This post is about the new Condem coalition’s healthcare WhitePaper and what it says about end-of-life care and social care.

Department of Health (2010) Equity and excellence: Liberating the NHS. (Cm 7881) London: TSO.

On the web: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_117794.pdf

You can find consultations and other documents at:

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_117353

There has been a lot of press comment that the Conservatives promised no top-down reorganisation of the NHS and in Andrew Lansley’s White Paper (WP below) on healthcare reform, have done exactly that. Gone are the days when White Papers were white, or at least cream: this one is covered in tasteful tones of mauve. However, the design is the same and the contents are mainly high-level generalisations about policy direction. Here’s a bit of a novelty: an analytical strategy (AS below) has been published alongside it. This means they’re telling you why they’re thinking what they’re thinking; fancy that. In reality, it sets out the things they’re consulting on: there are several consultations on the main philosophies that close in early October.

There’s another tranche of detailed stuff on information management (i.e. cutting the IT budget) and so on to come later.

General

The main aims are stated as:

i. Putting patients and the public first;

ii. Focusing on improvement in quality and healthcare outcomes;

iii. Autonomy, accountability and democratic legitimacy; and

iv. Cutting bureaucracy and increasing efficiency. (AS, p 2)

This is the vision: an NHS that:

Is genuinely centred on patients and carers;

Achieves quality and outcomes that are among the best in the world;

Refuses to tolerate unsafe and substandard care;

Eliminates discrimination and reduces inequalities in care;

Puts clinicians in the driving seat and sets hospitals and providers free to innovate, with stronger incentives to adopt best practice;

Is more transparent, with clearer accountabilities for quality and results;

Gives citizens a greater say in how the NHS is run;

Is less insular and fragmented, and works much better across boundaries, including with local authorities and between hospitals and practices;

Is more efficient and dynamic, with a radically smaller national, regional and local bureaucracy; and

Is put on a more stable and sustainable footing, free from frequent and arbitrary political meddling. (WP, 8-9)

It then goes on to some political meddling, and judging by the three-year programme set out, this will be frequent, although because it’s a programme, perhaps it won’t be arbitrary.

This leads us on the the main points: more patient choice and greater control of their records, GP commissioning (emerging from present experiments) and less bureaucracy, PCTs reduced in size, local authorities responsible for public health: we’ve seen it all in the press. You can’t imagine GPs doing more than sitting on a few advisory boards, so presumably this means that staff in the PCTs will divide themselves up among a larger number of local bodies and try to administer the system. A few central offices and strategic thinkers will be got rid of.

There are three things to say about this. One is, it will be conservative (with a small ‘c’, you notice). This is because people involved in day-to-day stuff will go with the things they know, not with new-fangled nonsense. So the cancer, renal, heart and chest physicians will retreat to not thinking about the reality that their patients are dying from their conditions, but will carry on doing more and more to cure them rather than making sensible judgements about when they’ve come to the end. And of course they will persuade a lot of patients that that’s what they want too. So end-of-life care that thinks: ‘what will give the best quality of life for someone who is dying’ will go out of the picture.

Second, overall planning and strategic thinking will reduce because smaller groups covering smaller areas will have less incentive to look at the big picture, and the local authorities will concentrate on stopping people smoking to get their health premium (there are more ways of political meddling than normal people can conceive of).

And third, most important, it is easier to save money when you have a larger number of spenders because they all try to keep within their budgets, whereas large spenders have more flexibility to vire resources between budgets.

How does it deal with the interests of this blog, palliative, end-of-life and social care? Not surprisingly, given the high level of generality of this mainly policy statement, they are not offering a lot of detail on particular specialities, but there’s some on end-of-life care and some on social care.

End-of-life care

The material on extending choice contains this on end-of-life care:

The Government will…

Introduce choice in care for long-term conditions as part of personalised care planning. In end-of-life care, we will move towards a national choice offer to support people’s preferences about how to have a good death, and we will work with providers, including hospices, to ensure that people have the support they need; (WP, p 17)

So hospices get a mention, naturally because they are the best example in healthcare of independent organisations actually making a large contribution, and this supports the Conservative ‘big society’ agenda. Choice is supposed to be not about just what treatment you get and where, but what that treatment feels like to the patient (and family, I hope, although it’s not too good on family participation because it’s stuck like the medical model on patients).

End-of-life care also comes up under quality improvement, because they are thinking about financial incentives for improving quality:

The government will…

review payment systems to support end-of-life care, including exploring options for per-patient funding; (WP, p25)

So we’re back to this again. Will this mean GPs who choose to do it will get some money? Or does it mean cheapo will win? This foundered the last time on the difficulty of defining what palliative care might mean and it got down to numbers of days, and completely got lost when the Treasury found out they didn’t pay for most of palliative care, so they would have to pay outside bodies to do the job. But note they’re not talking palliative care here, it’s end-of-life care, which will not primarily mean funding high-end palliative care, So if anything at all, it’s a small subvention for hospices or hospital palliative care, but some extra for (mainly private sector) care homes who save the NHS some money.

That’s it on end-of-life care.

Social care

The executive summary includes social care into democratic legitimacy:

To strengthen democratic legitimacy at local level, local authorities will promote the joining up of local NHS services, social care and health improvement. (WP, p 4)

This means giving local authorities the responsibility to promote partnership between health and social care, not the NHS. This realistically assesses the chance of the medically-lef NHS doing anything about social care as nil, so they’re letting the more community-led local authorities have a go. This also includes health improvement: again, realistically bearing in mind the NHS culture, this is turning the NHS into an illness service and putting positive public health with the local authorities. You can see the possibility, if it goes well, of other policy development for health going to the local authorities in the future. They need to grasp the opportunity, at least partly because the main point of the White Paper is GP commissioning. There is, therefore, not going to be a lot of public policy making among the local commissioners. For one thing, they will have a lot of detailed fish to fry. Also, they will be covering areas that are too small and too non-coterminous with anybody else’s areas to have much influence.

Also on this area:

We will strengthen the role of the Care Quality Commission as an effective quality inspectorate across both health and social care. (WP, p 5)

As it’s only just started, and so they have no real evidence that a giant multi-purpose regulator is going to work, you could see this cynically as making sure that the mass of private sector providers that we have and the bigger mass that we’re probably going to get are not going to be properly regulated. However, it’s more likely to be because they are against quangos and they’ve got to have a regulator, so they might as well have a supergirl. My sense is that regulators who really know their professional territory are likely to be much more effective; this one is going to be too amorphous really to have a handle on the huge range of its responsibilities, and because it’s so large it will have so much bureaucracy to keep it on track it will never get anything done. Ask me if I’m right in three years time.

Then, social care gets a mention in the ‘our values’ section on ‘liberating the NHS’, because the Condems have not yet managed to put a stop the Department of Health speak that says social care every time it says health care:

The NHS is about fairness for everyone in our society. It is about this country doing the right thing for those who need help. We are committed to promoting equality and will implement the ban on age discrimination in NHS services and social care to take effect from 2012. The NHS Commissioning Board will have an explicit duty to address inequalities in outcomes from healthcare services. (WP, p 7)

We’re now onto the main document from the exec. summary, by the way. Does this mean that nobody will have a duty to address inequalities in outcomes from social care services? I’m looking forward with interest when I retire (it may be longer than I think, judging by some of the decisions being made about retirement age) to mounting a court case or two on how equal the outcomes of local authority care are.

Another section is on ‘Improving the NHS and reforming social care’ – I wonder whether it’s worse to be improved or reformed? This section is about the Department of Health delegating to local authorities (localisation in action here) responsibility for public health, including the spending of a ‘premium’ (i.e. extra cash) to improve public health and reduce health inequalities. The question is, do you get your extra if you’ve been good and improved it, or if you’ve failed and you’ve still got a sickly population with lots of fat smokers? Remember this is about incentives. I think we should be told.

