Elderly care conference 2017 - Workshop stream B - delayed transfers of care: legal framework and practical solutions
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Ben focuses on delayed transfers of care including; the problems, the causes, the legal framework, the impact of incapacity and the practicalities.
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Elderly care conference 2017 - Workshop stream B - delayed transfers of care: legal framework and practical solutions
- 1. Elderly care conference 2017 Stream B – delayed transfers of care: legal framework and practical solutions Ben Troke
- 2. Delayed transfers of care legal framework and practical solutions Ben Troke 27 April 2017
- 3. t oday I wi l l be t al ki ng about … Content • The problem • The causes • The legal framework • The impact of incapacity • Practicalities Ben Tr oke, par t ner
- 4. The definition • NHS England defines patients as ready for transfer when: a. A clinical decision has been made that the patient is ready for transfer AND b. A multidisciplinary team decision has been made that the patient is ready for transfer AND c. The patient is safe to discharge/transfer. • Delayed transfers of care (DTOC) – counted both as total patients, and total bed days
- 8. Why?
- 11. The legal framework – acute care • Law has focused on discharge from acute care – defined as “intensive NHS funded medical treatment provided by or under the supervision of a consultant which is for a limited time after which the patient no longer benefits from that treatment” • Legislation (the Care Act – later) only applies to “acute care settings” - not to maternity, mental health, palliative, or intermediate care settings.
- 12. “Ready” and “safe” • Regardless of the setting discharge should only proceed where: – P is clinically/medically fit for discharge – Discharge will be “safe” (Clinicians owe the patient a duty of care at common law to discharge safely. Breaching this duty could lead to a damages claim against the Trust).
- 13. Damned if you don’t…
- 14. Damned if you do… Discharge from Hospital PHSO Report May 2016: 1)Patients being discharged before they are clinically ready to leave hospital; 2)Patients not being assessed or consulted properly before their discharge; 3)Relatives and carers not being told that their loved one has been discharged; 4)Patients being discharged with no home-care plan in place or being kept in hospital due to poor co-ordination across services
- 15. “While a person may be ‘medically fit’ to leave hospital, they may not be practically ready to cope at home. If a rounded picture of a patient’s needs (including their mental capacity) is not established on admission to hospital and then regularly monitored, they could be sent home alone, afraid and unable to cope”.
- 16. MCA and discharge - question • We often have problems around discharge of patients where – there is an issue over their capacity – there is a dispute with them / family about where they should go – there is a concern about post discharge DoL • We rarely see problems about discharge / capacity and DoL
- 17. The decision • Duty of care to patient • Duty to ensure that discharge is “safe” • But discharge, as such, is not a “best interests” decision – regardless of capacity
- 18. You can’t always get what you want….
- 19. N v A CCG • MN – young adult male • Severe learning disability and physical disabilities inc rare form of epilepsy • Requires nurse available 24 hours a day • Cognitive level of 1 year old child • CCG funded in residential home
- 20. • Parents fought for MN to return home, but issues narrowed by the hearing:- – They wanted MN to come home for visits – Mother wanted to help with intimate care for MN when she visited him • Final hearing listed • In both cases care home was unwilling and CCG was not prepared to fund alternatives MN
- 21. MN - Court of Appeal (2015) • Munby LJ - The role of CoP is to choose among available options, and not to be used to apply pressure on funding / resource allocation decisions – “Rigorous probing, searching questions and persuasion are permissible; pressure is not”
- 22. Supreme Court (2017) “… just like P, the court can only choose between the ‘available options’”. – Baroness Hale
- 23. Aintree v James (2013) • “The [MCA] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further… therefore the court has no greater powers than the patient would have if he were of full capacity” Baroness Hale
- 24. In practice – what is the decision? • What does patient / service user need? • What is available? (clinically / financially / practically) – ie the information relevant to the decision • Does s/he have capacity to make that decision, then? • What is in P’s best interests from those options? • Best interests is concrete not abstract / hypothetical
- 25. Role of Court of Protection • If the patient lacks capacity around post-discharge care and residence ensure the MCA is followed • But note that the decision to discharge is not itself a best interests decision • An application to the Court of Protection seeking a declaration that it is in P’s interests to be discharged to an alternative location pending resolution of their long-term care may assist in resolving the issue • The Trust should invite the relevant statutory body/bodies with responsibility for P’s post-discharge care to make this application, but where met with refusal/delay the Trust could make the application itself and ask that the relevant body be added as applicant at the first hearing and the Trust removed as a party.
