21 Exception for provision of health services

8 Responses to 21 Exception for provision of health services

1. Dr Nigel Dudley says:

   30 July, 2012 at 4:00 pm

   It is good to see the Government accept recommendation 51(4) of the Law Commission report and attempt to establish in statute law a clear boundary between social and health care responsibilities. Unfortunately, the catastrophic care costs for some individuals arise because of the incorrect interpretation of the phrase “incidental or ancillary” – meaning minor healthcare needs, according to the accompanying notes for this section – and a failure of health and social care staff to understand that health care funding responsibility begins where local authority funding responsibility ends. There is no gap and anyone with significant health needs should be eligible for NHS Continuing Healthcare (CHC) funding.

   The postcode lottery for NHS CHC funding – as so clearly illustrated by the Department of Health’s own figures for levels of CHC funding per 50,000 population in each primary care trust – shows that the Coughlan derived quality and quantity test (the incidental or ancillary test) needs clarification. The Law Commission’s recommendation 51(5) therefore also requires implementation and more detail and examples should be provided for section 21(2) in order for MPs and others to gain a better understanding of where and how the Government intends to draw the funding and responsibility boundary. As it stands, section 21(2) is too vague and unhelpful.
2. Edmund Dunstan says:

   3 August, 2012 at 3:01 pm

   This is where the Bill, despite its claims, fails to address the fundamental problem with care and support for older people: the attempt to enshrine a difference between “health” and Social” care which has bedevilled us since 1948. Most of the need for “social” care arises from ill-health, and the distinction results in cost-shifting, boundary disputes, multiple assessments, arbitrary moves, a “loser pays all” mentality and so on. The more productive approach would be to specify which types of care are whose responsibility – e.g. medical, rehabilitation, trained nursing as NHS responsibilities – wherever provided – and which a local authority responsibility – board and lodging, basic personal care etc – again wherever provided, so that the sophistry of whether a need is “ancillary” or not can be removed, and there is a single assessment covering all needs with teh relevant contributions from teh NHS and teh Local Authority.
3. PAULINE HARDINGES says:

   23 August, 2012 at 12:45 pm

   Regarding the difference between social and healthcare needs, one is combined with the other, if you are unable to perform your daily personal tasks then very soon you will be requiring healthcare needs. So where do you draw the line between the two? It would help if financial assessments were abolished altogether, and if the person’s needs were ongoing the finance was shared between SS and the NHS. If the person has to go into a nursing home and is of pension age then the financial part should be a 3 way stretch, i.e. NHS SS and the pension less, spending money. This way the person requiring care will be treated for their needs instead of their ability to pay.
4. Alayne Brown says:

   17 September, 2012 at 11:07 am

   Clause 21 (6) (a) refers to a local authority having to make arrangements for determining disputes between the authority and either a clinical commissioning group or the NHS Commissioning Board about whether or not a service or facility is required to be provided under the NHS Act 2006 or the NHS (Wales) Act 2006. This it is not ‘promoting integration of care and support with health services etc.’ (I find the term etc. worrying in a legal document) (Clause 6) it is setting health and social care against each other in a time consuming, expensive battle which serves no one, least of all the service-user in the middle of it. Too much social care time at present is spent in a one sided battle with the NHS over who is funding care and equipment. If we were to have truly integrated commissioning it would remove this divisive, unnecessary practice which leaves service-users feeling distraught and certainly not with ‘physical and mental and emotional well-being.’
   • Dr Nigel Dudley says:

     18 September, 2012 at 1:33 pm

     Health and social care will not be set against each other if the Secretary of State clarifies exactly where the line is to be drawn between health and social care. The present battles do serve PCTs well as these allow significant costs to be shifted from one organisation to another (mainly from PCT to local authority). At present, the line identifying what services and needs should be funded by a PCT and those requiring funding by a local authority (or an individual with assets over £23,250) is indistinct and varies from one PCT to the next . The location of the line is based on the judgment of professionals who at times do not understand the law or who choose to turn a blind-eye to the Coughlan and Grogan judgments. This variation in legal understanding and application of the 2009 continuing health care directions is evidenced by the large differences in the number of people per 50,000 population in a PCT who are in receipt of NHS funded continuing care.
     There is very good reason for the Government to try and clarify the law around the health and social care funding divide so as to minimise the need for clause 21(6).
5. Belinda Schwehr says:

   29 September, 2012 at 3:40 pm

   This section seeks to assert the primacy of other legislation over social care duties, leaving social care as a duty of last resort, a safety net, for people not owed other duties by other agencies, as in the current legal framework.

