NHS continuing healthcare and adult social care blog | July 2022 review

• There has been a 229% increase in the number of social care needs assessment enquiries in the year 2021-22 compared to 2019-20. These are the findings of Access Social Care, a nationwide charity providing free legal advice for people with social care needs. There has also been an 88% increase in enquiries that were identified as needing specialist legal advice. This pressure on capacity has meant that helplines have been required to take on additional staff and expand opening hours to cope with the increase in demand on their services. With household bills continuing to soar, the lifetime cost of care cap has been announced, and there has been a wider adoption of the minimum income guarantee (MIG) which has failed to rise in line with real time inflation.

Local authorities have been pushed into cost efficiencies, and have had to increase charges for social care to meet budget targets, and the demand for advice on charging continues to rise as a result. Click here for details of the full report.

• Welsh care home provider, Meddyg Care has won a legal battle over fee payments from a local council. The provider launched legal proceedings in February this year arguing that Gwynedd Council’s fees fell well short of the sum needed to provide adequate care for its clients and remunerate staff – forcing it to operate at a loss. Gwynedd Council has paid £44,500 in fees to the care home provider following a judgement by Northampton Small Claims Court in April ordering it to repay £44,529 in fee arrears at its 40-bed Criccieth home. Care Forum Wales (CFW) said the case was the first of its kind in Wales and demonstrated ‘a gross and unlawful abuse of the council’s responsibilities to frail and vulnerable people in its communities.’

A spokesperson for Gwynedd Council said the council has committed to further work during the first few months of this financial year (2022-23), in order to evaluate the affordability and sustainability of paying a higher fee to providers. For further information on this case, click here.

• An Oxford Resident, who has learning disabilities and severe anxiety,  has been awarded direct payments by Oxfordshire County Council to find a package of care. Since having the support of his carers, 30-year-old Tom, is reported to have ‘come out of his shell’  and now loves playing golf, cycling and developing his artistic skills. He said: “My new carers, Jen and Carly, are very helpful and kind, and I have done lots of things with them already.

Tom’s mum Mandy is absolutely delighted to see her son flourish with the support of his new carers. She said: “I always think it is lovely to see how his personal budget is allowing him to blossom and develop. He's a very lucky man to have such a wonderful team of personal assistants supporting him. None of this would've been possible without the invaluable support of the adult social care team." Click here for further information.

• Legislation which will set a legal benchmark for safe staffing levels in health and care settings is due to come into force in Scotland in April 2024. The Scottish Government has set out a 21-month timetable to implement the Health and Care (Staffing) (Scotland) Act, following delays caused by the pandemic.

The Act, which was passed by MSPs three years ago, will place a statutory duty on health and social care providers to ensure that staffing levels in hospitals and care homes are appropriate for patient care.

Eileen McKenna, associate director for nursing, policy and professional practice said: “We will focus on making sure that this ground-breaking and vital law works to deliver safe and effective care for patients and residents and improved working conditions for our members.”

The Scottish Government said it will work with professional bodies, trade unions and staff on guidance and tools to support the implementation of the legislation. Click here for more information.

• Sir Andrew McFarlane, President of the family division of the High Court, has launched a National DoLs (deprivation of liberty) Court to handle applications to deprive children of their liberty, which have risen rapidly in recent years. Such cases involve children with very complex needs or at significant risk, who are ineligible to be detained under the Mental Health Act 1983 and either do not meet the criteria for a secure accommodation order under the Children Act 1989 or cannot be placed in a secure children’s home because of severe placement shortages.

Alongside the creation of the National DoLs court, the NJFO (Nuffield Family Justice Observatory) has been appointed to collect and publish data on its work.

Its director, Lisa Harker, said: “The lack of information on DoLs cases – especially about children deprived of their liberty in unregistered placements – is a serious issue, which we have started to address through our research. The new court is an important first step towards improved transparency on this issue. However, we also need to understand more about why cases are rising in the first place, and about what can be done to better meet the needs of the vulnerable children involved.”

To read the full article, click here.

• Coventry City Council has taken the first step in rolling out the Integrated Care Record (ICR) and is now sharing adult social care data with health partners. The ICR will allow other health and care organisations to view Coventry City Council records, as well as allowing the local authority to see health care records of a service user. These will be accessible to social care staff where it is relevant for them to do so as part of the direct care of service users.

