NHS tasks are creeping into social care without funding or legal clarity

With home care workers increasingly carrying out health tasks, it needs to be made clear that responsibility sits with the NHS, says Paul Morgan

By Paul Morgan

Discussions around what constitutes NHS healthcare and what constitutes social care can be traced back to the original post-war legislation that separated responsibilities for health (the NHS Act 1946) and (the National Assistance Act 1948). This statutory separation has been maintained ever since and in many ways it is artificial and not helpful to the person in need of care. Integration is regarded as the way forward.

However, as we rush to align, co-locate or integrate, local authorities need to consider the issue of administration of medication by social care staff in the context of local authority-commissioned care for people in their own homes.

From housework to healthcare tasks

Over time, the role of domiciliary care workers has transformed from an old housework and shopping style service to one which sees care workers providing care to some very dependent individuals with a broad range of needs. We now see domiciliary care staff being asked to take on a variety of tasks which may have been (and many may still be) the responsibility of the NHS. Examples include application of creams, putting on surgical stockings, administering eye drops or ear drops, catheter management, using EpiPens, blood sugar pinprick testing, administering of PEG tubes, giving injections, administering oxygen and undertaking manual evacuations.

Local authorities are seeing NHS responsibilities creep into the ambit of social care. In an Association of Directors of Adult Social Services (ADASS) survey of directors in November 2016, 56% reported increased demand for healthcare activity to be undertaken by social care staff.

The 2015 Unison Homecare Training Survey found that:

  • Of the home care workers who administered medication, 24% had received no training despite some administering controlled medication, for example liquid morphine and insulin.
  • 59% of those who attached or changed a convene catheter had received no training in this.
  • 52% of those who undertook stoma care had received no training.
  • 45% of those who changed catheter bags had received no training.
  • 38% who carried out PEG feeding had not been trained.

This issue has been raised by the ADASS safeguarding network in the South East – primarily due to the generally high levels of safeguarding alerts received about medication errors in care homes, in some domiciliary care settings and within the unregulated PA market.

The Care Act 2014 eligibility criteria has 10 outcomes which, if a person is unable to achieve them, contributes to their eligibility for care and support. It is essential to state that the list in the original draft included “administration of medication”. Strong representations made by local authorities that this outcome should be withdrawn, as this was an NHS rather than LA responsibility, were accepted and withdrawn it was withdrawn from the final list.

Dealing with the problem

Local authorities are trying to deal with the issue in a number of ways:

  • Employing “hybrid workers” that can undertake both health and social care tasks.
  • Developing a shared care pathway where a single agency provides both health and social care tasks but separates out the invoicing of each task to the local authority and clinical commissioning groups.
  • Not undertaking health care related tasks at all.
  • Using the Better Care Fund.
  • Taking on some limited health tasks but drawing a clear line regarding the scope and nature of their provision in this aspect.

Some areas are not agreeing how to resolve these issues.

It is right and proper that integration develops. Such integrated arrangements, in cases where the NHS is seeking to delegate a task to the local authority or to a home care provider via the local authority, should be explicit about the following issues:

  • Where the NHS delegates a task to the local authority, there should be a written agreement about this.
  • The responsibility for clinical oversight, monitoring and reviewing the task remains with the NHS.
  • That legal liability, when something going wrong, remains with the NHS – as the home care agency, via the local authority, are undertaking the task on behalf of the NHS.
  • Explicit clarity and joint agreement regarding whether the individual should be charged.
  • Whether the NHS should reimburse the local authority for any costs incurred for undertaking the task on the NHS’s behalf.

A national solution

The issues highlighted in this article are not insurmountable and collaborative working can deliver a tangible outcome here. The wider solution is for an open, transparent discussion with the public and the care provider sector to happen. This should be led by NHS England in partnership with the Local Government Association and ADASS, along with the Social Care Institute for Excellence (SCIE) and National Institute for Health and Care Excellence (NICE). The purpose of this work would be to clearly identify:

  1. Tasks that are local authorities’ responsibility.
  2. Tasks that are NHS’s responsibility.
  3. Tasks that might be formally delegated to a local authority by the NHS legally with training, supervision and full care reimbursement costs being provided by the NHS. Legal liability would also need to remain with NHS.

Financial analysis should be provided regarding the cost of shifting each task from the NHS to local authorities and the resultant move from national to local taxation that this will cause.

It has been accepted in the courts (the Coughlan judgment) that the nature of what might be considered as social care may change over time. It is understandable that NHS England may not want to be over-prescriptive to local health and social care communities. Yet we can manage to be prescriptive regarding charges for opticians, dentistry and prescription charges. It is explicit what we need to pay for and what is provided by the NHS without charge.

