Analysis of delayed discharge fines

The controversial Community
Care (Delayed Discharges etc) Act 2003
comes into force in

Delayed Discharges (England) Regulations 2003
and a number of
linked directions and regulations make provision for the details of
the delayed discharges scheme under the act, which deals with how
the NHS and local authorities must deal with patients whose
discharge from hospital is delayed. The act requires local
authorities to “reimburse” (the word used in the
explanatory notes) the relevant NHS body where a patient’s
discharge has been delayed due to a failure of the local social
services authority.

The regulations prescribe the type of care which a patient must
be receiving in order to come within the provisions of the act. In
effect, this is “acute care”, described as
“intensive medical treatment provided by or under the
supervision of a consultant which is for a limited time”.
Intermediate care, maternity care, rehabilitation care and mental
health care are all excluded from the definition of acute

In relation to mental health services the Delayed Discharges
(Mental Health Care) (England) Order 2003 came into force on 1
October 2003 and defines mental health services as (a) psychiatric
services; or (b) other services provided to a patient for the
purposes of the prevention, diagnosis or treatment of illness,
where the person primarily responsible for arranging those services
is a consultant psychiatrist.

Next, the regulations set out details of the notice which the
relevant NHS body must give to the local authority to inform it
that there is a patient who is likely to need community care
services upon discharge. This must include a statement that
consideration has been given as to whether a person qualifies for
continuing care. The notice which the relevant NHS body must give
as to the proposed discharge date “is at least one day in
advance of the proposed discharge date” . The local authority
must be given at least two days to carry out a community care needs
assessment and make a service provision decision . This, of course,
is a much shorter timescale than many social service departments
are currently able to meet.

The regulations set out the daily amount payable by the local
authority as a reimbursement (or fine) for the cost of care if the
local authority have not provided services within the act’s
time frame. These amounts are £100 or £120 depending on
the authority. Whether this will act as an incentive to provide
services where large packages of care in excess of this amount are
required is yet to be seen!

The remainder of the regulations deal with the mechanics of
serving notice, ordinary residence and the resolution of disputes
between public authorities in such detail as to suggest that the
operation of the new regime (from 2004) is already expected to be

The draft Delayed Discharges (Continuing Care) Directions 2003
place specific requirements upon NHS bodies before issuing a
delayed discharge notice to a local authority in relation to a
potential “bed blocking” patient. The requirements are
to carry out an assessment of a patient’s need for continuing
care and to decide whether the needs “call for” the
provision of continuing care. The patient him/herself has a right
to be notified of the decision.

Stephen Cragg
Doughty Street Chambers

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