   What is prohibited to local authorities to provide is only that which is required to be provided by the Health Service, by way of either services to meet needs, or services to prevent needs arising. And the trouble is that this is a remarkably few types or extents of services, as is well known, because there are no enforceable duties owed to individuals under the NHS legislation. The prohibition is only applicable to those with a ‘primary health need’, for instance, because such people are ‘required’ by the government’s guidance on continuing NHS health care status and funding, to be supplied with a service that meets ALL their needs, by the NHS. But of course the devil is in the detail again, and the concept of a primary health need is still elegantly obscured by the national guidance and culture-constrained misinterpretation of that guidance; and that is why PCTs and councils are still at each other’s throats over the cost shunt of health services to the council and the chargeable public. This clause makes it possible for the Health Service to say ‘Even though we should be doing it, you lot COULD still be doing it, as incidental and ancillary to what you are already bound to do’. And although the law is that anything that is incidental or ancillary to social care duties as worded, is lawfully provided and charged for by a council, this way of putting down is I think slightly worse than the current position, for councils; at the moment they are in charge of taking a view about the parameters of their own vires, subject to judicial review as to the meaning of the words and the concept of incidentala and ancillary; the Health Service can’t tell the local authorities how far council powers extend. But I am concerned that the Health Service would be encouraged by this clause to assert its own view, and wait for a council to disagree; and that would be dangerous and lead to impasses and gaps in to which human beings in need might fall. Ss 2(c) seems directed to this point – it mentions regulations based mechanisms for deciding whether something is or is not ‘I and A’ to social care (such as cost, perhaps?); I suppose that at least putting it in regulations would mean that any organisationally entrenched stance about the meaning of the regulations could be challenged in judicial review proceedings. The underlying problem that it suits government to leave the line between health and social care eternally uncrystallised, is the real issue here, as noted by many other commentators.
6. Roger Rymer says:

   8 October, 2012 at 10:05 pm

   As mentioned by the other commentators, the Bill misses the opportunity to bring an end to the inconsistent approach to Continuing Health Care up and down the country and to the time consuming appeals which inevitably result from an inconsistent decision making process. If we are going to have a national eligibility threshold for quantifying needs why can we not have a national definition of CHC?
7. Belinda Schwehr says:

   18 October, 2012 at 1:53 pm

   I have come back to this as it is the last opportunity to do so.

   This clause sets out the boundary in law between the responsibilities of local authorities for care and support, and those of the NHS for health care. It is said to replace prohibitions found in sections 21(8) and 29(6) of the National Assistance Act 1948 and section 49 of the Health and Social Care Act 2001.

   The notes explain that a local authority cannot meet care and support needs by providing those services of a type which are required to be provided under the NHS Act 2006. This includes all healthcare services which the NHS is required to provide – for instance primary medical, dental and ophthalmic services, and those commissioned by clinical commissioning groups, the NHS Commissioning Board, or any other NHS body. Neither may it meet care and support needs by providing or arranging nursing care by a registered nurse. However, the prohibitions are subject to certain exceptions.

   In my view, this is a new feature arising out of the repeal of the different types of social care that exist at the moment – domiciliary care (ie non-residential) and registered care home types of care, under different statutes.

   Instead of the ‘incidental and ancillary’ test just applying as a determinant of the upper limits to council responsibilities in nursing homes through s21-26 of the National Assistance Act, (above which there is no council power to provide or arrange), that upper limit of service provision vires is extended (as it logically must be, once the NAA and CSDPA etc are repealed) to all community care services.

   The problem is, to my mind, that makes it virtually impossible for councils to argue successfully in any given case that they cannot lawfully provide the service being asked for. If the parameters of social care are just the list of things like accommodation, care and support, etc in s8 if the Bill, it will be much harder to argue that a particular type of service is NOT incidental or ancillary to those things….

   According to the notes, ss(2) provides for regulations which may be used to provide further detail on the types of service which may or may not be provided by local authorities, and in which circumstances. It is suggested that ‘Such regulations will allow for clarity in the operation of the boundary between local authority care and support and the NHS.’

