Government plans for the NHS to discharge people from hospitals into care homes may result in “poor or potentially illegal” practice, through people being moving into residential care without their informed consent.
That was the warning from the Association of Directors of Adult Social Services (ADASS), in response to the Department of Health and Social Care (DHSC) plan to give the NHS £200m to block-book step down beds in care homes to which to discharge some of the 14,000 people who are medically fit to leave hospital but cannot.
The funding can be used to pay for a new or extended package of social care, plus associated clinical advice and services to support rehabilitation, for up to four weeks, during which time assessments should be made of the person’s ongoing needs, according to guidance issued last week by NHS England.
NHS trusts are required to take steps to involve people and their carers in discharge decisions when they likely have ongoing care and support needs, under the Care Act 2014, while separate DHSC discharge guidance specifies that it should “respect an individual’s choices and provide them with the maximum choice and control possible from suitable and available options”.
This also states that, should a person’s preferred place of discharge is not available, “an available alternative or alternatives appropriate for their short-term recovery needs should be offered, while they await availability of their preferred choice”. Where a person may lack the mental capacity to make relevant decisions, professionals should carry out a capacity assessment as part of the discharge process and make a best interests decision if they are found to lack relevant capacity.
However, following criticisms of the plans from sector leaders following their announcemnt last week, ADASS chief executive Cathie Williams raised concerns about decision making should people end up spending longer than four weeks in the care home they were discharged to.
Risk of ‘poor or potentially illegal practice’
“Our concern is that there may be practice that is poor or even potentially illegal,” she said. “None of us can be required to live somewhere without exercising a choice unless we’ve broken the law or there are safeguards under the Mental Health Act or DoLS [Deprivation of Liberty Safeguards]. The concern is that people will in effect be forced into making a permanent move to a home without giving informed consent.”
In a statement to Parliament last week, health and social care secretary Steve Barclay said he had asked NHS England to ensure that people discharged to care homes received “wrap-around care…so that it is the shortest-possible stay on their journey home and into domiciliary care”.
However, Williams said the prospect of people ending up stuck in care homes was increased by staff shortages and a lack of NHS community services to aid rehabilitation.
“Rehabilitation can work in a residential setting but it needs to be in a focused unit with the right staffing. We have real concerns that those staff aren’t there. As a result people will in effect be forced into making a permanent move into a home which they haven’t fully considered.”
Funding reserved for ‘bedded’ services
The NHS England guidance made clear that the £200m funding may only be used to fund “bedded step down capacity”, rather than care at home, despite ADASS saying last week that use of the funding “should be guided by the ‘home first’ principle, rather than the default being that people are discharged into care homes”.
Williams said: “There are potentially poor outcomes for people as individuals [from being discharged to care homes]. Also, at the end of the four weeks, if people can’t get home, either they, as private individuals, or the council or NHS will incur very significant costs. This may help for three or four weeks but there’s likely to be another delay for care after that.”
The NHS England guidance issued last week states that ICBs may not use the £200m to fund post-discharge care after the four weeks are up. On the “rare occasion” where people remain in care homes pending assessment of their ongoing needs, they should be funded according to agreed local arrangements between councils and ICBs, it adds. Where these do not exist, ICBs should fund care for people awaiting an NHS continuing care or funded nursing care assessment, with councils resourcing services when people are awaiting a Care Act needs assessment.
The £200m fund, which will last until the end of March 2023, is designed to supplement existing resources for post-discharge care, including an extra £500m provided by the DHSC for this winter, which is being split between councils and ICBs.
NHS urged to work with councils
Amid ADASS and Local Government Association concerns about the impact on the local care market of ICBs commissioning care home beds alongside local authorities, the NHS England guidance says: “ICBs must work with local authorities to ensure that an appropriate, locally benchmarked, rate is paid for care funded through these arrangements, with rates set at a level that does not lead to local inflation in the cost of care.”
It also says that ICBs must make procurement decisions with the full involvement of councils in their areas and may make use of existing pooled budget arrangements – under section 75 of the NHS Act 2006 – to deploy the all or part of the new funding.
The DHSC’s focus on funding post-discharge care, both through the £500m and £200m packages and in the directing of some of the additional social care resource for 2023-25, reflects concerns that the high number of people stuck in hospitals is causing backlogs throughout the NHS, particularly in accident & emergency departments.
However, with about 500,000 people awaiting a social care needs assessment or care package, Williams said the focus on discharge was neglecting people’s needs in the community and risked being self-defeating.
Criticism of discharge focus
“Our concern is that with the focus on discharge above everything else,” she added. “We can see from ADASS surveys that directors of adult social care are prioritising their resources to support hospital discharge or to respond to referrals where there are concerns about abuse or neglect.
“By focusing resources on these priorities, the resources available for assessment and planning of people in the community are necessarily reduced – and as a result the numbers waiting for assessment and care are rising. A proportion of those waiting at home will inevitably deteriorate and end up in hospital, making things worse for them and the health and care system.”