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Community Care (Delayed Discharges Etc.) Bill


 

These notes refer to the Community Care (Delayed Discharges Etc.) Bill as brought
from the House of Commons on 16th January 2003 [HL Bill 20]

COMMUNITY CARE (DELAYED DISCHARGES ETC.) BILL


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Community Care (Delayed Discharges etc.) Bill as brought from the House of Commons on 16th January 2003. They have been prepared by the Department of Health in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     This Bill extends only to England and Wales.

4.     The main effects of the Bill are—

  • to introduce a system whereby a local authority makes a payment to the healthcare provider when an NHS patient's discharge from hospital is delayed because the local authority has not put in place the community care services (support to enable an individual to live in his own home, or in a care home), or services to be provided to that person's carer, which are needed from that authority in order for the patient to be safely discharged; and

  • to provide the power to remove, in circumstances set out in regulations, local authorities' power to charge for certain community care services or services for carers (such services to be prescribed in regulations).

TERRITORIAL APPLICATION: WALES

5.     All parts of the Bill affect the powers of the National Assembly for Wales.

Part 1 - Delayed discharge payments

6.     The Bill gives the power to make regulations to the National Assembly for cases where both the local authority and NHS body involved in a case of delayed discharge are located in Wales. In cases involving an English local authority and Welsh NHS body, and a Welsh local authority and English NHS body, the power to make regulations is given jointly to the Secretary of State and the Welsh Assembly.

Part 2 - Local authority community care services and services for carers

7.     The power to make regulations under this Part relating to local authorities in Wales will rest with the National Assembly.

COMMENTARY ON CLAUSES

PART 1 - DELAYED DISCHARGE PAYMENTS

8.     Currently, around 5000 patients of all ages in England alone are delayed on any given day in acute hospital beds when they are ready to leave hospital. The majority are delayed because their care needs have not been assessed or their package of onward care has not been put together.

9.     In "Delivering the NHS Plan", published on 17th April 2002, the Government announced its intention of reducing the number of people who are ready and safe to leave hospital, but are unable to do so, by introducing a system of reimbursement for delayed hospital discharge. This Bill gives effect to that policy intention. It provides for payment to be made to the healthcare provider per day of delay from the point at which responsibility for an NHS patient's care should have transferred from the acute sector to social services. This provides an incentive for social services to make prompt assessment of a patient's community care needs and make appropriate service provision for them in timely fashion.

Preliminary

Clause 1: Meaning of "NHS body" and "qualifying hospital patient"

10.     The definition of "qualifying hospital patient" in Clause 1 defines the kinds of patients with whom the Bill is concerned. A qualifying hospital patient may be a patient at a health service hospital or an independent hospital under arrangements made by an NHS body, as defined. To be a qualifying hospital patient, a patient must be receiving care of a type prescribed in regulations. In the first instance it is intended that the prescribed type will be acute or geriatric care provided in a general and acute hospital. The types of care may later be extended to other sectors, such as mental health or intermediate care, as appropriate.

Determination of need for community care services on discharge

Clause 2: Notice of patient's possible need for services on discharge

11.     This clause and the next aim to secure better communication between the NHS and local authorities with social services responsibilities (in Part 1 referred to as "social services authorities"). Under this clause, NHS bodies with responsibility for patients are required to inform social services authorities of patients who are likely to need community care services in order to be safely discharged.

12.     Under subsection (2), the social services authority notified will be the one which appears to the NHS body to be the one in which the patient is ordinarily resident when the notice of likely need is given. It is possible, for example, for a person to be placed by his social services authority in a care home which is outside the boundary of that authority, and then to be admitted to hospital from the care home. The original authority still retains responsibility for the patient and for arranging his care on discharge, not the authority in which the care home is located.

13.     The notice will still be effective if the NHS in fact notifies the wrong authority, i.e. even if they notify an authority other than the one in which the patient is ordinarily resident. If, after making reasonable efforts to identify where the patient is ordinarily resident, it appears to the NHS body that a particular authority is responsible, then it must give notice to that authority and the notice will be effective. The NHS is not required to undertake lengthy investigations to establish with certainty which authority is the correct one in order to serve an effective notice.

14.     Subsection (3)(a) requires that the NHS body must make explicit that it is giving notice under section 2. This is to ensure that the recipient social services authority can recognise this notice as the formal start of the process provided for under this Act. (3)(b) requires that notice is not given earlier than eight days before the day of expected admission. The admission day itself to be counted in this eight day period. This ensures that a section 2 notice is not provided so far in advance of admission that the patient's condition could well change, and any preliminary planning which the social services authority had already carried out might then be wasted.

