Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 9th October 2013 Lords Chamber

[Baroness Emerton (CB)]

My Lords, I apologise for not having heard the first part of the speech made by my noble friend Lady Meacher; I can only say how much I agree with her. In the past nine weeks, while the carer was away, I had the personal experience of doing two weeks’ full-time caring. I timed waking up, giving the medication, getting breakfast, rushing up to do my post while she was having her breakfast, and then attending to her personal care and getting her dressed. It took an hour and a half, every day, and that was just the morning.

On the point made by the noble Baroness, Lady Finlay, the minimum quality standards in the noble Earl’s amendment set a good standard. However, that needs to be supported by an assessment and care programme. There needs to be a proper assessment of what is required in terms of the total care, not just the minimum. We have a system for some of our residents in the retirement development where I live, where prevention to admission to hospital is done by an assessment of how much time care is required. Two people come from the unit—a nurse and a physiotherapist—and fully assess the patient. If there is a proper care programme, that gives the time element. Amendment 25 says “excluding travel time” and that a visit should not take less than 30 minutes. It is difficult to be so prescriptive, but if that was according to the care plan, it might go a long way.

[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendment 151 is in my name. This is a very important group that goes right to the heart of our debates about the quality of care that is being given to many vulnerable people. You cannot distinguish the quality of care from the way in which care workers themselves are treated. I very much agree with the noble Baroness, Lady Gardner, on that.

In Committee I quoted from a Unison survey called Time to Care, and I will quote one or two statistics from it. In this survey, 79.1% of the staff surveyed said that they had to rush work or leave one care visit early to go to another. Some 56% earned between £6.08 and £8 per hour. The majority do not get set wages. Their turnover is very high: 57.8% of those surveyed were not paid for travelling time between visits. That is not the foundation for providing good-quality, comprehensive and continuous care.

We know that many people on these so-called zero-hour contracts have had to sacrifice time with their children in order to be available when their employer requires them to be—even if there is no work. Others are required to work exclusively for one employer with no guarantee that they work enough hours to pay the bills. The Opposition believe that employers ought to be banned from insisting that zero-hour workers be available even when there is no guarantee of any work. We should stop zero-hour contracts that require workers to work exclusively for one business, and we should end the misuse of those contracts where employees in practice work regular hours over a sustained period.

The issue of how care workers are treated and employed is directly linked to the arguments of the noble Baronesses, Lady Meacher and Lady Greengross, about 15-minute care visits. There is no doubt that there is widespread concern about the impact of local authorities setting what can seem to many to be arbitrary limits in the time allowed for care. I do not necessarily go along with the amendment sponsored by the Leonard Cheshire organisation, but the argument that it raises about care workers being asked to provide personal care, including supporting service users to dress, bathe, eat and go to the bathroom in a timeframe that simply does not allow dignity or respect, seems powerful.

Equally, I have noted the comments of the president of the Association of Directors of Adult Social Services, who cautions against taking a broad-brush approach in terms of the time that should be given to each client. The association agrees with Leonard Cheshire Disability that 15 minutes is not long enough to allow some homecare tasks to be done, but it says that there is a need for some flexible and truly personal approach, so that each person can be assessed and provided with the appropriate care. The noble Baroness, Lady Masham, made a powerful point that if one seeks to place in legislation a minimum number of minutes, the risk is that it would not meet some people’s needs. However, the problem is that if one starts to define it in legislation, it might become the maximum. That seems to be one of the great dangers.

That is why we need to look carefully at the noble Earl’s two amendments. I appreciate the fact that he has come back to your Lordships’ House with some amendments which seek to deal with the substance of the issues that we are talking about. In essence, they say that local authorities, in promoting the effective operation of a market, must first have regard to,

“the importance of fostering a workforce whose members are able to ensure the delivery of high quality services”,

which is in Amendment 24; and in Amendment 27 they must have regard to,

“the importance of promoting the well-being of adults … with needs for care and support and the well-being of carers in its area”.

The question for us is whether that is enough. I rather doubt it. That a local authority “must have regard to” does not seem a particularly strong message to local authorities. Where is the beef in that? Where is the leverage to make local authorities do the right thing in a context, which we must recognise, where they are extremely pressurised in relation to resources?

The reason why I tabled Amendment 151 is that, given that it is difficult in legislation to prescribe the kind of behaviour that we want from local authorities—for the reasons that we have already debated and which the noble Baroness, Lady Masham, illustrated effectively —one way to deal with this issue is through the regulatory system, as I said in Committee. Noble Lords will know that later in the Bill we will discuss the Care Quality Commission and already in the current Bill it states:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social services provided or commissioned by the authorities as may be prescribed”.

