Direct Payments (and Health Budgets) for Health Care and Mental Health Patients

Direct Payments used not to be able to be given to people with CHC

A person demands to be assessed as NOT deserving NHS continuing health care status!

“Kay Jenkins is appealing against Rhondda Cynon Taff LHB’s assessment of her as eligible for continuing health care.

Eligible people become ineligible for direct payments, though government guidance emphasizes that health commissioners should seek to maintain continuity of care for those who previously had direct payments.

Jenkins, whose condition requires her to have oxygen 24 hours a day and use a ventilator with a mask at night, said she had been assessed for respite care but was deemed eligible for continuing care. She happened to be a direct payments support worker, who works full time for a disabled person’s coalition, and she said her needs were not significant enough to warrant continuing care, nor did she want it. Yet the health board, which refused to comment on her case, confirmed that anyone deemed eligible for continuing care would be unable to challenge the decision itself, only the process behind it. That’s not strictly true of course. One can’t challenge the criteria, but one is challenging the outcome, if one is challenging the process, and she must have been saying that a mistake had occurred.

As part of her direct payment, Jenkins pays a personal assistant to sleep at her house in a separate room. However, under the board’s plans, a nurse would sleep in her room every night. She said: “I’m not ill. It’s a waste of resources.”

What is the problem, then?

  • The NHS cannot – on a national basis, as yet – provide people with the money, as opposed to the services that are available from the Health Service.
  • The Harrison case from 2009 settled that the funding of a service is not capable as being seen as an NHS service in its own right.

In that case, it was contended that the obligation to provide or “secure the provision” of healthcare services means that the Secretary of State now has such powers as are calculated to facilitate or are conducive to or are incidental to the discharge of that duty and that such powers would include the making of direct cash payments to patients, such as the claimants. Those arguments were comprehensively rejected.

So the pilot schemes have started. Regulations have been made and are in force. The regulations allow for the delegation to PCTs (whilst they still exist) of the related functions of the Minister within the regulations themselves. The regulations are very explicit and detailed, the complete opposite of what was done for direct payments legislation for social care, it is interesting to note – at least until the new guidance and regulations dating back to October 2009.

 

Mental Health service users are not excluded from assessment for social care nor continuing NHS health care (mostly!)

 

The National Assistance Act, the Chronically Sick and Disabled Persons Act, the Health Services and Public Health Act, the National Health Service Act schedule 20 and services provided under s117 Mental Health Act are all pieces of legislation that count as community social services, for the purposes of the right (well, the virtual right) to be assessed for eligible needs for social care, under s47 NHSCCA 1990.

FACS based approaches to eligibility cover the question of a mentally unwell person’s risk to independence, as well as any other client’s level of need. The fact that your organisation has a pooled budget or informal parallel joint working going on with a Mental health provider Trust, does not mean that the persons using the services are only getting, or needing, health care, under the Care Programme Approach. They are getting or needing typical social services as well, and if eligible under FACS, can demand a direct payment, or virtually demand one, in the sense that the council would need to say why it was were satisfied that a Direct Payment could not meet the person’s needs, if it was were going to say No….

Mentally unwell people can qualify for NHS continuing health care funding by virtue of presenting behaviour or cognition issues of a priority and/or severe level. It is only hospital in-patients and s117 aftercare (including s17 MHA ‘on ‘leave’) patients who cannot qualify for CHC funding, for their mental health needs, and that is because they are covered under s117 or the ordinary principles of the NHS, in any event.

Does everyone get a direct payment if they are eligible for social care?

No: there is no duty to provide one to anyone, not even if they ask.

The rules say that there is a duty to provide a direct payment if the council believes that doing so can meet the needs that have been assessed as eligible.

But that is subject to consent, which must be capacitated, unless a person has a Suitable Person appointed by the council to take a direct payment instead.

There are a few sorts of client who are not eligible for one at all – a person in long term residential care, for instance, and some people on Criminal Justice Orders.

Mental health patients, including s117 clients, qualify virtually as of right, if eligible, whereas people on guardianship and CTOs and leave, MAY be given one.

‘Virtually as of right’, means that if a person asks for one, it is not a legal reason for denying one that the council has ear-marked the money for something else, or does not believe it will be best value. Councils used to think that this was the case, when the granting of direct payments was a discretion and not a duty, but it is not arguable any longer.

