Health Bill [HL]

These amendments deal with the provision of information, protection and support for recipients of direct payments for healthcare and the protection of staff providing services under a direct payment. I will address the amendments in turn, starting with those that relate particularly to information, advice, advocacy and support. Amendment 52 was tabled by the noble Earl, Lord Howe. It introduces a specific power to make provision for ensuring that the recipients of direct payments for health care have access to relevant information. Amendment 54 was tabled by the noble Baroness, Lady Barker, and explicitly enables regulations to provide for patients or their representatives to receive training and guidance to help them to manage direct payments for health care safely and to safeguard against potential abuse. Amendment 69 restricts new Section 12D to enabling the Secretary of State to require primary care trusts to commission advice and advocacy services. Amendment 69A, which was tabled by the noble Baronesses, Lady Wilkins and Lady Campbell, expressly allows arrangements to be made with user-led organisations to support direct payments, and Amendments 69B and 63A create an expectation that voluntary and user-led organisations will be commissioned to produce advice, advocacy and other support to people using direct payments. I entirely agree with noble Lords that patients and their representatives should be able to access the information and training that they need to make informed choices. This policy is about patients’ care and their direct payments, which are fundamental to the success of the policy. Personal health budgets, including direct payments, will succeed in giving greater choice and control only if people have information and support that is tailored to them. In our document, Personal Health Budgets: First Steps, we said that PCTs should work alongside local authorities and voluntary organisations to give appropriate support and information to patients. One of the six key principles of the programme is ensuring that people can make well informed decisions about the care they need. Organisations that are led and controlled by people who use services and voluntary organisations may well play an important part in providing advice and advocacy and may have a wider role: for example, in carrying out assessments, acting as care co-ordinators or supporting patients in other ways. The Bill allows flexibility for that. Information and support could be delivered in many different ways, including through existing social care systems, independent advocates, peer support, brokerage organisations or self-management courses. The best way of delivering support to patients is likely to vary between different groups and different individuals. This is something that will need to be decided locally and depending on the conditions. An overly prescriptive approach in legislation could inadvertently become a barrier to innovative practice. Instead, we want to encourage local innovation and build the evidence through piloting to show where direct payments are of greatest benefit and which forms of support are most effective. We are talking about pilots. If the Bill receives Royal Assent, there will be draft legislation and we will consult on it. It will include all the debates that we have had today and the amendments that have been tabled. We will bring the regulations before Parliament before the pilots of direct payments start. I do not want to be prescriptive at this stage, and I hope that noble Lords agree that the approach under new Section 12B is sensible. Amendment 53 would require that regulations be used to ensure that all providers of services for vulnerable patients be vetted and undergo mandatory checks. I start by emphasising that the safety and welfare of all patients who receive services using direct payments are obviously paramount. Clearly, patients who lack capacity to make decisions about safeguarding are an especially vulnerable group. Mandatory checks of providers provide important safeguards for vulnerable patients. However, it is important that these mandatory checks are proportionate to the risks presented. I can assure Members of the Committee that we intend to be consistent with the approach set out in the Safeguarding Vulnerable Groups Act 2006. The department has recently consulted, in the context of direct payments for social care, on how best to ensure that a person lacking capacity is safeguarded from any potential abuse that may occur while they are receiving social care. Our thinking is that, for vulnerable patients who do not lack capacity but wish to have someone else deal with their payments, the patient will be responsible for nominating a person to receive direct payments on their behalf. Where a patient lacks capacity to consent, regulations could contain provision for payments to be made to a third party, as I explained in the debate on the previous amendment. If the person receiving direct payment is not a family member or friend, they would have a duty to check that providers of services are properly vetted, monitored and not barred from working with vulnerable patients under the Safeguarding Vulnerable Groups Act. If, on the other hand, the person receiving a patient’s direct payments is a friend or family member, then the provider may be checked, but it would not be mandatory. I hope that Members of the Committee will agree that this is a proportionate and sensible approach to the issue of safeguarding. Finally, Amendment 57, tabled by my noble friend Lord Campbell-Savours, deals with the issues of protecting staff who provide services funded by direct payments. As we set out in Personal Health Budgets: First Steps, the success of personal budgets and direct payments will depend on staff: those who support and agree care plans and budgets for patients; those who monitor those budgets and the conditions of individuals; and, obviously, those who deliver services. This is a lesson that came across clearly from the evaluation of individual budgets in social care. It is likely that the development of personal budgets will require significant cultural changes at all levels of the NHS, which should not be underestimated. There may be far-reaching changes to the way in which staff work. It is vital that the pilots help us to understand fully the implications for staff, including issues such as employment status, terms and conditions, training and development, professional development, career progression, and workforce planning and development. In social care, we know of concerns from recent research that care workers employed using social care direct payments may not have received sufficient training opportunities. In a minority of cases, there may not be full compliance with employment law. However, we also know that other people using direct payments to employ care workers are keen to see that their staff have good terms and conditions and access to training. Only if directly employed staff have terms of employment that are legal, reasonable and fair will the quality of care they deliver be of the required standards. All those who directly employ staff will need to understand their responsibilities. PCTs overseeing the pilots will need to ensure that patients and carers have the information and support they need to act as responsible employers. All staff should be involved and engaged in steering the implementation of personal health budgets and direct payments, and in developing appropriate training required. We will therefore be looking for evidence that front-line staff and unions are engaged and supportive during the pilot selection process. I assure my noble friend that we are constantly working with UNISON at the moment to get an agreement on this. More importantly, however, both we and the unions have a lot to learn from the pilots in tackling some of these important issues. The success of the national rollout will be based on that. I hope that I have reassured Members of the Committee that the evaluation programme will specifically look at the implications of personal health budgets for staff. Again, if the evidence from the pilots showed that there was a case for setting explicit conditions to protect staff, I would like to put it on the record that the existing regulation-making powers in the Bill would allow us to do so. Before moving to my conclusion, a few other points have been raised. The noble Earl, Lord Howe, raised how the direct payments would be regulated. The direct payments will be consistent with the existing policy of regulation of health services, where services would otherwise need to be registered through CQC, or a practitioner would, obviously, be subject to professional regulation. The different examples of my noble friend Lord Campbell-Savours, whether it was a chair or a mattress, made the case of why we need these pilots and how much we can learn from them. At the same time, however, the noble Baroness, Lady Campbell, also said that we can learn a lot from what we have already evaluated in social care. I hope that we can capture many of these things as we bring legislation back, rather than putting them in the Bill, as I said earlier. I am not sure that the noble Lord, Lord Walton, was in his seat when I addressed crystal therapy, which I know very little about, in the debate on the last amendment. The whole purpose of these direct payments is to have agreement with the care manager; it should be part of the care plan. Osteopathy or hydrotherapy, to which I made reference earlier, are two good examples whereby such interventions could be part of the care plan. My noble friend Lord Campbell-Savours also mentioned individuals or providers who may abuse this money for their own self interest, rather than in the interest of the patient. We intend that the care plan must be agreed by the care manager, as I said earlier, but also by the PCTs, before any money is spent. I hope that inappropriate treatment will not be agreed by the PCTs. Again, I hope that we can learn more about that from the pilots. I hope that I have given enough explanation on this group of amendments. I am sympathetic to all of them in this group: information, education and training, whether you happen to be a patient or the staff delivering that care, are extremely important. I hope that I have reassured Members of the Committee that we will capture all of that and bring it back to Parliament in regulations before these pilots are instigated. I hope that Members of the Committee will feel able to withdraw their amendments.