Similarly, people should have the right to expect clarity about the care that they receive in their own home. Without setting national clarity, the existing postcode lottery will continue with local authorities and local taxation continuing to be compromised.

Paul Morgan is head of continuing care at Surrey council

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14 Responses to NHS tasks are creeping into social care without funding or legal clarity

  1. Pat March 7, 2017 at 6:22 pm #

    The biggest issue in health tasks is that care is provided by care workers/ health. care assistants, etc. – whatever their company decides to call them. Indeed, whatever their company decides to call them, they are not medically qualified and are supposedly trained specifically for the needs of the client. In reality, they are given basic, tick box, generic training – often of a poor standard and inappropriate to the needs of the client. Unqualified care workers are funded via the NHS to deal with medicines, personal care, catheters. suction, tracheostomy and even ventilators.

    Some of those care workers will be good at what they do and will take on board the individual needs of the client – some will not. Some find it impossible to adapt to the needs of the current client and will continue to carry out tasks based on the needs of previous clients – to the detriment of the person they are supposed to be looking after. Some are simply incapable of peforming the tasks required to care appropriately for their client.

    Is the answer to provide this care using nurses rather than care workers? No! The same issues apply to nurses – some will be good at their job, some will not be.

    The answer lies in recruiting the right people and providing the right training – training that puts standard of care ahead of profits and tick boxes.

  2. Linda March 8, 2017 at 4:17 pm #

    Excellent article, this process of shunting tasks and cost from the NHS to Social Care has been ongoing for years. Bullying NHS Managers have insisted they will not undertake tasks as they are ‘social care’, when clearly are health tasks, as those mentioned in the article. The NHS gives no consideration to the impact on an individual. It is a way of individuals paying for their own medical care via the ‘back door’, especially the elderly. With the current CCG arrangements, the push for Social Services to do more ‘health tasks’ has increased. Local health individuals are just able to say ‘not our responsibility’ without having to justify themselves to anyone. By not accepting something as a ‘health task’ the rest of the responsibility associated with the task is also denied. Social Care has ‘no where to go’ to try and resolve such issues as the last time such a issue was raised in the Courts the Judge told LA’s it should basically never happen again as it was wasting public money. Until the bullying NHS attitude towards Social Care ceases, discussion as suggested in the article will never happen, leaving service users at risk.

    • Barbara K March 10, 2017 at 2:03 pm #

      The reference to ‘bullying NHS Managers’ is an unfair generalisation. I come across many ‘bullying’ social care managers who are trying to protect their own budgets by shunting costs to the NHS. Blaming each other when things don’t go our way isn’t the answer – we have to work together to make best use of the (limited) public purse.

  3. MR ANDREW Reece March 8, 2017 at 6:36 pm #

    Great article Paul

  4. Elaine Deehan March 9, 2017 at 9:10 am #

    I see at firsr hand the exploitation of these staff. One major concern is that they are writing medications on a prescription form with little training. As a qualified nurse I am not allowed to do this without advanced training and regulation. Shocking.

  5. Clare March 9, 2017 at 11:05 am #

    A good article highlighting the issues which have become numerous. The plans sound good but there must be a greater emphasis on training social care staff to ensure the safety of people who use services. Strange what risks are taken in some parts of the NHS but not others.

  6. Nice1Nicky March 9, 2017 at 1:39 pm #

    As we sow…so shall we reap…

    Never have I seen in all my SW practice (30+yrs) the effects of creeping bureaucracy as in who does what in Health and Social Care in this country…
    Most if not all of social care relates to a physical illness or a health diagnosis; the 2 are related…
    So lets stop this divisive nonsense…

    There have been some really ‘special’ (senseless?) decisions regarding the split between Health and social care tasks and who pays for what….
    If Central Government really wanted to simplify the provision of services….firstly ensure that a person and their GP live in the same LA area; this would simplify Health and Social care provision immediately.
    Secondly the idea of issuing ‘guidance’ by central Government allows too much ‘freedom’ for LA’s and CCG’s to create unnecessarily complex and pathways….perhaps the idea of standardisation across LA’s might also be useful

    Then maybe we would not need to read such articles ( very good one btw)…..

  7. Valerie bradley March 9, 2017 at 6:05 pm #

    I have been trying for nearly 3 years to access chc,and the CHC continues to claim my needs are social care needs,ignoring that l am in palliative care l have informed social services that they are in an illegal position in funding my care,but like the CCG l am ignored my case is now being investigated by the ombudsman,the whole system is corrupted because the CHC framework guidelines are being ignored deliberately,for the purpose of the CCG’s budgets which is also not allowed in the framework guidance,so we all fight on.