15.     Subsection (4)(a) allows for regulations to set out the contents of the notice and the notification process. Subsection (4)(b) then allows for regulations to define when the notifying body may withdraw the notification, or when it ceases to have effect. The intention here is to cover instances where the patient is no longer likely to need community care services, or where, due to a change in circumstances, he may now need services of a very different nature than had originally been expected. This could be because an admission which is elective (rather than emergency) has been postponed due to a significant deterioration or improvement in the patient's condition has occurred, or for any other reason.

16.     Subsection (5) defines "the responsible NHS body" which is required to give notice of possible need. This is either the NHS body which is providing the care, (usually the NHS trust which manages the hospital that the patient is in) or, in the case of NHS patients whose treatment is provided by an independent hospital, the NHS body which made arrangements for this non-NHS treatment.

Clause 3: Duties arising where a notice under section 2 has been given

17.     This clause applies when notice of likely need has been given under section 2 of the Act. The social services authority must then assess, and in consultation with the NHS body, determine what community care services it will provide for a patient, or, if applicable, a patient's carer. At the same time, the NHS body must consult with the authority before deciding what NHS services it will provide to the patient upon discharge. This is to ensure that a complete package of care can be put in place smoothly and without duplication or omission of any particular service. Statutory requirements under this clause, if not complied with, form part of the trigger for the payment (see Clause 4).

18.     Subsection (2) provides that the duties set out in this section are cancelled if the notice given under section 2 is withdrawn or ceases to have effect.

19.     Subsections (3) and (4) then define what duties fall upon the responsible authority following notification under section 2 from an NHS body. These are to carry out an assessment in order to determine what community care services a patient will need in order for him to be safely discharged (paragraph (a)); and to determine, following consultation with the NHS body, what services the authority will provide (paragraph (b)).

20.     Subsection (4) makes similar provision in relation to carers' services that social services authorities may need to put in place to support discharge. A carers' assessment (upon request from the carer) and a decision about provision of services to the carer must be made by a local authority when it receives a section 2 notice Subsection (5) provides that a carers' assessment must be carried out either when requested by the carer or where the carer has had a carer's assessment in the previous year. This prevents the carer from having to make the request for an assessment twice within the same 12 month period, and helps identify which, if any, of the services previously decided upon, the carer will need specifically in order for the patient to be discharged safely.

21.     Subsection (6) provides that the duty to assess and decide under subsection (3) and (3A) applies whether or not the person's need for community care services, or the carer's need for services, has previously been assessed. This is to prevent provision of care services being based only on an existing assessment which may not have taken account of possible changes in patient and carer circumstances and needs, although existing and unchanged information does not need to be collected again.

22.     Subsection (7) provides that the responsible NHS body may, if the patient's circumstances and needs change after the social services authority has already decided what services it will provide, withdraw the existing notice and re-notify the social services authority under section 2 of this Act. Re-notification of this kind restarts the process, meaning that the social services authority must reassess the patient and, after consulting the NHS body, decide what services to provide.

23.     Subsection (8) ensures that the NHS body responsible for issuing the section 2 notice to the social services authority, and any other NHS body which may need to provide services to the patient upon discharge, must consult with the responsible authority before deciding which services it will make available upon discharge. The responsible NHS body will in the first instance commonly be an acute trust but the majority of NHS services upon discharge are likely to be provided by the patient's Primary Care Trust. The local authority must be consulted about all NHS services that are to be provided.

24.     Subsection (9) provides that the NHS body must notify the responsible authority of the day on which it is proposed that the patient will be discharged. Subsection (10) then provides for regulations to define the form and content of such notice. The aim is to ensure that the responsible authority receives fair warning of the intention to discharge and to prevent dispute about when such notice can be regarded as given or received.

25.     Subsection (11) provides that any assessment carried out under subsection (3) is regarded as being carried out under the provisions of section 47(1) of the National Health Service and Community Care Act 1990. Section 47 is the provision under which social services authorities assess a person's need for community care services, and decide whether or not those needs call for the provision by the authority of any such services. This subsection ensures that a social services authority does not duplicate effort by providing an assessment under this legislation, and then assessing again under section 47 at a later date. However, this does not mean that a full section 47 assessment has necessarily been completed. Assessment under this Act is carried out for the purposes of determining what a patient needs in order to be discharged from hospital safely. The person may well need other community care services in the longer term, determination of which will require completion of a full section 47 assessment.

