Summary of the law on the timing of Assessment and Discharge notices for transfers from acute hospitals

Schedule 3 of the Care Act is the law on hospital discharge now, and Annex G is the Guidance – all Care Act documents, but applicable to the NHS as well as Local Authorities.

Section 6 and 7 of the Care Act require co-operation between relevant partners, Health and the council being just such.

The rules on hospital discharge only apply to acute hospitals, not the discharge of anyone from any other sort of NHS care arrangements.

Schedule 3, Care Act

7(1) A hospital patient is a person ordinarily resident in England who—

(a) is being accommodated at an NHS hospital, or at an independent hospital as a result of arrangements made by an NHS body, and

(b) is receiving (or has received or can reasonably be expected to receive) acute care.

 

7(6) “Acute care” means intensive medical treatment provided by or under the supervision of a consultant, that lasts for a limited period after which the person receiving the treatment no longer benefits from it.

[* CASCAIDr’s translation: these regs and Guidance only apply to hospitals providing acute NHS funded care to patients who are ordinarily resident in England (care not excluded by the definition of acute care]

7(7) Care is not “acute care” if the patient has given an undertaking (or one has been given on the patient’s behalf) to pay for it; nor is any of the following “acute care”—

(a) care of an expectant or nursing mother;

(b) mental health care;

(c) palliative care;

(d) a structured programme of care provided for a limited period to help a person maintain or regain the ability to live at home;

(e) care provided for recuperation or rehabilitation.

 

(8)“Mental health care” means psychiatric services, or other services provided for the purpose of preventing, diagnosing or treating illness, the arrangements for which are the primary responsibility of a consultant psychiatrist.

[* CASCAIDr’s translation: if you are having care of any of these sorts, or if you are a patient from abroad who’s not ordinarily resident in England, then the hospital discharge provisions of the Care Act, Regs and Guidance, don’t apply to you.]

 

 

 

The 2014 Care and Support Regulations make provision for the details of the scheme for the discharge of hospital patients with care and support.

Schedule 3 to the Act makes legal provision for co-operative working to secure the safe discharge of patients in England from NHS, or NHS arranged, hospital care to local authority care and support.

The Regulations permit a relevant NHS body to seek reimbursement from a relevant local authority where a patient’s discharge has been delayed due to a failure of the local authority either to arrange for relevant assessments or to meet a patient’s or (where applicable) that patient’s carer’s needs which the local authority proposes to meet. (ie failure to do what the council has decided to do to discharge its duty).

The regulations define “NHS continuing health care” as a package of care arranged and funded solely by the health service for a person aged 18 or over to meet physical or mental health needs which have arisen as a result of disability, accident or illness – but do not otherwise mention this status. If one is on a joint package, it’s not CHC – it’s a package of health and social care, albeit designed to fit together.

CHC services are just ONE service the NHS might owe.

The measures mean that old s 2 and 5 notices are now called Assessment and Discharge notices and that they and withdrawal notices are now governed by Care Act regulations.

Sched 3

1(4) Before giving an assessment notice, the NHS body responsible for the patient must consult—

(a) the patient, and

(b) where it is feasible to do so, any carer that the patient has.

[* CASCAIDr’s translation: this means the NHS must ask them at least what their situation is for when they leave hospital.

Most people don’t know about adult social care services, if they’ve never needed them, or known anyone who did.

So NOT TELLING a patient that he or she is entitled to an assessment for social care – or worse – getting it wrong, because MYTHS about the capital threshold have been allowed to take root, would be shocking, to our minds – and risk the possibility that the apparently rich or ‘posh’ may just be left to their own devices…]

Care Act guidance

It is fundamental that both the NHS body and the local authority involve the patient and, if appropriate, their carer about their current and ongoing care and support needs.

In doing this, they should have already undertaken an assessment of the patient’s capacity to participate in an informed way in these discussions and, where they do not believe that the capacity exists, they should move forward by taking account of other existing regulation and guidance such as for example the Mental Capacity Act.

[* CASCAIDr’s translation: it’s really clear what is meant here, eh?? It can only mean – take steps to act under the MCA if someone’s got to move the patient out of hospital without their capacitated consent. Which means consulting the relatives about best interests, NOT just persuading the relatives that they must do it within a certain specified time or having a practice to “do it at night without using an ambulance unless it’s the only way”…]

Sched 3

1(1) Where the NHS body responsible for a hospital patient considers that it is not likely to be safe to discharge the patient unless arrangements for meeting the patient’s needs for care and support are in place,

[* CASCAIDr’s translation: so a discharge co-ordinator might not consider it would be unsafe to discharge, if the patient or someone else said ‘it will be alright’ but not if that was not credible – because for instance the patient clearly lacks capacity, is perseverative about going home, has no visitors, etc]

the body must give notice to—

  • the local authority …

 

[* CASCAIDr’s translation: in case they have no hospital team, we assume]

And an assessment notice is not valid unless it contains the following:

