives are in place.

As we said in the original consultation on the Bill, pooled projects can now be set up as a result of the Health Act 1999. They have been set up between health and social services partners for health and social services in the community. In the case of a pooled budget, the partners need to consider the intended use of the budget very carefully. They need to consider

which services are to be provided from the budget, and explicitly include that in the partnership agreement.

The hon. Member for Sutton and Cheam—referring to a written answer that I suspect I gave—rightly pointed out that 16 pooled budget areas currently cover delayed discharge. They may not, of course, cover the social services responsibility for providing alternatives to hospital. For example, some, I believe, cover the joint employment of occupational therapists, or the joint employment of teams that will enable people to be discharged more quickly. In those cases, the partnership may ensure that the local partners are better able to reach their targets on delayed discharge, although the pooled budget will not necessarily bear the responsibility for ensuring that alternatives are in place. In those cases, the responsibility for payment of any charges that arose would remain with the local authority.

As they make the partnership agreement, the partners will need to consider whether the services are key to dealing with hospital discharge, and whether the social services' contribution to the pooled budget reflects an intention to make any reimbursement to the acute trust from that pooled budget. That would then be dealt with in the budgetary part of the partnership agreement. The legal position remains that the local authority is responsible for the reimbursement, although the payments may be made from the pooled budget, with the PCT's agreement.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am trying to follow the Minister's explanation. Am I right to understand that, on the basis she mentioned, the 16 pooled budgets that have been established to deal with reducing delayed discharges to hit targets are unlikely to be subject to fines, because the financial agreements that have already been arrived at do not include them, so there would have to be renegotiation?

John McWilliam (Labour, Blaydon)

Order. We are now way off the clause. The point that the hon. Gentleman raised arises under clause 4, not the present clause or amendment. In view of the latitude that I gave other Members, I have allowed the Minister considerable latitude—but the Committee should discuss the financial aspects under clause 4, which is where they lie.

Jacqui Smith (Labour, Redditch)

Thank you, Mr. McWilliam. I will respond briefly to the point about care trusts over and above partnership agreements.

The services provided by the care trusts that carry out all social services functions, or services for older people and adults, do not yet include NHS acute services. Our proposals provide that the payment should be made to the acute trust, although I am sure that that will be discussed later. The principle of reimbursement for the care in the acute sector is to ask the local authority—or, in the instance that we are considering, the care trust—to reimburse the acute trust for the cost of looking after someone if the responsibility for looking after that person has been transferred. In those cases, the principle of reimbursement for the actual care given in the acute sector once the patient is supposed to be the care trust's responsibility still holds. The care trust will be

responsible for any necessary reimbursement to the acute trust, and that should be borne in mind when the care trust's budget and objectives are set.

You are right, Mr. McWilliam, to say that we have had a relatively wide-ranging debate on the amendment. I hope that the hon. Member for Sutton and Cheam feels that his probing has drawn some results and that he can therefore withdraw the amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister has given some information about which I shall want to ask more questions when we reach a later clause. However, in the light of what we have been told, and although I may want to return to the matter later, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Burns (Conservative, West Chelmsford)

I beg to move amendment No. 8, in

clause 1, in page 1, line 14, leave out 'or is expected to receive'.

John McWilliam (Labour, Blaydon)

With this it may be convenient to take amendment No. 9, in

clause 2, page 2, line 4, leave out 'or is expected to become'.

I remind the Committee that the amendments are very narrow in scope: they deal only with the question whether people who are expected to receive care should be included in the Bill.

Simon Burns (Conservative, West Chelmsford)

The amendments are probing in nature and concern those people who are ''expected to receive'' care. I should be grateful for further information from the Minister. The clause defines an ''NHS body'' and a ''qualifying hospital patient'', and, with reference to the latter, states that it is someone

''who is receiving (or who has received or is expected to receive) care''.

I fully understand, and find unambiguous, the references to someone who ''is receiving'' or who ''has received'' care. However, I experience a degree of confusion about someone who ''is expected'' to receive it. The expression has a logical meaning in English, but what is meant in the context of the Bill? How do you know whether you are expected to receive care? Does that expectation arise because you have a medical complaint that may develop?

John McWilliam (Labour, Blaydon)

Order. The word ''you'' refers to me, in Committee, and as will be obvious to hon. Members, I do have a medical complaint—a rotten cold. However, the hon. Gentleman should use the third person.

Simon Burns (Conservative, West Chelmsford)

Thank you, Mr. McWilliam. I am sorry to hear of your complaint.

George Young (Conservative, North West Hampshire)

You fall within clause 1, Mr. McWilliam.

Simon Burns (Conservative, West Chelmsford)

Indeed, as my right hon. Friend says, the clause may be more relevant to you, Mr. McWilliam, than was first apparent, in view of what you have told the Committee.

Patients with a medical complaint that in the normal run of things can develop into something more serious might be expected to receive care at some point. Is that what the clause refers to? Alternatively,

is it intended solely to denote someone who is elderly, who might on that account be expected to require care at some point? The explanatory notes also suggest a need for clarification. They state:

''To be a qualifying hospital patient, a patient must be receiving care of a type prescribed in regulations.''

There is no mention of patients who are expected to receive such care. I understand that explanatory notes are not binding. They are intended as guidance and illumination rather than a hard and fast catch-all explanation of every element of the legislation. However, they miss out that definition.

I wonder whether the Minister would give a greater explanation, because we do not want to pass a skeleton Bill—it will be fleshed out by regulation, so in some ways we are very much in the dark—that could cause confusion or misunderstanding over exactly what the Government mean by the qualifications and elaborations. If the Minister were to explain exactly what she intends by that part of the definition of a patient requiring care, it would go a great way to reassuring us.

John McWilliam (Labour, Blaydon)

Order. Before the question is put, I remind the Committee that the reading of newspapers and periodicals, or even photocopies of them, is not allowed in Committee—the hon. Member for Edmonton (Mr. Love) should put it away.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I want to ask a question of the Minister. We are exploring who might be expected to be in need of care. One category is those patients who it is expected will be admitted to hospital as elective admissions. Will the Minister explain why the Department does not seem to know the split between those who are admitted to hospital on an elective basis, and how many of them experience delayed discharge, and those who are admitted as emergency cases who experience delayed discharge? Given that the Department does not have that information and has not sought it, it is difficult to understand how the clause will work. At the moment, the Department does not know how many of those people there are, and therefore the financial or practical implications of putting such a provision in the Bill. Will the Minister explain why the Department does not seem to know that information and what is being done to get it?

Jacqui Smith (Labour, Redditch)

The hon. Gentleman is getting the hang of the Bill—I am sure that the hon. Member for West Chelmsford will get the hang of it before long—because he recognises that the provision is about how to cope with elective admissions. It is acknowledged to be good practice to begin planning for discharge before admission if the admission is for elective treatment. Generally, the best time to start thinking about what such patients are going to need for discharge is when they go to hospital for their pre-admission assessments. That can be a key step for avoiding delays following an operation or treatment; delays may mean patients losing confidence and perhaps never attaining the full benefits of their treatment.

When we come to clause 2, we shall be discussing one of the important features of the Bill: the requirement for trusts to notify social services departments about the needs of those who are likely to require community care services when discharged from hospital. Clause 1 defines those who will be covered by the Bill. It is important that councils should be notified about those who expect to receive that care—in other words, before their elective admission—because councils will want as much time as possible to make assessments and provide the right conditions. The majority of elective admissions lead to short stays in hospital, and for much of that they will be receiving treatment and recovering from it. It will help if aftercare can be planned as far as possible.

On the point made by the hon. Member for Sutton and Cheam, the Department has information about the likely duration of hospital stays for those aged over 65, depending on whether there is an elective or an emergency admission. I shall pursue his question about whether our hospital episode statistics are broken down between those two types of admission. The problem—I think that this is his point—is whether the type of admission has a bearing on whether discharge is delayed. It is important to note that the Bill does not rely on high-flown statistical analysis of whether one category or another is more likely to involve delayed discharge—that depends on the individual needs of patients and whether they enter hospital electively or in an emergency. The Bill ensures that all the incentives are in place for individuals to be assessed as quickly as possible and that suitable community care alternatives are provided equally quickly.

I hope that hon. Members' concerns have been met and that the hon. Member for West Chelmsford will withdraw the amendment.