   I am not so sure about that! Even the regulations will have to be interpreted. As with the point made in relation to clause 13, regarding the difficulty of putting eligibility criteria, turning on discretionary judgements, into formal regulations, my concern is whether this will be treated as a matter of law and legal interpretation, by judges ( – ie they would be the ones to say yes or no to whether something is within the wording in the regulations) or merely as a matter for supervisory scrutiny, through Judicial Review, (eg judges only intervening in the case of an interpretation of the regulations that is seen by the court to be noe that no reasonable authority could possibly have concluded was correct)? That would need to be clarified, in my view.

   If the regulations were to specify types of service as one thing or the other, that would be great; but the clause makes provision for the regulations, additionally, to specify what is to be regarded as ancillary or incidental. I think this goes too far, to be passed into law without proper debate. For that power enables the Department of Health to expand the responsibilities of social care, chargeable social care, whenever it is convenient to do so, without the necessity of full Parliamentary scrutiny.

   I think that normally, absent any other express indication, the question of whether something is incidental or ancillary’, to something else specified in regulations or a statutory section governing the vires to spend public money, is treated as a matter of law, for judicial interpretation (as seen in the Harrison case, for instance, finding that nothing in the range of statutory NHS functions was able to be stretched to cover the giving of a direct payment under the auspices of providing a ‘service’ or a facility).

   The matter need not be left that way, but if that is not what is intended, then the government should clarify whether it wishes to give the power of decision-making about this notion, and thus about responsibility to
   a) Individual councils (subject to an irrational or indefensible interpretation),
   b) the courts, as a matter of law only in cases where there is a challenge,
   c) or to the Secretary of State, wherever a regulation has been thought necessary.

   The notes go on to explain that the prohibition on a council’s arranging nursing by a registered nurse is also subject to an exception where the local authority has obtained prior consent from the relevant clinical commissioning group, to allow for local authorities to arrange placements in care homes which provide registered nursing care, other than in temporary and urgent cases.

   This is also, potentially, a change in the law, not mere consolidation, in my view, and it has a potential large impact for LA commissioning and monitoring.

   The law is not, currently, that there is an exception to the rule about not buying registered nursing in a care home; the law is clear – it cannot be done in any circumstances, because no part of social care law extends to buying registered nursing. By implication and reverse reasoning, if one finds that a council has made the whole of a placement in a nursing home, (not just for the hotel costs, board, and social care and care assistant time under the supervision of the Registered Nurse, but the whole of the package including the FNC element and contribution) then that council can only (lawfully) be acting as the delegate or agent of the NHS, and not in its own name. Given that the council acts as agent only of the NHS, the NHS is put into contract with the care home for the FNC, by implication from the law of agency.

   Even under the current law, the Council is supposed to check first with the NHS that the person is agreed to need to be in a nursing home. This is not honoured in practice by all councils and PCTs, but that doesn’t mess up the clarity of the lines of accountability because FNC is the National Health Service’s legal and provision responsibility, as well as its financial responsibility, and it cannot be the council’s, as the council has no vires to buy it. So the NHS IS responsible for quality, safeguarding, value for money etc etc. That analysis provides that councils acting in this way are protected from the allegation that they should not be buying services which are not part of their remit, and in relation to which they have no skilled staff to monitor the adequacy, because the NHS is actually legally and clinically responsible as principal.

   So, if this provision is intended to change the law, by making the purchase of registered nursing a standard part of the social care functions of the council sector, so long as the CCG ‘agrees’ to the placement, it may be an intentional but covert abdication of the NHS from the responsibility for actually ensuring that people GET decent registered nursing, and enough of it.

   That would be retrograde, in my view; it might be compelled by the problem that CCGs won’t get their heads around what is being bought, here; won’t have the resources to do the monitoring, and whose commissioning hubs will be overstretched with other responsibilities, but this really needs to be properly debated and discussed publicly, I would have thought. It is just not clear to me whether sub section 4 is intended to treat the grant of permission from the CCG as constituting the council as the agent of the NHS, as has been the implied position, up ‘til now, or not….