Their only discretion is whether to give one at all, on the ground of doubt as to efficacy, or as to amount, based on the contention that some things are wants or preferences, and not the reasonable cost of meeting the assessed eligible needs.

 

What does the guidance say?

  1. Previously, many people with mental disorders who were subject to compulsory measures under the Mental Health Act 1983 (and similar legislation) were excluded from receiving direct payments. The Regulations remove most of those exclusions, with the result that local authorities will now also be able to make direct payments to people who are compulsorily subject to such mental health legislation, therefore enabling people previously excluded to benefit from greater choice and control over their support.
  2. It is expected that, in most cases, people subject to mental health legislation will now enjoy exactly the same rights to direct payments as anyone else. However, in a few cases, councils will have a power (but not a duty) to make direct payments to such people.
  3. Under the Regulations, councils now have a power (although not a duty) to make direct payments to people (‘restricted patients’) who are conditionally discharged under the 1983 Act (or the equivalent Scottish legislation). By definition, conditionally discharged restricted patients are offenders who have been detained in hospital under the 1983 Act (or the equivalent Scottish legislation) and who remain liable to recall to hospital if necessary for their own health and safety or the protection of others.

 

The guidance goes on…

  1. Councils also have a power, rather than a duty, to make direct payments in respect of services which the person in question is under an obligation to accept as a result of any of the provisions of the 1983 Act, the Criminal Procedure (Insanity) Act 1964, the 1991 and 2003 Criminal Justice Acts, the Powers of Criminal Courts (Sentencing) Act 2000 and similar Scottish legislation set out in Annex B.
  2. For example, if it is a condition of a person’s community treatment order under the Mental Health Act 1983 that they accept a particular type of community care service, then the council would have a power, but not a duty, to make direct payments in respect of that service (provided, of course, all the other criteria for making direct payments are met). The provision of a discretionary power is intended to give councils greater flexibility in cases where they are concerned that there may be risks in making direct payments in respect of services which the person concerned may prefer not to receive. The person concerned might not, for example, be as committed to making a success of the service as would normally be the case where people use direct payments to arrange their own care.
  3. Even where these provisions apply, local authorities still have a duty to make direct payments in respect of any service not covered by a specific condition, in the same way as they do for any other eligible person. Therefore the situation may arise where a council has a duty with regard to some services and a power with regard to others, when making direct payments to someone subject to legislation set out in Annex B.
  4. Although the Regulations allow councils to exercise discretion in making direct payments to people subject to conditions relating to mental disorder, councils should be flexible in their approach and prepared to support individuals to take up direct payments wherever possible. Councils will wish to consider what support is available to the service user and where this support can be strengthened by access to support services, information and advice, brokerage and, where appropriate, independent advocacy. It is important to have in place a comprehensive risk management strategy within the support plan, agreed between the service user and the council, including what arrangements will be put in place for proportionate monitoring and review.
  5. Where councils decide that it is not appropriate to make direct payments, they should put the reasons for the decision in writing, and make a written record available to the individual. They should also inform the individual about how to access complaints procedures if they are not satisfied with the decision of the council, as described above in paragraphs 48 and 49.
  6. People who are subject to conditions relating to drugs and alcohol under provisions listed in Annex C remain excluded from direct payments. In such cases, the council still has a duty to provide services to meet the eligible needs of the service user, although direct payments cannot be made to meet such needs.

 

Actual Exclusions – Annex C to the guidance

Direct payments may not be made in respect of certain people who have been placed under certain conditions or requirements by the courts in relation to drug and/or alcohol dependencies, as listed below:

  • offenders on a community order, or serving a suspended prison sentence, under the Criminal Justice Act 2003, which includes a requirement to accept treatment for drug or alcohol dependency;
  • an offender on a community rehabilitation order or a community punishment and rehabilitation order under the Powers of Criminal Courts (Sentencing) Act 2000, which includes a requirement to accept treatment for drug or alcohol dependency;
  • offenders released from prison on licence under the Criminal Justice Act 1991, the Criminal Justice Act 2003 or the Crime (Sentences) Act 1997 subject to an additional requirement to undergo treatment for drug or alcohol dependency; and
  • people subject to equivalent provisions under Scottish criminal justice legislation.
  • See Schedule 1 to the regulations.