However, the Department is not giving up on social care (ostensibly a local authority responsibility so if it were really going for localisation, here is a good thing to delegate):

The Department will continue to have a vital role in setting adult social care policy. We want a sustainable adult social care system that gives people support and freedom to lead the life they choose, with dignity. We recognise the critical interdependence between the NHS and the adult social care system in securing better outcomes for people, including carers. We will seek to break down barriers between health and social care funding to encourage preventative action. Later this year we will set out our vision for adult social care, to enable people to have greater control over their care and support so they can enjoy maximum independence and responsibility for their own lives. The Department will continue to work closely with the Department for Education on services for children, to ensure that the changes in this White Paper and the subsequent public health White Paper support local health, education and social care services to work together for children and families. (WP, p 10)

It’s not clear but what this seems to be about is getting families to take responsibility for preventing problems in their own child and elder care. The question is just the same as it is with the health premium. Are you going to pay more for those who don’t because they have more problems or those who do, because they need an incentive for not having problems?

It covers their proposed commission on long-term care (every new government has to have one so that we can all be reminded how difficult it is and why they can’t do anything about it fro another Parliamnet because they won’t spend the money – perhaps you remember my prophecy that nothing will be done until the early 2020s, because that’s when the care home figures will start to bite):

The Department will establish a commission on the funding of long-term care and support, to report within a year. We understand the urgency of reforming the system of funding social care. The Commission will consider a range of ideas, including both a voluntary insurance scheme and a partnership scheme. As a key component of a lasting settlement for the social care system, we will reform and consolidate the law underpinning adult social care, working with the Law Commission. (WP 10)

Good to see the mention of the Law Commission report on adult social care law – an eminently sensible document covered before in this blog. This is easy to say of course because Law Commission reforms are supposed to be politically neutral, so it never says anything to upset anyone. But it does need to be done, and at least someone in the Department of Health has noticed and slipped it in. Finally:

The Government will bring together the conclusions of the Law Commission and the Commission on funding of long-term care, along with our vision, into a White Paper in 2011, with a view to introducing legislation in the second session of this Parliament to establish a sustainable legal and financial framework for adult social care. (WP, p 10)

Wait and see, then; by which time of course, bearing in mind the difficulties of keeping a coalition government in line, it might all have turned out to be too difficult again.

Moving on:

Here’s another quango system in the making then: Monitor (the people who check on the finances of foundation trusts) will look at financial information, HASCIC will check on the outcomes data and CQC will check on the quality of anything they manage to organise to get to see, when they’ve written their huge volumes of criteria.

We will ensure the right data is collected by the Health and Social Care Information Centre to enable people to exercise choice. We will seek to centralise all data returns in the Information Centre, which will have lead responsibility for data collection and assuring the data quality of those returns, working with other interested parties such as Monitor and the Care Quality Commission. We will also review data collections with a view to reducing burdens, as outlined in chapter 5. The forthcoming Health Bill will contain provisions to put the Information Centre on a firmer statutory footing, with clearer powers across organisations in the health and care system. (WP, p 15)

Social care turns up again in an unexpected place:

The government will…

Develop a coherent 24/7 urgent care service in every area of England that makes sense to patients when they have to make choices about their care. This will incorporate GP out-of-hours services and provide urgent medical care for people registered with a GP elsewhere. We will make care more accessible by introducing, informed by evaluation, a single telephone number for every kind of urgent and social care and by using technology to help people communicate with their clinicians. (WP, p18)

So social care emergencies will come through the health system. What does this mean for concerns that have elements of social care?  Before you say ‘jolly good thing’ to integrate the two, think about ‘Oh God not a palliative’ an article in this month’s Palliative Medicine (Vol 24(5): 501-9). This shows that emergency doctors do not like being presented with nasty things that involve spending time talking to people, instead of giving them pills and being off to the next thing (what one of the respondents called ‘proper doc’ work and then realised he shouldn’t have said it – even if he meant it). Their call centres pressurise them to get on to the next thing quickly. Moreover the study shows that patients do not trust or value the work of emergency doctors and that most out-of-hours doctors are motivated only by the good money. We do not want social care decision being made in organisations like this. Neither do we want anything that sounds as though it might cause problems to a ‘proper doc’ (i.e. human relationships) fobbed off onto the social care aspect of the service, when it really needs a doctor with the skills and motivation to do a good piece of interpersonal medical work.

A significant aspect of the patient-centred approach of the White Paper is picking up the social care practice of personalisation:

The previous Government recently started a programme of personal health budget pilots. International evidence, and evidence from social care, shows that these have much potential to help improve outcomes, transform NHS culture by putting patients in control, and enable integration across health and social care. As part of personalised care planning, the Department will encourage further pilots to come forward and explore the potential for introducing a right to a personal health budget in discrete areas such as NHS continuing care. We also recognise that introducing personal budgets is operationally complex and the Government will use the results of the evaluation in 2012 to inform a wider, more general roll-out. (WP, p 18)

Note the extreme caution about the possibility of a right to a personal health budget and only in discrete areas (i.e. nothing that’s going to cost us) and the particular mention of continuing care. That is, we’ll give you the money, you can add what you like so we’ll try not to give you too much, now go away and ‘take patient responsibility’.

Another new quango will be HealthWatch England with its local offshoots: community health councils are back again, to comment on the new commissioning arrangements:

Local HealthWatch organisations will ensure that the views and feedback from patients and carers are an integral part of local commissioning across health and social care; (WP p 20)

HealthWatch England will provide advice to the Health and Social Care Information Centre on the information which would be of most use to patients to facilitate their choices about their care. (WP. P 20)

Note the integration of social care into local commissioning arrangements (and so therefore dominated by the interest of GPs, instead of the broad social resilience role of local authorities?) and information about patients and their care, not broader social issues. A recipe for the medicalisation of social care, whose objectives are not to help GPs when they can’t or don’t want to cope with longterm care needs, but to promote social solidarity.

Another healthnsocialcare omnibus:

The current performance regime will be replaced with separate frameworks for outcomes that set direction for the NHS, for public health and social care, which provide for clear and unambiguous accountability, and enable better joint working. The Secretary of State, through the Public Health Service, will set local authorities national objectives for improving population health outcomes. It will be for local authorities to determine how best to secure those objectives, including by commissioning services from providers of NHS care. (WP, p 22)

So are the outcomes for social care an element of public health? Social care disappears from the rest of this paragraph. It should have its own performance criteria and they should not be commanded by health needs, either public health objectives (which are mainly about smoking and obesity) of NHS needs (which are mainly about medical and nursing treatment).

It is essential for patient outcomes that health and social care services are better integrated at all levels of the system. We will be consulting widely on options to ensure health and social care works seamlessly together to enable this. (WP, p 23)

Yes, well after 50 years of trying to do this, I’m sure we’ll believe everything they suggest. Of course, they’re politicians who have to believe that their policies change the world.

