Care Bill [HL]

Baroness Wheeler Excerpts

Monday 29th July 2013 Lords Chamber

[Baroness Barker]

My Lords, I thank the noble Lord, Lord Patel of Bradford, for introducing this extremely important issue, which this House has addressed on a number of occasions, including during the passage of the Mental Health Bill, when the noble Earl and I were in opposition and argued very strongly for the retention of Section 117. It also came up during the Health and Social Care Bill.

I do not want to go into any detail because the noble Lord has done that excellently and there is no need for much more to be said. I would simply say that Section 117, which has been around for about the past 30 years, is the one piece of legislation that enables health and social care to work effectively together to deal with the needs of a very vulnerable group of people. It seems very odd, when the whole thrust of the rest of the Bill is aimed at integrating health and social care, that the one piece of legislation where that actually works is constantly coming under attack. People’s mental health deteriorates for reasons to do with their social circumstances as much as their mental condition. The noble Lord is right yet again to defend this piece of legislation and I support his amendment.

[Baroness Wheeler]

My Lords, my noble friend is right to express his frustration and dismay that, once again, we are faced with government proposals which would change the statutory provision of free aftercare services for people leaving hospital who have been treated under the Mental Health Act 1983 and people subject to community treatment orders—Section 117 services.

As we know, the Government have promised to address concerns about changes made to Section 117 in the code of practice guidance under the Act, but my noble friend has shown clearly today why the Bill’s current wording under Clause 68(5) needs to be changed. As it is drafted, it would have very serious consequences and cause complete confusion over the responsibility for provision of aftercare services for mentally ill people, which we all thought had been addressed and resolved last year under the finally agreed provisions of the Health and Social Care Act.

The current statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising due to the mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. Amendment 105 to Clause 68 instead defines aftercare services as those services designed to reduce the likelihood of a person requiring readmission for the same mental disorder. It is right that the definition of aftercare services focuses on reducing readmission to hospital and does not lead to confusion or legal disputes about a local authority’s role in this or about what services should be provided under Section 117.

Recent surveys by the mental health charity Mind have shown, generally, that many people with mental health problems are never properly assessed to see if they need social care—such as somebody to help with admin or household tasks, washing, dressing or something meaningful to do with the day. At least under the current legislation, people with mental health problems who have been treated under the Mental Health Act are entitled to receive free aftercare services when they leave hospital, and we must take care to safeguard that entitlement.

We on these Benches strongly support my noble friend’s amendment to ensure that that entitlement is carried through into the Care Bill. My noble friend has both the expertise and the dogged determination to pursue his case, and I hope that the Minister has some very good news for him today that addresses his rightful concerns.

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[Lord Ramsbotham]

My Lords, I support the noble Lord, Lord Patel, on Amendments 105AA and 105CA, and will comment on government Amendments 105B to 105D. I do so as a former Chief Inspector of Prisons who was closely involved with safeguarding inspections of children, which we were able to carry out thanks to there being a social care inspectorate in position at the time. The inspections were joint in that they covered a number of inspectorates, not just the Commission for Social Care Inspection. At the same time, I was conducting a thematic review of the treatment of the elderly in prison, who were causing intense concern. Unfortunately, at that time the social services that were responsible for the elderly in the country did not function in prisons. I had hoped for the adoption of what I understand the Government now intend to do: to make the social services responsible for the oversight of the elderly in prisons. In speaking to these amendments, I am conscious that the Government are almost there, but not quite.

I wonder, too, whether the Ministry of Justice actually consults with other ministries about Bills that affect prisoners. We are about to start the Committee stage of the Children and Families Bill. We have to try to remove a clause that prevents young offenders being subject to the pathways for those with special educational needs. Prisons are allegedly to be excluded. Only last Wednesday, the noble Lord, Lord Dubs, raised a question about jobseeker’s allowance and prisoners not having access to benefits in time. I wonder whether the clause not applying to prisoners was discussed or whether the Ministry of Justice has come to a view on something that will affect an increasing number of people in the prisons: the elderly.

