Author Archive for belindaschwehr – Page 6

Conclusions about Hospital Discharge

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
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Theme no. 5: Legal requirements regarding a ‘practicable’ home care offer, and cost-capping culture among councils and CCGs

Councils will often agree with a hospital that people with needs for a placement or services involving any kind of double handling, or a need for more than 3 visits a day, ought to be checklisted by the nursing staff.

That is to ensure that people who might qualify for CHC, get a DST, and although we don’t approve of those rough and ready triggers, they are better at least than ones that just focus on condition, diagnosis, or necessary next setting being a registered setting.

When those people get negatively checklisted, so that the council knows that care will be down to them, and not the NHS, the same approach is often used with the patient for care planning purposes (and any family) as a guide to the likely setting that the council would regard as meeting the person’s needs.

This is done on the footing (logical to management but not necessarily to social workers) that the cost of a care home is the minimum the council would have to provide. The thinking goes on from there that if the person or the family says ‘No, thank you’, then because it would have been lawful to meet needs via the care home route, the most that the person can be entitled to, at home, if that is what they prefer, is that same cost, or that same cost with an extra percentage on top of it, to show that independence is still being promoted.

This is called cost capping, and the assumption that everyone can be appropriately cared for in a care home, is called warehousing, in the media.

Both are unlawful, we would venture to suggest;

  • warehousing because it is a fetter on professional opinion and a negation of personalisation and the duty to promote wellbeing, before care planning even starts
    • there is someone in every single geographical council area, of whom no professional would ever say ‘a care home can adequately meet your needs’ or a person of whom it would be agreed NEEDED to be in their own home, not merely wanted it.
    • If that is the case, then it is not even relevant to consider the cost of the care home setting, for any budget sign off purpose, is it?; if it isn’t suitable in the first place, the notion of adequacy and suitability is the irreducible minimum that an offer to meet needs, must comprise.
    • That is why it has always been understood in legal terms that the maximum figure in the council’s RAS is not a cap, but merely the product of a mathematical calculation based on pounds and points, derived in the first place from the council’s preferred maximum spend on meeting all its adult social care provision duties.
  • and cost-capping because if a council itself changes its mind and ignores someone’s refusal to accept the offered care home, and reconsiders its offer and then agrees to meet the person’s needs at home, with either services or a direct payment, the needs present differently in that setting, and still must be met, appropriately and sufficiently.
  • with cost capping too, there is the added complication that where the person in question lacks capacity,
    • the council cannot implement a decision to move the person into a care home, without doing best interests consultation of the relatives.
    • Moreover, nobody likely to object to being ‘parked’ in a care home can be DoLS’d without being assessed to lack capacity in that specific regard; case law already establishes that the obligation to maximise capacity makes it a legal requirement that the council makes it explicitly clear what it would offer in the person’s own home, were the person to refuse the offer of the care home place.
    • The case law (KK) says that that offer must be a practicable offer. Whilst that neatly begs the question whether that means it must be a lawful offer that sufficiently meets need, CASCAIDr is of the opinion that that offer must not be an unlawful offer in the first place, in terms of rationality, sufficiency, and due regard to human rights issues and promotion of wellbeing.
  • Holman J’s recent decision in the Re X case where the brain injured man himself begged to be cost-capped, so that he could arrange his own care in his own home, rather than have his social care needs met in a hospital, on grounds of the non-availability of any willing care home provider and the non-affordability of any other package in his own home, led the council concerned, ultimately, to decline to accept the suggestion.
  • It can be inferred from a reading of that case (which ended up with the man being found to be entitled to CHC!) that that was because
    • it would not be appropriate to leave the unmet need unmet, with an inadequate direct payment paid over to the man to spend on himself – and
    • any right-thinking public body would expect to be sued in negligence if it commissioned cost-capped services itself, without any evidence basis that the limited service, referencing the lower cost of another setting entirely, would feasibly meet the needs in the person’s own home, if harm was then sustained, either to the client or to others.


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Theme no. 4: Choice rights, top-ups and arbitrarily low council/CCG rates for placements


Hospital trusts have ‘choice’ policies which purport to allow for choices, but the real choice rights are rights in law, to be placed by a council, if one is having council made care home arrangements, in the home of one’s preference, subject to suitability, availability, the home’s being willing to contract on reasonable terms and on price.

And this is where the sector is sitting on a powderkeg in terms of legal risk, in CASCAIDr’s view.

It is one thing to say the price (and therefore your personal budget) is £x – and above £x you will have to pay a top up – when sufficient local care home providers – in terms of the number of placements a council expects to have to make in a year – have signed up to provide standard care and accommodation for £x.  That’s the rational evidence basis for the position taken by the council towards the clients it has to place, and before it can charge them anything under the charging regulations.

It is quite another thing to say £x is the price, when any more than about 30% of care home providers have only been willing to work with the council, on the footing that they can also charge a top up for what are supposed to be ‘wants’ – and not needs (‘wants’ that are not severable from the placement itself. Extras that are personal, are extras, and no business of the council’s at all, but things like ambience, culture, views, the quality of the food, care and furniture, are preferences, and can be treated as a top-up).

If more than about 30% of homes are charging top ups, it would be evidence to suggest that the majority of homes are aiming to offer luxury top end package, in terms of the setting and the services: and the whole sector knows that that is just not true.

