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Community Care (Delayed Discharges etc.) Bill


Community Care (Delayed Discharges etc.) Bill
Part 1 — Delayed discharge payments

    1

 

A

Bill

[AS AMENDED ON REPORT]

To

Make provision requiring social services authorities to make payments in

cases where the discharge of patients is delayed for reasons relating to the

provision of community care services or services for carers; and to enable the

Secretary of State and the National Assembly for Wales to require certain

community care services and services for carers provided by social services

authorities to be free of charge to persons receiving those services. 

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

Part 1

Delayed discharge payments

Preliminary

 1     Meaning of “NHS body” and “qualifying hospital patient”

     (1)    In this Part—

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                    “NHS body” means—

                  (a)                 a National Health Service trust; or

                  (b)                 a Primary Care Trust (in England) or a Local Health Board (in

Wales); and

                     “qualifying hospital patient” means, subject to subsection (2), a person

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other than a person receiving mental health services being

accommodated at—

                  (a)                 a health service hospital; or

                  (b)                 an independent hospital in pursuance of arrangements made by

an NHS body;

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HL Bill 4253/2
 
 

Community Care (Delayed Discharges etc.) Bill
Part 1 — Delayed discharge payments

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                         who is receiving (or who has received or is expected to receive) care of

a description prescribed in regulations.

     (2)           The term “qualifying hospital patient” does not include any person who is

ordinarily resident outside England and Wales.

Determination of need for community care services on discharge

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 2      Notice of patient’s likely need for community care services

     (1)    This section applies where—

           (a)           a person (“the patient”) is or is expected to become a qualifying hospital

patient at a particular hospital after 1st April 2004; and

           (b)           the responsible NHS body—

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                  (i)                 considers that it is unlikely to be safe to discharge the patient

from hospital unless one or more community care services are

made available for him, and

                  (ii)                has consulted with the patient (and in the case of a carer in

relation to assessment under the Carers (Recognition and

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Services) Act 1995 (c. 12) and the Carers and Disabled Children

Act 2000 (c. 16)) to ascertain their views and preferences,

informed them of the reason for the notification, and obtained

their informed consent or in the case where a patient lacks the

mental capacity to give such consent, has recorded on the file

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what steps have been taken to ensure that the patient’s best

interests have been duly considered.

     (2)    It is the duty of the responsible NHS body to give notice of the patient’s case

for the purposes of this Part—

           (a)           to the social services authority appearing to the NHS body to be the

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authority in whose area the patient is ordinarily resident when the

notice is given, or

           (b)                         if it appears to them that the patient has no settled residence, to the

social services authority in whose area the hospital is situated.

     (3)    That notice—

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           (a)           must state that it is given under this section; and

           (b)           if given before the day on which the patient is admitted to the hospital,

must not be given earlier than the beginning of the period of eight days

ending with the day on which he is expected to be admitted.

     (4)           Before giving a notice under this section the responsible NHS body must

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consult—

           (a)           the patient; and

           (b)           if the body is aware of the identity of a person who is a carer in respect

of the patient and it is reasonably practicable to consult him, that carer.

     (5)    In this Part “the responsible NHS body”, in relation to a person who is or

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expected to become a qualifying hospital patient, means—

           (a)           if the hospital concerned is a health service hospital, the NHS body

managing the hospital; or

           (b)           if the hospital concerned is an independent hospital, the NHS body

making the arrangements for the patient to be accommodated.

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Community Care (Delayed Discharges etc.) Bill
Part 1 — Delayed discharge payments

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     (6)    In this Part “the responsible authority”, in relation to a person whose case has

been notified under this section, means (subject to any regulations under

section 10) the social services authority to which the notice is given.

 3     Notices under section 2: supplementary

     (1)    A notice under section 2 remains in force until the patient to which it relates is

5

discharged, unless it has previously ceased to have effect by virtue of

subsection (2) or (3).

     (2)    The responsible NHS body may withdraw the notice by giving notice of

withdrawal to the responsible authority.

     (3)    Regulations may prescribe other circumstances in which the notice ceases to

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have effect.

     (4)    If the notice ceases to have effect before the patient is discharged—

           (a)           no further steps under section 4, 5, or 6 resulting from the notice shall

be taken and no liability (or further liability) to make a payment under

section 6(2) shall accrue; and

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           (b)           the responsible NHS body may (subject to section 2(1)) give a fresh

notice under section 2 in relation to the patient;

            but paragraph (a) does not affect any liability which accrues before the notice

ceases to have effect.

     (5)    Regulations may provide for—

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           (a)           the form and content of—

                  (i)                 notices under section 2; and

                  (ii)                notices of withdrawal under subsection (2),

                         and the manner in which such notices are to be given;

           (b)           circumstances in which notices under section 2 must be withdrawn;

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and

           (c)           determining the day on which a notice under section 2 or a notice of

withdrawal under subsection (2) is given (including provision

prescribing circumstances in which a notice under section 2 is to be

treated for any specified purpose as having been given on a day other

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than that on which it was in fact given).

