Clause 77 - Guidance, etc.

Care Bill [Lords] – in a Public Bill Committee am 3:30 pm ar 23 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam 3:30, 23 Ionawr 2014

I beg to move amendment 121, in clause 77, page 69, line 29, at end add—

‘(4) The Secretary of State must take reasonable steps to ensure that all guidance issued under regulations made under this Part is made easily available in a range of formats and kept up to date.’.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation, NATO Parliamentary Assembly (President)

With this it will be convenient to discuss amendment 125, in clause 77, page 69, line 29, at end add—

‘(4) A local authority, and NHS bodies, must continue to act under general guidance previously issued by the Secretary of State until a declaration of intent has been made by the Secretary of State in relation to new general guidance.

(5) Any general guidance issued by the Secretary of State relating to the exercise of functions as defined in subsection (1) will, unless otherwise specified, use the definition of an NHS body set out in this Act.’.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

This is a small amendment that goes to an issue that was covered in the Law Commission’s report and was picked up in the Joint Scrutiny Committee’s report. It is simply how best to marshal or regiment guidance that is issued in a way that makes it easy for practitioners to understand, easily accessible for practitioners and also easy for us in this place to find and interpret when we come to cross-check how things are being implemented in practice. The explanatory notes state that the courts’ interpretation of the duty under the Local Authority Social Services Act 1970 is that local authorities must

“follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course”.

This is very important. This is one of the more important clauses, if not the most important clause. It sets up so much of what the rest of the Bill provides for, which is to issue guidance. Ministers make very clear promises and undertakings in this Committee, in the House and in the other place about something being put in guidance. That is why the clause matters. It will be something that binds and has to be followed. Whether through this amendment or by the Minister giving us some further clarity, the key point I want to make is that if we are not to go as far as a code we must be clear that we are producing a consolidated bank of guidance in a series of formats that are accessible so that we can use it well.

The other point I wanted to make was to thank the Government for listening and changing the legislation to reflect a recommendation made by the Joint Scrutiny Committee, albeit in the Lords on amendment. That was to make the Secretary of State subject to, or at least to have to have regard to, the general duty under clause 1—the well-being duty—when he or she is issuing guidance or regulations under this part of the Bill. It is very important that the whole system is unified through clause 1. That means that the Secretary of State when issuing guidance or regulations also has to take the duty in clause 1 into account. That is very welcome; it means we will have a coherent system that will deliver the well- being principle effectively. I am grateful to the Government for taking that on board, and I hope the Minister will be able to respond to my question about access to the guidance.

Photo of Grahame Morris Grahame Morris Llafur, Easington 3:45, 23 Ionawr 2014

I wanted to make a few points in support of the arguments advanced by the right hon. Member for Sutton and Cheam on an issue considered in the Joint Committee on the draft Bill. Without repeating those arguments, we come back to the question of whether regulation or guidance applies only to local authorities.

I refer to my earlier declaration of interest. I was asked to table amendment 125 by the National Autism Society. It wants to ensure that the statutory guidance arising from duties placed on NHS bodies by the Autism Act 2009 will continue to apply once the new suite of  statutory guidance and regulations is issued. It is like my earlier amendment in respect of the Mental Health Act 2007. I appreciate that the guidance will be voluminous once the Care Bill is enacted.

The National Autistic Society is concerned that, as other guidance affected applies only to local authorities, there is a need to maintain those duties, and that that need may be overlooked. Let us reflect for a moment on the fact that the Autism Act is England’s only disability-specific legislation, in that it applies only to people with autism. There is no Diabetes Act or Parkinson’s Act. As the right hon. Gentleman pointed out, it began life as a private Member’s Bill. The Bill was passed into law with cross-party support, because it was recognised that there was a dearth of services for adults with autism. It led to the publication of the adult autism strategy and accompanying statutory guidance, which commits the Government, local authorities and NHS bodies and other stakeholders to take action to improve the lives of adults with autism across England. Indeed, the Department of Health is currently undertaking a statutory review of the strategy.

Last year, research by the National Autism Society showed that although the Act had succeeded in putting autism on the agenda, change had not been fast enough. Many local authorities and NHS bodies are yet to meet the number of outstanding commitments and it therefore remains important that those duties that apply to clinical commissioning groups and NHS foundation trusts are maintained and not deleted as a consequence of the passing of the Care Bill.

The amendment seeks to ensure that the statutory guidance resulting from the Autism Act is embedded in the new legislation in the Care Bill, and that nothing that currently gives protection to people with an autistic spectrum disorder slips through the net. The Autism Act statutory guidance commits NHS bodies and NHS foundation trusts to a number of particular responsibilities that are crucial to improving the lives of adults with autism, and ensuring that the adult autism strategy is successful.

I have some examples of clinical commissioning groups being responsible for developing a diagnostic and care pathway for adults with autism. Diagnosis is crucial. The Minister referred to the NAS research “Push for Action” campaign. As my hon. Friend the Member for South Shields mentioned in relation to registers of children, the research discovered that a diagnostic and care pathway is in place in only 63 of 152 local authorities. The statutory guidance states that NHS bodies and NHS foundation trusts should ensure that autism awareness training is available to all staff working in health care. I hope the Minister will reassure me on that point. Amendment 125 is a probing amendment, so I will not press it to a vote, but I want to raise some points with the Minister and seek assurances.