Simon Burns (Conservative, West Chelmsford)

I am grateful to the Minister. She has allayed my fears by giving a fuller explanation, particularly as regards elective patients. That raises an important point. It is crucial in the case of elective admissions that there is a turn-key operation, whereby social services departments, and possibly other charitable organisations, can assess the needs of an individual after treatment in order for adaptations to be made inside the home on discharge.

That leads to another matter, which I shall float in little detail so as not to be out of order—I hope that we can return to it later. One can do as much assessment and analysis as is required of what is needed to adapt a home for a patient to return to it, but that costs money. Social services departments have faced a serious problem for some years in that they do not always have the financial resources to make the adaptations that will allow the seamless return home that the Bill, idealistically, seeks to facilitate. I shall not pursue that now, because I do not wish to fall foul of your strictures, Mr. McWilliam. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Burns (Conservative, West Chelmsford)

I beg to move amendment No. 1, in

clause 1, page 1, line 14, leave out from 'receive)' to end of line 15 and insert 'geriatric, acute care'.

John McWilliam (Labour, Blaydon)

With this it will be convenient to take amendment No. 59, in

clause 1, page 1, line 15, at end add 'except where the patient is accommodated in an independent hospice, an NHS palliative care unit, or a care home within the meaning of the Care Standards Act 2000'.

Simon Burns (Conservative, West Chelmsford)

This, too, is a probing amendment, leading on from amendments Nos. 8 and 9. The Bill defines ''qualifying hospital patients'' as those who are receiving, who have received or who are expecting to receive

''care of a description prescribed in regulations.''

I think that it is in order, because of the amendment and the wording of the clause, to discuss the regulations. The Bill does not describe what will be prescribed in the regulations. The explanatory notes give us an idea of what the regulations will include:

''In the first instance it is intended that the prescribed type will be acute or geriatric care provided in a general and acute hospital.''

They continue with what is presumably a hope list, saying:

''The types of care may later be extended to other sectors, such as mental health or intermediate care, as appropriate.''

Such hopes are very much up in the air. The Government may want to realise them at some point, but they are not as hard and fast as, for example, a manifesto commitment.

I am slightly disappointed that it is not clear from the Bill exactly what the Government want it to deal with in the first instance. It is rather unsatisfactory that we must rely on regulations that we have not seen, and on the very broad guidance in the explanatory notes. I say that especially because regulations throughout the Bill will be subject to negative rather than affirmative resolution. I will not argue the case for negative versus affirmative resolutions for statutory instruments, because we will debate that on another amendment. However, it is still valid to make the narrow point that it is a mistake to rely so heavily on unseen regulations to flesh out the Bill.

As I said, our probing amendment is intended to tease out from the Minister more information than is in the explanatory notes about what the Bill will deal with in the first instance. Can the Minister share with the Committee more of her understanding of what will be in the regulations, which will give detailed descriptions? I assume that her Department has been working on the general contents of the regulations for a considerable time, and I hope that she will tell us that it more or less knows what will be in them. If so, I make a further plea. Given that the Government pay lip service to the idea of open government and sharing information, will she release to the Committee the details of her thinking on the regulations, which she and her Department will no doubt issue as soon as they can after the Bill becomes law? That would enable us to complete our work over our two days of sittings in a better and more informed way.

On the advice of her parliamentary draftsmen, the Minister may argue—probably with some justification—that it would be wrong to accept the amendment. She may argue that it would put the Bill

in too much of a straitjacket and require the Government to introduce further legislation if they wanted to extend the descriptions in the Bill to intermediate and mental health care. I have considerable sympathy with that argument, but before the Minister is too cruel to the Opposition, who cannot rely on the professional services of parliamentary lawyers and draftsmen, I remind her that we tabled our probing amendment solely to tease out more of her thinking. If draft regulations on this and other parts of the Bill are available to her, will she make them available to the Committee to help and enhance our scrutiny?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Although I shall be speaking to amendment No. 59, I support the line of questioning pursued by the hon. Member for West Chelmsford. It would be useful to have some illumination of what the Government intend to achieve through the clause and the Bill's regulation-making powers, in connection with extending the provisions over time.

Amendment No. 59 is almost the opposite of amendment No. 1. It would exclude from the Bill several aspects of health care services, which, it could be argued, should not be included in the regime in question: hospices, palliative care units and care homes. Because the Bill does not specifically exclude them, there is reason to be concerned that they might be included. Will the Minister provide an outline of the Government's intentions, and confirm that they do not ever intend to use the Bill and its regulation-making powers to include such institutions in the provisions?

Like amendment No. 1, our amendment is meant to probe the Government's intentions. It is difficult fully to map out and understand the policy intentions behind the Bill when so much is to be dealt with in regulations. If the Committee could see some of the regulations this week, that would undoubtedly help to make our discussions speedier and more timely. It would also help local authorities and the health care bodies that will have to implement the regulations to get on with things. They face the prospect of those regulations being published within weeks of the Bill coming into force, leaving them to rush arrangements through at a rate of knots. They will probably then become objects of opprobrium for not getting it right. It would help them if the Department could provide the material early, thus creating at least a chance of making a flawed system work a little better.

Jacqui Smith (Labour, Redditch)

The Bill is intended, as I suggested earlier, to set up a framework of incentives that could operate in a range of areas where patients cannot obtain the community care services that they need and are delayed in in-patient settings. Amendment No. 1 would narrow the scope of the Bill to affect only patients receiving acute and geriatric care. I understand that, as the hon. Member for West Chelmsford made clear, it is a probing amendment. Nevertheless, I must emphasise that it would be detrimental. If, as we believe, the Bill will work for older people in acute care, there will be potential for the incentives to work for other services.

We have already made it clear that we intend the Bill initially to apply to the acute sector only. We have taken a pragmatic approach, focusing on the most

significant areas where there is an acute problem—I hope hon. Members will excuse the pun—and where it is most obvious that too many people, mainly older people, are not receiving the right care at the right time in the right place.

However, there are other sectors that suffer delays too; the hon. Member for West Chelmsford mentioned mental health. People may remain in intermediate care when other, longer-term care would be more appropriate. Perhaps that even applies to people in community care beds, for whom alternatives might be appropriate. That is why we have included the regulation-making power in the Bill, so that we can extend its scope as and when appropriate. We do not want to remove that power, as the amendment would. Doing so would mean that non-acute patients such as mental health patients, those in intermediate care and those in community hospitals could not benefit eventually from the improved assessment processes and faster provision of services that the Bill will deliver.

The amendment would prove unworkable in its current form, as no definition of acute or geriatric care is set out in the Bill. Those terms could therefore be open to interpretation and lead to disputes. That is why we need to draft regulations carefully. We need to consult widely, consulting not only hon. Members but the people who will implement such legislation. I cannot promise that regulations will be available for the Committee's scrutiny in the next two days, but I assure its members that the regulations will be open for consultation. An important task needs to be undertaken: to ensure that those whom we intend to be the first priority for incentives—those who receive acute or geriatric care—are properly defined.

Simon Burns (Conservative, West Chelmsford)

The Minister just said that regulations would be put out to consultation so that everyone—not only hon. Members, but interested parties from outside the House—had an opportunity to consider them and comment on them. As we study the legislation, it is important that we understand the provisions that are hidden from us because they will be implemented through regulation. Will she give us a commitment that they will be out to consultation so that we can examine them before Report?

Jacqui Smith (Labour, Redditch)

I would not like to make a commitment that I was not sure that I could stick to, and I am not completely clear about the parliamentary timetable. However, I assure the hon. Gentleman that it is important that we get the regulations right. That is why they will be open for consultation.

We have made it clear that the key point of the legislation, and the first priority of the regulations, is to set up the framework of incentives to benefit the people most affected by delayed discharges. They are mostly older people; the provisions could benefit others as well, but those are the people who are most often inappropriately delayed in acute hospital care when they would much rather be elsewhere.

The hon. Member for Sutton and Cheam makes a fair point about seeking clarification about who could,

who would and who would not be included in future. Amendment No. 59 seeks specifically to exclude patients accommodated in independent hospices or NHS palliative care. I assure him that we would not consider it appropriate for the new arrangements to apply to the types of care that the amendment would exclude.

I understand the concern that people near the end of their lives should not be discharged from hospices or palliative care and sent home if that is not what they want. I assure the hon. Gentleman that there is no prospect of such a thing happening under the Bill. In fact, patients in independent hospices would technically be excluded from the Bill in any case, as they are accommodated in neither a health service hospital nor an independent hospital in pursuance of arrangements made by an NHS body. They will not be covered by the clause.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful for those assurances, but will the Minister confirm that when a person nearing death is in an acute care setting, and the prospects of transfer to a palliative care unit or hospice are negligible, that person will not be discharged?