  • The LGO’s findings in various cases looking at top ups show that homes are not suitable or vacant when the asserted rate is being imposed in the context of getting a person out of hospital, quickly;
  • CQC ratings show this to be untrue; lots of homes will be getting INADEQUATES
  • Public sector staff’s own knowledge of what goes on in care home, through safeguarding and constant involvement with clients going in and coming out of care homes – and even visitors’ perceptions

all add up to the conclusion that relatives of council-placed clients are subsidising the obligation to pay for decent adequate appropriate means of meeting a need.

And that’s before one factors in the conclusion of the Competition and Markets Authority that fully privately contracting clients are subsidising fee rates for all NHS and council placed clients, because that is what enables the home’s manager to go lower and lower, in negotiations,  and bow to the dominance of the commissioner’s market position.

People facing hospital discharge pressure on themselves or their families should ask two questions:

  1. How many homes in your area have actually signed up to placements at the asserted rate with a top-up on top?  Councils will know, or ought to know – because they will have tendered in the first place for a framework agreement AND because they have to include the amount of the top up in the specific documentation for the individual placement. If they do not know, that is a factor of severe embarrassment in any event.
  2. How many of those homes do your social care staff adjudge to be suitable and have availability, before the staff invite the families to go off and do the rounds to help sort out a preference?

It is totally clear law that if there is no placement suitable on the day when discharge needs to be effected, then the additional fee for finding a suitable room elsewhere is not able to be treated as a top up. The council needs to pay the whole fee at that point. End of.

Transferring via more than one move is not ideal, but a person does not have the right to stay in the NHS bed just because their choice is not available. All that is required is a suitable placement, but that decision as to suitability cannot just be asserted because there’s another cheap home OPEN, with a vacant room.

The parts of the regulations that we have focused on here indicate that it would not be right for the NHS to discharge someone to a placement that it did not believe to be suitable, because it would be obliged to withdraw the assessment and/or the discharge notice, if that were its state of mind.

So if relatives are getting nowhere with the relevant council, in setting out

  • Why the setting offered is unsuitable
  • Why the home is unsuitable
  • Why the budget offered is not sufficient for standard care in a care home
  • Why the budget does not meet the person’s needs in the setting in which the council has decided to support the person

….then the next best thing the relatives can do is to lay this information at the foot of the discharge co-ordinator and point out that unless they are satisfied that the person’s concerns are not valid, or might not be valid, they need to withdraw the discharge notice.


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Theme no. 3: Checklisting for CHC – this doesn’t seem to be mentioned in the Care Act’s hospital discharge schedule, and so is it on its way out?

Material taken from the National Framework on checklisting

  1. CCGs should ensure that local protocols are developed between themselves, other NHS bodies, LAs and other relevant partners.


These should set out each organisation’s role and how responsibilities are to be exercised in relation to delayed discharge and NHS continuing healthcare, including responsibilities with regard to the decision-making on eligibility.


There should be processes in place to identify those individuals for whom it is appropriate to use the Checklist and, where the Checklist indicates that they may have needs that would make them eligible for NHS continuing healthcare, for full assessment of eligibility to then take place.


  1. Assessment of eligibility for NHS continuing healthcare can take place in either hospital or non-hospital settings. It should always be borne in mind that assessment of eligibility that takes place in an acute hospital may not always reflect an individual’s capacity to maximise their potential.


This could be because, with appropriate support, that individual has the potential to recover further in the near future. It could also be because it is difficult to make an accurate assessment of an individual’s needs while they are in an acute services environment.


Anyone who carries out an assessment of eligibility for NHS continuing healthcare should always consider whether there is further potential for rehabilitation and for independence to be regained, and how the outcome of any treatment or medication may affect ongoing needs.


  1. In order to address this issue and ensure that unnecessary stays on acute wards are avoided, there should be consideration of whether the provision of further NHS-funded services is appropriate.

This might include therapy and/or rehabilitation, if that could make a difference to the potential of the individual in the following few months.


It might also include intermediate care or an interim package of support in an individual’s own home or in a care home.


In such situations, assessment of eligibility for NHS continuing healthcare should usually be deferred until an accurate assessment of future needs can be made.


The interim services (or appropriate alternative interim services if needs change) should continue in place until the determination of eligibility for NHS continuing healthcare has taken place. There must be no gap in the provision of appropriate support to meet the individual’s needs.


  1. Where NHS-funded care, other than on an acute ward, is the next appropriate step after hospital treatment, this does not trigger the responsibilities under the Community Care (Delayed Discharges etc.) Act 2003.


Material from the national framework on the Checklist


  1. The first step in the process for most people will be a screening process, using the NHS continuing healthcare Checklist – unless it is deemed appropriate for the Fast Track Pathway Tool to be used at this stage (see paragraphs 97 – 107) or for other NHS-funded services to be provided (see paragraph 65).


In an acute hospital setting, the Checklist should not be completed until the individual’s needs on discharge are clear. The purpose of the Checklist is to encourage proportionate assessments, so that resources are directed towards those people who are most likely to be eligible for NHS continuing healthcare, and to ensure that a rationale is provided for all decisions regarding eligibility.


  1. Standing Rules Regulations make it clear that if the CCG is to use any screening tool, that tool must be the NHS Continuing Healthcare Checklist. They may, if they wish, directly move to a full MDT assessment for an individual without using a Checklist. However, a CCG cannot use a different tool or method for screening for NHS continuing healthcare.


  1. [Standing Rules Regulations] require a CCG to take reasonable steps to ensure that individuals are assessed for NHS continuing healthcare in all cases where it appears that there may be a need for such care.


  1. Where the Checklist has been used as part of the process of discharge from an acute hospital, and has indicated a need for full assessment of eligibility (or where a Checklist is not used, a full assessment of eligibility would otherwise take place), a decision may be made at this stage first to provide other services and then to carry out a full assessment of eligibility at a later stage. This should be recorded.