There is an opportunity for the Government to say that the CQC will take this on as a major responsibility, to review, monitor and, in some cases, take effective regulatory action, if they believe that the action of those people providing care, either in terms of how they have been commissioned by local authorities or by self-funders, is inadequate. However, the problem with the clause is that there is no guarantee that that is going to happen, because all we are doing is essentially giving the Government regulation-making powers. There is no certainty that this approach will be prescribed.

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[Lord Hunt of Kings Heath]

My Lords, I agree with the noble Earl that the commissioning policies of some local authorities are called into question. However, are there some issues here regarding the resources they have available? Is the overall reduction in local authority expenditure not also responsible for some of these policies?

[Earl Howe]

My Lords, we certainly know that the reduction in resources has had some effect. However, it is interesting that the feedback from local authority chief executives and directors of adult social services suggests clearly that the detrimental effect on the provision of adult social care is not as dramatic as one might suppose from the drop in local authority budgets. This is partly because of the funding provided by my department to local authorities to make up some of the gap. I would not wish to say that there has been zero effect. We think, from the feedback, that the volume of services has diminished by about 5%. This is 5% too much, in most people’s eyes, but may not be as significant as some have feared.

My second point is that central prescription risks prohibiting practices that may, in some circumstances, be consistent with high-quality care. For example, 15-minute homecare visits could well be appropriate in some situations, for instance for helping people to take medication, which is not a process that takes very long at all. Further, using legislation to ban specific processes may result in perverse incentives arising, without addressing the actual problem. A number of noble Lords made that point.

Thirdly, legislating for a specific period of time for which homecare visits must last risks reinforcing one of the key problems here: inappropriate use of time and task commissioning. Instead, we need to move away from overly prescriptive commissioning practices which focus on—

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[Earl Howe]

I do understand that and apologise if I implied anything different. I was seeking to make the point that once you specify a period of time in a Bill it starts to look prescriptive, even if that is not the intent or the effect.

As I was saying, we need to move away from overly prescriptive commissioning practices that focus on price and time-slots, to consider how local authorities can deliver better outcomes and quality care. None the less, there is more that we can and will do to tackle poor commissioning practices. There is a role for regulation. We are therefore proposing an amendment that will make it clear that the CQC may, with approval from both Secretaries of State of DH and DCLG, undertake a special review of local authority commissioning of adult social services in cases of systematic failure. Subsequent to any such review, CQC could issue an improvement notice in the event of a non-substantial failing and recommend special measures to the Secretary of State in the event of substantial failings.

We also intend to issue statutory guidance specifically on local authority commissioning. This will be a valuable opportunity to influence local practice. In particular, we will include in this guidance clear examples of high-quality and poor-quality commissioning practices to support local authorities to develop and improve their own approach.

As well as tabling Amendment 27, we have also, in response to points raised in Committee, tabled Amendment 24, which will require local authorities to consider through their commissioning decisions the importance of fostering a workforce able to deliver high-quality services when shaping local markets. This amendment is, of course, not just about local authority commissioning practices but more widely about how the local authority can work with the market in its area, including with providers from which it does not commission services, to foster a high-quality workforce. This reflects our strong belief that the characteristics of the workforce, including opportunities for learning and skills development, have a direct relationship with the quality of the care that individuals receive. Improving the capability of the workforce through continued skills development and appropriate working conditions is therefore a key component of market shaping.

I therefore fully agree with the intention behind Amendment 151, but I note that the CQC already has powers to take into account standards of employment as part of its inspection of providers. A separate duty on the CQC to undertake periodic assessments of employment standards would duplicate what the commission is already able to do and compel it to undertake assessments of a very specific nature. For that reason, I cannot support Amendment 151, tabled by the noble Lord, Lord Hunt. It is vital that we give the commission the time and freedom to develop its own performance-assessment methodology. In the fullness of time, this may mean that ratings consider employment standards, but this should be a matter for CQC to determine after considering the views of key stakeholders.

[Lord Hunt of Kings Heath]

I am grateful to the noble Earl for giving way and I imagine that we can debate this more fully when we come to his amendments around CQC independence. However, there is surely a distinction to be drawn between the way that the commission does its work and the overall strategic framework in which it does it. I should have thought that it would be appropriate for Parliament to lay down that it would be right for the CQC to focus on standards in the care sector. Does the noble Earl agree that you can draw a distinction between the framework that is set out in legislation and the way in which the CQC does its work—and I very much support the idea of its independence?