There is an extreme need for local social services to be involved in prisons by statute and by right. With due respect to the Ministry of Justice and the Prison Service, when I listen to the Minister saying that “it will be left to the prisons” and that it “should” be statutory, or that they “can” invite members of safeguarding adults boards into prisons, I do not think that that is good enough. The track record, if you go into prisons over the years, is that it is not good enough.

The other thing is that people are simply not trained enough to be able to conduct the care that is so essential for the elderly element of the prison population. There are many concerns over the fact that too many staff have simply no idea about problems to do with dementia, which is but one of the issues. To phrase this provision loosely and say that somebody from a prison “may” be a member of the board is not good enough. It really should be laid down in statute that somebody must be a member. If it is not the governor, it must be someone from the senior prison management team. The other reason it must be a member of the senior management team is that people change. There is such movement in the staff of a prison that if you are not careful, you will not have somebody who knows what they are doing and knows the people in the local authority to contact if there is a problem with somebody who needs care. It is important to have it statutorily laid down not just for somebody to be responsible within the prison, but so that those who are responsible for delivering support and care know precisely who to make contact with. It is no good leaving it nebulous by just going to the prison and finding somebody. If you do that, you will find that the “somebody” is not there. I believe very firmly that someone should be made responsible and accountable for this.

I welcome the fact that prison officers and prison custody officers may be members of the boards, and mention has been made of the work done by HM Inspectorate of Prisons. That is fine, but only goes half way. I hope that the Care Quality Commission will conduct inspections of the safeguarding of adults in prison. The commission would use the other inspectorates, which will have something to contribute to that. As was done with the safeguarding of children inspections, they would be joint and not merely limited to one part. I very much hope that the Government will carefully reconsider these amendments, perhaps in consultation with the Ministry of Justice—which, I would hope, would have objected to these two clauses anyway.

[Baroness Wheeler]

My Lords, this is largely a group of government technical amendments, interspersed with amendments from noble Lords probing important aspects. On Clause 69, my noble friend Lord Patel’s Amendments 105AA and 105CA would ensure that local authority safeguarding inquiries do apply to adults in bail accommodation and, in respect of Safeguarding Adults Boards, would enable prison governors or other prison staff to be members of the board.

Government Amendments 105B and 105D address those issues. On safeguarding inquiries, the Government’s proposal to allow SABs to provide advice and assistance to persons in bail accommodation is a compromise. My noble friend has argued that that is not good enough and we strongly support that view. How can local authorities have premises in their areas where abuse or neglect could occur and not have a duty to conduct a safeguarding inquiry?

On prison governors being members of Safeguarding Adults Boards, my noble friend is exploring ways in which governors and prison staff can best participate in and learn about the board’s role and work. I look forward to the Minister’s response on how she thinks the Government’s amendments best facilitate this.

The remaining Clause 69 government amendments include a number of tidying-up measures which we support to reduce the burden on local authorities, such as clarifying local authority ordinary residence rules in relation to bail accommodation, explicitly exempting prisons and bail accommodation from local authority safeguarding adults reviews, and minor technical amendments to change the general language relating to the clause.

Under Clause 71 and Amendment 105Q from the noble Baroness, Lady Browning, we return again to the Secretary of State’s powers in relation to local authorities and NHS bodies. Both the noble Baroness and my noble friend Lord Touhig make a strong case for statutory guidance previously in place to continue to apply under the new legislation until the Secretary of State declares otherwise. The noble Lord and noble Baroness, as usual, speak strongly on autism and the Autism Act being embedded in the new legislation. However, there is a wider issue of ensuring that the Secretary of State retains ultimate responsibility, arguably more important than ever with the tendency of our current Secretary of State to hover above it all and act as if everybody else is responsible but him.

Amendment 105R of the noble Lord, Lord Low, to Clause 72 seeks to prevent a local authority from being able to delegate functions on its behalf under this part of the Bill. He is right to be cautious about how the local authority powers under this clause are used. I look forward to the Minister’s response to the amendment.