Jacqui Smith (Labour, Redditch)

I think that I can give the hon. Gentleman that reassurance. We are going to consider the details of cases in which the Bill's provisions might not apply to particular discharges, or to patients still in acute beds. I believe that it would be appropriate to ensure, both by guidance and, if necessary, by regulations, that the situation that the hon. Gentleman mentioned does not arise.

I hope that I have reassured the hon. Gentleman that the Government have no intention of including NHS palliative care in the regulations. The intention is to prescribe acute and geriatric care in the first instance, and later to extend the Bill's provisions to other forms of care in which problems of delay occur, and for which we feel that the framework of incentives would be effective. I hope that after those reassurances, the hon. Gentleman will feel able to withdraw his amendment.

Simon Burns (Conservative, West Chelmsford)

I thank the Minister for that explanation. My probing amendment has achieved what I hoped it would, which was to get a greater understanding of the narrow point of what the Government intended to do. There is still a problem with the regulations. However, I hope that the time scale will allow consultation on those, so there will be an opportunity to see the small print of what the Government intend. From experience across the political field, we have found that it is important to study the small print of the Government's intentions, because things sometimes crawl out of the woodwork that one would not expect. I hope that the time scale will make it possible for the regulations to be in the public domain for us to peruse and study before Report. In the light of the Minister's comments, and that proviso, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2 - Notice of patient's possible need

John Baron (Conservative, Billericay)

I beg to move amendment No. 2, in

clause 2, page 2, line 6, after 'body', insert 'and the responsible authority'.

John McWilliam (Labour, Blaydon)

With this we may take the following amendments: No. 104, in

clause 3, page 3, line 1, after 'body', insert 'and the responsible authority'.

No. 24, in

clause 3, page 3, line 1, after 'body', insert 'or responsible authority'.

No. 25, in

clause 3, page 3, line 5, after 'consult', insert 'and agree with'.

John Baron (Conservative, Billericay)

I, too, welcome you to the chair, Mr. McWilliam, and look forward to serving under your chairmanship.

One of the Conservative party's main concerns is that the Bill threatens the co-operation and partnership that exists between NHS bodies and social services in many parts of the country. The stated aim of clauses 2 and 3 is to secure better communication between the NHS and local authorities with social services responsibilities, but I fear that that will not be the result.

Recently there has been good progress in forging co-operation and partnerships between the NHS and local government. That was clearly seen in the successful teamwork in alleviating winter pressures. As presently worded, the Bill threatens that co-operation. That is not simply due to the fines—although that is the major bone of contention—but because the Bill appears to be one-sided, in that the NHS bodies alone are in the driving seat on many of the major decisions, particularly those relating to patients being moved on from hospitals.

Phyllis Starkey (Labour, Milton Keynes South West)

Will the hon. Gentleman explain which alternative bodies, apart from the NHS, he thinks are in a position to assess the clinical needs of patients, and whether those needs should be met in hospital?

John Baron (Conservative, Billericay)

If patients are being moved from hospitals to social services, social services should have a say in determining their clinical requirements, because they will be meeting those requirements once those patients leave hospital. It is an error simply to rely on the hospitals. There must at least be a period of consultation and co-operation, and I hope that the amendments would move us in that direction.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

Does the hon. Gentleman not accept that the Bill will move the relationship between the health service and social services on by requiring the health service to notify social services? That requirement does not currently exist in legislation, although it is good practice.

John Baron (Conservative, Billericay)

Point taken—but, at the same time, all parties must co-operate on transferring patients. It cannot be left solely to NHS bodies to decide the criteria for transferring patients who become the

responsibility of social services. There must be closer co-operation. Obviously, NHS bodies must have a say, but social services must also be consulted because many patients are transferred to them.

Andy Burnham (Labour/Co-operative, Leigh)

Will the hon. Gentleman give way?

John Baron (Conservative, Billericay)

I must make some progress, but I shall give way one more time.

Andy Burnham (Labour/Co-operative, Leigh)

I am following the hon. Gentleman's arguments fairly closely. Is he really suggesting that social services should be able to oppose a clinician's decision to discharge a patient?

John Baron (Conservative, Billericay)

If the hon. Gentleman reads the amendments, he will see that I am suggesting closer co-operation and consultation. Every effort must be made to reach decisions jointly. If social services do not agree with the criteria set by hospitals, there will be no basis on which to forge partnerships and co-operation. That is the key point. We are trying to encourage co-operation, partnership and teamwork. There could be many difficulties if only one body makes the decisions, or if, as happens in some cases, a body does not consult. We are trying to avoid such difficulties through the amendments.

Andy Burnham rose—

John Baron (Conservative, Billericay)

If the hon. Gentleman will allow me to make some progress, I will try to develop my arguments. I would welcome his intervention—but perhaps after I have made my point.

It appears from subsection (1)(b) that the NHS body alone decides whether a patient who is about to be discharged requires community care services. That is hardly co-operation or partnership. Amendment No. 2 would put that right by adding the words ''and the responsible authority'' after ''NHS body''. We hope that that would establish a partnership of care between the NHS and social services. That would give both parties joint responsibility for deciding whether a patient was fit to be discharged and for setting up an appropriate care package. In short, it would ensure that NHS bodies and social services worked together to assess a patient's condition. That would place a duty on both parties and further encourage joint working. I should add that the Local Government Association and the NHS Confederation support those proposals.

In the same vein, amendments Nos. 24 and 25 would forge close co-operation in the implementation of the provisions of clause 3. It appears from clause 3(5) that the NHS body is solely responsible for initiating changes to plans, where the patient's circumstances have changed. Again, that is hardly co-operation or partnership. Amendment No. 24 would remedy the problem by making the NHS body and the responsible social services authority jointly responsible for making the decision. It would encourage co-operation and partnership.

We propose a similar amendment to clause 3(6), which states:

''The responsible NHS body must consult the responsible authority before deciding what services (if any) it will make

available following discharge in order for it to be safe to discharge the patient.''

Again, that is hardly co-operation or partnership. In amendment No. 25 we suggest that the NHS body should not only consult but agree with the responsible authority. It is surely in the patient's best interests that both parties to the arrangement agree the level of care required for safe discharge.

In conclusion, we fear that the Bill threatens the increasingly close co-operation and partnership between the NHS and local government that has existed in recent years. The Berlin wall—

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

Will the hon. Gentleman give way?

Mr. Baron indicated assent.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

I apologise for stopping the hon. Gentleman in mid flow. He is talking as though there is not already legislation concerning the way in which social services and the NHS work in terms of putting together care plans and assessment. My understanding is that the Bill will add to the process, and will deal with situations in which NHS hospitals fail to identify early the fact that safe discharge will be an issue. It places the responsibility where it needs to be, so that the existing joint operations and partnerships between local authorities and NHS bodies can come into effect.

John Baron (Conservative, Billericay)

On the contrary, I am saying that co-operation exists and that it has been getting better. Hence the good teamwork that has been exhibited in alleviating winter pressures, for example. We fear that the Bill will create a Berlin wall between NHS bodies and local government, whereas barriers have, until now, been coming down. Not only does the Bill recreate the wall, but a number of the clauses give those on one side of the wall—the NHS bodies—all the ammunition to fire at those on the other side. Examples include clause 2(1)(b), clause 3(5) and clause 3(6)—

Nigel Waterson (Conservative, Eastbourne)

I appreciate the effect of partnership working, which happens in my area, but does my hon. Friend share my concern that there might be a systemic problem in that there is an irreducible minimum of beds likely to be blocked at a given time in a particular area, which is a function of the underfunding of social services across the board? That is likely to get worse rather than better.

John McWilliam (Labour, Blaydon)

Order. Sedentary interventions are to be deplored.

John Baron (Conservative, Billericay)

I have great sympathy with my hon. Friend the Member for Eastbourne. One of our concerns is that the £100 million charge is a way of diverting resources from social services and ensuring that the money travels to NHS bodies.