Earl Howe: Yes, I accept that distinction, but Parliament has already vested in the CQC considerable scope to focus on any aspect of a provider it wishes to, which could well include its employment practices. It is not as if, when the CQC moves in on a provider and conducts an inspection, it cannot decide for itself that the employment practices are the mischief that it needs to investigate most closely.

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[Baroness Greengross]

My Lords, this amendment concerns discharge plans for people in hospital. I shall start by saying that, in response to my Amendment 87ZA tabled in Committee on this issue, the Minister was understandably reluctant to specify the particular circumstances in which the high-level aims of the general duty to co-operate, as set out in Clause 6(5), should apply. He felt that there should not be an exhaustive list of circumstances, such as discharge plan management, in which the power should be used, and said that he expected authorities and their relevant partners to co-operate when an individual was discharged from acute care under this clause. He asserted that Schedule 3 to the Bill sets out clear steps to ensure the safe discharge of a patient from an acute care setting, and that an assessment for care and support should be made before the patient is discharged, not afterwards. Clause 12(1)(b) already allows for regulations to specify other matters to which the local authority must have regard in carrying out an assessment. Given that this involves setting out procedural detail and related matters, he felt it more appropriate to set out such detail in regulations rather than in the Bill.

While I agree with much of that, my main point regarding the importance of discharge being included as part of admission planning into an acute care setting may have been misunderstood. The subject of discharge should be considered as part of the admission process, long before the actual discharge is instigated. That is the important point here, and I remain firm in my belief that it should be included in the Bill. The most important thing is the idea that discharge planning should be part of the admission process. We have all heard a large number of stories of people who have been discharged inappropriately because everything is decided too late in the day and no one is ready for the discharge. I personally could talk about two or three relatives aged 80 to 90 who have been dumped out of hospital in the middle of the night. Such instances are horrific, but I am afraid that they will continue unless we get this right.

Clause 12 is not relevant here because it refers to a need for a care assessment as being an essential part of the discharge process from an acute setting into either supported home care or longer-term residential care. I want to ensure that it will be facilitated by eventual discharge being part of the admission assessment, which is a very different process that is gone through at a different time by different clinical staff. Including such a duty in Clause 6 would ensure that this happens, so that the eventual discharge stands more of a chance of being successful. The Royal College of Nursing has expressed the view that:

“We are currently seeing far too many people trapped in a ‘revolving door’ between community and hospital services”.

Ensuring a suitable discharge founded on appropriate admission from acute care would, in my view, go a long way to reducing this terrible waste of resources and its associated human misery. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Baroness, Lady Greengross, for allowing this debate. This is an important question and I agree that ensuring that an assessment is made around the time of the admission of a patient to a hospital or other acute care setting would help the process of the appropriate discharge of that person when the time comes for them to leave. One has to say that the context in which we are debating this is one in which the health and social care system is under extreme strain. The Minister will know that the accident and emergency performance, and the issue of the four-hour target, is proving to be problematic for a number of trusts, including my own, in September and October. Clearly, if the health service is having difficulties in September or October, in pretty clement weather, it does leave one with some foreboding about what is going to happen later on in the winter.

The Government have injected a certain amount of resource into the system—I think it is £250 million—which is labelled on the tin “to A&E departments”. The Minister will know that the money has not gone to A&E departments; it has tended to go to the clinical commissioning groups. While limited amounts have gone to A&E departments, in the main, this has been dealt with through urgent care boards. My understanding is that in a lot of areas they still have not decided how to spend the resources. This is partly because CCGs seem to be slow to make hard decisions, and partly because some are not spending the money because they say that they have not received it yet. The problem is this: if by the middle of October you still have not spent or committed yourself to those additional resources, it could take another three months. If, for instance, it was a series of care packages or it was extra resource for employing more nurses, it could take an awfully long time from the decision to spend the money to it actually being in place, and then for the money to be spent.

I am really using this as an opportunity to say to the noble Earl, Lord Howe, that there is a real issue at the local level of actually getting all the partners together and to agree the actions that need to be taken to ensure that we do not get the kind of discharge problems that we are seeing.

What is the cause of the issue of A&E performance? There has been some debate about whether it is partly due to the lack of accessibility and primary care. No doubt, there are serious issues involved which would suggest that that is a problem. However, the noble Earl may have seen some work undertaken by Matthew Cooke, who used to be the adviser to the Government on urgent care and was a consultant in my own trust at Heart of England. His work would suggest that the problem is discharge; that there is simply not the capacity in the community or among personal social services departments to provide the support that is required. However much the Government want to beat up A&E departments, unless we can sort out the capacity in the community, these problems will continue.