 

From the guidance – specifically about mental health service users

Example 9: Using direct payments collaboratively to achieve better outcomes for individuals

Re-energise is a user-led sports and social group for people with mental health needs. Members use their direct payments to support the running of the group which focuses on recovery, relapse prevention, social inclusion and choice.

Rather than seeing themselves as passive recipients of services, members of Re-energise take an active role in the group’s activities and development. The group aims to promote active participation and to put the values and needs of users first. As well as sports and leisure activities, the group organises weekly social outings such as the cinema, theatre, meals out, horticultural and cultural visits and anything else that members would like to do.

As a user-led organisation, Re-energise offers its members the opportunity to share their experiences and offer one another help and advice in a friendly, relaxed and informal atmosphere. Its members have clearly felt the benefits of this kind of support.

The group has grown rapidly from meeting once or twice a week with about five members to meeting every day with about 30 members and its model is now being established elsewhere in the country.

 

The links for the Direct Payment regulations and guidance

You can find the statutory instrument containing the regulations here:

The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009

http://www.opsi.gov.uk/si/si2009/uksi_20091887_en_1

Here is the actual new guidance, which covers direct payments for children, as well:

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_104840

 

The 5th interim report into NHS health budgets, June 2012

Fifty-two people with long-term health problems were interviewed nine months after being offered a personal health budget, as were 13 carers of budget holders three and nine months after the offer of a budget.

Most interviewees said that the personal health budget had improved their health. The benefits often extended beyond the specific condition for which the budget had been given and sometimes also exceeded initial expectations. Thus people given a budget because of long-term physical health problems also reported improvements in their mental health.

People given a budget because of mental health problems reported greater well-being, less stress, reduced use of emergency services and better management of relapses. People receiving a budget because of their eligibility for NHS Continuing Healthcare appreciated being able to choose who provided their care and reported greater continuity of care.

Budgets were mainly spent on employing carers or personal assistants to provide support in the home, physical exercise, and complementary or alternative therapies. Less common uses included home delivery of frozen meals, computers, wheelchairs and other equipment, and social activities.

A widespread area of uncertainty was about what personal health budgets could and could not be used for. A minority remained confused about what their budget was funding, or found their budget was being used to pay for things they did not remember asking for or think they needed.

Around a fifth of interviewees had had plans for using their budget turned down by PCT staff or panels that ‘signed off’ budget care/support plans, but received no clear guidelines as to what were or were not permitted uses. Moreover, there appeared to be differences between PCTs in what personal health budgets were allowed to be used for, particularly whether budgets had to be limited to narrow health-related uses or could be used for wider well-being gains.

Interviewees’ budgets were either managed by the PCT/another third party, or by themselves/their carer as a direct payment. PCT management avoided the additional responsibilities of managing direct payments, but could leave interviewees feeling they were not trusted to manage the budget themselves. PCT management also risked delays in procuring services, paying subscriptions or reimbursing out-of-pocket expenses. Some people who had initially opted for PCT management would with hindsight have preferred a direct payment.

Those who had opted for direct payments were generally happy with this and appreciated receiving help with recruiting and employing paid carers.

Some budget holders and carers also received social care funding, either as a separate personal budget or as a contribution to NHS Continuing Healthcare-funded support. There was little evidence of the two funding streams being integrated and some carers reported protracted delays as local NHS and social care departments disputed which budget should fund articular items.

 

Direct payments for health care services – so do we really need them?

The NHS can already make contracts – with anyone it thinks fit – to discharge its duties through. That means self-employed people, agencies, any entity that can and will sell it something that it needs to buy at a price and under terms that it approves of….

It can also employ people as NHS employees. It can also grant fund councils and other providers to do something that they would be doing anyway – in other words, to offset the cost for the provider, in doing its ‘own thing’.

In Gunter, and in Patnaik, the NHS was roundly told it is an error of law for a PCT or LHB to say that they can’t legally buy care from an entity in which the family is involved. But neither case said that the NHS had to, or what the entity should actually be seen as – NHS’s agent or vendor TO the NHS?

 

The relevance of Human Rights in Gunter

The judge said this

“Dr Milne also notes that Rachel had made a far greater recovery than was predicted at the time of her surgery and had continued to improve since being at home. This accords with the views of others and it is apparent that the care provided to her by her parents, in particular her mother, has resulted in a remarkable improvement in her condition. That is, as it seems to me, a very important consideration which must be given due weight in deciding on her future.