The data will be accessible from the following organisations:

GP practices within Coventry and Warwickshire
Coventry and Warwickshire Partnership NHS Trust
University Hospitals Coventry and Warwickshire NHS Trust
George Eliot Hospital NHS Trust
South Warwickshire NHS Foundation Trust
Warwickshire County Council 
West Midlands Ambulance Service University NHS Foundation Trust

To read more, click here.

• A new survey by the Local Government Association reveals that three in four councils lack capacity to deliver adult social care reforms. The reforms will introduce a new ‘fair rate of care’ that councils will pay providers to help tackle the issue of self-funders paying more for their care than those who access support at the council rate.

Reforms are being implemented at a time of unprecedented pressure on adult social care budgets. Research by the Society of County Treasurers recently found top tier councils are facing £90m of additional in year costs in adult social care, including higher fees to care providers to offset the rising costs of running care homes.

In June, the government announced a new £15.5m funding package to help councils meet the costs of implementing adult social care reforms, including for hiring staff to meet the anticipated increase in demand for additional assessments, and to oversee the necessary upgrading of IT systems to record and maintain new care accounts. However, the Local Government Association warns this funding is not enough. It says the charging reforms are “potentially hugely underfunded”, which will “risk their implementation as well as exacerbating existing pressures on the system”.

Click here to read the full article.

• The government is publishing a draft Mental Health Bill for pre-legislative scrutiny, to modernise the Mental Health Act for the 21st century. This would amend the Mental Health Act 1983. This draft bill delivers on 2 government manifesto commitments:
• to reform the Mental Health Act
• to improve the way that people with a learning disability and autistic people are treated in law

This draft legislation is intended to give effect to the policy approaches outlined in Sir Simon Wessely’s landmark independent review in 2018. These were subsequently taken forward in the government’s white paper Reforming the Mental Health Act in 2021.

The reforms are designed to give people greater control over their treatment and help ensure they receive the dignity and respect they deserve. In terms of the key ‘headlines’ of amendments:

1. The draft bill would tighten the criteria for detention under the MHA to address the rising and disproportionate rates of detention, and to end the inappropriate admission of people with learning disabilities and autism to mental health hospitals. The tests for detention under s2 and 3 would be amended.
2. Those with learning disabilities and/or  autism would be excluded from the definition of mental disorder for the purposes of section 3. This means a patient could not be detained under section 3 for treatment, solely on the basis of learning disability or autism. The learning disability exclusion does not apply to part 3 patients (those in the criminal justice system).
3. The draft bill would replace the nearest relative with a new statutory role, the nominated person (NP). The NP could be selected by the patient at any time when they had capacity or competence to do so. The NP would continue to represent the patient even if that patient subsequently became unwell and no longer had the relevant capacity or competence. If the patient lacked capacity or competence to nominate, and had not made a nomination, an approved mental health professional (AMHP) would be able to appoint a NP for the patient.
4. Reforms to part 4 of the MHA, which regulates when treatment can be imposed on detained patients:  It would introduce a ‘clinical checklist’, which would apply to clinicians making treatment decisions. There would be a duty on the treating clinician to consider certain matters and take a number of steps when deciding whether to administer medical treatment to a patient. Currently, the MHA requires that in order to continue giving medication to a patient, after three months have passed, an approved clinician or second opinion approved doctor (SOAD) must certify certain matters, such as that the treatment is appropriate. The draft bill would shorten the three-month period, to two months. New safeguards would be introduced for patients refusing medication, either with capacity or competence at the time, or in a valid and applicable advance decision, or where the treatment were in conflict with a decision made by a donee of a power of attorney or deputy or the Court of Protection. Also, a patient with the relevant capacity or competence would be able to refuse urgent treatment which was considered necessary to alleviate serious suffering. This is based on the policy rationale that patients with the relevant capacity or competence should be able to make their own judgments on the degree of suffering they are willing to accept.
5. The draft bill would create a right to statutory care and treatment plans for certain detained patients. In general terms, this right would extend to all such patients except those subject to ‘short-term’ detention.
6. The draft bill would extend the right of an IMHA  (Independent Mental Health Advocates) to informal patients, impose duties on hospital managers and others to notify advocacy services about qualifying patients and impose duties on advocacy services to arrange for qualifying patients to be interviewed to find out if they wanted to use those services. 
7. The draft bill would shorten the period that a patient may be kept in detention for treatment. The initial detention period would be reduced from six months to three months. This could be renewed for a further three months (reduced from six months) and then for six months (reduced from one year). These changes would mean the patient’s initial detention would expire sooner and if the detention were to continue, it would have to be reviewed and renewed more frequently.
8. The draft bill seeks to ensure that patients have greater access to the tribunal.
9. Tighten the criteria for the use of Community Treatment Orders (CTOs). CTOs could only be used if there was a risk of “serious harm” to the health and safety of the patient or others, and consideration had been given to the “nature, degree and likelihood of the harm, and how soon it would occur”.
10. There would be a duty on integrated care boards (ICBs) – which now commission NHS care – to establish and maintain a risk register in their area of individuals with a learning disability and autism who were at risk of hospital admission, and to monitor their care and treatment requirements.
11. A new power of ‘supervised discharge’ would be introduced that allowed the mental health tribunal or the secretary of state for justice to place conditions that amounted to a deprivation of liberty on a patient as part of a conditional discharge. This would apply in a small number of high-risk cases where the patient was no longer benefiting from hospital detention, but the conditions were necessary to protect the public from serious harm. This is a response to the Supreme Court decision in MM v Secretary of State for Justice [2018] UKSC 60, which held that a patient with capacity could not be discharged in this manner under the existing provisions of the MHA.
12. The draft bill would remove police cells and prisons from the definition of a place of safety, including for the purposes of sections 135 and 136. This provision has been made in response to evidence which suggested they were not suitable environments for people with a severe mental health need awaiting assessment and treatment.

