Theme no. 1: Fitness for hospital discharge and ‘clinical optimisation’ – who is accountable for these decisions?

Nobody is supposed to be discharged from the care of the NHS in an acute hospital until they are medically fit. That’s a professional evaluation, based on clinical consensus after monitoring after any operation, or adjustment in medication as to whether a person is at the point at which care and assessment can safely be continued in a non-acute setting. [clinically optimised/medically fit for discharge/medically optimised : NHS England (2015)).

But ‘fit for discharge’ doesn’t, in fact, just mean in physical terms, if you look further into what law requires… the law of negligence, and the PUBLIC LAW rules that are now set out in the Care Act, and which BIND and GOVERN hospital administrators and CCGs, in a legal sense.

A safe discharge that is not likely to cause foreseeable harm to a person, assuming a clinical decision has been taken about their condition, or state of recovery, has to look to the consequences of the discharge, and therefore, to what is waiting for the person and how necessary ongoing input on account of the cause of the visit to hospital will be delivered. That is all still down to the NHS – or could be said to be, by a canny enough Personal Injury lawyer.

Ongoing NHS inputs

The duty of care in negligence, does not end, just because a person doesn’t need to be in the acute hospital any longer.

The NHS may well have ongoing services that ‘should’ be offered to the person, that will contribute to safe discharge: rehabilitation, intermediate care, visits from the community nursing team or a specialist nurse for eg stoma care.

The new Discharge to Assess model (D2A) mentions this, whilst blurring the boundaries of who ‘should’ pay for it, within the auspices of Better Care agreements etc.

It doesn’t matter who pays, as long as the person doesn’t have to pay, one might well say, if one had a pooled budget or a Better Care project to reduce hospital waiting lists…

To our mind the law is that nobody should be discharged from hospital without someone from the NHS satisfying themselves that any ongoing inputs that are needed aren’t beyond the remit of what social care can feasibly be expected to provide.

  • The National Franework and D2A guidance refer to recuperation and rehabilitation services and intermediate care from the NHS.
  • Just because someone has had a negative Checklist, for CHC services, does not mean that they are not owed ongoing NHS services.
  • A Health Needs assessment may have acknowledged that the person has needs for a registered nurse service, and one might have to be arranged in the community if a care home is not where the person needs to go.
  • What is known to exist and be available from the current community health service menu is not the determinant of what should exist, having been commissioned by the CCG.
  • A joint package might need to be put in place before discharge could be SAFE.

It’s only after that thinking has been done, that a person can be safely discharged, lawfully.

Necessary NHS inputs by dint of nobody else having the power to provide for them

There are also some services that may be needed which the NHS ‘ought’ to provide, in legal terms, simply because no other agency is responsible for them – by dint of their nature or level of skill required for proper safe delivery.

There is scope in the Care Act for regulations that could contain a list of those, but the DH has never put its views down in anything so concrete. Suctioning a trachy tube has been said by a judge, however, not to be capable of being social care, which perhaps explains why there have been so few cases about that question ever allowed to get to court.

Ongoing social care inputs

Most ongoing input, though, will be regarded as a matter for social care or self help, if one is not eligible for social care. So a clear grasp of the rules is required, by anyone considering what to say to a person in a hospital bed.

  • Nobody is ineligible for care in their own home, if they meet the eligibility criteria on the fact, even if they are wealthy.
  • Everyone is entitled to an assessment, and everyone is entitled to have the necessary care and support at home, if going home is what is decided to be practicable – arranged through social services, even if they are then later charged full cost for the services.
  • This right to assessment includes people whose needs point towards a care home, by dint of the level or continuity of the care needed, even if they have more than the capital/savings amount (ignoring the value of the patient’s share of the house if the patient is one of a couple, and ignoring the value of their share for the first 12 weeks if they are not already in a care home, if living alone).
  • The outcome of the assessment does not necessarily lead to a local authority duty to meet the needs, but if a well off person lacks capacity to contract, and there’s nobody else willing to make arrangements, they are still entitled to a placement, courtesy of social services, even if rich, and will merely be charged full cost (from day 1 or from when the 12 week disregard ends).

We still look to the National Framework on CHC for its approach to genuine MDT involvement in CHC thinking – from checklisting, through the DST stage, and involvement in the ratification arrangements. Modern systems seem to be excluding social workers altogether from that process, however, in terms of the pressure to get the decision making done FAST, and the National Framework is just not consistent with that.

To our mind at least, here at CASCAIDr, nobody should be discharged without at least a light assessment for social care services under the Care Act, unless they refuse to be assessed, with sufficient capacity to understand what they are giving up, having been told about it by a person or a leaflet

A person who clearly needs to go to a care home, and has some appearance of need for CHC, should be positively checklisted.

The discharge of no patient should be effected without social service input if there is any doubt about their capacity to contract for services.

If they have no appearance of need for CHC services after a checklist, that process having been based on locally agreed criteria in the first place – and no appearance of lack of capacity, they should be offered an assessment with the advice that they may not qualify for any funding subsidy given their means may be above threshold. They may then choose not to bother.

Questions to be thinking about:

We do not think that discharge arrangements cater for that kind of thinking at the moment.

We do not know how a local authority can regard it as possible to co-operate on hospital discharge without having a social work team available in the general hospital.

We do not know how hospital discharge co-ordinators can run a smooth lawful system without understanding how social care duties (and rights to choice of accommodation of certain types)  WORKS, in legal terms.

And we do not know how CHC obligations are lawfully discharged without an agreement as to who should even be Checklisted in the first place.

  • It can’t be just ‘needs a care home’ – because one can qualify for CHC in any setting
  • It can’t be ‘needs more than 3 (or 4) visits a day’ – because councils can’t just treat the cost of a care home as a cap on what level of home care still counts as social care, as opposed to health care.
  • It can’t be ‘needs double handling’ for the same reason – it’s too rough and ready an approach to checklisting.
  • It certainly can’t be ‘because they or their relatives look rich’! CHC is wealth-blind, it’s part of the NHS’s duty to allocate that status where it must, in accordance with the National Framework.

The finalised proposals when they emerge from the DH will require really careful consideration, we feel.