Our amendments Nos. 2, 24 and 25 at least try to provide ladders over the Berlin wall so that people can discuss and co-operate, and the patient can benefit. Their aim is to improve co-operation and partnership

in an otherwise difficult world, and I commend them to the Committee.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall speak to amendment No. 104. It deals with co-decision in partnership working, which ought to be the norm in managing an appropriate discharge or transfer of care. The hon. Member for Billericay (Mr. Baron) is right to express a concern about the potential effect of the Bill. I liken it more to the driving of a wedge between agencies that currently, in some parts of the country, do not work effectively as partners. Introducing the financial mechanism will encourage the NHS and social services departments to shunt responsibilities instead of confronting the need to work together to deal with the responsibilities to the person in the hospital bed.

The Government published the conclusions of their consultation about the implementation of the Bill on 29 July. The results from 268 respondents were received on 18 September. It is interesting to note that 35 per cent. of respondents came from local councils; 21 per cent. came from primary care trusts; and 16 per cent. came from NHS trusts. There were also various joint responses.

Several aspects raised in the responses go to the heart of the debate on this group of amendments. When asked for their views on whether the reimbursement proposals would have a deleterious impact on partnership working, 77 per cent. of respondents said that they believed that the proposals could damage partnerships. Whether that relates to long-established partnerships or to those that are just developing, I would have hoped that the Government would have reflected on the fact that 77 per cent. of respondents, including acute trusts and PCTs, responded in that way, and would have made some adjustments to the Bill before it saw the light of day.

Simon Burns (Conservative, West Chelmsford)

Does the hon. Gentleman agree that it is highly significant that the 77 per cent. of organisations that feared that the proposals would have a harmful effect on partnerships included bodies from the NHS? Contrary to what Ministers keep saying, those organisations share the view that the proposals will have an adverse impact on the relationship between social services departments and NHS bodies.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I entirely confirm that view, which certainly seems to be the view of those who responded to the consultation. Some 14 per cent. of responses were joint responses from those who operate NHS Health Act 1999 flexibilities. It beggars belief that we are debating a Bill that does not appear to have been amended in any way to reflect those concerns, not least the fact that 100 per cent. of respondents said that they felt that the date set for implementation—April 2003—was too soon. The results of the consultation make interesting and disappointing reading, in so far as they do not seem to have influenced the legislation.

I want to pick up on one or two issues relevant to the amendment that were mentioned during the Health Committee inquiry into delayed transfers. The Committee spent some time exploring the definition of delayed discharge. Indeed, during the Committee

inquiry, the Minister made it clear that she expected the NHS to use the definition laid down by the Department. The definition is key to the amendment because it establishes where responsibility lies for deciding when a person is fit or safe to be discharged.

During the Health Committee inquiry, Department officials set out a definition. Mr. David Gilroy, deputy chief inspector, social services inspectorate (performance), told the Committee:

''The approach the Department takes is to define a delayed transfer of care as occurring 'when a patient is ready for transfer from an acute hospital bed but is still occupying such a bed. A patient is ready for transfer when: (a) a clinical decision has been made that the patient is ready for transfer; (b) a multi-disciplinary team decision has been made that the patient is ready for transfer; and (c) the patient is safe to discharge or transfer.''

He went on amplify what that meant:

''The stuff about (a) or (b) is because sometimes the clinical decision is taken as a part of the multi-disciplinary team approach and then (b) is satisfied. Where a consultant makes a separate decision not joined up with the multi-disciplinary team approach, both have to be satisfied. That is what that is about.''

Will the Minister confirm whether that definition will be used in the guidance and regulations? Will whether a person is ready for discharge still be a matter for co-decision, through multi-disciplinary assessment? From my reading of the Bill, it appears that that definition, to which the Government were so clearly committed only a matter of months ago, has been changed, although it is fundamental to the proposals. Amendment No. 104 would include in the Bill the idea that underlies that definition.

From reading the Select Committee inquiry, it seems that definitions have been shifting around. For example, the Health Committee spent some time asking the Minister about ''frictional discharge''. That definition is important if we are to understand where responsibility lies. She replied:

''It is a frictional level of delayed discharge—that is, the argument is that there will always be a certain level, but tackling delayed discharge is—''

She was interrupted at that point and so did not conclude. When I read that, I asked whether the Department could define what it meant by frictional discharge. It would seem useful to know how that was fed into the targets set, and what it meant for the division of responsibilities between health and social services. I was told in a written answer that

''The system of financial incentives that the Community Care (Delayed Discharges etc.) Bill will put in place means that there is no longer a need for a national level of 'frictional' delays. These will vary from locality to locality and the financial incentives will ensure that the level of delayed transfers of care is at a minimal level by 2006.''—[Official Report, 5 December 2002; Vol. 395, c. 965W.]

Does that mean that the definition of frictional discharge will vary from one part of the country to another? It would help if the Minister could clarify the definition.

If we are to understand whether we are still to have co-decisions between health and social care about discharges, it is essential that we know whether the Minister and her officials are wedded to the definition that they used during the Select Committee inquiry. Does that still stand? It is not used in the Bill, but it is key to amendment No. 104.

Jacqui Smith (Labour, Redditch)

As my hon. Friend the Member for Sheffield, Heeley (Ms Munn) identified, the clause is about ensuring that everyone who needs information must have it as quickly and efficiently as possible, so that they can assist in the development of better assessments and processes to get people from hospital care to alternatives in the community. Good practice tells us that the earlier we start planning a patient's discharge, the more successful and efficient that discharge will be. That applies to emergency admissions, starting when people are admitted for an emergency, and before admission for elective admissions.

I am pleased that Opposition Members have such a rosy and positive view of the good work in local partnerships. I have a positive view of partnerships, but I believe that they must ensure that we do not have 5,000 people, mostly older people, stuck in hospital when they should not be.

John Baron (Conservative, Billericay)

Although the Minister agrees that partnerships have done plenty of good work, does she accept that the situation on delayed discharges was improving? Does she agree that we should build on the trends of the partnership and teamwork exhibited in recent times, especially when alleviating winter pressures? Does she think that we should encourage closer relationships and partnerships rather than implementing a Bill that will create a Berlin wall?

Jacqui Smith (Labour, Redditch)

The hon. Gentleman and I can certainly agree that the Government have successfully reduced the level of delayed discharges. It is significantly lower than it was under the Conservative Government. There has been some success, but it has been dependent on Government investment. Opposition Members have opposed that investment. They think that partnership is a good thing, but are not willing to pay for results.

Nigel Waterson (Conservative, Eastbourne)

I am sure that the Minister has the national statistics at her fingertips to form the basis of that claim; after all, that is one of the things for which she is paid. Although my area is regularly under pressure in winter, as my hon. Friend the Member for Billericay pointed out, the concept of all-round bed blocking is relatively novel, certainly in Eastbourne district general hospital, and it has been created under the present Government. I wish that the Minister would stop trying to score party political points and address the serious problem. What I say may be untrue in other parts of the country—it is the Minister's job to know—but I am telling her the position in my authority area.

Jacqui Smith (Labour, Redditch)

I am glad that that is the position in the hon. Gentleman's authority. I would not want to challenge his figures, but I hope that he looks carefully at the basis for his assertion that there is no issue with delayed discharge in his area.

Simon Burns (Conservative, West Chelmsford)

As the Minister has made an allegation about what happened under the previous Government and what has happened under the present one, will she say now how many delayed discharge patients there were in March 1997?

Jacqui Smith (Labour, Redditch)

I cannot tell the hon. Gentleman at this precise moment, but I will ensure that I back up

my assertion, which is correct, that figures have fallen under the present Government.

Mr. Burns rose—

Jacqui Smith (Labour, Redditch)

The hon. Gentleman is pursuing his leader's approach, so I shall let him provide the answer.

Simon Burns (Conservative, West Chelmsford)

I am slightly confused, but grateful for the Minister giving way. For her benefit, I must mention the Government's record on delayed discharges. She gives the impression, although she talks of improving matters further, that it was downhill all the way from 1 May 1997. I remind her that in the first quarter of 2001–02, there were 6,361 delayed discharge patients, but by the second quarter, the figure had risen to 7,065. That, I suggest, is not an improvement.

Jacqui Smith (Labour, Redditch)

I am glad that the hon. Gentleman allowed me to sit for a moment, because it has given me the opportunity to answer his question. In March 1997, there were 6,985 delayed discharges of patients of 75 years of age and over—a rate of 13 per cent. By September 2002, those figures had fallen to 8.9 per cent. and 4,147.

John McWilliam (Labour, Blaydon)

Order. Can we return to the amendments? We seem to be having a Second Reading debate. I shall take a severe view of it, if it continues, when considering whether we should have a clause stand part debate.