- 26. (Legal) Spanners in works… • Post discharge DoL • LPAs / family objecting • Human Rights aspects • (lack of) Social care provision
- 27. Delayed Discharge notices • Care Act 2014 schedule 3 • Care and Support (Discharge of Hospital Patients) Regulations 2014 • Process no longer mandatory (as was in Delayed Discharges Act 2003) • Assessment Notices from NHS to LA (s.1 Sch.3) • Discharge Notices (s.2(1) Sch. 3) • LA needs assessment (s.3(1) Sch.3) • Delay: LA must pay NHS daily “specified amount” (s.4 Sch.3) • Doesn’t apply to non-acute settings, MH, Maternity or Palliative care
- 28. Possession is 9/10ths of the law • So how can you get unwilling people to leave?! • Notice to quit – see NHS England Guidance • Charging (NHS Act 2006 s189) • Possession proceedings • Criminal Justice and Immigration Act 2008
- 29. NHS E guidance – March 2016 • Focus on planning for discharge from outset • Informing patients to make choices • Within timescale – 7 days • Clear that remaining in patient when medically fit is not an available choice • Emphasis on use of interim placements • Focus on a robust policy in case of refusal to leave • Includes template policy and letters
- 30. Possession - Case law • Barnet PCT v X (2006) – PCT awarded £8,000 in costs • Sussex Community Health Trust (2016) • James Paget Hospital (2017)
- 32. Powers / process to remove • Criminal Justice and Immigration Act 2008 s119-120 • Where P is on NHS premises; not for medical treatment (includes when fit for discharge after treatment); and causing a “nuisance / disturbance” • Criminal offence (s119) and power for police officer / “authorised officer of the Trust” to remove them (s120), using reasonable force if need be, unless: – the person to be removed requires medical advice, treatment or care for himself or herself, or – the removal of the person would endanger the person's physical or mental health.
- 33. But - • Practicality / publicity • And where to remove them to?? That is a best interests decision (if lacks capacity), and no power to convey to XXX • Trust often left “holding the baby” • But – Trust/ FT’s duty to exercise its functions “effectively, efficiently and economically” (NHS Act 2006 s26; 63)
- 34. Top tips… • Clear communication and expectations – Patient medically fit for discharge has no “right to occupy” an inpatient bed – regardless of capacity – Reasonable expectations of making plans to leave – NHSE guidance • Collaborate between Trust and P / family, but also local authority and / or CCG, and eg Care Home • Apply for DoLS authorisation in anticipation • Apply to CoP if need be, and can seek interim discharge • There are powers to remove patients and (arguably) duties to use them
- 35. Toolkit • We have produced a toolkit on dealing with delayed discharge – including capacity issues as well as offering a training workshop to help clients develop their own approach • Contact us to find out more
- 36. keep your quest i ons comi ng… ben.troke@brownejacobson.com 07979 615 452 www.brownejacobson.com/health Ben Troke
Editor's Notes
- Why are we waiting? You can’t always get what you want Should I stay or should I go now?
- DTOCs are officially recorded by NHS England in two ways: a snapshot of the actual number of patients delayed at midnight on the last Thursday of every month, and the total number of bed days (overnight stays) during which patients were delayed. This data is collected monthly and available from 2010.
- Between 2011/12 and 2014/15, the number of bed days used by patients who were delayed grew by 60 per cent. This means that by October 2016, over 4,500 acute beds and 2,200 non-acute beds were occupied by these patients at any given time. That is the equivalent of more than ten 650-bed hospitals. Also note – attribution of responsibility – this is about blame!