The next attempt to change the world is to set policy standards:

Each standard is a set of 5-10 specific, concise quality statements and associated measures. These measures act as markers of high quality, cost-effective patient care. They are about excellence, derived from the best available evidence and are produced collaboratively with the NHS and social care professionals, along with their partners, service users and carers. The standards will be developed in a way that makes sense for patients, and they will extend beyond NHS care, informing the work of local authorities and the Public Health Service. They will include information for clinicians and patients on relevant and ongoing research studies that are key to improving evidence for better outcomes. (WP, p 23)

With the increasing importance of coherent joint arrangements between health and social care, the standards will cover areas that span health and social care. We will expand the role of NICE to develop quality standards for social care. The Health Bill will put NICE on a firmer statutory footing, securing its independence and core functions and extending its remit to social care. (WP, p23)

There has been comment in the social work press about what this means for the Social Care Institute for Excellence (SCIE), and the stupid comment made by the minister apparently was that it was a charity so they couldn’t give it statutory responsibilities (tell that to the NSPCC). Actually, it was set up with similar intentions, hence the similar name, but social care knowledge is not in  the same place as healthcare knowledge, mainly due to successive governments not bothering to spend much money on social care research. This might begin to change as recent developments in research have influence over the next 20 years. However, SCIE (and its Scottish equivalent IRISS) has done a good job at collecting and making available knowledge resources and this ought to be continued.

I also think that there is a lot to be said for the extension to NICE responsibilities, because they have developed a very good decision-making model. What I would want to be sure, however, is that social care decision-making is not dominated by doctors, who know nothing about it and mostly couldn’t care less, and is prepared to look at some of the softer areas of knowledge where robust collection of information and knowledge could be very beneficial. One is not given much hope by the inane example of a NICE standard quoted in the White Paper, but the record of NICE is reasonable in this regard.

Then an attempt to produce more incentivisation in the payment by results system leads us to this:

The Department will…

implement in 2011/12 further incentives to reduce avoidable readmissions and encourage more joined-up working between hospitals and social care for services following discharge; (WP p 25)

Yes, but what about some joined up working in making the decisions about service-planning during periods in hospital and about discharge. If you had an adequate social work provision in hospitals and really engaged it in people’s care, you’d get a lot further than leaving it to hospitals to decide when to throw people out, with never a concern for integrating health and social care throughout. Remember, most of the medical care is done by GPs and community health services, not hospitals, and the hospitals should not be taking the lead in decisions about the use of community health services for their organisational and financial benefit (particularly when they are encouraged to be independent profit-making stand-alone bodies that can decide to do what they like for financial rather than total care system reasons).

Now on to the responsibilities of GP consortia:

GP consortia will have a duty to promote equalities and to work in partnership with local authorities, for instance in relation to health and adult social care, early years services, public health, safeguarding, and the wellbeing of local populations. (WP, p 29)

Well that’ll be a new one, GPs having a duty to work in partnership on safeguarding; who is the most common absentee (they’re so busy, poor dears, unlike anyone else of course) from case conferences and strategy meetings? But of course only the consortia have the duty, so they can approve the policy and still not bother to take part.

Now the responsibilities of our national leaders on the National Commissioning Board:

setting commissioning guidelines on the basis of clinically approved quality standards developed with the advice of NICE in a way that promotes joint working across health, public health and social care; (WP, p 31)

and the NHS role of the Secretary of State:

The legislative and policy framework. Responsibility for Department of State functions will remain with the Secretary of State. This includes determining the comprehensive service which the NHS provides, and developing and publishing national service strategies which will enable the roles of NHS, public health services and social care services to be better coordinated. (WP, p 33)

Accounting annually to Parliament for the overall performance of the NHS, public health and social care systems. (WP, p 34)

Finally, on democratic legitimacy:

The Government will strengthen the local democratic legitimacy of the NHS. Building on the power of the local authority to promote local wellbeing, we will establish new statutory arrangements within local authorities – which will be established as “health and wellbeing boards” or within existing strategic partnerships – to take on the function of joining up the commissioning of local NHS services, social care and health improvement. These health and wellbeing boards allow local authorities to take a strategic approach and promote integration across health and adult social care, children’s services, including safeguarding, and the wider local authority agenda. (WP, p 34)

These arrangements will give local authorities influence over NHS commissioning, and corresponding influence for NHS commissioners in relation to public health and social care. While NHS commissioning will be the sole preserve of the NHS Commissioning Board and GP consortia, our aim is to ensure coherent and coordinated local commissioning strategies across all three services, for example in relation to mental health or elderly care. The Secretary of State will seek to ensure strategic coordination nationally; the local authority’s new functions will enable strategic coordination locally. It will not involve day-to-day interventions in NHS services. The Government will consult fully on the details of the new arrangements. (WP p 35)

Then on local authorities’ responsibilities:

Each local authority will take on the function of joining up the commissioning of local NHS services, social care and health improvement.

Local authorities will therefore be responsible for:

- Promoting integration and partnership working between the NHS, social care, public health and other local services and strategies;

- Leading joint strategic needs assessments, and promoting collaboration on local commissioning plans, including by supporting joint commissioning arrangements where each party so wishes (WP, p 35)

This set of arrangements does provide a useful possibility of local democratic involvement with an understanding of and involvement in social care in healthcare; in the long-term, will the hospitals become independent and all community health be back with the local authorities? It’s a possible model if things go in that direction, and it’s what a lot of Europe does; why not us too? Britain is too centralised. But it’s against the trend of British politics and government over the past sixty years. It might be the end of separation between community health and local government, which go logically together. And that might mean a more rational engagement between community health and social care. But only if you stop the hospitals seeing it as their right to dominate the use of resources in favour of acute treatment, and to evade responsibility for long-term conditions and care.

On to regulation. The intresting feature here is using Monitor, the foundation trusts regulator, as an economic regulator for the proposed market and choice system:

As now, the Care Quality Commission will act as quality inspectorate across health and social care for both publicly and privately funded care. In addition, we will develop Monitor, the current independent regulator of foundation trusts, into an economic regulator from April 2012, with responsibility for all providers of NHS care from April 2013. Providers will have a joint licence overseen by both Monitor and CQC, to maintain essential levels of safety and quality and ensure continuity of essential services. (WP, p 37)

Monitor will be turned into the economic regulator for the health and social care sectors, with three key functions: (WP, p 38)

Monitor’s powers to regulate prices and license providers will only cover publicly-funded health services. However, its powers to apply competition law will extend to both publicly and privately funded healthcare, and to social care. (WP, p 39)

Here, we can see that private sector social care (mainly care homes at the moment) will also be regulated by Monitor. If the plan to increase engagement by NHS organisation in social enterprise, so that your local hospital might be a John Lewis Partnership of its staff, can social care organisations or groups of social workers be far behind? Mainly, they are talking here about fairly large organisations, but there is some mention of local community organisations becoming social enterprises. These will need economic regulation, too. You could not have the local safeguarding body disappearing because it got its finances wrong. And to round it all off nicely:

We are moving to a system of control based on quality and economic regulation, commissioning and payments by results, rather than national and regional management. Within that context, we are committed to reducing the overall burdens of regulation across the health and social care sectors. We will therefore undertake a wide-ranging review of all health and social care regulation, with a view to making significant reductions. (WP, p 44)

They’ve started this in their bonfire of the social care quangos. More on that in a later post, because I think it’s not so easy.

Local authorities’ new functions will help unlock efficiencies across the NHS, social care and public health through stronger joint working. (WP, p 45)

I’ve suggested that I think this is possible and hope it will happen. Legislation will include:

Placing the Health and Social Care Information Centre, currently a Special Health Authority, on a firmer statutory footing, with powers over other organisations in relation to information collection; (WP, p 49)

Making the National Institute for Health and Clinical Excellence a non-departmental public body, to define its role and functions, reform its processes, secure its independence, and extend its remit to social care; (WP, p 49)

Giving local authorities new functions to increase the local democratic legitimacy in relation to the local strategies for NHS commissioning, and support integration and partnership working across social care, the NHS and public health; (WP, p 49)

Establishing HealthWatch as a statutory part of the Care Quality Commission to champion services users and carers across health and social care, and turning Local Involvement Networks into local HealthWatch; (WP, p 49-50).