Jacqui Smith (Labour, Redditch)

Before I was interrupted, I was talking about the importance of clause 2. It will ensure that planning discharges can be started early. Local authorities need to be told in advance that an individual may need services upon discharge. Only then can they start planning to ensure that those services will be available. The hon. Gentlemen suggested that there is excellent partnership and communication. I agree that those do exist in some areas, but, sadly, not in others.

The Bill will ensure that the NHS and social services communicate about hospital discharges; it will place a new duty on the NHS formally to notify the responsible social services authorities about patients who are likely to need services in order to ensure their safe discharge. Social services authorities will thus be able to start that planning earlier. The purpose is to ensure that patients receive prompt, efficient and appropriate discharge.

The amendments seek to make the NHS and social services come to joint decisions about matters that I suggest are not appropriate for joint decision; indeed, the effect could be not only that they do not to serve to assist in that process but that they hold it up. Of course joint working is important. It is essential that the NHS and social services work together in consultation and in partnership throughout the discharge process in order to ensure that patients' needs are fully met; and they should do it in relation to each patient.

Opposition Members like to talk about statistics, as do I when they show that our policies are successful. However, what is important about the Bill is that it

focuses on individuals and on the joint working necessary to ensure that they get the care they need when they need it.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister is making the important point that we are talking about joint working, and I hope that she can now answer the question that I put to her. Does the definition given by the deputy director of the social services inspectorate still stand? Are decisions still being taken by both social services—through multidisciplinary assessment—and clinicians?

Jacqui Smith (Labour, Redditch)

The hon. Gentleman asks whether the Bill will change that definition; it will not. After consultation with the team, hospitals have always had to make the final decision on whether it is safe to discharge someone. As my hon. Friend the Member for Leigh (Andy Burnham) said, surely we would not expect anyone else to determine whether it was clinically safe to discharge someone.

Clause 2 is about notifying social services that it might be necessary to arrange community care to ensure that someone can be safely discharged from hospital. Some of the amendments imply that social services and the NHS would need to agree on whether social services should be notified about a patient's case. It is unclear quite how the NHS could come to such an agreement with social services, not least because social services might not even be aware of a patient's existence before the NHS notified them. It is a bit nonsensical for social services to have to agree to be notified by the hospital that a patient exists.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Amendment No. 104 to clause 3 is very relevant to the matter the Minister is discussing. Does the Minister accept the definition that Mr. Gilroy gave the Select Committee? Must both a clinical and a multidisciplinary decision be taken before the clock starts ticking on the final penalty that the Bill will introduce? Must both those conditions be satisfied before the Bill's fine mechanism is put in place?

Jacqui Smith (Labour, Redditch)

I think that I answered that question. Indeed, I was very clear. Obviously, we will continue to discuss what starts the clock ticking when we come to clause 4 later this afternoon.

Clause 2 is about notification. The hon. Member for Sutton and Cheam rightly said that some of the amendments relate to clause 3, and I shall refer to them later. The logic behind clause 2 is that the NHS must be solely responsible for deciding to notify the local authority of a patient's case. Only the NHS will have knowledge of the case. Notification is necessary to start the whole important assessment and discharge process dealt with by the Bill.

Opposition Members suggested that the amendments would give social services more control over which patients were referred to them, and particularly over how an assessment was carried out. There may be concerns that the NHS would refer people to social services just in case they need services, or that it will take a scattergun approach to referrals. However, the Bill makes it clear that we are talking about people who are likely to need community

services if they are to be safely discharged. The decision whether a patient is likely to need services on discharge should, and can, be taken only by the NHS. The next stage is for social services to assess the patient, and it will be for social services alone to decide whether they actually need services on discharge. The Bill therefore clearly sets out where responsibility for parts of the pathway lies.

As set out in clause 2, notification is necessary to start the process. If social services are already aware of the patient and already provide services for them, they will quickly be able to form a view of what is needed. On the other hand, if they carry out a preliminary assessment of the patient, and decide that the patient does not need their services, they should inform the NHS. That would be one circumstance in which a notification would cease. The NHS would then need to plan the services that it would provide, with that knowledge. It would also be for the NHS and social services to give patients information and advice if they needed to make their own arrangements.

Amendment No. 24 is completely unnecessary and would achieve nothing new. There may be cases in which social services consider that a patient's circumstances have changed since the original determination of what services would be needed on discharge; for example, the person's carer or spouse might be ill, or it might be impossible to make adaptations to the home to allow them to return there. That would mean that the services that social services had decided to provide would no longer be suitable, and that the NHS would no longer consider it safe to discharge the patient home.

If social services became aware of the change in circumstances, they would want to inform the NHS that they believed it should withdraw the notice; the discharge plan would need to be remade. They could do that without any explicit provision in the Bill. We shall make that clear in regulations. Clause 3(5) is intended to deal with a change in the patient's circumstances that leads the NHS to entertain concern that that the services decided upon by the local authority will no longer be sufficient to make it safe to discharge the patient. It is therefore for the NHS, rather than social services, to determine whether the circumstances have changed sufficiently to warrant withdrawing the notice given under clause 2.

Amendment No. 25 suggests that the NHS should be under a duty to agree with social services what services it would make available. Of course it is crucial for the NHS and social services to work together in the assessment and in their determination of what someone would need so that they could safely be discharged from hospital. We shall come to the detail about the form that the assessment might take when we reach clause 3, but that is precisely why the Government made clear, in the single assessment process, the outcome that we would expect from the assessment. However, that is not quite the same as saying that when the assessment is carried out, a legal agreement is necessary—a veto for either partner over the contents of the package.

It is for the NHS to determine the NHS services that a patient needs, and for social services to determine the community care services a patient needs. Although, as I have suggested, they must consult and they can and should enter into a discussion about the services that are needed, there can be no legal requirement for them to reach agreement about what each should provide. That would create a veto, which in turn would not help to achieve what we want—to ensure that no older person waits inappropriately in an acute bed.

I have explained what we intend clause 2 to achieve with respect to notification, and how clause 3, without undermining the need for joint working, provides recognition of the legal position with respect to the assessment. I hope that in view of that, the hon. Gentleman will withdraw the amendment.

John Baron (Conservative, Billericay)

Having listened to the Minister, I am not convinced. Recently the number of delayed discharges, although still too high, has fallen as a result of closer partnerships between NHS bodies and local government. The Bill now threatens those closer partnerships. If the Minister wants to persist with the ludicrous system of fining, she should at least allow local authorities a real say in the major decisions that affect the transfer of patients. Local authorities should have a say about whether a patient is fit for discharge and what is the appropriate care package. Local authorities should have some say in changes to plans because the patient's circumstances have altered, rather than simply being consulted when it is being decided which services, if any, will be made available following discharge so that the patient can be safely discharged. The amendments would allow local authorities to be party to such decisions and would therefore go some way towards resolving the issues. Because these are key decisions affecting the welfare of the patient, it is right for both the NHS body and local government to agree about the best course of action; otherwise there will be little co-operation and partnership.

The fear that such provisions will increase the likelihood that partnership and co-operation will suffer is felt not only on the Opposition Benches, but has been expressed by such bodies as the Association of Directors of Social Services, the NHS Confederation and the Local Government Association. While recognising the good progress in teamwork and partnership in recent years, those bodies have stated that it would be a retrograde step if the current proposals undermined trust and led to the development of adversarial relationships rather than co-operation between the NHS and local government. Our amendments would go some way towards redressing the imbalance that the Bill creates. They would give local authorities a real say in some of the key decisions that affect the transfer of patients. Without the amendments, the NHS body would call all the shots, and that is unreasonable. Having heard from the Minister, I do not believe that the amendments have been adequately addressed, so I shall press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

John McWilliam (Labour, Blaydon)

Before I call the next group of amendments, and with the notable and welcome exception of the winding-up speech of the hon. Member for Sutton and Cheam, I have to tell the Committee that we cannot continue to have Second Reading debates or clause stand part debates on narrow amendments. The next group of amendments is extremely narrow; I hope that hon. Members will stick to them.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 63, in

clause 2, page 2, line 10, after second 'the', insert 'Primary Care Trust, housing and'.

John McWilliam (Labour, Blaydon)

With this it will be convenient to discuss the following:

Amendment No. 31, in

clause 2, page 2, line 10, after 'services', insert 'or housing'.