The relevant CCG should ensure that full assessment of eligibility is carried out once it is possible to make a reasonable judgement about the individual’s ongoing needs. This full consideration should be completed in the most appropriate setting – whether another NHS institution, the individual’s home or some other care setting. In the interim, the relevant CCG retains responsibility for funding appropriate care.


  1. Whatever the outcome of the Checklist – whether or not a referral for a full assessment for NHS continuing healthcare eligibility is considered necessary – the decision (including the reasons why the decision was reached) should be communicated clearly and in writing to the individual and (where appropriate) their representative, as soon as is reasonably practicable.


Where the outcome is not to proceed to full assessment of eligibility, the written decision should also contain details of the individual’s right to ask the CCG to reconsider the decision.


The CCG should give such requests due consideration, taking account of all the information available, including additional information from the individual or carer.


A clear and written response should be given to the individual and (where appropriate) their representative, as soon as is reasonably practicable.


The response should also give details of the individual’s rights under the NHS complaints procedure as enshrined in the NHS Constitution.


  1. The time that elapses between the Checklist (or, where no Checklist is used, other notification of potential eligibility) being received by the CCG and the funding decision being made should, in most cases, not exceed 28 days.


In acute services, it may be appropriate for the process to take significantly less than 28 days if an individual is otherwise ready for discharge.


The CCG can help manage this process by ensuring that potential NHS continuing healthcare eligibility is actively considered as a central part of the discharge planning process, and also by considering whether it would be appropriate to provide interim or other NHS-funded services, as set out in paragraph 65 above.


Practice Guidance note 13.6

Social care practitioners should work jointly with NHS staff throughout the NHS continuing healthcare eligibility process, and should be involved as part of the MDT wherever practicable.


Therefore, where the LA receives a referral for involvement in the MDT process for NHS continuing healthcare they should respond positively and promptly.


The LA should usually be represented on the MDT completing the NHS continuing healthcare eligibility process.


This means that, in most cases, the key assessment information needed for LA support is already available if the delayed discharge process is triggered subsequently.


Therefore, where a person is found to be ineligible for NHS continuing healthcare and delayed discharge notices are then issued, the LA should be in a position to respond and action their responsibilities within a short timeframe.


PG 13.8 In summary, CCGs should have appropriate processes and pathways in place to ensure that, where an individual may have a need for support after hospital discharge, one of the following scenarios will apply:


  1. a) prior to completing a Checklist in hospital a decision is made to provide interim NHS funded services to support the individual after discharge (in which case the delayed discharge provisions would not be triggered). In such a case, before the interim NHS funded services come to an end, consideration of NHS continuing healthcare eligibility should take place through use of the Checklist and, where appropriate, the full MDT process using the DST;


[No checklist and no DTOC notices because need for more NHS services of some kind is clear – NHS pays for and arranges those for the short or longer term and CHC is decided at the end of those services having any potential for improvement]


  1. b) a Checklist is completed which indicates the person may have a need for NHS continuing healthcare and interim NHS-funded services are put in place to support the individual after discharge until a full MDT NHS continuing healthcare assessment is completed (in which case the delayed discharge provisions would not be triggered);


[a positive Checklist but discharge effected because it’s better for the patient – NHS pays until CHC assessment is done]




  1. c) a Checklist is completed which indicates the person may have a need for NHS continuing healthcare and a full MDT NHS continuing healthcare assessment takes place before discharge. If this results in eligibility for NHS continuing healthcare then the delayed discharge procedures do not apply as the NHS continues to have responsibility for the individual’s care;


[a positive Checklist followed by a CHC decision before discharge, assuming a proper MDT]




  1. d) a Checklist is completed which indicates the person may have a need for NHS continuing healthcare and a full MDT NHS continuing healthcare assessment takes place before discharge. If this does not result in eligibility for NHS continuing healthcare then the appropriate delayed discharge notices should be issued;


[a positive checklist followed by a DST resulting in no recommendation for CHC status: an assessment notice can be served or need not be withdrawn and a discharge notice can follow on, unless (CASCAIDr says) the patient or family says the council is acting illegally]




  1. e) a Checklist is completed before discharge which does not indicate the person may have a need for NHS continuing healthcare in which case the appropriate delayed discharges notices should be issued.


[a negative Checklist and (CASCAIDr says) no challenge to the legitimacy of thecouncil’s actions on legal grounds even if they proposals are not welcome].


If a local area does not use the Checklist either generally or in individual cases then a full MDT NHS continuing healthcare assessment should take place before delayed discharge notices are issued.


[…because no assessment notice can be served without a decision as to CHC]


14.1 Intermediate care is aimed at people who would otherwise face unnecessarily prolonged hospital stays or inappropriate admission to acute or longer-term in-patient care or longterm residential care. It should form part of a pathway of support.


For example, intermediate care may be appropriately used where a person has received other residential rehabilitation support following a hospital admission and, although having improved, continues to need support for a period prior to returning to their own home.


It should also be used where a person is at risk of entering a care home and requires their needs to be assessed in a non-acute setting with rehabilitation support provided where needed. This is irrespective of current or potential future funding streams, but is clearly important in the context of consideration for NHS continuing healthcare.


  • CCGs should have regard to the most recent guidance in relation to Intermediate Care.


