Joint working

is the shorthand title for a topic which means different things to different people at different levels.

 

At Chief Executive level as between Health & Social Services (and as between Directorate Heads within any one authority) it can mean co-operating and making exceptions to policy, to avoid disputes going to court.

 

For the front line staff from a particular client group it will mean co-operation with their colleagues from other client groups and with people from various agencies to achieve a smoother, better or more suitable service for the client group. As between colleagues within a team, it will mean being able to access each others’ expertise over issues at the peripheries of each person’s confidence about their experience and their professional judgments.

 

When the government talks about joint working they mean an approach to getting over the hurdles – legal, financial and historical – which have made the NHS and social services into two legally distinct entities, their staff into two legally distinct bodies of officers, their functions into legally distinct duties and discretions, because discharged under different legislation – and perhaps most importantly, their cultures into two completely different atmospheres.

 

A number of convoluted steps have been taken by the government to overcome this problem. The government has stopped short of abolishing social services committees, but no local authority functioning under cabinet and executive member arrangements is obliged to have one any longer. The Health Act 1999 allowed authorities to seek approval for partnership working as between Health Authorities/PCGs, NHS Trusts and local authorities, and signalled the creation of Primary Care Trusts. Now we have the Health & Social Care Act which will enable those PCTs to become Care Trusts, combining, through delegation of functions imposed on social services, both health and social services output, from staff employed by, or transferred to, the health service.

 

For how much longer councillors will feel accountable for adults’ social services developments, in this culture, remains to be seen, but this is the will of Parliament, and it cannot be worse than a system in which everybody feels driven into demarcating their job, their budget, their remit, their responsibilities etc.

 

The information in this database under this topic looks at the legal implications of joint working.

 

A problem with the partnership arrangements under the Health Act is that the different bottom legal line for health and social services does not seem to have been taken into consideration. It is fundamental to NHS law that a lack of resources and the statutory duty to balance the books year by year mean that services do not have to be provided to any one individual.

 

Further, the decision to deny someone a service has often been seen as a clinical decision barely susceptible to judicial scrutiny, because of its extreme sensitivity. Even the recent wave of judicial review proceedings against HAs (eg. Viagra rationing declared unlawful, long term continuing care criteria declared unlawful) has only opened HAs up to scrutiny to a minute extent. If criteria for a service, any service, are based on a misunderstanding of the law which governs the public body’s provision of that service, it is now clear that they can be quashed. However, the margin of appreciation on the reasonableness of criteria continues to be generous, short of an error of law, and the decision as to whether or not criteria apply to an individual is seemingly unchallengeable, on grounds of deference to clinical opinion.

 

The Courts have treated social services authorities very differently. Individuals’ assessments have been quashed on various grounds, and a lack of resources in one pot of money (say residential care) is not a legal excuse for restricting or denying a service once the authority’s criteria have been met.

 

Whilst a principled approach to statutory duties is to be applauded, and the formal delegation thereof, under approved partnership arrangements, the Health Act does not explain how two bodies with differing legal obligations (in terms of the scope and extent of their provision duties) are supposed to thrash out their rationing difficulties.

When Care Trusts start to form, the functions which will have to be discharged by the people employed by them, will remain the same – Health or Social Services functions, regardless of who is actually performing them. All these functions carry with them the unwieldy baggage of legal ‘gloss’, inferred from decided cases such as is contained in the Coughlan case about continuing care, the South Lanarkshire case on Scots residential care waiting lists and the Richmond case about s117 Aftercare charging. The new Care Trusts are going to be bound by the pre-existing social services case law and the Human Rights Act, which may involve certain rights trumping a lack of financial resources.

We will be interested to see how these fledgling bodies manage to distinguish between those budgets which may in law be regarded as ring-fenced, and those that have to be allowed to leak, because they cover the discharge of mere discretions, and not actual duties. We believe that to devote budgets to client groups, instead of to statutory functions, actively makes the problem harder to deal with, because several of the client groups concerned may qualify under exactly the same statutory provisions for a particular service, such as residential care, domiciliary care, or welfare services, such as day care, advocacy support, welfare benefits advice etc.

Arriving at decisions over which budgets to pool, by ear-marking them for a certain client group, whatever statutory service it is the members of that group happen to need, is asking for legal trouble, in our view. Some of those services will be provided under duties, and some under discretions. Hence when the budget is approaching empty, who will be equipped to decide whether the client has a right to have the money spent, or must stand patiently in line and wait until the next month?

 

The Human Rights Act will also make public law principles and insight into the increasingly complex statutory framework in which services are provided and organisations managed, much more important for both the NHS and social services. In the wake of recent cases about the doctrine of necessity and the law as to consent (both of incapacitated patients and minors), the scope and proper allocation of Section 117 MHA aftercare duties (and whether they are ever chargeable), the legality of saying ‘no’ to difficult clients (Muriqi Kujtim) and anniversary of the coming into force of the Human Rights Act, it is important to realise that reasonableness is not the test of lawful actions or decisions of statutory bodiesLegality, based on a proper understanding of legislation packed full of discretionary concepts, is a must, as well.

 

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