Finally, under government Amendment 105V in this group, I again raise an issue that I spoke of during last week’s safeguarding debate on the provider failure provisions under Clauses 47 to 49, designed to address responsibilities and actions in any future provider collapse, such as we saw most recently with Southern Cross residential care homes. The Lords Delegated Powers Committee expressed concern at the Bill’s failure to define what is meant by both “business failure” and “market failure”. Although I got an answer in passing in the following debate when the noble Earl the Minister responded to a question about provider failure from the noble and learned Lord, Lord Mackay, I would appreciate the Minister explaining today in more detail why the Government have chosen regulations to address these two issues, which are fundamental to the operation of the provider failure provisions of the Bill, rather than include the definitions in the Bill.

[Baroness Northover]

My Lords, I thank noble Lords for tabling the other amendments in this group on these very important issues. On the amendment in the name of the noble Lord, Lord Patel of Bradford, we agree that a person with care and support needs should be protected against abuse or neglect wherever they are. As I have already set out, prison governors and directors have in place procedures to follow in response to allegations of abuse or neglect. Governors and directors will provide assurance to the National Offender Management Service and Her Majesty’s Chief Inspector of Prisons, through their inspection regimes, that those procedures and their implementation provide similar protection to that available in the community. The Prisons and Probation Ombudsman will investigate individual complaints and incidents. I can assure the noble Lord, Lord Ramsbotham, that the Ministry of Justice and the NOMS have acknowledged that there is a need for improved directions to the Prison Service and probation trusts in this area. They will be working with officials from the Department of Health and stakeholders to develop instructions and guidance that will give clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. In addition, prison governors and other prison staff will be able to approach their local Safeguarding Adults Board for advice and assistance in improving their arrangements. The MoJ was, of course, fully consulted on the provisions relating to prisons in the Bill and will be working with the Department of Health and NOMS to develop detailed guidance so that people who are concerned about the safeguarding issue will know exactly how to raise it and get advice on how to approach it. The MoJ is fully involved in the development of all parts of this clause.

The noble Lord, Lord Ramsbotham, also raised the issue of a statutory obligation on the senior management of prisons to take responsibility for the care and support needs of prisoners. The governor or, in the case of contracted prisons, the director, has the primary duty of care for prisoners and is the appropriate first point for reporting concerns. There is an investigations procedure in place for cases in which prisoners suffer significant harm. Prisons are monitored by a range of inspectorates, including the CQC.

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[Baroness Emerton]

My Lords, I support the amendment proposed by the noble Lord, Lord Warner, and agree with what all the other speakers have said. I remind noble Lords that when care pathways were introduced by the previous Government end-of-life care was not a pathway. The noble Lord, Lord Darzi, listened to a group of hospice workers. They said that they very rarely saw a death in a surgical ward and that they believed that we should look at a care pathway for end of life. What has been said today indicates that we need to concentrate on bringing together health and social care, bringing together social workers and health staff and, above all, seeking the choice of patients. As has already been said, most patients wish to live in their own surroundings and the end-of-life care pathway would take care of not only the person whose life is ending but also the relatives and family around them. I suggest that we think about how we progress the care pathway for end of life.

[Baroness Wheeler]

My Lords, we on these Benches are grateful to my noble friend Lord Warner and the noble Lord, Lord Patel, for bringing forward these amendments which ensure that end-of-life care is discussed in the context of the Bill. The Government have confirmed to the Joint Committee that primary legislation is not required for the introduction of the proposed new palliative care funding system or free end-of-life care once the Bill is passed. It is right to seek up to date information on the progress of the end-of-life care pilots and the proposed timescale for the publication of the regulations and consultation, if the April 2015 deadline for any new systems is to be met.

The amendment of the noble Lord, Lord Patel, endorses the Joint Committee recommendation that assessment of the need for the care and support of an adult who is terminally ill should be treated as urgent by the local authority. We fully support that. As Marie Curie Cancer support says, people get stuck in hospital at the end of life because the system cannot move quickly enough to get a care package for alternative care in place. It is established good practice in some authorities to fast track assessment of people not covered by NHS continuing care. It is a very fundamental requirement for people who are terminally ill and should be a duty reinforced in the Bill.