The noble Baroness’s amendment is really trying to get to the heart of this. She is saying that it is a real problem—not just for older and more vulnerable patients, but it is probably more directed at those patients—if the first time you start to worry about discharge procedures is when they have spent quite a few days in hospital. First, it takes a long time for the system to intervene; and secondly, it may mean that the patient stays in hospital too long. We know all the problems of institutionalisation, when people have greater difficulty in going back to their own home or into low-level community provision as opposed to having to go into care homes.

The noble Earl, Lord Howe, will no doubt say that this is not the stuff of legislation. However, because of the seriousness of the current problems in our health and social care system, it would send a very powerful signal to people working at local level about the absolute importance of starting discharge planning almost as soon as a person comes into A&E, and of the need to have an integrated approach. It would also give a signal to local authorities. At the moment there is a real problem because local authorities often play around with discharges by saying that they are not convinced that a person is ready for discharge. That is simply trying to ration expenditures. A signal to local authorities that that is also unacceptable would be very helpful.

I am glad that the noble Baroness raised this problem. It is a very important issue. I hope that the noble Earl may be able to help us with it.

[Baroness Barker (LD)]

My Lords, I care passionately about hospital discharges. In 30 years of working with older people and older people’s organisations, we have never managed, under any structure or formulation of the National Health Service, to get right the system of discharging people from hospital. I suspect that the noble Lord, Lord Hunt, is right that the Minister will resist attempts such as that of the noble Baroness, Lady Greengross, to address the issue through legislation.

From my work with voluntary organisations, and some work that I have done over the summer, talking to CCGs, there are two things that could have a direct impact on this. The first is to work with people in the acute sector, to get them to understand that very often voluntary organisations are and can be the answer to managing people’s admission to A&E and their return from hospital. At the moment, many CCGs do not see that voluntary organisations have any role to play in their work. As long as they are of that opinion, frankly, the position is not going to change.

Secondly, there are examples of very good hospital discharge planning. A number of Age UK branches have take-home-and-settle schemes. There is a hospital, I think it is in the Midlands, where a housing association has taken over a ward and turned it into a discharge facility.

[Lord Hunt of Kings Heath]

My Lords, I am very glad that the noble Baroness has mentioned that. My own trust, the Heart of England, has an agreement with Midland Heart to do that. It shows that you can create capacity. My point is, that was negotiated four or five months ago. It is far too late for clinical commissioning groups to be messing around in mid-October, still pondering how they are going to spend the money. It will be January or February before they are going to be able to spend it.

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[Earl Howe]

My Lords, I should like to thank the noble Baroness, Lady Greengross, for tabling Amendments 29 and 125, on what is undoubtedly an extremely important issue, not just for the system but, most importantly, for the patients themselves. When someone is discharged from an acute care setting, care and support must be joined up to prevent unnecessary delays and readmissions that can be distressing to patients and their families and carers. The noble Lord, Lord Hunt, was absolutely right on increasing pressure on acute trusts, not least in A&E.

There is a mixture of reasons why this is occurring: the weight of patient demand; the acuity of patients who present at A&E, more of whom have to be admitted; workforce issues in some A&E departments; hospital discharge practices that may not be as efficient as they should be; an absence of follow-on care in certain locations or, indeed, adult social care services; and delays in installing home adaptations. One cannot generalise about this problem. One can say only that in many areas it is very real.

I will just correct the noble Lord on one issue: the £250 million that we have allocated to ease the pressures on A&E. Those moneys went to 53 NHS trusts before the end of September. They went to trusts that were most at risk of breaching the A&E standards. They were not chosen by Ministers or the Government. The process was led by NHS England and Monitor, so it was done on a structured and objective basis.

[Lord Hunt of Kings Heath]

The point is that the chief executive of each of those trusts had to sign, if you like, for the money, but they did not get all the money. Most of the money went to clinical commissioning groups. Some of them are still meeting to discuss how to spend it, which is the worry.

[Earl Howe]

At least we have given them more notice this year than they have had in previous years. Quite often, winter pressure money has been released into the system only around Christmas. We have consciously tried to do it several months earlier. While I acknowledge the truth of what the noble Lord said in certain areas of the country, I hope and believe that by the time the pressure becomes significant, those crucial decisions will have been made.