14.3 Individuals should not be transferred directly to long-term residential care from an acute hospital ward unless there are exceptional circumstances. Such circumstances might include:


  1. a) those who have already completed a period of specialist rehabilitation, such as in a stroke unit
  2. b) those who have had previous failed attempts at being supported at home (with or without intermediate care support)
  3. c) those for whom the professional judgement is that a period in residential intermediate care followed by another move is likely to be unduly distressing.

14.4 The guidance referred to above sets out what intermediate care should look like as well as how to commission it, with an emphasis on partnership working. CCGs should seek to ensure that this pathway is followed prior to any long-term placement apart from exceptional circumstances.



Proposals for reform of the CHC system

The CHC Alliance published a report in November 2016 highlighting a number of issues, including with the CHC assessment process. Additionally, in July this year the National Audit Office (NAO) published an investigation into CHC.

Key facts and figures

Continuing Healthcare – 2016/17

  • Almost 160,000 people received or were assessed as eligible for CHC
  • Almost 77,000 referrals for a full CHC eligibility assessment process
  • Around 88,000 Fast Track Pathway Referrals received
  • Around 25% of individuals assessed for standard CHC were found eligible
  • Approximately £3.2 billion spent on CHC
  • 609 Independent Reviews took place, 122 of which resulted in an eligibility recommendation for at least some period of care

Funded Nursing Care – 2016/17

  • Approximately 132,000 people received or assessed as eligible for FNC
  • Approximately £625 million spent on FNC

Summary of Issues: in general, inconsistent experiences and variation, including…

  • High number of assessments and screenings being conducted that do not lead to eligibility for CHC – In 2016/17 77,000 people were assessed for CHC. Of those assessed, around 25% were eligible. It may be possible that some of these assessments were unnecessary, even if we account for people who receive NHS funded nursing care. Our analysis has shown a number of factors could be influencing this, such as the location in which screening and assessment is carried out.
  • The level at which the Checklist threshold is set – When the Checklist was designed the threshold was deliberately set low to ensure individuals who may be eligible for CHC receive a full assessment. A staff survey data collected by a group of Commissioning Support Units (CSUs) for DH and NHS England and analysis of this data showed that 86% of respondents thought the Checklist threshold was too low, resulting in full assessments that were unnecessary and patients’ expectations being raised.
  • The impact of the location in which individuals are screened for CHC – That same data shows that 80% of respondents thought that the setting of the screening has an impact on the outcome. At that point, around half of CHC screenings, and a third of assessments, were being carried out in an acute setting at a time when patients may not have benefited from a period of recovery. Delays in hospital discharge can lead to a high risk of deconditioning – for patients over 80 years old, every ten days spent in hospital is equivalent to 10 years of muscle ageing – which is entirely preventable.
  • Disparity in approaches to training across the country – Around 87% of staff reported having done e-learning or face-to-face training, Data shows that staff think training is not well co-ordinated by the CCGs, which in some local systems may to lack of practitioner confidence. This has also been referenced in the CHC Alliance report.
  • Issues with the “challenges to individual decisions” process – There is evidence of variation at CCG level in terms of the local dispute resolution process, a lack of clarity around process, and distress being caused to individuals and their families or carers as a result. These are also highlighted in the NAO report.
  • A lack of clarity around the three and twelve month review purpose and processes – There is evidence of variation in the review processes and inconsistency, also highlighted in the NAO report and CHC Alliance report.


As we understand it the position from the DH, is that they have decided not to put the proposals out to public consultation. Instead, DH are going through a short stakeholder engagement process. DH will only accept submissions from stakeholders (for example a CCG or organisation in the CHC stakeholder group), and only one response per stakeholder.

200 expressions of interest were received via Beacon, from which they selected 25 people to attend an event and constitute a group.

Even though CASCAIDr’s Belinda Schwehr was not selected to attend the focus group, Beacon asked for feedback on the powerpoint so that it could inform Beacon’s final response to the Department of Health.

We have no idea whether the powerpoint may or may not be shared, but we think that aspects of it should be shared in the public interest, so that people can lobby their MPs as to why there is no public engagement.

The formal stakeholders were only given a couple of weeks to respond with a deadline of 31 October. Permission was given from DH to share the slides with the formal stakeholders and a short extension was given.

In 2006 when the National Framework was first worked on, it took CASCAIDr’s Belinda Schwehr three whole working days to critique the last consultation on CHC and the current document is no easier.

Is this not a bit like information prior to the Referendum on reminaing in the EU, CASCAIDr would have to ask?

The DH’s proposals for reform of CHC guidance (of course there is no suggestion that the law or the line would move, on the process for getting to the decision making….) said this

  • Should CHC checklists always be done in a community setting (this would allow for stabilisation and management of hospital beds, but would depart from the fundamental perspective that the next liability should not be determined without a decision about CHC – no problem if interim discharge to assess beds are free, of course)
  • Should CHC DSTs occur ONLY in a community setting?
  • What should the considerations for who gets checklisted in the first place, be?
  • Should the rules on review be changed?
  • Should the rules for training be changed?
  • Should the rules for roles within the NF be changed?
  • How should the rules for local resolution be changed to get rid of the immense variations that occur?
  • Whether there should be a 6 year rolling limitation period for restitution of retrospective claims?
  • What people think of additional fees arrangements (top ups) for CHC care?Proposals for clarifying the meaning of Primary Health Need?
  • Whether the domain wording should be clarified
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Theme no. 2: Options for integration of health and social work inputs, in the context of hospital discharge

‘Discharge to Assess’ policy and practice differs around the country but is all part of a determined push towards integration of health and social care thinking tasks, to ensure people get out of hospital beds as soon as possible.