I do not regard evidence of what benefits could accrue from the expenditure of sums which could be saved in providing a less costly package for Rachel as helpful. It is obvious that Health Authorities never have enough money to provide the level of services which would be ideal, but that cannot mean that someone such as Rachel should receive care which does not properly meet her needs.

The interference with family life is obvious and so must be justified as proportionate. Cost is a factor which can properly be taken into account. But the evidence of the improvement in Rachel’s condition, the obvious quality of life within her family environment and her expressed views that she does not want to move are all important factors which suggest that to remove her from her home will require clear justification.”

[Please note: this is how the company taking what was called an indirect payment, effectively worked in the East Sussex case:

(i) All payments were made to the “trust company”

(ii) It was a legal entity distinct from those who were to be cared for and their parents

(iii) The parents did not control the company and, since they were in a minority on the Board, they could not exercise a veto

(iv) The company was non-profit making and any surplus on winding up had to be repaid to the Council.]

 

The pros and cons – from the PCT’s perspective – from the judgment in Gunter

“Broadly speaking, the trustees of an IUT who should include a representative of the defendants would provide the necessary package of care for Rachel with funds provided by the defendants. The major benefit of such an arrangement would, it is said, be the avoidance of the profit costs otherwise payable to an independent agent such as Allied Health Care, whose profit margin is in the order of 35%.”

i.e. IT’S JUST LIKE CONTRACTING, ONLY MUCH CHEAPER!!!

  • But the IUT/provider entity would have to be registered and some past track record would normally be needed.
  • The structure would have to be carefully organised so as to ensure financial accountability, and a proper co-ordination between management and staff.
  • The PCT would … require that they were the ultimate decision makers in relation to what has been called clinical governance.
  • There must be minimum standards set up and a scheme spelt out to govern the way in which the necessary care is to be provided [– a care plan and a specification, no doubt].
  • “Whether or not these difficulties can be overcome I do not know. But I am satisfied that the possibility of an IUT with the substantial saving in cost which it may produce for care at Rachel’s home is one which can and should be explored.”

 

The NHS’s legal power to contract –

S12 NHSA 2006 (the old s23 of the 1977 Act) provides (as far as material):

(1) The Secretary of State may, where he considers it appropriate, arrange with any person or body (including a voluntary organisation) for that person or body to provide, or assist in providing, any service under this Act.

(2) The Secretary of State may make available –

(a) to any person or body (including a voluntary organisation) carrying out any arrangements under subsection (1) above, … any facilities (including goods or materials …) provided by him for any service under this Act.

(3) The powers conferred by this section may be exercised on such terms as may be agreed, including terms as to the making of payments by or to the Secretary of State, and any goods or materials may be made available either temporarily or permanently.

 

Paragraph 15 of schedule 3 (12 of Schedule 5A to the 1977 Act), which deals with Primary Care Trusts, to be amended to apply to CCGs, provides:

 

(1) A Primary Care Trust may do anything which appears to it to be necessary or expedient for the purpose of or in connection with the exercise of its functions.

(2) That includes, in particular … (b) entering into contracts.

 

Aims and essentials of the new pilot scheme for direct payments, based on the public consultation

  • PCTs need powers to select a representative to hold a direct payment on behalf of an individual who lacks capacity to give consent, where there is no legal representative in place (e.g. a deputy, donee, attorney, or a person with parental responsibility);
  • PCTs should advise the patient or nominee of significant risks, the potential consequences of these and the means of mitigating the risks;
  • The evaluation requirements should be more explicit.
  • It is acceptable to make recipients of a direct payment initially responsible for checking that their health care provider has complied with any necessary registration requirements, and has appropriate indemnity cover where necessary.
  • But the patient must be able to ask the PCT to carry out these checks instead – in which case, the responsibility would fall on the PCT. PCTs must also consider these issues during any review of the patient’s care plan

In other words, the public WANT to see it fairly closely regulated, not a free for all.

 

Basic principles of the new pilot schemes

Sections 12A to 12D were inserted into the National Health Service Act 2006 by the Health Act 2009 to provide powers to test cash direct payments as an additional option, where the personal budget is given directly to the patient. They operate in England only, at this point.