   Registered nursing care: the definition of the FNC portion of the package in the nursing home has been subtly changed as well: if one looks at the current s49, one will see clearly that the prohibition on councils buying it is absolute and in principle, at least clear – nothing in the council’s powers to provide social care can be interpreted or stretched to include a power to provide nursing care by a registered nurse.

   That definition is then made very difficult, by the concept in s49(2) that nursing care by a registered nurse includes various things relating to care other than services which do not in all the circumstances, NEED to be provided by a registered nurse. ….No examples are given, and there are no regulations about that concept, but the current law does not mean that just because someone needs some care and bed rest and we might call that nursing, it is not illicit for a council to provide and pay for that, so long as it is not a task that NEEDS to be done by a registered nurse.

   One of the important consequences of the distinction between nursing and registered nursing is that nursing is a function that can be done by either the council under social care powers, or the NHS under the 2006 Act, as a health service function and ‘a health need’ whereas something necessitating registered nursing cannot be done or bought by a council; and that means it can’t be charged for, as social care. And because not all needs for nursing are registered nurse needs, it also means that it is not only the latter that count for the purposes of the decision support tool for eligibility for free CHC status – all the relevant non-registered needs related to the person’s illness, disability or injury, must be counted, and could add up to a primary health need. So

   The new law is subtly different – the definition section no longer defines ‘nursing care by a registered nurse’, but instead, purports to define something merely described as ‘nursing care’. It says as follows:

   (8) “Nursing care” means a service which involves either the provision of care or the planning, supervision or delegation of the provision of care (but does not include a service which, by its nature and in the circumstances in which it is to be provided, does not need to be provided by a registered nurse).

   So this would be saying that so long as the task didn’t NEED to be provided by a registered nurse (as to which there is no provision for a nice clear list, please note!), councils would be able to provide and fund what we would describe as nursing care, as part of social care, and charge for it.

   I should stress that I do not think that THAT is actually a change in the law, per se; councils can, already, if they want to, for a special reason, provide someone with a direct payment for a worker who happens to be nurse, so long as the tasks being done by that person, do not NEED to be done by a registered nurse. This greyness in relation to the remit of social care, enables councils, at least if they are in the know, to keep very sick people in possession of a direct payment, and hence choice and control over their own care, (so long as they are not put through the decision support tool for CHC status and qualifying), and to get funding by way of a s256 grant from a far-sighted NHS partner, to offset the cost of a very heavy duty package, and provide a lawful excuse for not charging for it.

   So this is not, it itself, a change; the risk is a more subtle one, in my view:

   What I think that this does is to make this kind of a fudge capable of becoming, over time, the general position, instead of the exceptional one – ie it risks the steady expansion of the notion of care and support, forming the bulk of people’s care packages, even outside of a care home, in their own homes, into something that covers ‘nursing’ so long as the specific task doesn’t HAVE to be done by a registered nurse. And of course, for as long as there is no list of such tasks, in regulations (and no caselaw, such as the D case about the suctioning of a tracheostomy tube not ever being something that it would be feasible to see as social care, under children’s or adults’ legislation at that time) the Department of Health will have managed to shunt more of its traditional responsibilities over to councils, and the cost of them, over to the service-using and paying public. It could make general nursing care in a person’s own home into something presumptively chargeable in people’s own homes, whereas given the way the domiciliary social care legislation is currently worded, there is no wording or concept of a social care service within its parameters that could feasibly be stretched that far. ‘Practical assistance’ in the home cannot be taken to mean ‘nursing’, in my view, and neither can ‘facilitation of recreational opportunities’ or the provision of ‘a telephone service’. But once that legislation is swept away, there will be the risk that chargeable social care and support will come to include nursing care, simply because of this new clause, or because it is argued to be something that is incidental or ancillary to personal care….

   And this is not what the Law Commission set out to do with its consultation on a bill to consolidate and streamline the existing law, so this should be widely and publicly debated, and made into something that the political parties must make clear their positions upon, in my view.

   This clause also provides, at subsection (6), for making regulations governing the part local authorities must play in assessments to establish whether a person is entitled to continuing healthcare (which would be provided under the NHS).

   That will put the obligation to have an inter-agency dispute resolution mechanism for CHC eligibility onto a more formal footing, which will be good, because most strategic health authorities failed to bother to require their subordinate PCTs in the hierarchy, to ever agree such processes.