 4     Duties of responsible authority following notice under section 2

     (1)    The duties in this section apply where notice of a patient’s case has been given

under section 2.

     (2)    The responsible authority must—

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           (a)           carry out an assessment of the patient’s needs with a view to

identifying any community care services that need to be made available

in order for it to be safe to discharge him; and

           (b)           after consulting the patient and having obtained the informed consent

of the patient or, in the case where a patient lacks the mental capacity

40

to give such consent to the proposed care plan, having recorded on the

file what steps have been taken to ensure that the patient’s best interests

have been duly considered, and after consulting the responsible NHS

body and the qualifying patient, decide which of those services (if any)

the authority will make available for the patient.

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Community Care (Delayed Discharges etc.) Bill
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     (3)           Before making a decision under subsection (2), the responsible authority

must—

           (a)           consult the patient and his carer, if he has one;

           (b)           inform them of the cost of the proposed care plans; and

           (c)           obtain the consent of the patient and any carer and, where informed

5

consent is given, record that on the patient’s file, or if a patient lacks the

mental capacity to give such consent, record on the file what steps it has

taken to ensure that the patient’s best interests have been duly

considered.

     (4)    The responsible authority must, in the circumstances mentioned in subsection

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(5), also—

           (a)           carry out an assessment of the needs of any person who is a carer in

respect of the patient (“the carer”) with a view to identifying any

services which—

                  (i)                 the authority may provide under section 2 of the Carers and

15

Disabled Children Act 2000 (c. 16)); and

                  (ii)                need to be made available to the carer in order for it to be safe

to discharge the patient; and

           (b)           after consulting the carer and obtaining the informed consent of the

carer to the proposed care plan and after consulting the responsible

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NHS body, decide which of those services (if any) the authority will

make available to the carer.

     (5)           The duties in subsection (4) apply only where the carer—

           (a)           asks the responsible authority to carry out an assessment under

subsection (4); or

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           (b)           has, within the period of twelve months ending with the day on which

the notice under section 2 was given (or at any time after that day),

asked the responsible authority to carry out an assessment under

section 1 of the Carers and Disabled Children Act 2000.

     (6)    The duties in subsection (2) or (4) apply whether or not the patient’s needs for

30

community care services or the carer’s needs for services (as the case may be)

have previously been assessed.

     (7)    The responsible authority must keep under review—

           (a)           the needs of the patient; and

           (b)           the needs of any carer whose needs it has assessed under subsection

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(4)(a),

            so far as affecting the services that need to be made available in order for it to

be safe to discharge him.

     (8)           The responsible authority may, after consulting the responsible NHS body,

alter—

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           (a)           its decision under subsection (2)(b); or

           (b)           any decision taken by it under subsection (4)(b),

            to take account of any change in circumstances since the assessment carried out

under subsection (2)(a) or (4)(a) (as the case may be).

     (9)    The responsible authority must inform the responsible NHS body of the

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decision under subsection (2)(a), of any decision under subsection (4)(a) and of

any alteration made under subsection (8).

     (10)          The responsible NHS body must give the patient and his carer, if he has one—

 

 

Community Care (Delayed Discharges etc.) Bill
Part 1 — Delayed discharge payments

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           (a)           notice of the day on which it proposes to discharge the patient, and

where informed consent is given, record that on the patient’s file, or if

a patient lacks the mental capacity to give such consent, record on the

file what steps it has taken to ensure that the patient’s best interests

have been duly considered, and

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           (b)           information about their right to request a review if they disagree with

the decision to discharge.

     (11)   Anything done under subsection (2) above is to be treated as done under

section 47(1) of the National Health Service and Community Care Act 1990 (c.

19) (but without prejudice to anything to be done under that section in relation

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to any other community care services).

     (12)   Anything done under subsection (4) above is to be treated as done under

section 1 or 2 of the Carers and Disabled Children Act 2000 (c. 16) (but without

prejudice to anything to be done under that section in relation to other services

which may be provided to the carer).

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     (13)          The Secretary of State shall specify to the bodies charged with inspection of

health and social services that they should monitor, at regular intervals, the

impact of this Act on patients and their carers.

     (14)          The Secretary of State shall report on an annual basis to Parliament on the

outcomes of patients affected by this Act.

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 5     Duties of responsible NHS body following notice under section 2

     (1)    The duties under this section apply where notice of a patient’s case under

section 2 has been given.

     (2)    The responsible NHS body, and any other NHS body which is considering

whether to provide services to the patient after discharge, must consult the

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responsible authority before deciding what services (if any) it will make

available to him in order for it to be safe to discharge the patient.

     (3)    The responsible NHS body must give the responsible authority notice of the

day on which it proposes to discharge the patient.

     (4)    The notice under subsection (3) remains in force until the end of the relevant

30

day, unless it has previously been withdrawn.