  8. Meggie March 9, 2017 at 8:00 pm #

    An excellent article. It addresses the real problem that lies at the heart of the so-called “crisis in social care.”
    I have yet to see any journalist covering this “crisis” query what ‘social care’ is. The phrase is rarely out of the headlines these days but no-one attempts to define it. And no-one asks a very pertinent question – If some elderly people are so poorly they cannot get out of bed, cannot walk, cannot dress or wash themselves or use a toilet, if their brains are so damaged they are unsafe if left without supervision (just as a small child would be) why are they only being provided with social care? They are clearly suffering from multiple health problems and should be the responsibility of the NHS not pushed into a private care home or abandoned in their own home with just two or three brief visits a day from unqualified care staff.
    This is the real crisis and it is the untold story. The NHS closed its long-stay hospitals in the 1980s and has not replaced these with NHS nursing homes or an NHS home care service. Instead it has cynically pushed all elderly people towards their local council and “social care”. However hard councils try it will never be enough, never be adequate, because these people need far more than social care. They are entitled to the same quality of care as any other patient in a UK hospital, care from qualified doctors and nurses.
    As the article explains social care from “home helps” used to be just a bit of housework or shopping.
    No political party has ever gone to the polls to ask whether the British people want to see the privatisation of healthcare for the elderly but this is what has happened, with no consultation, let alone a mandate.
    Elderly people now pay for their own health care and their healthcare is provided in most cases by untrained, unskilled, unqualified care staff. The very poorest can rely on their local council to foot the bill, but minimal social care is all that will be on offer.
    A clear illustration of the NHS offloading its responsibilities (and costs) on to local councils is stoma care. Stoma care used to be provided by trained specialist nurses, both in hospital and at home. Theses specialist NHS nurses, supporting and caring for people at home, were quietly got rid of. Now patients with stomas who are too ill or old or frail to cope, physically or mentally, are told their stomas are a “social care” matter, which is effectively telling them they will have to pay and any care they receive will not be from a qualified nurse.
    I believe that cash-strapped local authorities must start to address the issues raised by Paul Morgan. They need to stop providing healthcare on the cheap, which is what they currently do. They must refuse to provide any form of healthcare and insist their local CCG provides this care using qualified nurses. If necessary they should take on the government and the NHS and fight this through the courts. The law has not changed and as the Coughlan and Pointon cases show the courts are aware of this. The NHS only manages to transfer its healthcare responsibilities and costs because local authorities let them.

    • Barbara K March 10, 2017 at 2:13 pm #

      I appreciate that some Local Authorities are ‘cash strapped’ but I’ve yet to see any evidence that the NHS is rolling in spare cash. The more funding of care packages or delivery of care by nurses (of which there is a critical shortage – ask any nursing home) that the NHS undertakes means something else has to stop being funded. It is much more complex than just blaming the NHS for all social care’s woes, or expecting the NHS to pick up all costs, believe me. Perhaps you could ask your local CCG how much they spend on NHS Continuing Healthcare, NHS Continuing Care (for children), individual care packages for people detained under Mental Health Section or in Independent Hospitals alongside spend on acute hospital beds, community, district nursing, GP’s etc. etc. and then compare that with social care spend. You may be surprised.

  9. Daniel March 12, 2017 at 8:00 pm #

    Excellent article! I believe that the care act outcomes actually define the term ‘incidental’ from the coughlan case, but I see no issue with provideing ancillary support such as medication prompts if the LA are already providing personal care. However, neighbouring LA’s need to pull together on this, rather than trying to tackle the NHS alone. If the NHS won’t acknowledge the problem, all LA’s should work out what proportion of each care should be health funded and send them a invoice to be paid, then battle it out on court.

  10. Neil Clarke March 12, 2017 at 11:51 pm #

    Good article. I would say bullying is a fair description of NHS behaviour. The NHS has systematically encourages cost shunting to patients, carers and local authorities – then shouts “bed blocking” every time hospital performance comes under question. We have lost 15% of acute hospital beds in the last 15 years despite a growing and aging population – on top of previous reductions – yet social workers and patients are the ones blamed when winter pressures have their inevitable results. The closing of hospital beds needs to stop.

    • Daniel March 13, 2017 at 8:09 pm #

      I couldn’t agree more!

  11. Valerie bradley March 19, 2017 at 12:03 pm #

    I am currently having this problem with Norfolk county council,and getting no where l wrote to the monitoring officer of the council,and hopefully nnc will tackle the NHS on this matter my nhs continuing healthcare appeal is currently with the ombudsman,l am in palliative care and don’t want this stress at this time in my life.
    Valerie Bradley