21 Exception for provision of health care services
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 replaces 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.
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. Subsection (1) provides that the local authority may provide some healthcare services, as long as the service provided is “incidental or ancillary”, for instance, it is minor and accompanies some other type of care and support which the local authority is permitted to provide. Subsection (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. Such regulations will allow for clarity in the operation of the boundary between local authority care and support and the NHS.
The prohibition on arranging (as opposed to providing) 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. However, local authorities need not seek this consent where the arrangements are temporary arrangements in urgent cases.
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).
(1) A local authority may not meet needs under sections 17 to 19 by providing or arranging for the provision of a service or facility that is required to be provided under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 unless doing so would be incidental or ancillary to doing something else to meet needs under those sections.
(2) Regulations may specify—
(a) types of services or facilities which, despite subsection (1), may be provided or the provision of which may be arranged by a local authority, or circumstances in which such services or facilities may be so provided or the provision of which may be so arranged;
(b) types of services or facilities which may not be provided or the provision of which may not be arranged by a local authority, or circumstances in which such services or facilities may not be so provided or the provision of which may not be so arranged;
(c) services or facilities, or a method for determining services or facilities, the provision of which is, or is not, to be treated as incidental or ancillary for the purposes of subsection (1).
(3) A local authority may not meet needs under sections 17 to 19 by providing or arranging for the provision of nursing care by a registered nurse.
(4) But a local authority may, despite subsections (1) and (3), arrange for the provision of accommodation together with nursing care—
(a) if the authority has obtained consent for it to arrange for the provision of the nursing care from whichever clinical commissioning group regulations require, or
(b) in an urgent case and where the arrangements are temporary.
(5) In a case to which subsection (4)(b) applies, as soon as is feasible after the temporary arrangements are made, the local authority must seek to obtain the consent mentioned in subsection (4)(a).
(6) Regulations may require a local authority—
(a) to make arrangements for determining disputes between the authority and either a clinical commissioning group or the National Health Service Commissioning Board about whether or not a service or facility is required to be provided under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006;
(b) to be involved in the manner specified in processes for assessing a person’s needs for health care and deciding how those needs should be met.
(7) Nothing in this section affects what a local authority may do under the National Health Service Act 2006, including entering into arrangements under regulations under section 75 of that Act (arrangements with NHS bodies).
(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).
(9) For the purposes of its application in relation to the duty in section 7(1) (preventing needs for care and support), this section is to be read as if references to meeting needs under sections 17 to 19 were references to exercising the duty under section 7(1).