Following a review, the Act provides for either:

  • national roll-out, by means of an order for repeal of the provisions that restrict the making of direct payments to within pilot schemes, and further Regulations, which would be informed by the experiences of the pilot programme or
  • repeal by order of the provisions for direct payments.

For all types of personal budget, the Government’s policy is that:

  • receiving a personal health budget should be entirely voluntary;
  • a care plan should be agreed between the patient and the PCT describing how the personal budget will be used; and
  • no one should be denied essential treatment as a result of having a personal budget.

Equalities issues?

“We do not believe that personal health budgets are discriminatory. Older people may benefit just as much from personalisation of services as any other group, provided they are offered appropriate support to overcome any administrative burden. Indeed, the evidence from social care suggests that where personalisation has been successful, it has had a dramatic impact on quality of life for older people.

Traditionally managed services will always be available to those who do not wish to manage their own budget, so personal health budgets will not prevent anybody receiving the services they need, just as now.

Age will not be a barrier to participation of patients in the pilots. We anticipate that PCTs will approach each person on a case-by-case basis, and would not refuse any person access to an appropriate model of personal health budget on grounds of age although some models may be generally more suitable for older people than others will.

There is a risk that the burden of managing personal health budgets may fall disproportionately on to women. As women are often the primary carer, as a wife, a mother or a daughter, it is possible that much of the administrative burden of personal health budgets will fall disproportionately on them, if this is not carefully managed through appropriate support services. The pilots will provide more information.

We would expect care co-ordinators to show regard for the interests of carers when supporting a patient in designing their care package. Peer support and advocacy may also have a role to play, and pilot sites should consider setting up things such as support groups for carers, as has happened in some of the social care Individual Budgets areas.”

 

There’s now explicit mention of the review of these pilot arrangements – after 2012

(5) The Secretary of State or pilot PCT may require that the following matters are considered as part of a review of a pilot scheme—

(a) the effect of direct payments on the health, well-being and satisfaction of—

(i) patients,

(ii) representatives,

(iii) nominees,

(iv) persons with parental responsibility for a child, (v) persons who principally care for a child, and

(vi) carers who normally provide unpaid care for a member of the carer’s family or a friend;

(b) substantial differences in relation to the use of direct payments for, by or in respect of patients, or the effect on the health, well-being or satisfaction of patients, who vary one from another in—

(i) socio-economic background,

(ii) age,

(iii) gender,

(iv) ethnicity,

(v) disability, or

(vi) health needs;

 

And for reviewing…

(c) the effect of direct payments on the cost-effectiveness of care received by patients;

(d) the effect of direct payments on the provision of services to persons for whom no direct payment has been made with similar health needs to those of patients for whom direct payments have been made;

(e) the effect of direct payments on the satisfaction, development of skills and knowledge or on the workload of—

(i ) care workers who are paid to support a person with health needs with everyday tasks,

(ii) Persons [this would involve companies as well] providing a service secured by a direct payment,

(iii) any other persons involved in the administration of direct payments under these Regulations, or

(iv) persons involved in the administration of a service secured by means of a direct payment;

 

 

Arrangements for making a pilot direct payment – the temporary pilot regulations

Persons to whom a direct payment may be made

7.—(1) A direct payment may be made to a person who—

(a) is a person—

(i) for whose benefit the pilot PCT is responsible, under or by virtue of the National Health Service Act 2006, for providing or securing the provision of services; or

(ii) who is entitled to receive after-care services from the pilot PCT;

(b) meets the criteria set out in the pilot scheme; and

(c) consents to the making of a direct payment to them.

 

(2) A direct payment may only be made to a person falling within paragraph (1) if the person—

(a) is aged 16 or over;

(b) has capacity to consent to the making of a direct payment to them; and

(c) is not a person described in the Schedule (i.e. excluded individuals).

 

Direct payments in respect of children and persons who lack capacity

8.—(1) A direct payment may be made in respect of a person who is a child or a person to whom paragraph (2) or (3) applies, if that person—

(a) is a person—

(i) for whose benefit the pilot PCT is responsible, under or by virtue of the National Health Service Act 2006, for providing or securing the provision of services; or

(ii) who is entitled to receive after-care services from the pilot PCT;

(b) meets the criteria set out in the pilot scheme;

(c) is not a person described in the Schedule; and

(d) has a representative who consents to the making of direct payments in respect of them.