(f) a statement—

(i) that the NHS body responsible for the patient has complied with its duty under paragraph 1(4) of Schedule 3 (duty to consult patient and any carer that the patient has);

(ii) that the NHS body has considered whether or not to provide the patient with NHS continuing health care, and the result of that consideration; and

(iii) as to whether the patient or (where applicable) the patient’s carer has objected to the giving of the assessment notice;

[* CASCAIDr’s translation: notice that the fact of an objection does not prevent an assessment notice at all]

 

The Guidance:

So, where the NHS considers that the patient may have needs for continuing health care to be met by the NHS after discharge, then it must have (i) carried out a continuing health care assessment first and (ii) made a decision as to what (if any) services the NHS is to provide to the patient after discharge and (iii) informed the local authority of these details BEFORE IT CAN ISSUE A VALID ASSESSMENT NOTICE.

* CASCAIDr’s translation: This clearly implies that a CHC checklist will have been done, before an assessment notice has been triggered, because it proceeds upon the NHS’s thinking that a person may have CHC needs.

This implies a positive checklist.

A CHC assessment is laymen’s language for a Decision Support Tool Exercise.

 

* CASCAIDr’s comment:

This approach makes it acceptable for no social care assessment to have been done before a decision on a CHC checklist or DST has been completed.)

How does that fit with exhortation to multi-disciplinary team co-operation and support that one finds in the National Framework?

How that MUCH screening, discussion, thinking and mapping and doing a rationale, could have happened properly without any social work input, is literally beyond us.

Yes, we know that an MDT need not contain a social worker, because an MDT is defined so as to refer only to two or more professionals from healthcare – but unless they are legally literate, they wouldn’t know that the Checklist AND DST have got to draw in needs across social care domains as well as needs that would be the responsibility of the NHS.

If a checklist proceeds without any inputs from social work staff, and if the local authority isn’t even notified of a person until after a CHC decision has made, the decision would then need to be challenged, if it seemed aberrant. This is incredibly shortsighted, or worse, deliberate.

 

Relevant Practice guidance from the current National Framework:

16.1   Local joint health and social care processes should be in place to identify individuals for whom it may be appropriate to complete a Checklist, including individuals in community settings within the context of the above duty. As a minimum, wherever an individual requires a care home placement or has significant support needs, a Checklist would be expected to be completed (unless the decision is made to go straight to the completion of a DST).

18.1 In a hospital setting the Checklist should only be completed once an individual’s acute care and treatment has reached the stage where their needs on discharge are clear. Paragraph 65 of this Framework highlights the need for practitioners to consider whether the individual would benefit from other NHS-funded care in order to maximise their abilities and provide a clearer view of their likely longer-term needs before consideration of NHS continuing healthcare eligibility. This should be considered before completion of the Checklist as well as before completion of the DST.

18.4 ….As far as possible the individual should be ready for safe discharge at the point that the Checklist is undertaken and sent to the CCG. It should therefore be completed at the point where wider post-discharge needs are also being assessed (although before issue of delayed discharge notices).

The next stage – after the Assessment Notice

Sched 3

3(1) The relevant authority, having received an assessment notice and having in light of it carried out a needs assessment and (where applicable) a carer’s assessment, must inform the NHS body responsible for the patient—

(a) whether the patient has needs for care and support,

(b) (where applicable) whether a carer has needs for support,

(c) whether any of the needs referred to in paragraphs (a) and (b) meet the eligibility criteria, and

(d) how the authority plans to meet such of those needs as meet the eligibility criteria.

[* CASCAIDr’s translation:

this is the proof that the council must engage with the NHS to tell the discharge co-ordinator what its decision is, not what the social worker thinks the panel MIGHT sign off. This means that panels have to be available all the time, which isn’t how it is working, in our experience.]

 

The Guidance:

On receiving an assessment notice, the local authority must carry out a need assessment of the patient and (where applicable) a carer’s assessment so as to determine, in the first place, whether it considers that the patient and where applicable, carer has needs. If so, the local authority must then determine whether any of these identified needs meet the eligibility criteria and if so, then how it proposes to meet any (if at all) of those needs.

The local authority must inform the NHS of the outcome of its assessment and decisions.

* CASCAIDr’s translation: This is where an astute discharge team of social work staff would say yes, needs, yes eligible for these social care related needs, but not eligible in relation to these needs, because they are needs beyond which a social care authority can feasibly be expected to provide. Those needs are not even conceivably about daily living activities, they are about eg staying alive or functioning for essential purposes, despite one’s physical or mental symptoms from one’s illness or impairment.]

 

 

What about patients already known to social services and who are already in receipt of services?

Sched 3

(2) Where, having carried out a needs assessment or carer’s assessment in a case within section 27(4), the relevant authority considers that the patient’s needs for care and support or (as the case may be) the carer’s needs for support have changed, it must inform the NHS body responsible for the patient of the change.