The benefits of a fully mature, integrated system that has the right capacity in the right place are outlined below:

  • People’s health outcomes improve as more people will be able to live at home for longer if services are designed for discharge to home to be the default.
  • People’s length of stay in a hospital bed decreases due to longer-term assessments taking place in a more appropriate situation and place. Evidence suggests this should reduce deconditioning and improve outcomes significantly since 10 days in hospital (acute or community) leads to the equivalent of 10 years ageing in the muscles of people over 80 .
  • Encourages NHS and Adult Social Care leaders to work together for the best outcomes and experiences for people through joint approaches to discharge to assess. This may include joint commissioning or funding.
  • Improves system flow by enabling patients to access urgent care at the time they need it.
  • Reduces duplication and unnecessary time spent by people in the wrong place.
  • Enhances working relationships between the health, social care and housing sectors and increases development opportunities for their staff.
  • Sharing responsibility, risks and skills across partners leads to innovative and creative solutions that deliver safe, effective care and support.

The practicalities

Many local health systems have introduced ‘trusted assessment’ or ‘generic assessment’ where one person/team appointed to undertake health and social care assessments on behalf of multiple teams, using agreed criteria and protocols.

  • Sheffield Teaching Hospitals and Sheffield Hallam University have developed a 2 day generic assessor course.
  • South Warwickshire’s trusted assessment form has enabled direct referral to reablement without the hospital social work team’s involvement.
  • East and North Hertfordshire Care Home Vanguard is piloting a trusted assessor model and has developed the Complex Care Premium which is paid to the care home, for residents who have ‘complex needs’.

The following exhortations are taken from the PCA’s report in 2016 into unsafe hospital discharge:

Best practice guidance has been consistent over the past decade in stating that ‘discharge is a process and not an isolated event at the end of the patient’s stay’. The key steps and principles identified to enable appropriate discharge include:

  • Starting discharge and transfer planning before or on admission to hospital, to anticipate problems, to put appropriate support in place and agree an expected discharge date.
  • Involving patients and carers in all stages of the planning, providing good information and helping them to make care planning decisions and choices.
  • Effective team working within and between health and social care services to manage all aspects of the discharge process, including assessments for social care, continuing health care and, where necessary, assessments of mental capacity.
  • Community-based health and social care practitioners should maintain contact with the person after they are discharged, and make sure the person knows how to contact them when they need to.


Guidelines published by the National Institute for Health and Care Excellence in December 2015, on transition from inpatient hospital settings for adults with social care needs, also recommend that a single health or social care professional should be made responsible for co-ordinating a person’s discharge .

The discharge co-ordinator should be the central point of contact for other health and social care professionals, the person and their family during discharge.

But here at CASCAIDr we think that some limited sort of social services skill with regard to social care needs is desirable for informing the Checklist. We are not saying that a discharge co-ordinator cannot supply that skill but that she or he will need a broader competency basis than just nursing and writing up what is needed to meet unmet clinical needs.

The domains on the checklist include domains from the DST that have been transparently suppressed in terms of scoring so that they can never lead to eligibility on their own: they are the tradition social care needs domains and yet the systems now coming to the fore allow for no social work consideration of those domains.

Whilst social workers may not understand what makes someone’s breathing or states of consciousness problematic, or why a pressure sore isn’t healing, they can see the facts as well as anyone else; and the same must go for discharge co-ordinators, regarding the traditional social care domains

But do discharge co-ordinators get trained in social work values or know much about what the MCA says must be the response to cognitive impairment before anyone lays hands on the patient and moves them out of the hospital?

Top tips from the D2A quick guide:

  • Use a trusted assessor model – this is about responsible staff understanding the dual legal frameworks that operate here, in our view.
  • The cultural and behavioural challenges associated with new ways of working, can be overcome through the weekly multi-agency and multidisciplinary ‘Big Room’ meetings, which are seen as an open place in which people are supported to contribute and share – this is about stopping hierarchical turf wars and ‘we know better than you lot do’ cultures undermining progress or becoming further entrenched, to our mind.
  • Do not underestimate the significant engagement and communications which need to take place to enable systematic changes. (ditto!)
  • Explore using existing staff structures and re-align teams (again, only if trained in the legal framework)

CASCAIDr’s view of what law can contribute:

Integration can be enhanced by polite appropriate use of the s6 and s7 reciprocal duties of co-operation under the Care Act. Health bodies (the CCG and the Hospital Trust) are relevant partners, and must have a good reason for not doing what is asked of them, but that’s true for social services as well.

Fines for the council not doing its job in a timely way are no longer a mandatory piece of the jigsaw, but that hasn’t translated into any more clarity about whose job is whose, and why the NHS may be letting patients down too.

If discharge co-ordinators were skilled and legally literate in Care Act functions, they could discharge both health and social care thinking tasks in one go.

The same goes for any CCG’s roving band of nurse assessors – legal literacy entitles either organisation to delegate its statutory functions or tasks under Guidance to the other agency, to save time and human resources.

If social work staff stepped up to checklisting on the basis of a social care quick look and a nursing needs assessment identifying any needs for registered nurse nursing at one’s next stage, the nurses could be freed up for what they excel at, which is meeting clinical needs, and not doing paperwork.

Where hospitals and local authorities are already operating joint discharge teams, which are often co-located in the same office with access to a shared database, an update to the database may be all that is required to get good workflow going…

While reimbursement is a potential way of exposing local difficulties in the relationship between the NHS body and the local authority, NHS bodies should not use reimbursement as the first approach to address any local difficulties around delayed transfers of care.

