Transfers from hospital to social care
What are the key laws that need to be upheld when transferring people from NHS hospital to local authority social care? Elizabeth Ridley explains.
Current legislation and guidance highlight a duty for the NHS and local authorities to collaborate with each other, particularly when it comes to discharge from hospital.
In recent years, the transition from hospital to home has become a critical juncture in patient care, which has further highlighted the essential need for seamless collaboration.
However, in practice we are seeing a general lack of cohesion between health and community services.
This can mean that patients aren't properly supported and are at an increased risk of repeated deteriorations in health. It also means that their carers aren't properly supported and are at risk of developing their own health issues due to carer burnout.
Here, I look at what the law and guidance says and what further changes may be needed to really highlight and ensure that the duty is being addressed.
The law
The Care Act 2014 and the Health and Care Act 2022 state that community care and health services are under a duty to liaise and co-operate with each other.
The Care Act 2014 is engaged where a patient has ‘identified care needs’. Section 3 of the Care Act 2014 states:
(1) A local authority must exercise its functions under this Part with a view to ensuring the integration of care and support provision with health provision and health-related provision where it considers that this would—
(a) promote the well-being of adults in its area with needs for care and support and the well-being of carers in its area,
(b) contribute to the prevention or delay of the development by adults in its area of needs for care and support or the development by carers in its area of needs for support, or
(c) improve the quality of care and support for adults, and of support for carers, provided in its area (including the outcomes that are achieved from such provision).”
Section 6 of The Care Act
Section 6 of The Care Act 2014 requires local authorities to co-operate generally with other services.
Previously there was also a requirement under the Care Act 2014 which required local authorities to carry out long-term health and care needs assessments before discharge from hospital, which placed a clear onus on liaison between the two authorities.
However, this was repealed and replaced with the duty on NHS trusts to involve patients and carers in discharge planning.
In practice, this can mean that Care Act assessments aren't completed by the time the patient is living in the community. The duty to involve patients and carers in discharge planning is often interpreted by services as having a one-off conversation with carers rather than having their ongoing involvement. This can mean that carers are often given limited information about a patient’s care arrangements.
How can the NHS and councils work together?
In addition, statutory guidance is in place to provide support on how the NHS and local authorities can work together in relation to the planning for hospital discharge.
It contains 14 sections which focus on the main principles for the guidance, including "people should be supported to be discharged to the right place, at the right time, and with the right support that maximises their independence and lead to the best possible sustainable outcomes".
The collaborative working between the community care and health public authorities is vital here and particularly important during times where a patient is due to be discharged from hospital to a community care placement.
Updated guidance
More recently, the guidance has been updated to increase the duty to liaise between services and clarify the discharge process, which are welcome additions.
These are:
- The duty to co-operate: The guidance now outlines that NHS bodies and local authorities should agree the discharge models that best meet local needs and are effective and affordable within the budgets available to health and social care teams.
- Involving families and carers: The guidance now specifies that NHS bodies and local authorities should ensure that, where appropriate, unpaid carers and family members are involved in discharge decisions.
- Care transfer hubs: The guidance contains more specific information on good practice in use of care transfer hubs to manage discharges for people with complex needs.
- Pathway 0: Discharges home or to a usual place of residence with no new or additional health and/or social care needs.
Discharge to assess process
The guidance now also clarifies the discharge to assess process, further highlighting the need for discussions between NHS bodies and the local authorities.
Annex B sets out the four pathways under the discharge to assess model and clarifies the position for those who are ordinarily resident in a care home:
- Pathway 1: Discharges home or to a usual place of residence with new or additional health and/or social care needs.
- Pathway 2: Discharges to a community bed-based setting which has dedicated recovery support. New or additional health and/or social care and support is required in the short-term to help the person recover in a community bed-based setting before they're ready to either live independently at home or receive longer-term or ongoing care and support;
- Pathway 3: Discharges to a new residential or nursing home setting, for people who are considered likely to need long-term residential or nursing home care. Should be used only in exceptional circumstances.
However, it is noted that this guidance doesn't include reference to the use and application of the Mental Capacity Act 2005 when considering a patient’s discharge to the community. This is potentially unlawful because consideration of this statutory provision is essential in a patient’s best interests decision making process.
Summary
There is a clear duty on NHS bodies and local authorities to liaise with each other in relation to patients and individuals that they are involved with, and this is clearly enshrined in both legislation and guidance.
It is helpful to see the increasing emphasis being placed on the promotion of the liaison between public authorities too which highlights the importance of this collaboration.
If there is a lack of liaison between the services, then this guidance could be brought to their attention.
However, consideration of the points below should be more regularly considered by both NHS bodies and the local authority in their discussions, to ensure that the discharge process secures appropriate health or community care required by patients leaving a hospital setting:
- Whether a patient is assessed as lacking capacity to make decisions in certain domains and so falls under the Mental Capacity Act 2005 and/or the Deprivation of Liberty Safeguards system.
- Whether patients have physical care needs that need to be met by the relevant local authority and so fall within The Care Act 2014.
- Whether the patient has been detained under section 3 of the Mental Health Act 1983 and so is entitled to section 117 aftercare and/or which statutory body should be responsible for funding their care.
- Whether a patient’s care package in the community would involve family members and so whether a carer’s assessment is required under the Care Act 2014.
- Support tailored to an individuals’ specific needs and circumstances.
Both NHS bodies and local authorities should be aware of these systems but the liaison between the two should ensure that this is not missed. Further, it would help to have additional clarification within the current guidance on these particular points.
If you have a loved one going through a discharge process and you have concerns that their needs are not being supported then please do contact the relevant services involved in their care.
If this isn't addressed, then you may wish to contact their advocate or lawyers who specialise in community care law.
Elizabeth Ridley is a community care lawyer at Irwin Mitchell.
You can find out more about Irwin Mitchell's expertise in supporting patients and families affected by community care issues at its dedicated healthcare and social services section.