In summary then

It’s quite hard to see how palliative care and, separately, end-of-life care will come out of this. GP consortia may want to do more themselves. Will they want to pay for it in hospitals? Some of my colleagues in hospitals think not. Will they want to commission more from hospices because they are cheaper than hospitals and cause less work for the GPs? Perhaps, but will they think hospice in-patient units are too expensive and only pay for home care or will they think that district nurses could do it all? I think hospices had better start finding ways to prove what their CNSs offer that a well-trained district nurse doesn’t.

For social care, we can all support the aim to get greater engagement in healthcare, provided you don’t let the financial needs of hospitals to throw their patients out when it suits them dominate how you run community services in both health and social care. And provided you incorporate social care objectives aiming at social resilience and solidarity into health care objectives: that way really lies the ‘big society’.

In the absence of much about anything on the Department of Health website (only bits of which are re-appreaing from the archive as someone vets them as suitable for the new ConDem regime – why are they doing this for basic professional and legal guidance, one asks?), I’ve been enjoying one of the documents that is still going on, the consultation about making sure health care workers cooperate with each other; this seems to be mainly about safeguarding, which since vetting and barring seems to be in question, other forms of cooperation might be too. In this document, is a paragraph on social work:

2.8 We have been made aware that in mental health and learning disability health care settings, multi-disciplinary teams may include social workers, who are employed by local authorities and seconded to NHS trusts. We believe that
social workers in these multi-disciplinary teams sometimes provide care which could fall within the above definition of ‘health care’. In such cases, it is our view that these groups of social workers who are connected to the provision of health care will be “health care workers” under these regulations (as they will provide services to a designated body for purposes connected with the provision of health care) and that designated bodies will be subject to the duties of co-operation in respect of them. However, we do not consider that social workers generally will be “health care workers”.

It goes on to ask if social workers provide health care and if so where, sort of implying ‘don’t make it difficult for us’. Well, I am second to nobody in being absolutely clear that social work is not healthcare, but I’ve never seen any sign of understanding about this from the DH before, so I suppose you could see this as progress.

BUT…

You mean they had to be ‘made aware’ up there in the Department of Health that there were some social workers employed by NHS bodies working on mental health and learning disability (and palliative care). Is there really any point in a separate duty to cooperate (since most of it’s about safeguarding anyway) that does not fit across the Board. Have they got their minds in gear about the real world up there in the DH? I’m aware, of course, that there are legal implications of how you define health care workers, and that inevitably will involve a lot of waffle, but the whole Act on which this is based is a health and social care act.

The question to ask is not among those that this consultation is asking, but whether there is any point to this jargon-filled gargleflim at all.

You can decide for yourself at: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_113577.pdf

Introduction

I return to last month’s Law Commission consultation on changing the law on adult social care; you have to reply by July 1^st if you’re going to say anything. Do not rely on my account below to reply: you need to have the question numbers and look at the detailed argument to comment appropriately.

You can see the consultation document on the internet at: http://www.lawcom.gov.uk/docs/cp192.pdf

The aim of this post is to give you an idea (if you didn’t know this) of how complicated it is and the main areas covered. It’s very comprehensive, so this is one of my longer posts. To summarise a 200 page document, I collapse many of the sections and do not go into the detailed argument for and against many of the proposals; instead I try to give you an idea of what the debate is about and then what the Commission proposes to do about it. I have tried to make clear where I am expressing a view, where the Commission is making proposals or recommendations or where I am simply giving you information about what they say.

This introduction aims to sum up the approach for you in advance of reading (or avoiding) the detail. The Commission proposes that there should be some statutory principles, to establish the general aims and direction of the legislation. They then debate the main approach to the law, and conclude that they should establish the processes that are involved in adult social care, rather than specifying particular client groups or services. Process means things like assessment, eligibility and care planning. This means that you can then establish controls on how the process works, either in law or, for more detailed matters, through regulation. Social workers may worry about this, because it legislates for an important emphasis on assessment, rather than a care and treatment function, for this important service within social work.

The Commission’s consultation document is incredibly informative; after more than forty years of working on this stuff, I learned quite a lot about the problems in how the detail of the law works; and actually how the detail of all law works. If you know social care law, it’s well worth reading simply for an education in how legal matters arise and are dealt with in general. Generally, I thought the proposals were well-thought-out and sensible. They would certainly resolve a lot of uncertainties and lack of clarity.

Now for the problems. The Commission’s remit does not include political decisions, so they cannot deal with matters that require a political resolution, such as how much money we are prepared to spend on social care and what quality and level of services you can provide. This cannot be resolved legally, although the framework the Commission proposes would allow this to be settled to some degree through government regulation and guidance. However, it tells you nothing about what level of services are going to be provided, and offers no real rights to service. Because it is clear that social care is and will remain discretionary salami-slicing services for budgetary reasons is a real problem in social care generally. I think everyone accepts that it is massively underfunded now and that will be worse in the future. Unlike the NHS legislation, which gives the secretary of state a duty to provide for all reasonable needs, the social care legislation remains very much more open to cutbacks, particularly also because the local authority responsibility does not put the problems at the secretary of state’s door. People compare this with the approach in the NHS, for all its faults, and they feel they’re not getting the real deal from social care. This will continue to be a problem. We can see this in the (completely unmentioned in this consultation) lack of clarity between NHS continuing care and local authority community care. My view is that it does not adequately define or regulate the boundary between NHS community and primary care provision.

For us end-of-life care people, this is a topic that is not really covered, although the line would be that this would be covered by statutory instruments or (more likely) government guidance. This is an example of why the process approach produces potential problems, because it sets no line about who should receive what. That may be legally appropriate, they make a good case that it is, but I think that there is a question about whether it is socially appropriate. So I want to pick up some of their ideas that they ask for comments about and make it clear that there should be clear aims set in the statutory principles for social care, and additional principles such as responsibility to ensure people’s well-being in making assessments and a duty to make afrter-care arrangements on discharge from in-patient services (and prison).

You can tell how important the proposals are because the main pieces of legislation go back more than sixty years and the main topic areas covered are:

- Statutory principles – should there be some to provide overall direction
- Community care assessments
- Carers’ assessments
- Eligibility for services
- The main provisions in the main pieces of legislation
- Ordinary residence and portability
- Scope of adult social care services
- Delivery of services
- Joint working
- Safeguarding adults at risk
- Strategic planning

If they’re going to legislate on these topics, it’s going to be life-changing for most people in adult social care. So I’ll cover each of these in turn.

The aims of the review: I think service users should have the protection of rights to social care

Adult social care services are important to most people at some point in their lives, not only because of their own care needs (in the end most of us will have them) but because people in our families and communities will have care needs that we will have to help deal with. For some people, care will be an important aspect of their lives. The present legislation is a patchwork of Acts going back a long way. The Review covers England and Wales, although there are some differences in Wales. The proposals aim to be resource-neutral because the Law Commission is given a brief to reform a lump of legislation as it is, not make political proposals for how it should be changed.

Among the current policy issues identified that may have an impact on the review are the introduction of personalisation policy, and in particular direct payments or independent budgets, the government’s wish to switch to a more preventive approach , rather than concentrating resources on people with high needs and the current reviews of the funding of personal care services mainly for older people.

Should there be a single piece of legislation covering adult social care? I say ‘yes’, because it would clarify and bring together a confusing mixture of legislation with different aims and concerns.

What should the structure of legislation be: the Act should specify the responsibilities of local authorities, statutory instruments should be used to expand on or define these and directions from the Secretaries of State (plural because it covers England and Wales governments) should be used for guidance seeking to achieve changing policy and practice. The consultation asks whether there should be a code of practice to bring together the guidance. This seems sensible to me, and we’re used to this way of proceeding. The Code would often change with governments or after major policy changes.

