CASCAIDr thinks that recent initiatives have not done enough to locate the governance of hospital discharge decisions about safe discharge into straightforward material about negligence and serious incident and duty of candour provisions, or underpinned the inter-relationship between health and social care legal duties owed to the client.
What CASCAIDr derives from all this thought is that if a person or their relatives is challenging either
- the suitability of a proposed placement in a care home in the first place,
- or a particular care home even though it is accepted that the person needs to have access to 24 hour supervision from people who know what they’re doing,
- the adequacy of the budget offered for that care home, and the consequent size of the top-up that is being asked for
- or the adequacy of a budget for meeting needs at home, even though the relatives all agree that it is in the person’s best interests to GO home
then the NHS must not refuse to withdraw a discharge notice, at least not without first asking the council what it thinks of that position.
If the council thinks that the patient does not have a leg to stand on, in relation to the allegation, then the NHS needs to stand firm, in the interests of all other patients; the council is re-asserting the legitimacy of its position, there, and the patient cannot occupy an NHS hospital bed for no good reason.
A useful way of exploring whether there’s a weak case, or an arguable one or a strong one, which can be used by anyone in this position, is to write a letter to the Monitoring Officer of the council, requiring the Monitoring Officer to make a decision under his/her own statutory duties, as to the allegation that care planning that is unlawful in some specifically identified way is taking place.
That duty on the part of the Monitoring Officer cannot be deferred or denied; it’s there in the legal framework as a high level means to prevent unlawful conduct, and to ensure due process and good governance.
The duty of co-operation as between the NHS and the Council sector requires the MO to give a view, we would suggest, especially when fines for delayed transfers of care are in fact dependent upon whether the council has or has not discharged its own functions by putting in arrangements for what it has proposed.
If the Discharge co-ordinator is given at least a coherent evidence base regarding fitness for discharge, or the safety of the proposed discharge with regard to the patient or family’s concerns, and the Monitoring Officer has either not disagreed, or not disagreed with any coherent reasons based on the facts and law, to the contrary, it is our view that the NHS is not then entitled to leave the discharge notice that has been served, in place.
Our reasoning is simple: to go ahead with the discharge, then, would either be
- consigning the client to a discharge to a place where the person was to be DoLS’d despite not having their capacity to make an informed decision, maximised – which is involvement in placing a person in a state of unlawful deprivation of liberty – or
- consigning the patient to discharge to a care home where they or their relatives are being required to pay a top up that is more than a lawful top up, due to the arbitrariness of the asserted standard rate for care home care in the area, or the patient’s chosen setting, out of area
- consigning the patient to a discharge to their own home, or the home of their relative, with a package that does not meet the person’s assessed eligible needs, on the grounds of so-called choice. And that amounts to involvement in a potential negligence action when harm ensues, sooner or later, in these circumstances.
Legal literacy can help discharge co-ordinators who should be jointly funded, do the following thing:
- Actually do the job of lawful smooth discharge co-ordination without foreseeable risk of physical harm through inappropriate premature discharge
- Manage people’s rights to consideration of CHC through checklisting
- Sign off nhs funded rehab and intermediate care packages, and community health services as a trusted assessor where locally agreed criteria are met
- Sign off interim discharge to assess commissioning as a trusted assessor for the CCG, where the person needs to leave hospital quickly for optimising stabilisation or avoiding risk in hospital re muscular breakdown or infection
- Sign off council funded reablement packages for those who are ready to leave but not yet ready to go home without any service but people who might realistically feasibly be able to be helped, regarding recovery of independence