Please see our overview of the legal provisions for why we think that not enough focus is placed in the training for hospital discharge on the legal framework. It’s an attachment to this post, here: Summary of the law relating to hospital discharge notices

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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.


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Introduction to our #HosDisChat in support of CASCAIDr’s launch

Hospital discharge disputes, delay, and distress

Healthwatch England’s Safely Home? report found that one in 10 trusts do not routinely notify relatives and carers that someone has been discharged, and that one in eight people did not feel they were able to cope in their own home after being discharged from hospital.

Conversely, Age UK estimate that older patients have spent 2.4 million days over the last five years ‘stuck in hospital beds’ due to a lack of appropriate social care placements and support.

NICE had issued a guideline in 2015 – Transition between inpatient hospital settings and community or care home settings for adults with social care needs.

NHS England issued a Patient Safety Alert on risks arising from breakdowns in communication during discharge

In May 2016 the National Audit office (NAO) reported its findings on discharging older patients from hospital. It reported nearly two thirds of hospital bed days being occupied by people over 65 with an 18% rise in emergency admission for older people in the last four years.

The NAO also reported 1.75 million hospital bed days being lost due to delays in transfer of care in 2015, with an estimated 4.2 million bed days occupied by people no longer in need of acute hospital care.  Delayed discharges from hospital are estimated to cost the NHS around £900 million per year and that statistic is not up to date in any event.

Here’s a quotation taken from the Kings Fund in 2015:


Too often vulnerable people are sent home from hospital without the right equipment in their home or without a care plan or are simply discharged in inappropriate clothing without anyone to help them when they get home.  Only one in four respondents to the survey in 2014 had concerns about the level of care available to their parent at discharge. But those who felt their parent was discharged prematurely were almost eight times more likely to have concerns about the level of care available after discharge than those who didn’t think their relative was sent home prematurely.


Dame Julie Mellor the Parliamentary and Health Service Ombudsman did a report into unsafe hospital discharge in May 2016 and concluded as follows:


In 2014-15 we investigated 221 complaints on this issue – an increase of over a third in complaints in the previous year. We upheld, or partly upheld over half of these. This was significantly higher than our average uphold rate of 37% in the same year. As we are the final tier of the complaints system, we only see a fraction of the total number of complaints made to NHS organisations – those cases that it has not been possible to resolve locally.


Dame Julie’s office reported on 9 appalling cases in 2016, identifying 4 major issues.

  • Discharge before one was medically fit
  • Discharge without proper consultation
  • Discharge without notice to relatives
  • Discharge into poorly co-ordinated service profiles

The Department of Health established a national programme on improving discharge. The programme brought together key NHS and social care organisations to develop a vision for improvement, which should enable all health and social care professionals to put the needs of patients and their carers at the forefront of discharge planning. The outcome was this:

The key message is this:

“Implementing a discharge to assess model where going home is the default pathway, with alternative pathways for people who cannot go straight home, is more than good practice, it is the right thing to do.”

Delivering on this though, requires that

“commissioners and providers within health and care systems … challenge current practice and change mind-sets. Collaboration between health and care locally is vital to ensure sufficient quality of service, demonstrable change and agreement on how best to allocate resources and funds.”


The statutory Guidance on hospital discharge in Annex G says this:

Not everyone who is admitted to hospital will need care and support after discharge. Indeed, for the majority of hospital discharges, this will not be the case and it is important within this context that NHS organisations do not issue assessment notices in a precautionary and/or routine way without having satisfied itself that there is a reasonable prospect that there may be a need for care and support for which arrangements may need to be made in order to ensure a safe discharge.

A locally agreed protocol between the NHS and local authorities which allows NHS staff to identify those likely to need care and support on discharge will provide help and advice as to when a patient should be considered to have possible care and support needs, in order to ensure the NHS issue assessment notices appropriately.

However, the relevant NHS body must issue an assessment notice where it considers that a patient may require care and support on discharge and the local authority must or may be required to meet such needs.

Before issuing any assessment notice, the NHS must consult with the patient and, where applicable, the carer. This is to avoid unnecessary assessments where, for example, the patient wishes to make private arrangements for care and support without the involvement of the local authority.

The minimum period is 2 days after the local authority has received an assessment notice or is treated as having received an assessment notice.

Any assessment notice which is given after 2pm on any day is treated as being given on the following day.


Before issuing an assessment notice, the NHS body must have also completed any assessment of the potential Continuing Health Care needs of the patient and if applicable made a decision on what services the NHS will be providing.

A balance should be struck between giving the local authority early notice of the need to undertake an assessment of the patient and the risk that the patient’s condition may change significantly such that any early planning needs to be reviewed.

A DH review has identified the following key issues with the current national framework and was planning on making decisions this month (December 2015) about changes to the Framework

Key Issues

Through our (the DH’s) engagement work to date we identified the following areas which points to the need for potential changes to the screening and assessment process:

  • Acute hospital episode lengths of stay have dramatically reduced over the lifetime of the CHC National Framework and rehabilitation, recovery and recuperation are now expected to take place after discharge from an acute hospital;
  • Recovery, recuperation and rehabilitation is required before screening and assessment for long-term care needs take place. Otherwise this leads to unnecessary assessments or needs being overstated because the person has not yet recovered;
  • Discharge from acute care under the Care Act: The need to clarify pathways across the health and social care system;
  • Confusion over interim funding arrangements and a lack of consistency around interim provision, which may lead to delays in hospital and act as a barrier to screening and assessment in the community;
  • Raised expectations: Completing the screening process at the wrong time and/or in the wrong setting could raise the expectations of individuals and their families that they are eligible for CHC when they are actually far from eligibility, leading to appeals and complaints (some of which can last years);
  • Difficult to reach decisions within 28 days, as set out as a guide in the National Framework, for example where screening is carried out in an acute setting without giving time for recovery and the need to delay assessment after discharge

Proposed Changes regarding checklisting

1) To add a statement to the National Framework that explicitly says that a Checklist does not need to be undertaken if it is clear to staff within the health and care system there is not a need for CHC.