The Review makes the point that legal definitions have not been very influential; they are not clear enough, while process guidance, such as the Fair Access to Care Services guidance FACS) which sets out how priority decisions should be made, have more of an impact on how the system works. Their main approach, therefore, is to use the legislation to establish tightly-defined processes for determining whether someone should have community care services, rather than trying to define these in advance. My view is that in principle this approach  allows for greater flexibility and creativity in providing services; the problem with it is that it does not provide many rights to services, only the right to be assessed. It is a recipe for constant salami-slicing of the quality and extent of services that people receive.

At a meeting I was at recently, someone gave the example of an assessment that provided two carers periodically to assist a disabled woman take a bath. On review, this fairly minimal care was replaced by a sponge on a stick, on the grounds that because the person could stand if they held on to their washbasin, this would enhance their independence and they could use it as often as they liked, rather than having scheduled visits from carers. Cheap cheap cheap: such is the approach to dignity and respect in social care. We desperately need some rights for social care service users, or this is what is going to happen in these budget conscious times. The review proposes, however, to have legislation with a list of exclusions (to define the interface with the NHS), a list of services included in community care and a list of principles which would specify how services would go about making decisions. I don’t think this is enough to protect service users.

Statutory principles: I think we should go for stating principles of service in the law.

The document moves on to look at this list of principles, which would be the basis of the services. Principles can either say what should be the most important thing. An example is primacy as in the child care legislation: the child’s interests should be paramount. Alternatively, they can direct decision-makers to take particular points into account, for example the principle of the least restrictive alternative in the Mental Capacity Act. Finally, principles might list assumptions, such as the unwisdom provision in the Mental Capacity Act that people should not be assumed to have no capacity to make decisions merely because they are making decisions that the professionals think are unwise. So how might this work out in social care law?

The proposed principles are:

- maximise the choice and control of service users
– person-centred planning
– needs should be viewed broadly
– remove or reduce future need
– the concept of independent living
– an assumption of home-based living
– dignity in care
– the need to safeguard adults at risk from abuse and neglect

Pros and cons are stated for each of these; are they too vague (viewed broadly), or just a current fad (person-centred planning), confusing (dignity, where there already are legal principles and the idea can usually support any number of opposing views)? On the other hand, they do express a direction over issues which many people think are important: things like a priority o home-based living and a duty to safeguard. These things are worth stating. It may be that some of the vaguer things are also worth including because they would force people to think about them, or worry that someone will zap them with a court case on ‘take a broad view of my needs’ and that might be a good thing. However, it does mean going to law: people have been prepared to do that for continuing care in the NHS because it’s about money: will they do that over granny’s right to choice? More doubtful I think.

What do you think? They’re asking, we should be telling.

Community care assessment

There are six main areas for proposals in this complicated part of the system:

- there should be a duty to undertake a community care assessment in our future adult social care statute, triggered where a person appears to the local authority to have social care needs that can be met by the provision of community care services (including a direct payment in lieu of services) and where a local authority has a legal power to provide or arrange for the provision of community care services (or a direct payment) to the person.
– a right to have an assessment on request
– the focus of the community care assessment duty should be an assessment of a person’s social care needs and the outcomes they wish to achieve, and should not focus on the person’s suitability for a particular service
– recognise coproduced self-assessments as a lawful form of assessment and/or allow for a pure self-assessment for certain people or groups of people
place a duty on the Secretary of State and Welsh Ministers to make regulations which prescribe details of the assessment process and specify the areas which these regulations must cover
– local authorities should retain the ability to provide temporary services in urgent cases

The three main points of debate are about whether you should have to ask for an assessment and, if the local authority can decide to do one off its own bat, on what grounds they should be able to do so. The aim of these proposals is to get away from a service-based definition; that is, they should not limit their assessments to situations in which they have services to provide. This is needs-led, but it includes the possibility of looking at outcomes. The right to request an assessment is there for those people who might be excluded for some reason. For example, some authorities might not be too keen to do assessments on people with large needs because of stigmatised conditions, such as HIV/AIDS or drug abuse.

There is an interesting discussion of self-assessments. One of the points made is that you can’t have self-assessments for a statutory duty, because local authorities can’t delegate statutory duties. Therefore, any legislation needs to say that it is appropriate for local authorities to work together with service users to produce their own assessments.

The last two points make it clear that the ministers should say clearly what they want done in assessments, so they cannot blame the local authorities for everything that goes wrong, and temporary services in emergencies can still be provided pending an assessment. This might be important in end-of-life care, because you often get the situation where local authorities say they cannot do an assessment for weeks or months and they then don’t do anything, in the meantime the patient dies. Such provision might give a lever to a palliative care service. I’m very much for that, at least partly because the whole local authority system is geared to the long-term, and they are not as accustomed as healthcare professionals to dealing with urgent matters. I also think this provision is needed for, and perhaps should be specifically connected to, safeguarding responsibilities.

Carers assessments: these need to be straightened out and coordinated with community care assessments

The proposals in this area deal with a very complex aspect of social care law, which has grown up over the last fifteen years. There are six proposals again:

- there should be a duty to undertake a carer’s assessment
– the duty to assess a carer should apply to all carers who are providing or intend to provide care to another person, not just those providing a substantial amount of care on a regular basis
– the duty to assess a carer should not be triggered by the carer making a request, but should be triggered where a carer appears to have, or will have upon commencing the caring role, needs that could be met either by the provision of carers’ services or by the provision of services to the cared-for person
– the following carers are not excluded from the definition of a carer for the purposes of a carer’s assessment:

1. a previously unpaid carer who now receives payment for their services through direct payments received by the cared-for person;
2. a carer who is paid for some but not all of the care they provide; and
3. a carer where the local authority believes the caring relationship is not principally a commercial one

- encourage a more unified assessment process for carers and cared-for people
- the carers’ assessment duty should be merged with the community care assessment duty

The first two proposals consolidate the duty to undertake a carers assessment, removing the limit that this responsibility applies only to those who provide substantial and regular care, because these are so hard to define. The third proposal means that the local authority should do an assessment on the same basis as it would decide to do a community care assessment, if it sees need that its services would meet. However – the rights point again – we need to make sure that this does not mean local authorities deciding that they don’t have the services or the money to provide them, so there isn’t a need there to have them.

The last three deal with some of the complexities of carers assessments. The fourth makes provision for the situation where a service user gets a direct payment and then employs an existing unpaid carer, a relative or neighbour for example, or pays for some of the time that they spend and gives the local authority a catch-all flexibility if other non-commercial arrangements exist. The last two are alternatives, and the Commission does not fancy the last, because the interests of carers and cared-for people may be so much at odds. However, some carers have their own needs, and it is difficult to disentangle needs that come from being a carer from your own care needs, and there may also be an issue about who pays when carers and cared-for people live in different local authorities. Only encouraging a more unified assessment may be weak or give a local authority a get-out from doing anything, although the aim would mainly be to require ministers to give appropriate guidance on things like cooperative working.

Most of these ideas are sensible and clear up a very confusing pile of legislation.

Eligibility for services

The Commission points to the confusion that arises from the duty to provide services alongside a discretion to decide whether or not the needs their assessment has identified call for them to provide services. The ministerial guidance allows them to take into account various factors, including resources, but they cannot only take the decision on the basis of resources. In particular, they must take account of duties under the Human Rights Act and Disability Discrimination Act, among other pieces of legislation and specific duties set out in particular pieces of social care legislation. The various guidance, like Fair Access to Care Services, seems to say that local authorities should provide services when they have assessed that someone is in need, but then allows them various discretionary get-outs by using eligibility criteria The legal problem appears to be that local authorities have powers but not duties to provide some services, so if you have a need for them, the local authority can decide it won’t provide them and do something else to meet them – the sponge on a stick problem (see above), even if you are eligible to receive them according to its assessment.