26.     Subsection (12) then provides that carers' assessments carried out under subsection (4) are regarded as being carried out under the provisions of section 1 or 2 of the Carers and Disabled Children Act 2000. The carers' assessment under this clause is carried out only for the purposes of determining what a carer needs in order for the patient to be discharged from hospital safely and further, fuller assessment may be required later.

Delayed discharge payments

Clause 4: Liability to make delayed discharge payments

27.     This clause requires a social services authority, in certain circumstances, to make payments to an NHS body in respect of delayed discharges. The intention is that social services authorities should use the period before admission where possible (e.g. in the case of elective treatment), or following admission but before discharge, to assess need for community care services or services for carers after discharge and to plan the required services. There will be a minimum period set out in regulations for the social services authority to carry out this assessment, decide what services it will provide, and arrange for those services to be available for the patient or his carer following his discharge. This is to allow a social services authority time to assess a patient, or his carer, and put in place an onward package of care. This might be care of an interim nature if a fuller assessment is deemed necessary.

28.     Subsection (1) sets out the actions which must have been carried out by the responsible NHS body before a responsible authority is required to make payments. These are that the NHS body has given notice under section 2 to the authority that it is likely a patient will require community care services upon discharge; and further that the NHS body has given notification to the authority of the proposed discharge date.

29.     Subsection (2) defines "the relevant day" for the purposes of charging under this clause. This is the later of the "proposed discharge day" (the date, communicated to the social services authority under section 3(9), on which the patient will be ready for discharge) or the last day of a minimum interval (provided for the social services authority to carry out its duties under section 3) which starts after notice under section 2 has been given. This minimum interval will be defined in regulations.

30.     Subsection (3) provides that this minimum interval starts on the day after the responsible authority received notification under section 2 that a patient is likely to require community care services, and provides for the interval to be at least two days. This in effect means that a social services authority will always have at least the day of notification under section 2, plus two more days to assess the patient's community care needs, or the carers need for services (if any), and put in place sufficient services to allow for discharge from hospital. A minimum of three days in total is therefore available before a social services authority becomes liable to make payments.

31.     Subsections (4) and (5) set out when the liability to make a payment is triggered. This can be firstly that a social services authority has not started or completed an assessment of the patient's needs as required under section 3(3). Secondly, payment can be triggered where discharge is not possible because, and only because, the responsible authority has not provided a service it decided to provide to the patient or to his carer. The delay must be the sole responsibility of the authority: thus, for example, if an NHS service required for safe discharge has also not been made available, the liability to make a payment will not arise.

32.     Subsection (4) also provides for regulations to prescribe the amount of the charge which will apply per day of the delayed discharge period, if the responsible authority does not carry out its duties. This will be based on the average daily cost of treating patients in a nursing-led facility with the costs of medical input from doctors or specialist nurses, overheads and capital removed in order to reflect the lower costs of care at the end of an episode of treatment. The intention is to adjust the charge in London and other areas as appropriate to reflect the higher costs borne by the healthcare provider in supporting the delayed patient.

33.     Subsection (6) defines the "delayed discharge period". This period, subject to subsections (7) and (8), begins the day after the relevant day as defined in subsection (2), and ends on the day on which the patient is discharged.

34.     Subsection (7) makes provision for when the delayed discharge period will be regarded as ended. This is that the social services authority has notified the NHS body that it has assessed the patient and determined what services it will provide and that it has made those services available. If for some reason the patient is not discharged at this point, then the social services authority is not liable to make any further payment, as it is not responsible for any further delay.

35.     Subsection (8) provides for regulation-making powers relating to section 4. Subsection (8)(a) allows regulations to provide for days that may be disregarded as part of the delayed discharge period. For example, such regulations may make provision for a case where the patient has relapsed and is no longer ready for discharge. Subsection (8)(b) allows for other circumstances to end the delayed discharge period, such as death of the patient.

36.     Subsection (8)(c) allows regulations to be made to define the day on which it will be considered that the NHS body has given notice to the social services authority of a patient who may require services upon discharge. This is to allow for cases such as when the NHS body might notify the social services authority late in the evening - in such a case regulations could prescribe that the notification would not take effect until the next day. Subsection (8)(d) then provides for regulations to define the day on which discharge can be regarded as occurring. For example, if the decision that the patient is safe for discharge is not taken until late in the afternoon, the regulations could provide that the discharge will be regarded as having occurred the following day.

