Introduction
I return to last month’s Law Commission consultation on changing the law on adult social care; you have to reply by July 1st 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:
- a previously unpaid carer who now receives payment for their services through direct payments received by the cared-for person;
- a carer who is paid for some but not all of the care they provide; and
- 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:
- determine whether a person’s social care needs are eligible needs, using eligibility criteria; and
- 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:
- the duty falls on health authorities to provide health care after-care, and on social services authorities to provide social care aftercare.
- 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