     (5)    The responsible NHS body may withdraw the notice under subsection (3) at

any time before the end of the relevant day by giving notice of withdrawal to

the responsible authority.

     (6)    For the purposes of this Part “the relevant day”, in relation to a qualifying

35

hospital patient, is the later of—

           (a)           the day specified in the notice under subsection (3); and

           (b)           the last day of the prescribed minimum interval after the notice under

section 2 was given.

     (7)    Regulations may prescribe a period as the minimum interval after a notice

40

under section 2 is given; but that period must—

           (a)           begin with the day after that on which the notice under section 2 is

given; and

           (b)           be a period of at least two days.

 

 

Community Care (Delayed Discharges etc.) Bill
Part 1 — Delayed discharge payments

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     (8)    If the notice under subsection (3) is withdrawn before the end of the relevant

day—

           (a)           the duty under subsection (3) applies again; and

           (b)           when a new notice under subsection (3) is given, subsection (6) applies

again for the purpose of identifying a new “relevant day”.

5

     (9)    Regulations may provide for—

           (a)           the time at which notices under subsection (3) are to be given;

           (b)           the form and content of—

                  (i)                 notices under subsection (3); and

                  (ii)                withdrawal notices under subsection (5);

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                         and the manner in which such notices are to be given;

           (c)           circumstances in which notices under subsection (3) must be

withdrawn; and

           (d)           determining the day on which a notice under subsection (3) or a notice

of withdrawal under subsection (5) is given (including provision

15

prescribing circumstances in which a notice under subsection (3) is to

be treated for any specified purpose as having been given on a day

other than that on which it was in fact given).

Delayed discharge payments

 6     Liability to make delayed discharge payments

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     (1)           This section applies where notice of a patient’s case under section 2 and notice

of the proposed discharge day under section 5(3) have both been given (and are

in force).

     (2)    If by the end of the relevant day—

           (a)           the responsible authority has not complied with its duties under section

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4(2); or

           (b)           it has not been possible to discharge the patient because, and only

because, either of the conditions in subsection (3) is satisfied (or both

are satisfied),

            the responsible authority must make a payment of the amount prescribed in

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regulations for each day of the delayed discharge period.

     (3)    The conditions referred to in subsection (2) are that—

           (a)           the responsible authority has not made available for the patient a

community care service which it decided under section 4(2)(b) to make

available for him;

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           (b)           the responsible authority has not made available for the patient’s carer

a service which it decided under section 4(4)(b) to make available to the

carer.

     (4)    For this purpose “the delayed discharge period” is, subject to subsections (5)

and (7), the period—

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           (a)           beginning with the day after the relevant day, and

           (b)           ending with the day on which the patient is discharged.

     (5)    If on any day before that on which the patient is discharged the responsible

authority gives notice to the responsible NHS body that—

           (a)           it has complied with its duties under section 4(2),

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Community Care (Delayed Discharges etc.) Bill
Part 1 — Delayed discharge payments

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           (b)           every community care service that it decided under section 4(2)(b) to

make available has been made available for the patient, and

           (c)           every service that it decided under section 4(4)(b) to make available to

a carer has been made available,

             the delayed discharge period ends with that day.

5

     (6)    The references in subsections (3) and (5) to services “decided under” section

4(2)(b) or (4)(b) are, in a case where the decision in question has been altered

under section 4(8), to any services specified in the altered decision.

     (7)    Regulations may—

           (a)           require days after the relevant day not to be treated as days of the

10

delayed discharge period;

           (b)           prescribe circumstances (other than those mentioned in subsections (4)

and (5)) in which the delayed discharge period ends;

           (c)           make provision for determining the day on which a patient is

discharged (including provision prescribing circumstances in which a

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patient is to be treated for the purposes of this section as having been

discharged on a day other than that on which he was in fact

discharged).

 7     Delayed discharge payments: supplementary

     (1)    In prescribing an amount under section 6(2) the appropriate Minister must

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have regard (among other things) to either or both of the following matters—

           (a)           costs to NHS bodies of providing accommodation and personal care to

patients who are ready to be discharged; and

           (b)           costs to social services authorities of providing community care

services to, and services to carers in relation to, persons who have been

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discharged.

     (2)    Any payment which the responsible authority is required to make under

section 6 in relation to qualifying hospital patient shall, subject to subsection

(2), be made to the responsible NHS body.

     (3)    In case of any description prescribed in regulations the payment shall be made

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to the person prescribed in relation to cases of that description.

Disputes

 8     Ordinary residence

     (1)    Any question arising under this Part as to the ordinary residence of a person

who is or is expected to become a qualifying hospital patient shall be

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determined by the Secretary of State or by the Assembly.

     (2)    The Secretary of State and the Assembly must make and publish arrangements

for determining which cases are to be dealt with by the Secretary of State and

which are to be dealt with by the Assembly.

     (3)    Those arrangements may include provision for the Secretary of State and the

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Assembly to agree, in relation to any question that has arisen, which of them is

to deal with the case.

 

 

 
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