The Law Commission says that under the current legislation local authorities cannot do this; they have to look at the original powers. If they have a duty, they cannot use the eligibility criteria to get out of it, once they have determined that someone needs the service; if they only have a power, it depends on how the legislation specified that power. This is useful guidance for social workers in looking at helping individuals. The Commission usefully makes an analogy with children’s legislation and legal decisions on it.

The proposal to deal with this is as follows:

- a duty on local authorities to:

1. determine whether a person’s social care needs are eligible needs, using eligibility criteria; and
2. provide or arrange community care services (including a direct payment in lieu of services) to meet all eligible needs

How then would you decide on eligibility? The proposal identifies two issues that the ministers should give guidance about:

- a duty on the Secretary of State and Welsh Ministers to make regulations prescribing the risks to independence that will call for the provision of services

- and the objectives that are to be achieved by the provision of services

This fits with the proposals on statutory principles above: people would be eligible for services if there was a risk to their independence (social workers would assess the extent of that risk) and the aims of provision (for example, social workers would assess whether it would prevent further deterioration).

The Commission then looks at personalisation and shows that this is a legal shambles (the Commission is politer than I am about this): it’s not clear that some arrangements for personal budgets are lawful. It’s certainly clear that local authorities cannot tell if they are meeting eligible needs when they allocate a personal budget, because they are not in control of how it’s spent. This is a widely recognised issue in personalisation policy. If you give people choice, you cannot at the same time have a legal duty to provide services. This is one of the problems in providing personal budgets in healthcare, where the Secretary of State has a legal duty to provide all necessary services to meet a health need (see my resource document on continuing care). Since personal budgets for all are politically the in thing, the Commission says that there should be ministerial regulation that complies with the legislation. This is the proposal:

- the Secretary of State or Welsh Ministers may by regulations require that a local authority must allocate a personal budget in fulfilling the duty to meet all needs that are eligible

Services for carers are also a legal and administrative shambles. Again, the Commission is very polite, unlike me, but it’s not clear whether local authorities are using eligibility criteria, or whether if they do or don’t either course of action is lawful in a particular instance. The Commission thinks that probably if a carer had a critical need there would be a legal duty to provide for it. To clear this confusion up, the proposal is:

- there be a mandatory national eligibility framework which local authorities must use to decide whether or not to provide services to carers, and a duty to meet the eligible needs of carers

Legal duties

The Commission then addresses to two main pieces of legislation that confer rights to services. The first is the National Assistance Act 1948, which confers a rights to residential accommodation to people in need of care and attention not otherwise available. Local authority eligibility criteria do not apply here, and this right puts pressure on the system to provide accommodation as a fall-back if care needs cannot be met in other ways, for example by adequate housing and community care services. The complicated legal argument in the Review suggests that because if a statutory eligibility framework is introduced as proposed in the earlier part of the review, local authorities would have to take into account present and future needs, and so they could be forced in law to meet people’s reasonable needs, either by providing accommodation or otherwise. So the proposal is:

- section 21 of the National Assistance Act 1948 should be repealed and that the Government should ensure a proper scheme for the provision of residential accommodation to those people who might lose their entitlement

The Commission is looking for comments about what would happen and who would lose entitlement. My concern about this is that the proposed eligibility scheme allows a fair element of discretion about levels of service, so that over time an underfunded social care service will inevitably tighten up, and there is no pressure to provide services if the local authority is strapped for cash. Again, people may not lose rights, but a rights-based element of the system would reduce the political pressure to avoid responsibility for needs.

The second bit of rights-based legislation is the Chronically Sick and Disabled Persons Act. The same arguments are made and the proposal is:

– section 2(1)of the Chronically Sick and Disabled Persons Act 1970 should be removed from adult social care legislation

It’s phrased in this way because there are some implications for disabled children, so this provision may need to be retained for them. Again a rights-based approach gives way to an eligibility-based approach.

Ordinary residence and portability: my view is that it needs to be more certain what you are going to get and how, particularly if you move

Because they are local, adult social care services are usually provided by the local authority where the service user is ordinarily resident. That is often a duty, and the local authority may also have powers to provide services to others, such as people who are transient for some reason. However, the rules are confusing and inconsistent, so the proposal is:

- the local authority be placed under a duty to provide services for people ordinarily resident in their area and have the power to provide services for people who are not ordinarily resident in their area. In cases of urgent need of residential accommodation, there should be a duty to provide accommodation to those people not ordinarily resident in the authority’s area. Assessments of need and the provision of temporary urgent services should not be limited by the ordinary residence rules.
- the local authority in which the cared-for person lives should be given responsibility for providing carers’ services
- the introduction of: an enhanced duty to co-operate when service users move areas; and if these policies are implemented, a national portable needs assessment and national eligibility criteria

The aim of these proposals is to improve continuity in service provision for people who move. It is not clear whether they would help people to be certain what would happen when they move, because the same needs under the same eligibility criteria could well lead to different service provision. The aim of the duty to cooperate is to require local authorities to plan in advance when someone expresses a clear intention to move. I think this would be hard to enforce. One of the issues is the discretionary nature of social services provision and the low level of social care funding, compared with the NHS. This tends to lead all local authorities to try to hold off from making any commitments for as long as possible. This then creates uncertainty for people who might want to move. In effect, what you have to do is move and then persuade the local authorities to sort themselves out, which they will probably do, but you have to take all the risk.

Defining community care services

If the system will be organised through eligibility criteria, what services will people be eligible for? Should this be specified in detail? This might limit flexibility and innovation, but if it is only set out very broadly, it does not confer much by way of rights to services. The Commission argues this out and comes down on the side of short and broad: its suggested list is:

- residential accommodation;
- assistance and facilities in the home;
- social work service and support and advice;
- centres or other facilities in the community; and
- social, leisure, communication, education and training activities.

At least, this covers the main points and includes social work. And if someone has needs and the only way they might be met is by one of these, then that confers a right to the service. It also confers a right to a package that might substitute for one of these, if it is not available. Being short and generalised, it can also be put into the legislation, rather than a regulation which can be salami-sliced away. So the proposal is:

- community care services should be defined by a short and broad list of services
- the list of community care services should be set out on the face of our future adult social care statute

The Commission goes on to discuss whether community care services should be left undefined. This might increase flexibility and innovation, but would leave local authorities unable to argue with NHS or housing bodies that sought to say that local authorities should pay for housing of health services. It would also mean that members of the public, councillors or the managers of agencies are not clear about what sort of thing should be available.

The next bit looks at whether there should be a list of client groups in the legislation and how this can be structured. It is difficult to define particular categories legally, without restricting eligibility at quite a high level. An alternative might be referring to people who have a current need for services, have had a need in the past and/or need services to prevent a need arising; but this might be too vague. Similarly, carers’ services are hard to define. On the other hand, it looks at shared living schemes, what used to be called adult placements. This is where people live other people’s homes, rather like fostering for people who are frail or have disabilities. It’s not clear whether these are residential accommodation or not, but they may have to be subsidised in adult social care, to get carers to provide the facilities. In the end, the Commission says:

- we do not propose that our future adult social care statute should include a central definition of a disabled person or service user.
- carers’ services should remain undefined
- allow for regulations to be issued that are capable of defining Shared Lives schemes as being non-residential services in all cases

Maintaining the distinction between healthcare and social care is important so that the political commitment to a free health service can be retained. Similarly, adult social care provides a lot of accommodation in order to provide care, but it is excluded from providing accommodation that should be provided under other legislation. So the proposal is to retain the legal prohibition on social services providing healthcare services, if there is a duty under the NHS or housing legislation:

- local authorities would be prohibited from:
providing residential accommodation, if this is authorised or required to be provided under the NHS Acts 2006 any non-residential services that are required to be provided under the NHS Acts 2006; and
nursing care which is required to be provided by a registered nurse.
- social services authorities should continue to be prohibited from providing ordinary housing and connected services, if these services are authorised or required to be provided by or under other legislation.