 

Representative status

(2) This paragraph applies to a person, other than a child, who lacks capacity to consent to the making of a direct payment to them and in respect of whom there is a deputy, donee, attorney or person with parental responsibility as mentioned in the definition of “representative” in regulation 1(2).

 

(3) This paragraph applies to a person, other than a child, who lacks capacity to consent to the making of a direct payment to them but is a person in respect of whom there is no deputy, donee, attorney or person with parental responsibility as mentioned in the definition of “representative” in regulation 1(2).

 

(4) Where paragraph (3) applies to a person, the Secretary of State or after-care PCT may appoint another person they consider appropriate to receive and manage a direct payment in respect of that person.

 

The representative’s duty

(5) A representative to whom a direct payment is made in respect of a patient must—

(a) agree to act on the patient’s behalf in relation to the direct payment;

(b) act in the best interests of the patient when securing the provision of services in respect of which the direct payment is made;

(c) be responsible as a principal for all contractual arrangements entered into for the benefit of the patient and secured by means of the direct payment;

(d) use the direct payment in accordance with the care plan; and

(e) comply with the provisions of these Regulations.

 

[There is a legal right to appoint another to act on one’s own behalf – implied in ordinary direct payments by the law of capacity – but put into regulations formally, here]

 

9.—(1) The following persons may nominate another person (a “nominee”) to receive a direct payment on the patient’s behalf—

(a) a patient with capacity to consent to the making of a direct payment, who is not a child; [i.e. adult capacitated people]

(b) the representative of a patient, who is a donee, deputy, attorney or person with parental responsibility for the patient mentioned in the definition of “representative” in regulation 1(2); or

(c) in a case where regulation 8(7) applies, the Secretary of State or after-care PCT.

 

(2) If a patient who lacks capacity to consent to the making of a direct payment to them has indicated in advance of losing capacity a wish to have another person nominated to receive direct payments on the patient’s behalf, that other person shall be a nominee.

 

[But it’s not the same as the position with an ordinary nominee in an ordinary direct payment]:

 

(3) A nominee to whom a direct payment is made in respect of a patient must—

(a) be responsible as a principal for all contractual arrangements entered into for the benefit of the patient and secured by means of the direct payment;

(b) use the direct payment in accordance with the care plan; and

(c) comply with the provisions of these Regulations. (4) Before making a direct payment to a nominee—

(a) the nominee must agree to receive the direct payment in respect of the patient; and

(b) the Secretary of State or an after-care PCT must agree to the making of the direct payment to the nominee.

 

A mandatory regulation for any pilot scheme:

(2) Before deciding whether to make a direct payment to a patient the Secretary of State or an after-care PCT—

(a) may consult the following persons—

(i) anyone identified by the patient as a person to be consulted for the purpose,

(ii) if the patient is a person aged 16 or over but under the age of 18, a person with parental responsibility for the patient,

(iii) the person primarily involved in the care of the patient,

(iv) any other person who provides care for the patient,

(v) any independent mental capacity advocate or independent mental health advocate appointed for the patient,

(vi) any health professional or other professional person who provides health services to the patient,

(vii) any local authority social care team that is responsible for ensuring that the patient’s social care needs are met, and

(viii) any other person who appears to the Secretary of State or after-care PCT to be able to provide information of relevance;

And …

(b) may require the patient to provide information relating to –

(i) the patient’s state of health,

(ii) any health condition of the patient in respect of which a direct payment is contemplated, and

(iii) any bank, building society, post office or other account into which a direct payment may be made; and

 

(c) must be satisfied that the patient is capable of managing a direct payment by themselves or with the assistance that may be available to them.

 

Lawful explicitly relevant considerations that should be taken into account:

(5) When deciding whether to make a direct payment in respect of a patient to a representative, the Secretary of State or after-care PCT may, in particular, consider—

 

(a) whether the patient has in the past, when the patient had capacity, expressed in writing, or by other means which are understandable, a wish for direct payments to be made to them or for their benefit;

(b) so far as reasonably ascertainable, the beliefs and values that would be likely to influence the patient’s decision as to whether or not to consent to receive a direct payment if the patient had capacity; and

(c) any other factors that the patient would be likely to consider on the issue of whether to consent to receive a direct payment if the patient were able to do so, including the patient’s wishes and feelings.

