By Belinda Schwehr, Care and Health Law and CEO of CASCAIDr
The revised National Framework for NHS Continuing Healthcare and NHS-funded Nursing care will come into operation in October 2018. I will not say ‘into force’, because that would imply that staff are expected to regard it as law!
The need for revision was driven by high numbers of assessments and screenings being conducted without leading to eligibility; the low screening level at which the checklist threshold operates; the impossibility of the expectation that decisions can be reached before hospital discharge; disparity in approaches to training across the country; issues with the local appeal process and a lack of clarity around the three and twelve month review purpose and process.
Now it’s out, one could be forgiven for seeing the revision as a bit of a damp squib. And without a clear obligation regarding training, and joint training in particular, and no embedding of a culture of regarding oneself as obliged to stay professionally well-informed and up-to-date on legal framework changes within the hugely over-burdened workforce, I don’t see things improving for those seeking CHC status any time soon.
A key aim was to clarify the ‘primary health need’ sections in order to make the concept clearer. This was going to involve referencing the Care Act, and providing more help on the limits of a local authority’s responsibilities regarding the provision of health or nursing care, and therefore what they are or are not able to fund, including making the ‘incidental and ancillary’ test clearer. None of that has been achieved.
There are indeed some helpful clarifications on aspects of the framework that beset practitioners’ day-to-day experience of trying to navigate the process:
- The old framework’s insistence on explicit consent to assessment, and its avoidance of any practical guidance about who should meet the needs where a person refuses to be assessed for CHC, are improved somewhat by being related more explicitly to the legal framework for information sharing, rather than the mere fact of assessment. Now that personal health budgets are available for those on CHC funding, so that one can keep one’s employees after a long period on a council direct payment, there is no need to pretend that the legal framework positively requires consent to an assessment for that which would be the duty of the NHS to provide for, based on having a primary health need. What to do in the face of a capacitated refusal of an offer of services, after an assessment, however, is still not addressed.
- The section on advocacy implies that it should and could be offered, but states that there is no general duty to provide it for assessment for CHC purposes. References to the Care Act guidance are made there, but not to the 2014 regulations on Care Act advocacy, where it states (in regulation 4(2)(a)) that a local authority is not relieved of its duty to arrange an independent advocate for a person who would have substantial difficulty in engaging in an assessment or planning process but has an appropriate person to support their involvement, where the assessment or planning function that is underway would be ‘likely’ to lead to long term NHS funding in hospital or care home accommodation. So we are none the wiser, here, as to the intended thrust of that provision.
- Lazy references to ‘healthcare’ or health ‘care’ needs, wherever the DH’s construct of ‘primary health need’ is being discussed as the test for CHC status, have been reduced in places. The message is that it is all health and associated social care needs that must be incorporated into the mapping exercise involving the decision support tool. ‘Primary health need’ does not mean that the only needs that are to be considered in the first place are needs related to ill-health, or needs for health care from an NHS or formally nurse qualified professional or needs for inputs that can only ever conceivably be done by a qualified person. ‘Health needs’ are needs that come within the NHS’s functions to provide for, and these include care and aftercare, not just nursing (or registered nurse nursing, by way of statutory exclusion from the scope of what social care can cover).
- Split packages are given a proper importance as a logical corollary of assessment and a person’s not qualifying for CHC – when that which is a health need and not within the lawful scope of social care becomes the essential question.
- Screening people out merely by clinical and social work opinion, and not checklisting depending on agreement that it is not needed, is provided for – meaning that social care practitioners can still trigger the process, by sticking to their guns. But who does that, if they’re overworked? Or if there is no social work team located at the hospital? Or if the discharge co-ordinator is terrifying?
- Hospital discharge is possible without even checklisting, but where it is accepted that it needs to be done, then interim beds / services are to be paid for by the NHS to ensure a discharge to assess approach – and a decision within 28 days of checklisting is reinforced as the norm. But where are these beds or this home care? And does an interim arrangement in somewhere expensive, where one cannot expect to stay if one does not qualify for long term NHS funding, actually serve people’s best interests?