Amendment No. 33, in

clause 2, page 2, line 30, after 'services', insert 'or housing'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Amendment No. 63 addresses the questions of who is responsible for delayed discharge and who else should be in the loop during the process. Other amendments deal in part with that, but amendment No. 63 deals with whether housing departments and primary care trusts should be bracketed with social services departments as responsible authorities in the Bill. Our intention is to probe the Government's thinking, so that we understand why those bodies have been excluded from the Bill.

We seek information on how the Bill's provisions will interact with the scheme for supporting people, which is to be implemented from 1 April next year. Funded and channelled through housing departments, that scheme will establish a distinction between people who receive services to support them in their accommodation—whether it be sheltered housing or other settings—and those who receive care. Some aspects of, for example, domiciliary care could be defined as supporting people under the guidance issued by the Office of the Deputy Prime Minister, whereas other aspects could be defined as care under the care standards legislation. Can the Minister help the Committee and those who will struggle to understand where liability will fall?

What will happen when a discharge is delayed in a county district area where the responsibilities for housing and social services are split between the two

tiers—when a package of care and support is delayed because, although the social services department arranges the care element promptly, the support element provided through supporting people by the housing department at district level is not put in place on time? Will the social services authority still pick up the tab, or will the regulations, which we have not seen, deal with that matter and exclude it as one of the categories that would not result in a penalty? It would be useful if the Minister could provide a degree of clarity.

Similar considerations apply in relation to primary care trusts. The issue relates to the transfer of the concept of penalties and incentives within the system, the birthplace of which is Sweden, I think. It is interesting that there are many differences between the system set up in Sweden and the one in Britain. One of the lessons learned in Sweden after 10 years was that the original system excluded a role for the general practitioner. The amendment is an attempt to find out what role in delayed discharges the Minister envisages for, for example, community nursing services and GP services. They seem to be completely outside the system. There appears to be no equivalent system of incentives or penalties either in the Bill or in any of the consultation documents published so far.

I hope that the Minister can address those issues—on supporting people interfaces, how GPs and primary care trusts should discharge their responsibilities, and how the Government assume they are to be incentivised.

George Young (Conservative, North West Hampshire)

Amendments Nos. 31 and 33 refer to point that I raised on Second Reading about the involvement of housing authorities and the regime that is being established.[Laura Moffatt in the Chair]

John Baron (Conservative, Billericay)

I wholeheartedly support my right hon. Friend's amendment. It seems strange that such fines should be so badly targeted. Housing authorities are not in the loop, and if social services are not responsible for the delay, why should they be fined? It seems grossly unfair. We seem to have only half the

picture. As my right hon. Friend said, the housing associations should be brought within the loop.

Jacqui Smith (Labour, Redditch)

Quite rightly, the amendments open up a discussion about the important role that housing often plays in ensuring that people can leave hospital when needed. We agree that housing and, as the hon. Member for Sutton and Cheam said, community health services are important when considering discharge, and that the NHS and social services must work closely in planning those services. That is made explicit in clause 3. However, the notification stage in clause 2 is about the likely need for social services, and the PCT does not provide those.

As the PCT is responsible for the provision and commissioning of all health services for all patients, and because it will have other patients awaiting admission, it will already be working closely with the acute trust—not only through its commissioning—to ensure that its patients are not delayed at any point. As a result, close communication already exists between the PCT and hospitals and the notification suggested in the amendment will already be occurring.

Amendments Nos. 31 and 33 make the point that housing, too, is an important factor in ensuring that older people can be safely discharged from hospital to suitable accommodation, where they can keep their independence. I agree with that, as does the Secretary of State, which is why he said in July that part of the package financed through additional funding for social services would be

''a 50 per cent. increase over the 1997 total in the number of extra-care housing places—very sheltered accommodation—available for older people, and we will work with local authorities, housing associations and others to bring that about.''—[Official Report, 23 July 2002; Vol. 389, c. 871.]

The hon. Member for Sutton and Cheam asked how the Bill related to the supporting people legislation, especially in relation to the classification of support under the supporting people programme. We have issued, or will soon issue, guidance on the distinction between different forms of housing support that will meet many of his concerns. The introduction of the supporting people programme in general terms as part of Government policy is important in bringing together, in a more appropriate and joined-up way than has previously been the case, the support necessary to ensure that people receive the care that they need.

Another important contributor is the role that home improvement agencies play. The hon. Member for West Chelmsford commented on the need to invest in such improvements to help to tackle delayed discharge, and I agree. That is why in October we announced funding of £9.5 million over the next three years for home improvement agencies. It will be ring-fenced within the new access special grant to expand community-based social care services, and to reduce delayed hospital discharge. That will be the first specific Department of Health investment in home improvement agencies, and will contribute to reductions in delayed discharges through the prompt supply of basic housing repairs.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister moved swiftly on from the pending issue of guidance. Such guidance has been

issued and I have looked at it, which is one reason why I posed the question. What happens when difficulties with the provision of the supporting people package result in a delay in discharge? Will social services still pick up the penalty for that?

Jacqui Smith (Labour, Redditch)

I am coming to the point—it relates to something that the right hon. Member for North-West Hampshire (Sir George Young) said—about how to ensure consultation between social services and housing, and where responsibility lies. I hope that that will answer the hon. Gentleman's question.

One of our technical concerns about the amendment is that it would not bring about closer working between health, social care and housing. In fact, it would be divisive. We are talking about notification. The amendment's drafting would mean that the NHS body had a choice of giving either the social services authority or the housing authority in whose area the patient was ordinarily resident notice of the patient's potential need for community care services on discharge, so that that authority became the responsible authority.

In practical terms, it would clearly be nonsensical for the NHS to have to make such a choice. If it chose the housing authority, that, too, would be a nonsense. As hon. Members have pointed out, an authority cannot assess for community care services unless it is a unitary authority—unless it has both housing and social services responsibilities. Such an assessment would clearly be led by social services as an assessment of community care needs.

Few discharges are delayed for reasons entirely connected with housing. Social care is nearly always the main need. However, it may not be possible to care for the person in the place where they were living before they entered hospital, so although we agree that housing is important in the context of the Bill, it will be for social services to involve the housing authority where it is obvious that there is a housing need. That is the first stage in responding to the concerns that have been raised.

Under section 47(3)(b) of the 1990 Act, relating to assessment responsibilities, social services are already under a duty to notify the housing authority if, during their assessment, it appears to them that people may need services from the housing authority. Through guidance on the Bill and through our other work to stimulate the provision of innovative care and housing packages, we will continue to emphasise the importance of housing solutions in giving older people what they want—independence and their own home, as well as confidence that they will receive any care that they need in their own home.

Responsibility in the event of failure to provide a housing adaptation, as in the case mentioned by the right hon. Member for North-West Hampshire, will depend on the definition of housing adaptations—he rightly identified different legislative bases for different sorts of housing adaptations—and on the definition of minor adaptations. We intend clearly to outline those

definitions in regulations, which we will discuss under clause 12. We will define both community equipment and minor adaptations, which it will be the responsibility of social services to provide, and for which, as a result of the Bill, they will no longer be able to charge.

Obviously, if such adaptations have not been provided, social services will have to pay the charge. For example, failure to provide a rail to help someone get in and out of the bath or another sort of assistance that clearly falls in the same category would result in a charge to social services. However, if such a major housing adaptation is required that it must be provided by the housing department, such as a stair lift or a walk-in shower—that might be the sort of housing adaptation to which the right hon. Gentleman was referring—but has not been provided by the time when the NHS anticipates that the person will be ready for discharge, that would count as a change of circumstances in the context of the original discharge plan compiled by the NHS and social services. If the NHS thinks that without the adaptation it would be unsafe to discharge the person to their home, it must renotify social services so that a discharge plan that takes account of the lack of adaptation can be produced. Then, because they were renotifed, social services would not be charged for the delay.

Of course, interim care in a residential setting might be possible—I am not referring to the case mentioned by the right hon. Gentleman—if the adaptation required is to make the home, bathroom or bedroom accessible. Alternatively, when social services and the NHS reassess what is necessary for that person to be safely discharged from hospital, it could be appropriate to provide additional personal care to help with bathing, for example, if major adaptations to the bathroom are necessary. Clearly, where there is a failure to provide a housing adaptation that was determined in the original discharge plan, it would be inappropriate to charge social services, but it would be appropriate for the hospital to renotify social services so that an assessment could be carried out to determine the best way of providing the package that will enable the patient to leave hospital.