37.     Subsections (9) and (10) provide that payments for delayed discharges are to be made to the responsible NHS body, and that cases may be prescribed in regulations where payments must be made to a person other than the responsible NHS body.

Disputes

Clause 5: Ordinary residence

38.     This clause provides for disputes on the question of ordinary residence to be determined by the Secretary of State, or National Assembly for Wales, as appropriate. It also requires the Secretary of State and the Assembly to make and publish arrangements dealing with questions as to which of them is to deal with particular types of case.

Clause 6: Dispute resolution

39.     There will need to be some form of dispute resolution where there is disagreement between NHS bodies and social services authorities about readiness for discharge or the responsibility for the delay. Clause 6 is a regulation-making power to require Strategic Health Authorities in England, and Local Health Boards in Wales, to set up dispute panels. If those involved in the discharge process cannot reach agreement in a particular case, they may refer the matter to the relevant panel to assist in reaching agreement. The panel's role is advisory and its recommendations are not formally binding, although it is hoped that the recommendations will be accepted in most cases. Regulations will provide for the form and jurisdiction of a panel and may prevent the social services authority or NHS body in dispute from bringing legal proceedings without previously having attempted resolution via the panel.

Supplemental

Clause 7: Adjustments between social services authorities

40.     There may be cases where there are disputes about where a patient is ordinarily resident and therefore which social services authority is responsible for determining a patient's needs under section 3, or making any payments in respect of that patient should his discharge be delayed. This clause confers regulation-making powers in order to make provision for such cases. Subsection (1) provides that regulations may be made to deal with (a) cases where it may not be immediately apparent where a patient may be ordinarily resident; or (b) where it appears to the social services authority who has been given notice of a patient under section 2 that the patient is not in fact ordinarily resident in their area.

41.     Subsection (2)(a) provides that in such cases as described in subsection (1), a social services authority may be required to accept a notice under section 2, even though it may not be the correct authority to be notified for that particular patient. This is to ensure that an authority is always responsible for an individual and that the individual receives the services he needs as soon as possible, even where there is uncertainty as to which authority should bear responsibility. It may be that another authority is subsequently found to be responsible for the patient. In this case, regulations made under subsection (2)(b) may require the authority later found to be responsible to take over responsibility from the authority that was previously believed to have been responsible.

42.     Under subsection (2)(c) regulations may be made to authorise the authority originally thought to have been the responsible authority for a patient to recover any expenditure from the authority finally found to be responsible. This could be expenditure incurred in determining the patient's needs or providing any community care services to the patient for which it should not have been responsible. Subsection (3) then provides that further regulations may be made to effect other necessary changes to the operation of the charging system to deal with such cases.

Clause 8: Regulations

43.     This clause provides for how the various regulations in Part 1 are to be made (see paragraph 6 above).

Clause 10: Application of Local Authority Social Services Act 1970

44.     Clause 10 makes one amendment to the above Act, providing that the functions under Part 1 of this Bill are social services functions. Under other provisions of the Local Authority Social Services Act 1970, the Secretary of State is empowered to give guidance or directions to local authorities as to the carrying out of their social services functions. This amendment will allow the Secretary of State to give such guidance or directions on the carrying out of functions under Part 1 of this Bill.

Clause 11: Power to extend the application of Part 1 to NHS patients in care homes

45.     Clauses 1 to 10 of the Bill concern hospital patients. The order-making power in clause 11 allows similar provision to be made in respect of certain patients in care homes. To be a "qualifying care home patient", a patient will be receiving care of a prescribed description. Subsection (4) limits this prescribed care to types of care which could also be received in a hospital.

46.     The intention of this clause is to ensure that, if the Act is extended at a future date to include patients receiving intermediate care as well as acute and geriatric care, all patients receiving intermediate care can be within the scope of Part 1, whether the intermediate care is provided in a care home setting or a hospital. An individual will not come within the scope of an order made under section 11 if they are receiving services which are only provided in a care home.

PART 2 - LOCAL AUTHORITY COMMUNITY CARE SERVICES AND CARERS' SERVICES

Clause 12: Free provision of certain community care services and services for carers

47.     Local authorities have the power, and in some cases a duty (subject to a means test), to charge for certain community care services under the National Assistance Act 1948 and the Health and Social Services and Social Security Adjudications Act 1983 and for services for carers under the 1983 Act. Community care services are primarily those services provided to adults and older people, including home care, residential care and respite care. In the cases of community equipment and intermediate care this power makes it more difficult, under section 31 of the Health Act 1999, to provide such services jointly with the NHS, which does not impose a charge. The clause therefore allows for the power to charge to be removed.