- There is reinforcement of the idea that double scoring is not wrong in principle, but likely to be the norm, because conditions do cross DST domains.
- There is clarification that well-managed needs do not equate to a reduction in needs. However, the difference between what is bespoke planned care for the individual, and ‘routine’ care that should not be discounted when considering whether the need is able to be managed for the purpose of domain descriptors is not illuminated, and no explicit linking of well-managed needs with the concept of predictability is made, for scoring purposes.
- There is clarification of what’s to happen when practitioners can’t agree on domain scores – yes, the higher of the two must be adopted, not merely referenced, and the co-ordinator does not get a casting vote!
- The role of the co-ordinator has been clarified so as to underline that the two hats often worn – being part of the MDT as well as a central lynchpin to the whole case getting to the panel – must be kept apart, without any practical advice as to how to achieve that in practice. One need only imagine an ill-informed nurse co-ordinator, who’s used to writing up ‘the feeling’ of the MDT, providing ‘impartial’ advice about ‘policy and procedure’ to a social worker daring to say that they’re not happy with the way that’s been done!
- The rights of the person to see or hear the intended recommendation are reinforced, and the right to a care plan that is ‘personalised’ is stressed – without acknowledging that this care planning is still being done nationwide by providers, when quoting, by reference to what they think the CCG will pay, prior to selection of the three cheapest, for consideration by the family.
- Strong warnings against policies that create ‘arbitrary’ cost caps for those who want to remain at home have been included – but just as with the Care Act, the way is left open for applying a cost-based comparison between adequate alternatives, when a CCG makes the decision as to what to offer. And the guidance says nothing about the legitimacy of actually offering a lower amount than is needed, by way of a budget for care in one’s preferred own home setting, after a refusal to accept the CCG’s first offer.
I do have some concerns about the intended downwards shift in checklist numbers. It’s one thing to say that screening is not needed if everyone agrees, but how that will work in practice with those unaware of their rights remains to be seen. I have yet to hear of a patient getting a discharge information wallet containing an NHS leaflet about CHC. If one is incapacitated, and rich, and has no one but a formal solicitor attorney who’s not personally interested in one’s wellbeing or rights, and there’s been no training, and the staff think that one is rich, where’s the means to hold a judgement that checklisting is not ‘needed’, to account, on a busy ward?
I also have concerns about what I see as an increased focus on the notion of qualifying for NHS-funded nursing care (FNC). FNC is paid for by one’s local CCG, based on GP registration. In some parts of the country people with learning disabilities have been placed in nursing homes by councils, out of area, without sorting out the consent of the local CCG, and no FNC has been applied for. Also, people who are left to self-fund a discharge from a general hospital might place themselves in a nursing home without any external check on the real level of their needs. In both cases, the sector has not necessarily been following the guidance of setting the fee for all its nursing beds to include the FNC portion, if it enabled the home to offer apparently more competitive (lower) rates for access to a setting with nurses on tap. Without that inclusion, however, an LD commissioner’s or self-funder’s focus would not necessarily encompass the question of how that bit of the fee is to be secured, and hence it has come about that the local CCG’s consent to the arrangement has never been sought.
What has got worse: guidance on the scope of social care
There are two parts where I think things have got worse.
The exploration of the impact of the Care Act on the test for CHC has been done without any referencing of the types of services that can even count as social care. In section 8 of the Care Act, examples are set out, and in legal terms these words would simply have to be taken into account – treatment and control for instance, are simply not mentioned in section 8 whilst care, support and accommodation and counselling are. This one aspect of the Care Act is the only thing that prevents civil servants doing ministerial bidding on determined cost-shunting to councils and citizens, because the interpretation is for the judges as a matter of law, not mere policy.
The new guidance actually suggests that the scope of social care is referable to the kind of needs people have to be found to have, before they are entitled to funding. To any legal mind, eligibility criteria conjure up quite a different notion to scope – and the scope of what can constitute social care will always be wider than eligibility based on the statutory threshold.