The NAS believes that autism awareness training should be included in general equality and diversity training programmes as a minimum. In a survey, general practitioners identified that they need more understanding and awareness of autism and where to refer people with autism for appropriate help and support. May I give an example of why that is important? It is not a trivial issue.

I am grateful to the NAS for providing me with an anonymised example. Chris, a 47-year-old man, was diagnosed with Asperger’s syndrome in 2007, but for more than 20 years before that he had been presenting to his GP and had been given medication for mental ill health and told to pull himself together. At the age of 15, he had been diagnosed with depression, obsessive compulsive disorder and mild Tourette’s syndrome, but getting a diagnosis of Asperger’s syndrome was extremely difficult because the understanding of autism at that time was poor. Chris had learned adaptive strategies to conceal his difficulties and appear “normal”. He finally got a diagnosis only after paying for a private service with someone who had the necessary skills and understanding. He told the NAS that if he had not been able to get that diagnosis, he probably would have taken his own life.

The issue is serious and the example I give brings home to us all how important it is to ensure that adults with autism, and children, get the right diagnosis. It clearly illustrates the importance of ensuring that the good work in the Autism Act 2009 and elsewhere continues. I hope the Minister can assure me, the Committee and people with autism and their carers that the statutory guidance published as a result of the 2009 Act applies to and puts duties on local authorities and the NHS, and that that situation will be maintained.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I thank my right hon. Friend the Member for Sutton and Cheam and the hon. Member for Easington for their amendments. The purpose of the statutory guidance is to guide local authorities on how they should exercise their functions under the Bill. However, the guidance should also be useful and informative to others in the care and support sector, including people using care and support, their families and anyone else who needs it.

Amendment 121 requires the guidance to be made easily available in a range of formats. I can confirm that the Department will take steps to ensure that the guidance is accessible in formats that enable people to make use of it—I hope that gives some reassurance to my right hon. Friend. That will include continuing to engage closely with stakeholders about what we can do to ensure that guidance is accessible to not only local authorities, but the people using care and support services and their families. The amendment also seeks to ensure that the statutory guidance is kept up to date. As part of the ongoing implementation and delivery of the reforms, we are certainly committed to keeping the guidance under regular review, and it will be updated as necessary. The power in clause 77 gives us the flexibility to reissue and update the guidance.

I turn now to Amendment 125. The proliferation of guidance over many years has caused much confusion, and the lack of a clear understanding of the legal status of different documents has not helped. The Bill represents an opportunity to resolve that and create a new clarity and consistency in our approach to guidance. However, the transition to the new legal framework must also be managed carefully, to ensure that nothing is lost in the process. That is a concern of the hon. Member for Easington. We intend to develop a single, consolidated bank of guidance covering all functions within part 1 of the Bill, to support implementation of the new statute. As part of that, we will replace all existing guidance  that covers that territory, to remove the potential for any misunderstanding. We are mindful of the need to ensure that there is no gap in provision during transition. I assure hon. Members that the existing guidance will remain in place until it is superseded by new guidance.

Unlike other statutory guidance related to care and support, the autism statutory guidance, about which there has been concern, is issued under a specific requirement in the Autism Act 2009. That guidance is addressed to local authorities and NHS bodies. The 2009 Act and the duty to issue guidance under it are not affected by clause 77 and remain in place.

The hon. Gentleman mentioned the National Autistic Society, and I pay tribute to its work. It has worked collaboratively with Government over the review of the autism strategy. As a quick reflection, it seems that we have made considerable headway on the legislation, the strategy and the guidance, but making change happen on the ground remains a massive challenge. That will be reflected in the review when it emerges, which is not that far away. It is incumbent on central and local government to work collaboratively to ensure that these good intentions are implemented to make a difference to people’s lives.

Photo of Grahame Morris Grahame Morris Llafur, Easington

Does the Minister acknowledge that we have the classic dilemma here of whether we address these issues through the Bill containing a statutory obligation or through guidance? If we have guidance that is unclear, meaning that the measure is not implemented on the ground, we are not doing our job properly in Committee.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I take the point, but history is littered with Acts of Parliament, regulations and guidance that have not been implemented adequately. To give another example, the Mental Capacity Act 2005 is very good legislation, passed by the Opposition when they were in government, but it has not yet been fully implemented. There is nothing magic about an Act of Parliament that guarantees that its measures will be implemented from day one. Work has to be done on the ground to make the change happen. Our job in this place is to facilitate that change. The challenge is the implementation, and that is where we are at with autism. The guidance under the Autism Act 2009 will remain in force until new guidance supersedes it.

Amendment 125 would create a consistent application of the definition of an NHS body. We agree that definitions must be clear and consistent in the Bill, regulations and guidance and that there should not be differences between the Bill and other documents. We are keeping that issue in mind in drafting regulations and guidance to ensure that key terminology and definitions are consistent. I hope that what I have said persuades my right hon. Friend and the hon. Member for Easington that their amendments are not necessary.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

I am grateful to the Minister for his reassurance about the guidance being published in a consolidated form and appropriate formats. He rightly indicates that the Bill will trigger the production of a whole new set of guidance. At some point, presumably once the Bill has become an Act, it will be useful for the intended timetable for the production of that guidance to be placed in the Library so that hon. Members can see it, be aware of it and be informed.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

That will be helpful. The reassurance on the guidance under the Autism Act 2009, which I had responsibility for taking through, is helpful. I am sure that the hon. Member for Easington will be grateful for that. Unless he is hoping to speak as well, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 ordered to stand part of the Bill.

Clause 78 ordered to stand part of the Bill.