 

Relevant considerations for capacity to manage:

(9) In deciding whether a patient, representative or nominee is capable of managing a direct payment, the Secretary of State or after-care PCT may, in particular, consider whether—

(a) the patient, representative or nominee would be a suitable person to employ another as an employee to provide any services secured by means of direct payments for the patient;

(b) the patient, representative or nominee has not been able to manage a direct payment or a direct payment to secure relevant services for social care under the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009; or

(c) the patient, representative or nominee is capable of preventing fraudulent use of the direct payment.

 

(10) If the Secretary of State or after-care PCT considers making a direct payment to a patient in accordance with this regulation and decides not to make such a payment, they must inform the patient and any representative or nominee in writing of the decision, and state the reasons for the decision.

 

Even procedural fairness has been provided for!:

11 (7) If the Secretary of State or an after-care PCT has considered including a particular service in the care plan as a service to be secured by means of direct payments but decides not to include that service—

(a) the patient, representative or nominee may request the Secretary of State or after-care PCT to inform them of the reason for the decision; and

(b) the Secretary of State or after-care PCT must inform them of the reason for the decision.

 

And is consent to the arrangement relevant to the scope of the duty of care normally owed in relation to the meeting of clinical needs? Perhaps this is designed to make the NHS responsible for oversight of the arrangements as a whole, but not day to day adequacy of the content or practice within the arrangements

 

11(8) Before the Secretary of State or an after-care PCT may make a direct payment the patient or their representative must agree—

(a) that the patient’s specified health needs can be met by the services specified in the care plan;

(b) that the amount of the direct payments is sufficient to provide for the full cost of each of the services specified in the care plan; and

(c) that the patient’s requirements may be re-assessed in accordance with regulation 17(2).

 

11.—(1) Before the Secretary of State or an after-care PCT may make a direct payment, the Secretary of State or the after-care PCT must—

(a) prepare a care plan in respect only of the services to be secured for a patient by way of direct payments;

(b) advise the patient, representative or nominee of significant potential risks arising in relation to the making of direct payments in respect of the patient, the potential consequences of the risks and any proportionate means of mitigating the risks;

(c) agree with the patient, representative or nominee the procedure for managing any significant potential risk, and include the agreed procedure in the care plan; and

(d) be satisfied—

(i) that the health needs identified in the care plan of the patient can be met by the services specified in the care plan, and

(ii) that the amount represented by the direct payments will be sufficient to provide for the full cost of each of the services specified in the care plan.

 

(2) The risks mentioned in paragraph (1)(b) may in particular include—

(a) risks to the patient’s health;

(b) medical or surgical risk arising from the procurement of a particular type of service;

(c) risks arising from the employment relationship where direct payments are used to secure services from an employee;

(d) risks arising from a provider of services secured by means of direct payments operating under an inadequate or no procedure for the investigation of complaints arising from the provision of the services;

(e) risks arising from a provider of services secured by means of direct payments operating under inadequate or no insurance or indemnity cover for the services to be provided; or

(f) a risk that monies paid by way of a direct payment may go missing, be misused or be subject to fraud.

 

(4) The Secretary of State or an after-care PCT must in the care plan specify—

(a) the health needs to be met by services secured by means of direct payments, and the health outcomes intended to be achieved through the provision of the services;

(b) the services to be secured by means of direct payments that the Secretary of State or after-care PCT considers necessary to meet the health needs of the patient;

(c) the amount to be paid by way of direct payments, and the intervals at which monies are to be paid;

(d) the name of the person who is the care co-ordinator in respect of the patient;

(e) who is to be responsible for monitoring each health condition of the patient in respect of which direct payments may be made;

(f) the anticipated date of the first review mentioned in regulation 17(2)(a), and how it is intended to be carried out; and

(g) the period of notice that is to apply if, following a review under regulation 17, the Secretary of State or after-care PCT decides to reduce the amount of the direct payments or to stop making the direct payments.

 

Information, advice and other support

 

12.—(1) The Secretary of State or an after-care PCT must make arrangements for a patient, representative or nominee to whom direct payments are made to obtain information, advice or other support in connection with the making of direct payments.