S27 (4) of the Care Act says this:

Where a local authority is satisfied that circumstances have changed in a way that affects a [an existing care plan ie when someone goes into hospital on a care plan but might need a different one coming out]  care and support plan or a support plan, the authority must— (do a proportionate re-assessment)

[* CASCAIDr’s translation: so, we would say that whenever a care home client or a home care patient goes into hospital, the system ought to flag up that a review needs to be done in the name of the authority to see if anything has changed or needs to be changed in the care plan before discharge – and that is another reason why it’s not feasible not to have social workers at hospitals – they have duties BEFORE any checklist or CHC determination, which the NHS needs them to discharge, before the NHS can do its bit, sensibly.]

 

Withdrawing an assessment notice

4   A notice withdrawing an assessment notice must be given where—

(a) the NHS body responsible for the patient considers that it is likely to be safe to discharge the patient without arrangements for meeting the patient’s needs for care and support or (where applicable) the carer’s needs for support being put in place;

[* CASCAIDr’s translation: this must be referring to where someone figures out another way of meeting the needs, other than through social care]

(b) the NHS body considers that the patient needs NHS continuing health care;

[* CASCAIDr’s translation: so this shows that if there was a very early assessment notice done before a decision on NHS continuing health care, it must be withdrawn if the decision is in favour, ultimately – it would not ever have been valid].

(c) the NHS body, having received the information specified in paragraph 3(1)(d) of Schedule 3 (how local authority plans to meet needs), still considers that it is unlikely to be safe to discharge the patient from hospital unless further arrangements are put in place for meeting the patient’s needs for care and support or (where applicable) the patient’s carer’s needs for support;

[* CASCAIDr’s comment:

this is what makes safe discharge ultimately the responsibility of the NHS, having engaged with the question will that offer be enough and whether it is lawful in our view!]

(d) the patient’s proposed treatment is cancelled or postponed;

(e) the NHS body has been informed by the relevant authority that it is not required to carry out an assessment because the patient has refused a needs assessment [that would have to be with mental capacity, under s11] (a) or (where applicable) the patient’s carer has refused a carer’s assessment(b); or [ordinary residence, not relevant for today’s purposes]

 

Schedule3

4 (3) A discharge notice must specify—

(a) whether the NHS body responsible for the patient will be providing or arranging for the provision of services under the National Health Service Act 2006 to the patient after discharge, and

(b) if it will, what those services are.

[* CASCAIDr’s translation: this says ‘will be providing’ as if it is just down to a decision of a manager, but these services will be the DUTY of the NHS if the services are NHS services that the council cannot be expected to provide (on the footing that they are not within the scope of a social care service.) The duty of co-operation inherently compels some sort of agreement about medicines administration in the community, for instance, for this to work in practice.]

Discharge notice: contents

6.—(1) A discharge notice must contain—

(e) the date on which it is proposed that the patient be discharged;

(f) a statement confirming that the patient and, where applicable, the patient’s carer has been informed of the date on which it is proposed that the patient be discharged;

[* CASCAIDr’s translation: so nobody should be discharged without their carer’s knowledge]

and (g) a statement that the discharge notice is given under paragraph 2(1)(b) of Schedule 3.

 

Discharge notice: withdrawal

Sched 3

7(1) Subject to paragraph (2), a notice withdrawing a discharge notice must be given where the NHS body responsible for the patient considers that it is no longer likely to be safe to discharge the patient on the proposed discharge date.

[* CASCAIDr’s translation: for whatever reason, here: deterioration, a change of professional opinion, a nagging doubt about the adequacy of services being offered on the part of the council or the terms on which a family is being invited to accede to a placement with a top up, perhaps?]

(2) Paragraph (1) does not apply where the only reason that the NHS body considers that it is no longer likely to be safe to discharge the patient on the proposed discharge date is that the relevant authority has

(a) not discharged its duty to carry out a needs assessment or (where applicable) a carer’s assessment in relation to the patient; [* CASCAIDr’s translation: that just excludes a missing assessment as a reason for not withdrawing a discharge notice, in the case of concerns about safety of going ahead with discharge – it doesn’t exclude the need to withdraw a discharge notice where for instance the NHS has nagging doubts about the accuracy of the assessment, in our view] – or

(b) not put in place arrangements for meeting some or all of those needs that it proposes to meet under sections 18 to 20 in the case of the patient or (where applicable) the patient’s carer.

* CASCAIDr’s translation: Again, this just excludes absent care arrangements as planned for by the council, as a reason for not withdrawing a discharge notice, in the case of concerns about safety of going ahead with discharge – we don’t think that the reference to ‘some or all’ of the needs proposed to be met, excludes the need to withdraw a discharge notice where for instance the NHS has nagging doubts about the adequacy of the arrangements proposed or made, due to the concerns raised by a relative or advocate.]

And the reason is obvious: it is the act of discharge that puts the patient into reasonably foreseeable risk of physical harm, if the discharge is not going to be safe! And that gives rise to a risk of legal proceedings sounding in negligence against the NHS brought by PI solicitors who could then do it on a ‘no win no fee’ basis, for a claim for damages.

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