Health and Social Care Bill

Baroness Barker Excerpts

Tuesday 6th March 2012 Lords Chamber

[Baroness Murphy]

My Lords, I think that the noble Lord, Lord Warner, is having us on. There is an urgent need to press the Government on bringing forward their White Paper on social care reform, which is the pressing economic and social care issue of our day—more important than this Bill. But we have to get it right. We are expecting a White Paper, and there are many arguments to be had about the recommendations from the Dilnot commission, although there is quite a consensus of opinion, and about the right and wrong and who will pay and when. I hope that we can have those debates in this House. But this issue requires a full Bill. This amendment gives a new Bill inside the Health and Social Care Bill on Report, and I do not really think that it will fly. I can imagine what the noble Lord, Lord Warner, would have done if it had been proposed when he was Health Minister. He would have given it very short shrift—and I urge the Government to do so again. We need a proper recommendation and discussion in the White Paper.

I also remind the House that last year the Law Commission came out with a report on adult care social services that said that we had had endless piecemeal bits of legislation over and over—and this amendment does it all over again. Let us not make the mistake of supporting this amendment. I am very sympathetic to what the noble Lord wants to do, and we all feel very impatient about it, but let us have a proper Bill and proper debates and get it right for the next generation. Frankly, it is our generation and the next one that will benefit from a proper social care reform Bill. Let us get it right and not do it this way.

[Baroness Barker]

The noble Lord, Lord Warner, asked what was to disagree with—what was not to like—and the answer is nothing at all. However, that is not to say that this amendment is not deficient and there are not an awful lot of questions that it begs.

The noble Lord is right that my party, along with others, has agreed with the Law Commission review and supported the efforts to see the Dilnot commission brought into law. However, he will know as well as I do that the history of social care law reform is littered with failed attempts to deal with one of the biggest issues that our society faces—the Royal Commission on long-term care. The Wanless report was largely about the NHS, but a significant chunk of it was about the need to reform social care to drive down future demands on the health service. Noble Lords have been critical of this Bill, and many of their criticisms are justified, but they overstate the extent to which the latter parts of the Bill, with the placing of public health into local government and the creation of health and well-being boards, attempt to deal with that agenda, decrease health inequalities and raise levels of preventive health promotion. I, too, think that this is an inadequate response, particularly to the Law Commission report, which was a good and detailed piece of work. It deserves extensive scrutiny and to be brought forward in law in a way that is far more comprehensive than this.

I will not have a go at the noble Lord, Lord Warner, for keeping the issue on the agenda, but I say to him that the Care Services Minister, Paul Burstow, has made it clear throughout his tenure that he is doing all in his power to keep social care to the fore. I come back to the £2 billion that was invested in social care at the beginning of the Government’s term. The Government are mindful of the need to deal with this, not least because the noble Baroness, Lady Murphy, is right to say that, as she often reminds this House, no one has a social care need unless they have a healthcare need—the two things are indivisible—and if the Bill is about anything, it is about tackling the health needs of the population as a whole over time.

I do not disagree with the noble Lord, Lord Warner, but I do not think that this is quite the way to go forward. I hope that all Members of this House will continue to uphold the consensus that there has been over the past two years behind the work of the Law Commission and the Dilnot report to bring this issue forward in a way that means that it can be determined successfully once and for all.

[Lord Campbell of Alloway]

My Lords, I would like to raise the matter of the process of putting in statute what in the ordinary course of events should be put in subordinate legislation by regulations or whatever. If you read the amendment carefully, it is a very wide command involving four assessments of individuals’ needs. I am not at all criticising what is sought, but I ask for it to be considered that the amendment would open a large gateway of legal challenge to the Secretary of State that would not exist if this were not put into statute. This question is concerned with finance at a time when finance need not be referred to again.

--- Later in debate ---

[Lord Walton of Detchant]

My Lords, I will briefly speak to Amendment 167 in this group, which has been tabled in the name of the noble Lord, Lord Hunt of Kings Heath. I understand entirely why he has tabled this amendment but, with respect, I do not believe that it is necessary.

All medical bodies, including the BMA and the General Medical Council and others, now agree that the days of doctor’s orders are long past. The practice of medicine is a partnership in which it is up to the doctor to recommend to the patient what course of action is most appropriate in the patient’s best interests; what it is appropriate to do in order to reach a diagnosis; what tests are appropriate in order to achieve that diagnosis; and what course of treatment would then be necessary. However, it is up to the patient to decide whether or not to accept that advice and it is not possible for a doctor to carry out a test without the informed consent of the patient.

It is also well agreed by these medical bodies that if a doctor has given full and detailed information to a patient about the course of action that is appropriate, and if the doctor recommends a particular course of treatment that he regards as being necessary in the patient’s best interests, the patient may nevertheless have the right to refuse that advice even if refusal of that advice ends in the patient’s death. For that reason, as all of these issues have been dealt with repeatedly in the advice given by the GMC, the BMA and other bodies, I do not believe that this amendment is necessary.

[Baroness Barker]

My Lords, the noble Lord, Lord Walton, will be aware of many occasions in this house—when the noble Lord, Lord Hunt, was Minister and some of us were in opposition—when we listened to Lord Weatherill speaking on behalf of Christian Scientists, who often wish to refuse treatment. I understand that this amendment originated from the Christian Scientists, who merely wish to draw again to the attention of the medical authorities the fact that they have a belief system that deserves the same amount of dignity and respect as any other. Perhaps he might view the amendment in that light.

[Lord Hunt of Kings Heath]

My Lords, I do indeed recall the debates that we had during one of the many health and social care Bills that have gone through your Lordships’ House in the past few years. It was indeed Lord Weatherill who raised the issue with me. Essentially, it was about standards in nursing homes where there was some concern that an insensitive regulator would take action against a home that was actually respecting the wishes of a member of the Christian Science religion. We were able to reach a satisfactory solution. An appropriate amendment was put forward and I think the noble Earl, Lord Howe, was also part of what I like to think of as the “second Weatherill agreement”. We may need another one in a couple of years’ time—who knows? I ask the Government for an assurance that the position that we then agreed will continue under the new Bill.