To read the full publication, click here.

• The department of health and social care claims that people across the country will benefit from faster, more personalised healthcare, following a digital revolution to make the health and social care system fit for the 21st century.

The plan for digital health and social care, published on 29 June, sets out the government’s ambitious vision for transforming health and care with digital technology – which give patients access to quicker and more effective care at their fingertips and will save the health and care systems time and money. The plan sets out how we will improve access to information for people and their care teams through the NHS App and NHS website – resulting in faster, more personalised treatment. This includes bringing information together into the app and enabling people to view and manage hospital appointments, have virtual consultations, and see notifications from their GP.

It also outlines the acceleration of the use of digital technology across the NHS and social care to improve efficiency and free up frontline workers’ time, helping to ‘bust’ the COVID backlogs. For further information, click here.

• The government has delayed giving all self-funders (i.e. those who pay for their own social care) the right to take advantage of, typically lower, council care home rates, following concerns authorities would lack the workforce to implement the change. Minister for care and mental health Gillian Keegan, has announced that the government had dropped its initial plan to extend the right under section 18(3) of the Care Act 2014 – to all self-funders, from October 2023. Instead it will be applied first to new entrants to care homes, with those already in residential care becoming eligible from April 2025 at the latest.

Commenting on the change on Twitter, King’s Fund director of policy Sally Warren said the change was reasonable but marked a significant shift on what the government had originally promised when it announced its care funding reforms last year. To read more, cick here.

• Writer and Barrister, Alex Ruck Keene (QC) examines how the Court of Protection approach applications to authorise the deprivation of liberty of a 16 or 17 year old.

In Bolton Council v KL [2022] EWCOP 24, SJ Hilder set down, in a helpfully full and detailed judgment, the substantive law relating to deprivation of liberty of 16/17 year olds, the procedural issues (including the complex interaction with procedures available in respect of children simply on the basis of age) and when cases are likely to be suitable for the streamlined procedure – i.e. when they are likely to be suitable to be considered by the courts solely on the papers. In this case,  Senior Judge Hilder noted that the streamlined procedure was not designed with 16/17 year olds in mind, and that such applications are:

60. […] factually distinguishable from the other cases which pass through the streamlined procedure. The 16 and 17 year olds are at a critical stage of their development and at the unavoidable cusp of transition from children’s services to adults’ services. That transition is known to be difficult, too often poorly implemented, for young people who lack capacity to make relevant decisions for themselves even when there is no issue of deprivation of their liberty…

It is clear from this judgment that SJ Hilder has been troubled by some of the applications that she has seen and has been concerned about applications advanced on the basis that there is, in effect, ‘nothing to see here’ – which may, in turn, shed a light on what’s considered to be normal practice. This, in turn, perhaps gives us an indication of the scale of the task that awaits as we move towards LPS implementation.  For the full article, please click here.