There is also a strong argument for joining up access to social care and support with the DS1500 system for quick accessing of welfare benefits such as DLA, although it is recognised that some of the degenerative diseases such as motor neurone disease may not be easily dealt with in this way. Will the Minister advise the House of the Government’s view on this, and what work is being undertaken to ensure that benefits and the care and support system work in a more integrated way for terminally ill patients? It is now six years on from the introduction of the 2008 End of Life Care Strategy to help people have the end-of-life care and support they need, in the words of the Nuffield Trust,

“beyond the gates of the acute hospital setting”.

The strategy has made a vital contribution to increasing the profile within the NHS and social care of end-of-life care through such excellent programmes as the NHS End of Life Care, the Marie Curie Delivering Choice Programme and the 2009 Dying Matters campaign to tackle the taboo on discussing death and dying. However, as my noble friend has shown, progress on providing real choice for people to die in the place they want to, whether that is in their home, at a hospice, nursing home or in hospital, if that is where they can receive the best palliative and nursing care appropriate for their condition or personal circumstances, has been frustrating and disappointing.

The current main focus of palliative and end-of-life care is still on cancer patients and hospices, but even then, Macmillan Cancer Support research shows that 91% of cancer patients in England who die in hospital wanted to die elsewhere, with 65% wanting to die in their own homes. Only 29% of people with cancer are able to be at home when they die. The amendment of my noble friend Lord Warner seeks to specify in the Bill that regulations may include the right for an NHS patient to die in the place they regard as home or their normal residence. As he readily acknowledges, this can be achieved only if end-of-life care is integrated across the NHS, local councils and hospices, and if it is properly funded. His case for an integrated service for free end-of-life care for terminally ill people who are likely to die within six months is a convincing one.

Macmillan’s research among health and social care professionals shows that 97% identify the lack of financial integration between the services as a key barrier to people receiving the care they need at the end of life. As the noble Baroness, Lady Jolly, reminded us, the Nuffield’s and other research projects point strongly to the cost-effectiveness and potential savings that could be achieved with greater access to social care and reduced hospital admissions at the end of life. The Nuffield research also found that the use of social care currently varies between local authorities and health conditions—for example, people with dementia, falls and stroke use considerably more social care in community settings than those with cancer, probably because that is where they are already being cared for before terminal illness has been diagnosed. Individuals with the highest social care costs tend to have lower average hospital costs.

We fully recognise how crucial the seven adult palliative care funding pilots are to mapping and understanding current patterns and resource use across health and social care at end of life, and to collecting the vital data from which the costs of an integrated end-of-life care system can be properly assessed. These data span across care provided by the NHS, voluntary and private sector in both acute and community settings. The final data analysis report for the adult pilots and the consortium pilot for children’s palliative care services is due in June 2014, and the Government are committed to introduce a new per patient funding system for palliative care by April 2015. Can the Minister update the House on the progress being made under the pilots, the emerging key themes and whether the timescale has been impacted by the recent transfer of responsibility to NHS England? I understand that there is a problem with progress and that the pilots have only recently been provided with guidance on social care data collection—for example, as regards where data are underdeveloped and will probably take longest to collect. Is the Minister confident that the timescale for pilot reports, evaluation, policy decision and consultation can be met in time for implementation and that the Government will make a decision on free end-of-life care by the end of this Parliament?

Finally, two further issues need to be added to the debate. First, my noble friend Lady Pitkeathley reminded us of the recent Carers UK Carers Week survey which shows that much more support is needed for carers to help them plan for the end-of-life care of the person for whom they are caring. Many do not know how to plan for the death of a loved one and how to look ahead to life when caring ends in terms of returning to or taking up work, making social contacts and managing financially. My noble friend was right to underline how crucial it is to get this support right.

Secondly, it is as well to remember the findings of last month’s report from Public Health England and Marie Curie Cancer Care on palliative and end-of-life care for black, Asian and minority groups in the UK. It is a timely reminder that, with black, Asian and BME groups aged 65 and over set to treble in the next 25 years, there is urgent need to address the reasons for their low levels of use of palliative and end-of-life care services. The report identifies major problems, including lack of knowledge about services, misunderstandings, mistrust and lack of cultural sensitivity on the part of service providers. How are the Government addressing this issue and including it in their work to assess future service needs and funding? Are the pilots collecting data on these vital issues?