2) To provide specific examples about the circumstances in which screening (with a checklist) is not necessary. And, where a screening (with a checklist) may be needed, providing guidance to staff to make a decision later in the individual’s recovery pathway about whether or not to screen at this point.  For example:

  • Where the individual is rapidly deteriorating and may be entering the end state of a terminal illness;
  • Where the individual is in a post-acute phase of recovery, rehabilitation and/or recuperation, regardless of setting;
  • Where the individual does not have significant long-term health care needs
  • Where the individual is recovering from a temporary conditions, and their longer term needs are not clear. 

Proposed Changes to review rules

1) We propose the following changes and clarifications:

  • The purpose of 3 and 12 month reviews is to focus on the appropriateness of the care package and whether it is suitable for that person’s needs. The original DST will continue to be required for this review.
  • Eligibility is only to be reviewed where there has been a change in the person’s health needs that could impact upon their primary health need. The decision not to review eligibility will be a professional decision, where the person’s needs are unchanged or have increased.
  • Where an eligibility assessment is required, then this will involve a full MDT and a new DST, as per the normal CHC process.

2) In addition, we would like to explore if we need a 3 month review in all cases:

  • Our proposition to remove the requirement for a 3 month review, while ensuring that all individuals get at least an annual review. This should give CCGs the flexibility to conduct reviews as appropriate to the case rather than focusing on trying to deliver a 3 month review target.
  • Still retain the flexibility for reviews to be conducted more frequently for individuals who have needs that fluctuate or highly complex needs. This proposition is based on moving towards focusing on the quality of the care package rather than eligibility for CHC.
  • Where a case is Fast Track cases, the 3 month review will remain a requirement.

Proposed changes to the training system

Our proposal is to state that for health and care professionals delivering the CHC pathway (screening. full assessments and their co-ordination, eligibility recommendations and decision-making, reviews, and challenges to individual decisions):

  • Staff can only perform the CHC activities and tasks they have been trained and are competent to perform
  • CCGs will retain oversight for ensuring practitioners can access and undertake formal training to enable them to perform their role within the application of the National framework, for example screening and assessments
  • The National Framework should continue to encourage joint collaboration and training across  the health and care system



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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]



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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Free Care Act JRs webinar 8 December – register now and support CASCAIDr’s launch

On 8th December, midway through #CASCAIDr’s pre-opening fundraising campaign, we’re delighted that Belinda Schwehr will be offering a free 1.5 hr webinar, on the Oxfordshire and Merton cases  (all about how councils MUST behave during assessment and care planning, if the outcomes are to be lawful) (and STOP PRESS!! also the Essex case on fees)

The aim is to empower and enable people needing social care services, their advocates and their relatives to wise up, and become legally literate enough to ensure that they get their just deserts – their full legal entitlement.

It will also help Providers grasp what they would have to do to win a case on fees, these days.

The webinar is free to anyone who can attend online on the day. It’s interactive and the sound will work if you have good broadband and a sound card in your laptop.

The RECORDING of the event will cost £50 for anyone who wants one afterwards, and will play for as many times as you need, but Beilinda will be donating ALL the proceeds to the charity. And getting gift aid on top, courtesy of our wonderful government…

If anyone would like to make further donations, we will not say No, of course – and there will be a link to our button on the day, on this blog post.

So, please do diarise now. 8th December 11am-12.30pm.

Here is the registration link for getting admission to the webinar:

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“Our response to carers’ needs is a set sum of money – that’s what we’ve always done”

Under the old law, pre Care Act, carers were entitled under the legal framework to assessment under many different bits of legislation, and entitled to be told of their rights, under yet other bits.

But assessment was often a euphemism for a sympathetic chat and a lot of approval for being so willing and able to do such a good job. Not a gateway to services, or enforceable legal rights.

It was possible under the old law to be regarded as BEING carer, and being very much in need, but that state of affairs still did not trigger a legal right to a service or a budget than an individual could enforce by way of judicial review.

IF one was regarded as deserving, one might be offered, in the discretion of the council, and not pursuant to any duty, in the law, a range of types of support:

  • A sitting service so that one could get out to the shops to get all the things the loved one being cared for, needed, and for running a household
  • Respite – services or money that could be spent on backfilling time when the carer was not willing to be doing the care – these services were often capped to a particular amount of respite days or events or stays, per year. Some were in care homes, whilst some services would go into the person’s home in order to let the carer go away him or herself – that would be care at home.
  • A carer’s ‘grant’ – a sum of money to spend as one wanted – usually a rounded arbitrary sum which everyone in that carer category, was given
  • Something for You – ie a sum of money to spend on oneself, for a treat, that would compensate in some way for the exhaustion factor – a voucher to a spa, for instance – if that was what you’d really longed for and spoken up about.
  • Hub-based services that were designed to support carers through introduction to networks, and advice and information – often accessed through the same voluntary organisation that had been contracted by the council, to do the carers’ assessments.