George Young (Conservative, North West Hampshire)

The Minister has gone into some detail and I note what she says about the NHS being able to decide that there has been a change of circumstances. However, under clause 3(5), all that it needs to do is withdraw the original notice and, if it considers it appropriate, issue a further notice under clause 2. Another notice would appear, saying, ''These adaptations are needed—and by the way, they must still be provided by the housing authority.'' As I have said, it might take six months for the housing authority to find the necessary resources. Will the Minister assure me that in such a case the social services department would in no circumstances be fined for a failing that had nothing to do with it?

Jacqui Smith (Labour, Redditch)

It would be social services' responsibility to make any alternative arrangement that proved possible—such as, for example, providing an interim placement. To take the discussion back to the needs of the person, it is unsatisfactory if someone is stuck in hospital because of an argument between

the housing authority, the social services authority and perhaps even the NHS—as hon. Members may know, that happens. Following the renotification it would be within the remit of the social services authority to find an alternative way of ensuring that the person in question could leave the acute bed and enter a more appropriate setting.

Hilton Dawson (Labour, Lancaster and Wyre)

Has not the right hon. Member for North-West Hampshire identified exactly one of those examples in which, because of a difficult situation, inertia creeps into the system? Is not the Bill designed precisely to bring about appropriate responsibility within the system, so that creative solutions are found to difficult situations that affect individuals who would otherwise be stuck in the system for a long time?

Simon Burns (Conservative, West Chelmsford)

That is a tough one.

Jacqui Smith (Labour, Redditch)

Funnily enough, I think that my hon. Friend is right. He focuses attention where it should be—on the needs of the people described by the right hon. Gentleman. Of course in the short term, as I have explained, it would not be appropriate for social services departments to be charged if a housing adaptation had not been made. However, it would be completely appropriate, following a renotification and reassessment, for the social services department to find an alternative way of putting in place what was necessary for the person in question to leave hospital.

A slight feeling is detectable that in the context of the Bill, the victims, so to speak, are social services departments. I am sorry, but the victims are not social services departments but the people who are stuck in hospital because they cannot get the services that they would need if they came out. The Bill is fair, but will also achieve the sort of creative thinking that my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) has identified as necessary to solve many of the relevant problems.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Elements of the Minister's response struck me as being invented somewhat on the hoof by her Department, in an attempt to respond to the question of how housing would be brought into the loop. The Government are creating a system involving incentives or fines operating between the NHS and social services. We are told that primary care trusts do not need fines because their relationships are good—but I seem to hear that reasoning being ignored on one hand, while on the other it is advanced as an argument against fines.

Jacqui Smith (Labour, Redditch)

Our argument is not that those bodies have a good, cosy relationship and send each other Christmas cards. The point is that financial incentives of the type that the Bill introduces are already part of the way in which the primary care trusts and the acute sector operate.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

It was certainly not my intention to argue that the Bill should include a requirement to send cards of any sort. I take the Minister's point, but my concern remains, and I am also concerned about the lack of an arrangement for housing.

My major worry about the Minister's response to the amendments is about identifying the real purpose

of the system of incentives and penalties. Increasingly, especially in exchanges with the right hon. Member for North-West Hampshire, she seems to be saying that if such action is not possible because of a six-month delay on an adaptation, the social services department should arrange an interim placement. It is questionable what that interim placement might prove to be, and whether it would be an appropriate outcome for the individual. A six-month interim placement is not satisfactory.

The Government seem to be saying that their priority is not the patient in the bed, but the bed. This is all about getting beds back, with little concern for the people who are in the beds and where they go afterwards. We shall return to the matter when we debate other amendments; it would be a shame to add what is essentially a probing amendment to the Bill. We do not want fines and we certainly do not want fines for housing; it is interesting that the Government do not seem to have addressed the issue so far. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 67, in

clause 2, page 2, line 11, at end insert—

'(2A) Further to the fulfilment of the requirements under subsection 1(a) and (b) a single assessment process shall be undertaken to include—

(a) assessment of entitlement for continuing care in pursuance of statutory responsibilities under the National Health Service Act 1977;

(b) assessment of entitlement to NHS funded nursing care pursuant to section 49 of the Health and Social Care Act 2001;

(c) assessment of the local authorities' duties under section 47(1) of the National Health Service and Community Care Act 1990;

(d) a joint aftercare plan for the provision of relevant health and community care services following the day of discharge for an agreed period, including ensuring that general practitioners receive written discharge summaries promptly so that they are aware of their patient's needs in the community;

(e) a single information-gathering process regarding the patient's needs, no matter that the assessment and subsequent care planning and service delivery involves a number of professionals and agencies, whereby each patient is informed of, and consents to, information about their needs and circumstances being collected and shared, and with key decisions and issues to be copied in writing, or other appropriate formats, to the older person;

(f) a duty on the professionals undertaking the assessment to work together in the best interests of the older person, as defined by the older person or those close to them;

(h) consideration of the older person's views and wishes and external or environmental factors that are causing or exacerbating needs, including not only health and social care issues but also relevant housing, benefits, transport and other issues, the depth and detail of the assessment to be proportionate to an individual's needs;

(i) the results of any assessment undertaken of the carer's ability to provide and continue to provide care for patient under the Carers (Recognition and Services) Act 1995 and/or the Carers and Disabled Children Act 2000.'.

John McWilliam (Labour, Blaydon)

With this it will be convenient to take amendment No. 68, in

clause 3, page 2, line 37, after 'assessment', insert 'under the single assessment process'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Amendment No. 67 deals with questions about the assessment process and the nature of the process described in the Bill and the explanatory notes. The Bill allows for discharge to occur before a full assessment has taken place. That is contrary to current guidance and good practice. It means that the patient, and, in some circumstances, the carer, could make decisions about future care arrangements without full information.

The Human Rights Act 1998 places on Government a duty to ensure that Bills that come before the House are drafted so as to secure convention rights. It is worth noting that the Joint Committee on Human Rights sat yesterday in order to consider whether the Bill fully complied with the Act and the convention. As a result of its deliberations, the Committee resolved to write to the Minister highlighting concerns and questioning what it saw as a prima facie case that the Bill is incompatible with human rights legislation. Can the Minister indicate how she will respond to that? Why was she satisfied to sign the Bill as being fully compliant with articles 2 and 3, which cover the right to life and freedom from inhumane and degrading treatment? The lack of adequate safeguards to ensure that a patient who is not in a fit condition is not discharged raises questions about the patient's life being put at risk through premature discharge and a consequential emergency readmission.

The Department's figures show that in the past two years there has been an 11 per cent. increase in emergency readmissions. The last annual statistics show that some 122,000 people over the age of 75 experience an emergency readmission within 28 days of discharge. Assessment should be multidisciplinary and comprehensive. The Government's national service framework for older people introduced the concept of the single assessment. While there is guidance about what that should include, it has no statutory basis. The amendments seek to rectify that, by incorporating into the Bill a statutory basis for single assessment—

Nigel Waterson (Conservative, Eastbourne)

The hon. Gentleman is making some important points. Before he leaves the national service framework for older people, will he also confirm that according to standard 2 of that framework, which calls for person-centred care, the NHS and social services are supposed to treat older people as individuals and enable them to make choices about their own care? Can he enlighten me? I have been unable to discern any thread throughout the Bill emphasising the concept of patient choice. He will know, as a fellow chairman of the all-party group for older people, that that is a major worry for organisations such as Age Concern.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Gentleman is right. Organisations such as Age Concern are worried because in the Bill, patients seem to be regarded as passive recipients of care, rather than co-producers of the care—people who ought to give informed consent about what happens to them at every stage in their care. The clause, along with clause 3(3) and (9), implies that only a partial assessment of needs is to be carried out for the discharge notice to be issued. That is why the provisions are wholly inadequate in the light of the

national service framework for older people. They are likely to be detrimental to the care offered to older people.

What safeguards are in place to prevent inappropriate placements, with patients and carers unable to make a full assessment of, or have full access to, the services that they need after discharge? Once someone is out of hospital, the full package that they need may not have been arrived at. They may have been given an interim package and be in the process of negotiating what care is available to them outside the hospital.

Once a section 2 notice has been issued, the clock starts ticking. The social services department must race to assess the patient's needs. The explanatory notes and the consultation document both make it clear that that will not be a comprehensive assessment under section 47 of the National Health Service and Community Care Act 1990. The Bill does not make it clear when an assessment of continuing NHS care is to take place. The amendment would add to the single assessment framework a requirement that continuing care needs be assessed. That is central to who pays, as well as who cares, for an individual. Currently, that obligation is often met more in the breach than anything else. Plenty of anecdotal evidence suggests that the process does not happen while the person is still in hospital.