(2) The arrangements for information, advice or other support mentioned in paragraph (1) may include provision for—

(a) advocacy services, whereby a third party assists a patient, representative or nominee in relation to the terms of a care plan, or the management of any contract under which services secured by means of direct payments are provided, or otherwise;

(b) commissioning services, whereby a person assists the patient, representative or nominee in procuring services that may be secured by means of direct payments; or

(c) payroll, training, sickness cover or other employment related services to assist a patient, representative or nominee where an employee provides services secured by direct payments for the patient.

(3) If the care plan specifies a requirement for information, advice or other support, that support may be a service in respect of which direct payments may be made.

 

Excluded services!:

(5) The services that may be secured by means of direct payments exclude services—

(a) which consist of the supply or procurement of alcohol or tobacco;

(b) which consist of the provision of gambling services or facilities; or

(c) to repay a debt otherwise than in respect of a service specified in the care plan.

 

Conditions for the recipient of any payment:

14.—(1) A patient, representative or nominee must—

(a) use the direct payments to procure services specified in the care plan;

(b) only use the direct payments in accordance with the patient’s care plan, in particular, to secure the provision of the whole of a service specified in the care plan.

 

(2) A patient, representative or nominee must make enquiries before securing services from a provider—

(a) to ascertain that the provider—

(i) if carrying on a regulated activity, is registered as a service provider in respect of that activity with the Care Quality Commission,

(ii) has complied with any obligation that the provider has to be registered as a member of a profession regulated by a body mentioned in section 25(3) of the 2002 Act (the Council for Healthcare Regulatory Excellence), and

 

(b) with a view to ascertaining whether the provider must operate under insurance or indemnity cover, and if so whether the insurance or indemnity cover under which the provider operates is—

(i) proportionate to the risks involved in providing the service, and

(ii) otherwise appropriate in relation to the services provided to the patient.

 

Regulation 16

(4) The Secretary of State or after-care PCT may reduce the amount paid by way of direct payments by an amount not exceeding the amount due in respect of a period for which payment falls to be made where—

 

(a) direct payments have accumulated and remain unused; and

(b) the Secretary of State or after-care PCT considers that it is reasonable to offset the monies accumulated against the outstanding amount to be paid for that period.

 

(5) Where the Secretary of State or after-care PCT decides to reduce the amount of the direct payments, the Secretary of State or after-care PCT must provide reasonable notice in writing to the patient, representative or nominee stating the reasons for the decision.

 

Repayment of direct payments:

18.—(1) The Secretary of State or an after-care PCT may require that part or all of a direct payment must be repaid to the Secretary of State or the after-care PCT, if satisfied that it is appropriate to require repayment having regard in particular to whether—

(a) the care plan has changed substantially;

(b) the patient’s circumstances have changed substantially;

(c) a substantial proportion of the direct payments received by a patient, representative or nominee have not been used to secure services specified in the care plan and have accumulated;

(d) the direct payments have been used otherwise than for a service specified in the care plan;

(e) theft, fraud or another offence may have occurred in connection with the direct payments; or

(f) the patient has died.

 

(2) Where the Secretary of State or an after-care PCT decides under paragraph (1) that a sum must be repaid, the Secretary of State or after-care PCT must give reasonable notice in writing to the patient and any representative or nominee, stating—

(a) the reasons for the decision; (b)the amount to be repaid;

(c) the time within which the sum must be repaid; and

(d) identifying the person who must repay.

 

Recovery of amounts due as a civil debt:

 

19.—(1) Where a sum must be repaid to the Secretary of State or an after-care PCT pursuant to regulation 18 and the reason for the decision to require repayment is that theft, fraud or another offence may have occurred in connection with a direct payment, that sum may be recovered summarily as a civil debt.

 

(2) Paragraph (1) does not affect any other method of recovery.

 

Estimated additional costs of offering personal health budgets and potential cost savings – the Impact Assessment

Personal health budgets are likely to incur extra costs per patient than traditional forms of NHS care for planning, coordination and support (for example advocacy, information and guidance).

They are also likely to require more detailed care planning, over and above the costs identified in the care planning Impact Assessment, as well as some assistance for patients in co-ordinating their services. This could include regular assessment, planning, brokerage and ongoing management of the individual’s care tailored to their needs and preferences.

The Impact Assessment addresses the personal health budget programme as a whole, as there is no firm evidence for any additional costs associated with direct payments, compared with other mechanisms. The figures quoted continue to be accurate.

 

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