48.     Subsection (1) confers the power to make regulations which will define the services that are to be made free of charge. It is intended that the services to be so defined will be the provision of community equipment, whether that is supplied to the individual or to their carer to help them in providing care, and intermediate care.

49.     Community equipment (also known as aids and minor adaptations) means aids to daily living to promote independence in the home, ranging from walking sticks to grab rails and shower mats, predominantly provided to older people and disabled people or their carers.

50.     Intermediate care is generally accepted as services which offer time-limited rehabilitation, either to avoid hospital admission or ensure timely discharge from hospital, and enable people to recover as much of their independent physical functions as possible.

51.     Subsection (4) limits the scope of the regulation-making powers under subsection (1) in respect of what may be prescribed as a qualifying service under subsection (2)(a). Accommodation provided under Part 3 of the National Assistance Act 1948, personal care provided where the individual is living either at home or in a care home (other than one provided under Part 3), and carers receiving a service in the form of personal care delivered to the person cared for, may not be required to be free for more than six weeks.

Clause 13: Free provision of services in Wales

52.     Clause 13 gives the National Assembly for Wales the same power as the Secretary of State to decide what community care services or services to carers are to be provided free of charge in Wales.

Clause 14: Consequential amendments

53.     Clause 14 details two amendments to the National Assistance Act 1948 and one to the Health and Social Services and Social Security Adjudications Act 1983 required by the change introduced by section 12. These enactments confer a statutory power to charge. The amendments provide for that power to be subject to provision made under the Bill.

PART 3 - SUPPLEMENTARY

Clause 17: Short title, commencement and extent

54.     Clause 17(2) confers a power to commence Part 1 of the Bill. It allows for Part 1 to be commenced in England and Wales at separate times. The expectation is that Part 1 will commence in England only in the first instance. The rest of the Bill will come into force in England and Wales on Royal Assent.

ESTIMATE OF PUBLIC SECTOR FINANCIAL EFFECTS AND PUBLIC SECTOR MANPOWER EFFECTS

55.     The intention of the legislation is to provide an incentive for social services to provide faster services to specific categories of people upon discharge from hospital. If they are unable to do so, and the person's discharge is thereby delayed, they will pay a charge to the healthcare provider. An average 6% real terms increase in the Personal and Social Services spending allocations provided to local authorities in England over the three years from April 2003 has been announced, some of which is intended to pay for the additional services that this Bill encourages local authorities to provide. The requirement in the Bill for local authorities to make payments in respect of delayed discharges moves funding from social services budgets to the NHS budget, which is currently covering the costs of such delays. In addition, there will be increased staffing costs for social services in tracking delays and paying the healthcare provider for these. This additional expenditure will also be covered through the increase in Personal and Social Services budgets.

56.     The NHS will also incur increased staffing costs through closer working with social services on tracking individual patients and by the need to invoice social services for delays. The tracking of delays is already undertaken by NHS trusts as part of the Strategic and Financial Framework returns required by Primary Care Trusts. We estimate the combined costs of additional staffing for social services and the NHS to be £5.5m a year.

57.     The measure to remove discretionary charging for community equipment and intermediate care from social services will have some financial implications, since councils will lose charge income, but again this is compensated for through the increase in PSS budgets. The loss of charge income to social services has been estimated at £18.6 million. The measure should have no effect on public service manpower, as its purpose is not to expand the provision of services, but to stop charging for intermediate care/community equipment services where this currently occurs.

REGULATORY IMPACT ASSESSMENT

58.     A full copy of the partial Regulatory Impact Assessment which accompanies the Community Care (Delayed Discharges etc.) Bill and includes a more detailed analysis of the benefits and cost of the measures is available on the Department of Health's website: www.doh.gov.uk

EUROPEAN CONVENTION ON HUMAN RIGHTS

59.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Lord Hunt of Kings Heath, Parliamentary Under Secretary of State (Lords) has made the following statement—

"In my view the provisions of the Community Care (Delayed Discharges etc.) Bill are compatible with the Convention Rights."

COMMENCEMENT

60.     Clause 17 makes standard provision for commencement of Part 1 of the Act, which will come into force on such a day, or days, as the relevant authority may determine. The remaining provisions of the Act will come into force upon Royal Assent.

 
 
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Prepared: 17 January 2003