Immigration law prevents adult social care from provide its usual services to destitute people if they are asylum seekers and refugees. Since this is government policy outside the scope of this review, the Commission simply asks for views on the likely consequences of continuing with this position.

Delivery of services

Since the Commission is moving towards a process view of adult social care legislation, that is, the law says how the services should be provided, rather than what should be provided to whom, it points out that care plans are a crucial part of this process. This is because it is the care plan rather than the assessment that says precisely what the local authority will provide. Even if this is then covered by a direct payment, this step is still a crucial part of the process, even if it needs to changed somewhat. The Commission therefore proposes flexible provision for adult social care services to say, in effect, ‘this is what we are going to provide’; this can then be disputed in law if the service user disagrees. The proposal is:

- a duty on local authorities to produce a care plan for people who have assessed eligible needs. This would be supported by a duty placed on the Secretary of State and Welsh Ministers to make regulations concerning the form and content that the care plan must take.

There is then an issue about accommodation. People who get direct payments, increasingly intended to be the majority, can choose and manage their own services. However, if they are assessed as needing residential care, the local authority has to manage the service, although the service user has the right to choose where they go and pay more than the local authority will pay if that is what the user prefers. Government policy is against simply giving people direct payments and allowing them to organise their own accommodation. This seems contrary to the direction of personalisation policy. The government makes the distinction because, they say, they want to retain the focus of direct payments supporting home care. The Commission asks for views about this.

I have my doubts about what the government is saying. I can understand one aspect of it, because back in the 1980s, when social security payments were available for residential care but not for home care, this encouraged people contrary to community care policy, to switch into residential care, and the costs took off like a rocket. Not leaving local authorities in control of residential care placements means that people might not put up with the hassle of organising home care, and go for the easy option of what would in effect be a subsidy of residential care. In turn, this would be an incentive for a burgeoning of residential care and probably care home operators in a more generous market increasing their charges. I suspect the government’s policy is less about avoiding a perverse incentive to people to switch from home care into residential care, but more that it would release pent-up demand, increase overall costs and reduce the financial incentives for people to set up private sector community care services.

The Commission seems to think that it would be more logical if direct payments also provided for residential care. But since the government will not do this, it proposes that the present ministerial direction that people should have the choice of their accommodation if they are assessed as needing it, should be written into statute. On the other hand, direct payments are made subject to various limitations, which might alter from time to time, so it proposes keeping the flexibility of the current regulation approach, rather than enshrining the limitations in law:

- the choice of accommodation directions should be placed in statute law and that the additional payments regulations should be retained in secondary legislation
- direct payment provisions should be retained in their existing form

Requirements on charging vary between England and Wales, and policy on charging may well change, so the Commission proposes leaving it to ministers to decide on charging arrangements:

- a regulation-making power to enable the Secretary of State or Welsh Ministers to require or authorise local authorities to charge for residential and non-residential services
- the existing regulation-making power, which enables certain community care services to be provided free of charge, should be retained. All services that must be provided for free should be listed in the regulations

Joint working

Aside from the limitations which mean that the NHS is divided from adult social care, there are various other transitional problems. Where children, particularly those with disabilities, transfer to from children’s to adult social care, the proposal is to make a clear dividing line at 18, but allow flexibility to facilitate transfer:

- future adult social care statute should apply to those aged 18 and above, and the Children Act 1989 (and the CSDPA 1970) should apply to those aged 17 and below
- local authorities should have a power to assess 16 and 17 year olds under our proposed adult social care statute and young people aged 16 and 17 (and their  parents on their behalf) would have a right to request such an assessment

Then, the Commission has a problem that if adult social care only applies to people over 18, young carers cannot be provided for under this legislation, but they currently have a right to receive assessments and services. Therefore, the Commission proposes:

- the [relevant legislation]  should be retained and amended so that they only apply to young carers
- parent carers should continue to be eligible for a carer’s assessment under the [relevant legislation]… [w]here a young person aged 16 and 17 is being assessed under our proposed adult social care statute, parent carers should also be given a carer’s assessment under this statute

Adult carers and parent carers whose children were assessed under the transitional arrangements would then be provided for in the adult social care legislation. This seems cumbersome to me; but there might be advantages in have separate legislation that referred to young carers, because it might get them a better deal than the rather poor services that most carers get if they are adults.

The well-being power

I have commented before in this blog on the well-being power that local authorities have to do anything that is for the general well-being of their communities. The Commission asks whether we should get rid of specific adult social care legislation and simply use this power, or, for a less total change, add a well-being responsibility into the adult social care legislation; they’ve had something similar in Scotland for many years. My view in principle is that greater autonomy to local government to do what it wants would be usefully more European in its approach – most local government in Europe has more power to do things that it thinks are beneficial, but they also have more independent income, whereas most British government funding is highly centralised. How it would work here, then is problematic however, desirable it would be.

The Commission points out, however, that in law the well-being power is a fill-in where it’s not clear that legal powers to do something desirable exist. It could be used to provide social care, particularly if it were off-the-wall, something a bit unusual that it wasn’t clear is covered by the present legislation. However, there are limits: the expenditure has to be proportionate to the gain, the local council can’t do anything that Parliament has forbidden or restricted in some way and the aim is not to regulate a well-established service. So you cannot enforce social care provision using a well-being power, although it does give you discretion to do interesting things that the law has not thought of. If you linked it to community care assessments, you could set up the system for assessment, and also require the assessment to show that the outcome produced well-being. Would that be for the community in general (the aim of the present well-being power) or for individuals? The Commission asks for views about this.

I’m for well-being as one of the statutory principles, because I think there should be a test of how good a service is to a community in general, and how good it is for individuals.

Delayed discharges

The delayed discharges legislation allows a hospital so say they’re ready to discharge someone from one of their beds, and local authorities have to scurry round and get them out, or be fined for failing to do so. Not in Wales, the Commission points out (which raises the question of why it is so necessary in England). And, I would add, not in palliative care, because it doesn’t apply to independent hospices; our experience at St Christopher’s is that there are signs that local authorities are getting to the point where this makes a difference. They and the DH started off by saying it wouldn’t, and this was generally true, and I believe is still generally true. But with things as tough as they’re getting, any port in a storm, leave the hospices to suffer.

The Commission proposes leaving it as it is; I think hospices should be arguing fro it to be applied to all in-patient units, because it is unfair for a benefit (if it is a benefit) to be conferred on someone just because of the type of unit they are in, especially when the government says it wants to cooperate with the voluntary sector.

Prisons

There has been a lot of consideration of palliative care in prisons, and there have also been moves to get the NHS involved in prison health services, to improve the quality. Prisoners are eligible for community care assessments, and more will need them because the prison population is getting elderly. We should also be doing better for mentally ill people and people with learning disabilities; a high proportion of the prison population have such problems. Rather than needing punishment because they’re bad boys and girls, a lot need help with their problems, either as well as or instead of prison.

So, who should provide adult social care for prisoners and are special arrangements needed? Prison governors have a common law duty of care and duties under the Disability Discrimination Act to make reasonable adjustments for disabled prisoners. Currently, adult social care legislation and regulation does not deal with prisoners specifically. They would get an assessment and services (with certain exceptions) from the local council in the area they were living in before they went into prison. The Commission thinks that prisoners are not excluded from adult social care, but no efforts have been made to consider their position, and the Commission asks for comments about whether they should be included in or excluded from the adult social care legislation. It’s not clear that prisoners are equal under the law, because they mostly seem not to get assessments and there are practical difficulties in getting them services.