The guidance makes no attempt whatsoever to describe what it thinks an input being ‘ancillary’ or ‘incidental’ to the provision of a service that is a social care service, means – and in particular there is no suggestion that it means ‘just a little and able to be delivered at the same time and place as another service that is due to the person from social services’, as was first envisaged in the explanatory notes to the Care Act:
“where the service provided is minor and accompanies some other care and support service which the local authority is permitted to provide” (and is of a social care nature…)
On the upside, the Supreme Court’s Forge Homes judgment, which included as registered nurse nursing care (and hence only ever as health care) any personal care being done incidentally by nurse qualified staff performing tasks that do have to be done by registered nurses, is mentioned.
It is also acknowledged in the framework for the first time that the section 22 provision in the Care Act extends the ‘ancillary and incidental’ test to all social care settings, not just the accommodation ones. The test was tied to nursing home accommodation as a result of the Health and Social Care Act 2001 amendments to the framework post-Coughlan but the Care Act itself has changed that. No insight is offered into the potential impact of that fact for the framework or the policy).
Problems with top-ups section
Secondly, the section on top-ups is actually worse than it was before, rather than clear that additional payments will always be permissible, as long as the item or notion driving that additional cost is not part and parcel of the assessed needs, nor part of the NHS contract.
The guidance fails to grapple openly with an obvious truth – there is no way that any person in the NHS can prevent a person from spending their own money on additional care, if they want some. The revision gets bogged down in trying to distinguish personal wants, which may be funded through a person’s paying for them, from wants that are inextricably bound up with the placement package that is required to cover the person’s needs, which may not be paid for by the NHS as part of its fee, because recoupment would then be required, and it would look like NHS charging for care. It tries to suggest that ‘beauty’ treatments are on the acceptable side of the extras line (clearly these aren’t ever going to be a response to assessed needs) but that ‘higher cost’ homes are not permissibly funded through top-ups, when what it needed to say was ‘not permissible through top-ups that are funded directly by the NHS and then recouped’.
It leaves the impression that a self-funder who wants to keep hold of their lifestyle choice of a larger room, nicer furniture, more facilities and higher staff ratios than the barely adequate minimum, after qualifying for CHC, cannot expect to stay, and must therefore be moved on for its own sake, when qualifying for CHC. What absolute rubbish this is.
To my mind there’s nothing wrong with a care home accepting an ex-private funder on a CCG standard rate for standard care for a CHC person – with any non-needs related extras or shortfall being set as a percentage, and being met by relatives or the client, in a clearly separate contract, to get the home’s income back up to its headline rate. This is allowed for in section 117 aftercare arrangements and ought to be done for CHC too. The trouble is, of course, it would mean that the NHS contract for CHC would have to identify what standard care is, for any particular level or profile of need, and no NHS care commissioner or care planner ever wants to have to do that. The implication that a CCG is going to force a move on someone who’s able to pay the shortfall, or has contracted in advance with a posh care home to pay a top-up if they ever become a CHC patient, is ridiculous. Respect for their human rights, and choice and control, will all have to be factored into the mix if judicial review is to be avoided.
Lastly, I note that the suggestion that a person who is not content with the detail of a care plan should use the complaints system has been removed. I struggle to decide whether this is better or worse. The local appeal and independent review panel system has very effectively kept eligibility decision-making out of the Administrative Court (in relation to judicial review) but the content of the care plan is another thing, and of much more practical importance for most people. The suggestion in the old framework that it should be disputed by way of a complaint was always disingenuous, when judicial review exists to deal with indefensible illegality – and insufficiency or irrationality is illegality. But the new framework does not mention the complaints system at all for disputes about the care plan. Maybe its authors thought that there would simply never be any? At least it’s not positively misleading any longer.
Care Act impact
The fact that ‘primary health need’ policy turns necessarily on the legislation underpinning health services and the Care Act, has made it harder to guess where the limits of social care lie, not easier, in my view, because the wording of the underlying range of social services has got less explicit under the Care Act than it was under the old law.
That change is not unlawful, because the Care Act was brought in by Parliament, with cross-party support. But in so far as the legislative purpose was clearly carefully considered, and the revised framework will affect hospital discharge and the lives and purses of ordinary people and the welfare services economy for years to come, we ought to speak truthfully about such matters, in advance of the green paper on the future of social care, in my view.