Once a council had decided to meet a carer’s needs, there was legislation in place for turning that money into a carer’s direct payment, under the old law, but that did not often happen, in practice. Carers were more often given the direct payment of their loved one to manage, and that is not at all the same thing, and is not even legal without decisions first being taken about capacity to request a DP, or without the carer being nominated by the holder of the DP to be their manager.

Although all these ways of relating to carers, under the old law, were based on a discretion, rather than a duty, and could therefore be withdrawn without any formal steps,  the case law had moved on before the Care Act was finalised. Caselaw was suggesting by analogy in service users’ cases where discretionary services were withdrawn (and in closure situations too for preventive services) that withdrawal of even discretionary services, if they were important enough to the notion of the person’s place in society – withdrawals without notice or good reason – would impinge on a person’s human rights, and have to be conscientiously justified.

Even without Human Rights, it would always be possible for the courts to treat a service or an activity as such an important area of a person’s life, that common law principles of fairness would be said to have required notice and reasons in any event.

So when the Care Act was being drafted, it was no doubt considered to be time to put the rights of the carer on to a clearer basis.

Carers were given fresh Care Act rights to assessment for their support needs, rights to an eligibility decision about those needs, rights to a support plan under s25, and the implicit right to turn the budget into a carer’s direct payment.

Respite (replacement care) was also made, indubitably, from then on in, a service for the client, not the carer. So respite costs are not part of a carer’s care plan any longer (although a sitting service might be, because its purpose is to underpin other aspects of care being provided; the carer is not at leisure; they are still ‘on the case’, as it were…). There’s another myth busted about that, later on – Myth no. 10 if you’re interested in that one.

So, it’s been the law since the Gloucestershire case in 1997 that once a person is eligible, their budget must be appropriate and adequate enough to survive judicial review scrutiny (ie not be unlawful, irrational, unfair, etc).

That duty – regarding the size of the budget – is individually enforceable, because the duty is owed to each eligible service user.  The Cambridgeshire case, many years later, reiterated that there has to be a rational nexus between the needs and ‘the points’ in a resource allocation system (ie how much care, and for how long, and how often?); also between the points and the pounds allocated (ie what type of input, if it all costs different amounts?), and finally as between the points x pounds figure, and the real cost of the required inputs, from the local or other relevant market. That’s what ‘rational’ means in public law.

So, although it’s taken a long time to get here, we are thinking that if that’s the law for service users, still, under the Care Act, (and it is) then it has to be the law for carers too. 

Yet what is happening out there?

If a change in the law has trebled the number of people who count as carers, by removing the condition that regular and substantial care must be provided before one even counts at all, then clearly a council’s desperation to spend only the same amount of money as before, on that trebled group, now, is going to mean that either all carers get less or that the council has to give points to the input so as to reflect relativity between all of them. The points might be awarded, according to who does the most, or who suffers the most or who saves the council the most money because of the nature of what they do, regardless of the amount. The legality or rationality of this, in view of the purpose of meeting the carers’ NEEDS, as assessed, has not been litigated as yet, so it’s all up for grabs.

Various resource allocation schemes out there, attempt to do this in one way or another: some with banded rates; and some with impact scores. The fundamental problem we have with these is that neither sort of variation pays attention to the actual domains in which the carer has been assessed as unable to achieve.

One would not dream of doing a budget for an actual user of care services, without thinking to what end was the money to be directed, and that end MUST be the reducing of impact experienced from the person’s inability to achieve the eligibility domain tasks, down to something less than significant. Why woudn’t one aim to do the same with carers’ budgets, CASCAIDr would have to ask, rhetorically? So IMPACT score related sums of money for carers, are more likely to be legal than simple banding schemes dependent on AMOUNT of input, or money saved, but better still would be simple costing of what the carer, individually, actually needs to be able to cope in relation to specific domains. So, cleaning services for those struggling with maintenance of a habitable home environment, for instance. A sitting service and the cost of access to a gym for physical or mental wellbeing issues, perhaps. It’s all ‘facilities’, under s8.

Carers need to take note that they may need to do some thinking too, as to what WOULD actually meet their needs for support if they are going to carry on caring. It is ultimately a question of evidence as to costs: a cleaner, to compensate for the fact that one has done 3 nights of night time care, may cost £10 or £11 an hour in some parts of the country, and a lot less or a lot more, in others. You can’t make it up as you go along, and you can’t take judicial review proceedings against a council without a strong case that they’ve ignored credible evidence.

And more so than with a service user’s budget, what is done for a carer, is ultimately a negotiation too. What is it that would make you willing and able to go on a bit longer, or is it really time to stop?

We don’t want to finish this post without saying very loudly that a carer can’t JUST be offered a sum of money, on the footing that it’s a Grant, and something formal in the system. The only statutory function under the Care Act that enables the giving away of money is the direct payment function, and that turns on a REQUEST. That is, it is not the default route for a carer, unless they want the money, as opposed to a service. The default duty for any council is to provide carers’ with support services so as to meet their needs – they can’t just have the money foisted on them, unless they want to be supported via that route. So the far bigger myth out there is that MONEY is the only carer support that needs to be offered. Legal rubbish!! Even if it suits most carers, there will always be ones that it doesn’t suit, because of the difficulties that they are facing. Maybe that will be made clearer in the Green Paper next summer. Or even a chapter on carers might appear in the statutory Guidance…

We can’t absolutely say that set rates for carers being perfectly lawful, is a myth, as there’s no case on it yet. So we can’t bust it.

But we would venture to suggest that now we’ve set this stall out, as to why it might be, and now that carers and advocates will have been made more aware of the issue, council strategists having another think about it, in general and in specific individual cases, would not be a bad idea.

That would make a challenge much less likely.

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