- Because high profile and controversial
- The cost – NAO report An NHS bed costs on average £1925 a week compared to about £558 for a week in residential care or £356.58 for home care based on three hours of care per day over the course of one week. (Age UK press release issued on 17 June 2015: www.ageuk.org.uk/latest-news/archive/bed-days-lost-social-care-delays)
- All kinds of reasons – No magic solution to any, never mind all But want to make sure that (mis) understanding the legal framework is not one of them… Eg – Awaiting CHC assessment (NB Framework and NHSE Guidance suggests CHC eligibility should not generally be carried out in hospital setting as this may distort accurate assessment of need – also suggests that CCGs can fund care in interim pending CHC assessment in appropriate environment); CHC panel decisions (particularly if high-costs considerations); Not commencing discharge planning early enough; Poor communication within the Trust and with key partners in social care and CCGs; Lack of understanding about who is responsible commissioner for post-discharge (CHC eligible, s.117 MHA 1983 or Joint Funded); Misunderstanding the role of best interests under MCA 2005 and hospital discharge. Lack of awareness of Trust policy and possible tools to facilitate discharge. Delay in carrying out Care Act 2014 assessments Delay in finding suitable accommodation/care if eligible for services following assessment Delays/waiting list for provision of reablement services Delays in provision of hosuing aids and adaptations Arguments about whether P has no recourse to public funds (NRPF) P/Family saying they won't be available on the proposed discharge date; P/Family opposed to discharge to residential care; P/Family consider P not fit for discharge; P/Family refusing to agree to discharge until refusal of CHC eligibility is reviewed; P lacks capacity to decide where to reside post discharge.
- For example, the delayed transfer of care legislation which sets out certain assessment and notification requirements, as well as allowing the NHS to recoup money from Local Authorities, only applies to acute care settings. It does not apply to maternity, mental health, palliative, or intermediate care settings.
- Source NHS Digital – 28.9.16 Regional variation – 900 DoLS applications per 100,000 popn in the North east, only 319 in london. Taking North east again – once hit 65+ you are 4 x more likely to have a DoLS application; At 75 – 22x more likely At 85 – 75x more likely. 83% of DoLS applications are for P over 65. 44% over 85 51% are primarily due to dementia
- Now in early 20s Frequent seizures and risk of sudden death Poor muscle tone and uses wheelchair Doubly incontinent Father especially had history of obstruction of professionals or refusal to co-operate with authority, intimidating anyone he disagreed with. Custodial sentence received for assaulting a social worker.
- Only 6 miles from parents’ home to the residential placement, but would require extra trained carers to go with him – home unwilling to facilitate this, as staff were not available – especially given the father’s behaviour For intimate care, care home was concerned about mother’s lack of co-operation with staff, and she’d declined training in manual handling Final hearing was listed for 3 days, and 2,000+ pages of evidence and submissions filed. Eleanor King J:- If MN had capacity … he would not be able to compel a provider to do what he wanted against their wishes (or a CCG to pay for it against theirs) Judicial review is the only proper way to challenge decisions by care providers or public bodies If MN had capacity – his own choice would be:- Accept the conditions of the care home Privately fund care elsewhere Try to negotiate the with CCG to place him elsewhere
- 3rd Supreme Court judgment on MCA / DOLS – and like the previous 2 Lady Hale gives the key judgment – in this case the only judgment with which the rest of the court agree. We don’t know what she thinks of Munby’s language as she doesn’t refer to the rigorous probing, but on the Q of principle about the balance between best interests decisions and resource allocation she is perfectly clear. Para 35 - So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the “available options”. The court cannot create options where none exist Judicial review can challenge resource allocation
- No surprise because Hale herself had said this in Aintree in 2013 in context of end of life medical treatment decision making…
- Do not at all costs start with “Bob lacks capacity” as if generic, and then go straight to right – what’s in his best interests?
- Specified amount is £130 pd (£155 in London)
- Aside from CoP application 189Hospital accommodation on part payment (1)The Secretary of State— (a)may authorise accommodation to be made available for patients to such extent as he may determine, and (b)may recover such charges as he may determine in respect of such accommodation and calculate them on any basis that he considers to be the appropriate commercial basis. (2)Accommodation means— (a)accommodation in single rooms or small wards which is not needed by any patient on medical grounds, (b)accommodation at any health service hospital or group of hospitals, or a hospital in which patients are treated under arrangements made by virtue of section 12, or at the health service hospitals in a particular area or a hospital in which patients are so treated. (3)References in subsection (2) to a health service hospital include references to such a hospital within the meaning of section 206 of the National Health Service (Wales) Act 2006 (c. 42), but do not include references to a hospital vested in an NHS trust or an NHS foundation trust.
- And this signposts towards legal powers / responsibilities – And distances itself from “incapacity” problems….
- Need to ensure that good practice discharge guidance is followed, both in terms of clinical practice and process Ensure Pt and/or Pt’s family properly consulted Try to begin discharge planning as soon as possible Ensure discharge planning is done via MDT where possible Ensure timely communication with care home/LA/CCG that will be responsible for P post-discharge In difficult cases seek support as early as possible.