Without introducing any new legislation or regulations, the DoH has made it clear in guidance that it expects people discharged from hospital to have made available to them, 6 weeks’ worth of residential care, if they need it as a preventative or rehabilitative service, from the NHS, even though it is residential care. Only £405 million, out of some £900 million, has been allocated to the NHS to spend on this type of service, nationwide.
The guidance makes it clear that anything comprised in intermediate care is a different service from longer term NHS rehabilitation, for which authorities are expected to have criteria, and different too, from fully paid NHS continuing care.
The rest of the guidance assumes co-operation between health and social services as to funds they will commit to commissioning other intermediate care services for up to this 6 week period. These might be rapid response packages, urgent respite, enhanced care at home or in a care home, to avoid threatened deterioration, etc. We have already heard of a local authority which has to deal with 3 separate health authorities for the area, where 1 of the HAs is just not willing to do any more than the absolute minimum laid down in the guidance from government, towards this initiative. This means that people next to each other in hospital beds awaiting discharge get different treatment and options offered to them.
Making residential care into a health service, so long as it is for intermediate care purposes, will apparently get rid of the perceived problem that it would otherwise have to be charged for under s22 of the NAA by the local authority making the arrangement. We say ‘perceived’ problem, because it seems to us that if a placement was going to be seen only as temporary, then it could have been charged for by social services, but at a very low token rate. Section 28A NHSA money could have been channelled to the local authority for supporting a social services function.
However, if it had been done that way the advantage for the NHS that we think is central to the government’s belief in the concept is that it would have meant that local authorities were still responsible for facilitating hospital discharge. Intermediate care, if it is going to be provided for free by the NHS, gives Trust hospitals greater means to persuade people out of NHS hospital beds without waiting for the local authority to ‘approve’ funding for someone whose needs have already triggered the criteria for a chargeable residential or nursing home placement. The hospital discharge guidance which has applied for several years is suspended at the moment, and it is our guess that it is awaiting re-issue once the paragraphs about safe discharge and the implied right of the client to refuse discharge to what would have been a chargeable residential or nursing home have been watered down.
The spectre of the NHS purchasing residential care is also intriguing to lawyers, because it suggests that for the first time, the NHS statutory framework might be wide enough to purchase purely residential care. The same vague statutory provisions which have been thought to confer power to purchase NHS specialist continuing nursing care (s3 NHSA) seem now to be wide enough to purchase residential care.
This might be thought to have significance for learning disabled people whose profile includes severely challenging behaviour and those with personality disorders who up until now will have been denied any NHS contribution to their very expensive care packages on the basis that they had no nursing needs.
The government’s position is, however, that because guidance says that intermediate care is different from continuing care, and that a service for one client group should be seen as different to the same service for another client group, that will be the law. We would find it surprising if the DoH found support from a court for the argument that when a phrase in a statute (‘such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness’ for instance, from s3 of the NHS Act 1977) is considered in the context of intermediate care, it covers the purchase of residential care, but when it is again considered in the context of continuing care, it is restricted to highly specialist nursing only. But the history of public law litigation about the real meaning of the NHSA has been littered with plenty of surprises.
In practice, we believe that if people who have been discharged from hospital, do not ‘improve’ measurably in the first 6 weeks, it will probably be because they were discharged too quickly from acute NHS care and they will be returned to that status before the end of the 6 week period. In this sense, intermediate care can be seen as a form of step-down treatment which NHS bodies are able to experiment with, which will enable more efficient discharge without having to put more acute beds overall, back into hospitals, and without increasing the risk of negligence actions for premature discharge.