Legal Update: Implications of the Health and Social Care Act 2008

Ed Mitchell looks at the Health and Social Care Act 2008, under which the Care Quality Commission for England will be launched

Although the Health and Social Care Act 2008 received royal assent in July 2008, the Department of Health is to delay bringing its main provisions into force in England.

Care standards

The act abolishes the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission. The Care Quality Commission for England will take over those bodies’ functions. The new commission’s powers as care standards registration authority have been extended:

● It will be able to issue financial penalty notices for regulatory breaches.

● The maximum fine for a regulatory breach, such as failure to comply with a condition of registration, is increased to £50,000 (from £2,500 at present).

● National minimum standards may disappear and be replaced by “compliance guidance”.

● The commission will have a new power to suspend care home registration.

The act also gives the Department of Health powers to extend the range of sectors in which registration is required.

Human rights in care homes

Section 145 of the act reverses the decision of the Law Lords in YL v Birmingham Council (2007) on the human rights position of people placed in independent care homes by local authorities. The Law Lords held that such homes were not subject to the Human Rights Act 1998.

Section 145 provides that human rights protection travels with a service user who is placed in an independent care home by a local authority.

As a result, the home is required to act compatibly with the Human Rights Act 1998.

It should be noted that, in order for section 145 to apply in England and Wales, a service user must, as most are, be placed in residential accommodation under Part III of the National Assistance Act 1948.

Section 145 does not affect the human rights obligations of other independent care providers contracted to local authorities. Independent home care agencies will continue to fall outside the Human Rights Act 1998 by virtue of the reasoning in the YL v Birmingham Council decision.

Direct payments

Section 146 tackles what has been one of the biggest obstacles to increased take-up of direct payments – the requirement for the service user to have the mental capacity to consent to receive payments instead of the direct provision of services.

Section 146 allows regulations to be made to permit direct payments to a third party on condition they are used to purchase the community care services needed by a person who lacks the mental capacity to consent to direct payments. The local authority concerned will normally have to approve a recipient as suitable.

Liable relatives

Section 147 of the act is the long-awaited abolition of the liable relatives rule, under which a person could be called upon to contribute to the cost of a spouse’s community care services.

Ordinary residence

A person’s ordinary residence normally determines which local authority is responsible for providing the community care services he or she needs. Legislation currently provides for central government to resolve disputes between authorities as to which of their areas is a person’s ordinary residence.

Section 148 of the act modifies this ­legislation to make it clear that arrangements can be made to resolve such disputes between English and Welsh authorities.

 ●Ed Mitchell is a solicitor, editor of Social Care Law Today, and Community Care’s legal expert

This column is published in the 25 September issue of Community Care magazine under the heading New act to tighten standards and affirm rights in care homes