My view is that they should clearly be given the same rights as everyone else. But more is needed, because they will not get this unless we specifically provide for their special needs. This is also important, because healthcare comes from the NHS and usually this would involve some elements of adult social care. We should really be thinking seriously about this.

S117 Mental Health Act

I’ve tried to avoid getting into specific legal stuff in this post, but there’s no choice here. S117 makes provision for after-care planning where someone has been held compulsorily under the Mental Health Act 1983. It’s a ‘free-standing’ duty, separate from the normal provisions for adult social care: so should it be made to fit in? Legal decisions mean that it is not a gateway to other services, so it does not give the legal power to choice of accommodation, as (see above) service users under the National Assistance Act have. There is also no power to charge for residential care, so mental health patients also cannot top-up accommodation charges to get what they want (you can’t top-up what you’re not getting in the first place, unless it’s a payment direct to the care home instead of to the local authority – perhaps). Furthermore, the arrangements for which local council is responsible are different under the mental health legislation from the other legislation. It’s a mess, and the Commission proposes:

- choice of accommodation directions, and
- additional payments regulations should cover residential accommodation provided under section 117 of the Mental Health Act 1983; also
- the concept of ordinary residence should be extended to apply to after-care services

Another difficult part of the mess is that it’s not clear whether health care and social care authorities have to provide their specialist area of after-care or all of it – which does what? Also it’s not clear that they can commission services, even though they are required to cooperate with voluntary organisations. To sort this out, the Commission proposes:

- section 117 should be amended to clarify that:

1. the duty falls on health authorities to provide health care after-care, and on social services authorities to provide social care aftercare.
2. health and social services authorities can commission after-care services

– If the section 117 duty is split should the termination of the duty also be split so that, for example, social care after-care ceases when the social services authority is satisfied that the person no longer needs social care after-care; or should both authorities be involved in the decision?

The Commission also asks for views on whether the free-standing duty should be merged into the main legislation. I take, as I have throughout this post, a rights view of that: I think all service user groups would all benefit from a duty to plan after-care; this might also help with delayed discharges. Go for it, I say.

Duty to cooperate: I agree it should be clearer

Some legislation makes it a duty to cooperate to provide services. Usually it is clear who has the duty to cooperate and to lead a particular aspect of it. But it often does not go very wide (usually not mentioning all providers, in particular – thinking palliative care again – voluntary sector providers, who may be the main players) and it often gives a duty to cooperate without requiring potential cooperators (I’m thinking foundation trusts but no doubt there are others) also to cooperate; they can say ‘we’re not playing ball’.

To deal with all this, the Commission proposes:

- a general duty on each social services authority to make arrangements to promote co-operation between the local authority and specified relevant organisations.
- a local authority can request certain authorities to assist in a number of circumstances, including when an assessment of a service user or carer is taking place and in providing services to a service user or a carer. In such cases, the requested authority would be under a duty to give due consideration to the request.

Safeguarding adults at risk

What should the law do about adult safeguarding? Some professionals involved want to have legislation, like they have in Scotland, that gives them powers like those in child safeguarding. I worry that this is about giving adult social care departments some macho responsibilities that give directors power and push within the Council for better resources. The Commission looks at powers to investigate and take coercive action. The problem with investigative powers is: what kind? Would it be like police powers, or something different? How would it interact with police powers? – an issue that children’s social care has faced. And how would coercion interact with Mental Health Act, Mental Capacity Act and human rights responsibilities and powers. What should be done about the controversial power to compel people who are not looking after themselves (S 47, National Assistance Act) – this offends against all sorts of modern legal arrangements. And how should we define someone who is vulnerable?  – currently this refers to services that they might receive, rather than referring to their needs. The Commission explores a whole range of definitions and looks at whether local adult safeguarding boards should be included in the legislation to formalise the administrative structure for cooperation.

Local authorities have responsibilities to look after people’s property (especially in my experience their house and pets) when they are admitted to residential accommodation or hospital; should this continue, or go to a body like the public guardian. The issue here is, to me, the most efficient organisation: the NHS is not a general purpose body and the public guardian is not local.

Not an easy one, and the Commission proposes:

- a duty on local authorities to make, or cause to be made, such enquiries as it considers necessary where it has reasonable cause to suspect that a person appears to be an adult at risk and consider whether there is a need to provide services or take any other action within its powers in order to safeguard that person from harm
- the term vulnerable adult should be replaced by adult at risk for the purposes of the duty to make enquiries,
- an adult at risk should be defined in our statute as anyone with social care needs who is or may be at risk of significant harm
- if the Government in England or the Welsh Assembly Government decides to introduce new compulsory or emergency powers to safeguard adults from abuse and neglect then these will be included
- the enhanced duty to co-operate, proposed above, should include specific provision to promote co-operation between the organisations in safeguarding adults from abuse and neglect
– No Secrets [the English policy] and In Safe Hands [the Welsh policy], or their successors, are linked clearly to a local authority’s statutory functions to safeguard adults from abuse and neglect
- section 47 of the National Assistance Act 1948 should be repealed
- a local authority should continue to be under a duty to prevent the loss or damage of a person’s property when they have been admitted to hospital or provided with residential accommodation

Strategic planning

The legislation contains various arrangements for strategic planning. This includes the register of disabled people, which is supposed to help planning. But you do not have to register, and you can get most services even if you are not registered because there are specific administrative arrangements for them. Therefore, it no longer really helps planning. On strategic planning generally, there are NHS powers for this purpose, and local councils have wider responsibilities to plan all sorts of things. The Commission does not think that there is anything to be gained by adding legislation on specifically adult social care strategic plans. However, providing information is a different matter; citizens should be entitled to appropriate information in a complex system.

In addition to not proposing any specific strategic planning duties or powers, the Commission therefore proposes:

- the disabled persons register should be abolished
- a duty on a local social services authority to provide information about services available in the local area.

That’s it: do have a look and write in to comment; of course you can comment to this blog, but this is your chance to talk to a very influential official body that could be making arrangements that will be here for our lifetimes and beyond.

The website again: http://www.lawcom.gov.uk/docs/cp192.pdf

The Land Registry sent me a pile of leaflets pointing out that older people who live away from their property (for example in a care home) run the risk of fraudsters taking over the title of their home without their knowledge and selling it on. You have to make sure the register is up-to-date and they know how to contact you if you live somewhere else. Otherwise, presumably, someone claiming to have taken over your house can simply pick up mail from the Land Registry and you would never know.

Contact them on: http://www.landregistry.gov.uk/ to get leaflets yourself; currently this issue is on their front page, but there’s loads of other property info there.

The question mark says it all. Phil No-hope (the minster for all things social care) said on 19^th January that the government, in response to the consultation on the review of the No Secrets guidance on adult safeguarding, would legislate. But it is only legislation to formalise a bureaucracy that is mostly there anyway: they want safeguarding adults panels, like safeguarding children panels, in every area. Most places have these, so it’s a bit pointless. He also said they would issue new and improved guidance. It’s 10 years now since the last major piece of guidance, so this is not surprising.

I imagine nothing will happen before the election and that the other lot, if they get in, will not be bothering. This is mainly because the media frenzy and the political wibble-wobbles don’t happen when older people are biffed, neglected or stolen from by their relatives or carers; only when it’s children.

See the announcement and connect with the documents on: http://www.dh.gov.uk/en/News/Recentstories/DH_111276