Clause 3(6) imposes a duty to consult, but it does not go further and impose a duty on the acute trust or any other NHS body to carry out any assessment of continuing NHS care requirements. The amendment incorporates the assessment of continuing care and the requirement to conduct an assessment of registered nurse care contributions as part of the single assessment framework.

There is confusion among many in the community—patients and carers—about what they are entitled to expect from an assessment of continuing care, and the criteria for determining whether a person is eligible for it. The criteria vary across the country, and are now subject to challenges through the health ombudsman and through individual complaints. That has led questions to be raised about whether the criteria are lawful.

Surely the patient, the carer and the social services department need to be aware of the health needs of the individual, as part of the assessment. Anecdotal evidence suggests that patients enter nursing homes without an assessment of what band they will be put in, so they are without information on whether they are in a continuing care band or one of the nursing care bands. They therefore enter without knowing whether they have to pay, or whether the cost will be picked up by the NHS or the social services department. Do patients still have the right to an assessment of their onward costs, and to be provided with information about it? The regulations and guidance that covered that were withdrawn and have not been replaced. Do the Government plan to issue further guidance?

My final point on single assessment is again about whether the provisions are consistent even with the Care Standards Act 2000. That Act and the regulations made under it place on care home owners a statutory duty to assess the potential residents of their homes before accepting them. That requires a manager to pay a visit before a discharge from hospital, yet it is not clear from what the Minister has said or from the Bill whether a delay in that manager making his assessment under care standards legislation will result in the social services department again suffering a fine for something outside its control. Will that involve an exemption from the system, or will social services departments have to pick up the bill?

My final point about the single assessment process that amendment No. 67 would add to the Bill concerns the flow of information that is necessary between all the agencies in a multi-disciplinary assessment. Interestingly, a finding of the Audit Commission review of services for older people with mental health problems, published earlier in the year under the title ''Forget Me Not 2002'', was:

''Effective information sharing between health and social care practitioners is a prerequisite to successful co-ordination. Joint working and the single assessment process must be weakened without it. However, auditors found that shared case files, or easy access to each other's files, only existed in a tenth of areas, and partly so in only a further third.''

Yet within months of the publication of that document, in a written answer, the Minister could tell us that all the information systems were in place and that in future

''they''—

that is, the NHS and social services departments—

will need to agree between themselves what data they need to prepare for the introduction of reimbursement to prepare for the introduction of reimbursement. That information should flow from existing systems.''—[Official Report, 3 December 2002; Vol. 395, c. 759W.]

Yet the Audit Commission states that those systems do not exist, or are not robust. How can this system of reimbursement be made to work unless the Bill includes a clear single assessment procedure, and without proper systems to enable the NHS and social services to share information?

John Baron (Conservative, Billericay)

In paragraph (h) of the new subsection (2A) that amendment No. 67 would insert, it strikes me that the phrase

''consideration of the older person's views''

could be rather vaguely construed. What form would that consideration would take? Also, what means would be available to secure an amicable solution and the due consideration of the older person's views, with a view to ensuring that they would be discharged and moved on in a suitable way?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the hon. Gentleman for drawing attention to paragraph (h), which gives me the opportunity to discuss the issue of carers, too. Both matters are absent from the Bill. Certainly, in my view, at each stage of hospital care, informed consent is necessary. To deal with occasions on which informed consent cannot be given, other amendments have been tabled, tackling issues of

mental incapacity. The hon. Gentleman or his hon. Friend the Member for West Chelmsford may move those later.

It seems to us that, either in the terms of the amendment or in another manner devised by the Government, the Bill should stipulate that persons about to be discharged from hospital—whether after a delay or not—should be consulted about such matters as where they are to be transferred to, if that is a health care setting, or whether any long-term permanent care is to be provided in a care home or as home care. The amendment is intended to secure that result.

However, it is important that we should include in the single assessment framework an assessment of the carer's need. It is clear from research done by Carers UK that as many as 70 per cent. of carers who have been involved in the discharge process say that they felt as if they had been dumped on. They were put in a position in which they had no choice. They were not assessed to ascertain whether they had the capability or means to provide the care, and they were not offered an assessment of their needs as a carer. All such matters are covered by the amendment. I hope that the Minister will assure the Committee that they will be dealt with not just in regulations but in the Bill.

If discharge planning issues that have been in need of attention for a long time, and which carers' and other organisations have brought to the Government's attention, are dealt with in the Bill, it may be possible to avoid some of the unsatisfactory situations that have arisen in the past, in which patients became involved in a game of pass the parcel between agencies, with the carer as an innocent bystander who had to pick up the pieces.

Nigel Waterson (Conservative, Eastbourne)

In the brief time available I want to make a couple of points in support of amendment 67, which I think has some excellent ingredients. I want to focus particularly on the issue of patient choice, which is patently missing from the Bill. I am familiar with the issues to do with bed blocking, delayed discharges, or whatever the current expression is, not only in my area, where it has been an ongoing problem in recent years, but as vice-chair of the all-party group on ageing and older people.

I want to focus on proposed new paragraphs (f) and (h). Paragraph (f) deals with the

''duty on the professionals undertaking the assessment to work together in the best interests of the older person as defined by the older person or those close to them''.

Perhaps more importantly, paragraph (h) refers to the

''consideration of the older person's views and wishes''.

The hon. Member for Sutton and Cheam has already touched on the major human rights and other concerns of a wide range of organisations. As we know, the Bill does not have a friend in the world. I do not think that a single body, group, organisation or, for that matter, individual expressed any support for it, although I am happy to be corrected by the Minister if that is a sweeping over-generalisation. I can only assume from her remaining in her seat that I am probably right.

I touched on standard 2 of the national service framework for older people. The Bill makes complete nonsense of that. I am sure that all hon. Members have a copy of the briefing from Age Concern, which has a number of worries. It says:

''We are concerned by the scant regard paid by local authorities to the regulations and guidance and the Choice Directive.''

There is nothing in the Bill that will improve that; some local authorities are apparently cavalier about the choice or preference of the older person in question.

Age Concern continues:

''They do not treat older people as active participants in the provision of caring services''.

If the Bill becomes law in its present form, the sad fact is that the older people will be treated like embarrassing parcels, to be shunted from one part of the care system to another, in the hope of avoiding a fine or similar penalty.

As part of the unanimous voice of criticism, Help the Aged raises its

''serious concerns about this Bill''.

It writes:

''Help the Aged is concerned that the Bill does not recognise the rights, or perspective of the patient.''

I do not want to repeat any of the good points made by the hon. Member for Sutton and Cheam, but I wonder what contingency plans the Minister and her officials are making for the almost inevitable legal challenge by a representative patient once the Bill becomes law. I would very surprised if either some pro bono human rights lawyers—possibly the Prime Minister's wife, if she is not too busy—or others, possibly supported by Age Concern or Help the Aged, do not make an issue of this. The way that things are written, they would be right to do so, because the Bill flies wholly in the face of patient choice.

It is ironic that the Bill not only denies patient choice—I do not think that patient choice is mentioned anywhere, and I will be interested to discover whether the regulations do so—but flies in the face of the choice directive and human rights legislation. It is also ironic that the Government have consistently eroded the choice available to patients or potential patients. I refer to the case of my constituents, Mr. and Mrs. Ryder.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

Surely the issue of choice relates not only to residential or nursing care but to staying at home, which most people want. The Government have

provided much more money and many more options so that people may choose what they want.

Nigel Waterson (Conservative, Eastbourne)

I would be persuaded of that argument if the hon. Lady could point to the word ''choice'' anywhere in the Bill. Perhaps I have missed it, but I cannot see it anywhere. Not only does the Bill deny patient choice by not making it a priority, but the Government have eroded the choice of, for example, care and residential homes available.

I mentioned the Ryders, who in the face of the new regulations sold their residential care home. They had barely shut their home when the Government did a U-turn on the requirements for lifts and so on of homes such as theirs. I wrote to the Secretary of State for Health on 6 August, asking what he was going to do to compensate Mr. and Mrs. Ryder for that grotesque unfairness, and have yet to receive a reply.

It being One o'clock, The Chairman proceeded, pursuant to Sessional Order C relating to Programming (29 October 2002) and the Order of the Committee [this day], to put forthwith the Question already proposed from the Chair.

Amendment negatived.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Clause 2 ordered to stand part of the Bill.

Clause 3 - Duties arising where a notice