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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
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).
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
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)
31.
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.