Practical Law

This is the latest in our series of quarterly adult social care update blogs giving readers a snapshot of the most important cases, issues or developments in adult social care. This post looks at developments from May 2016 to August 2016. Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments that are covered or if you think we have missed something that should be brought to the attention of adult social care practitioners.

In this post we look at:

• Legislative developments.
• Recent case law.
• Government consultations.
• Government guidance and policy statements.
• Local Government Ombudsman decisions.

LEGISLATIVE DEVELOPMENTS

Regulation and Inspection of Social Care (Wales) Act 2016 (Commencement No 2) Order 2016

The Regulation and Inspection of Social Care (Wales) Act 2016 (Commencement No 2) Order 2016 was made on 5 July 2016 and brought into force from 11 July 2016 certain provisions of the Regulation and Inspection of Social Care (Wales) Act 2016.

Section 75(1) of the Act requires Social Care Wales (SCW) to comply with requirements in section 75(2) to consult before making any rules under the Act, publishing a code of practice setting standards of conduct expected of social care workers and their employers under section 112 of the Act, and publishing guidance for fitness to practise and interim orders panels under section 162 of the Act.

Article 2 of the order brings into force certain provisions of the Act but only for the purpose of enabling SCW to comply with its duty to consult in section 75(2). The provisions brought into force include:

• Section 67 (renaming the Care Council for Wales as Social Care Wales).
• Section 68 (SCW’s main objective in carrying out its functions).
• Section 75 (SCW’s duty to comply with certain consultation requirements before making rules).

RECENT CASE LAW

Patients transferred from Scotland were habitually resident in England for the purpose of the COP’s powers in relation to their care and residence under the MCA 2005 (DB and EC v Worcestershire County Council and others)

On 2 August 2016, the Court of Protection held that two patients (DB and EC) who were transferred from hospital in Scotland to a hospital unit in England had acquired habitual residence in England, and the court therefore had jurisdiction to make decisions about their care and residence. The court held that although the relevant test for establishing habitual residence is whether there is some degree of integration in a social and family environment in the country concerned, this was not a determinative factor. The court must assess habitual residence in the context of the circumstances of the individual concerned. The circumstances of DB and EC were such that neither was able to integrate into a family or social environment anywhere in a meaningful way, or establish friendships or other relationships beyond the confines of the hospital where they lived. However the duration of their stay in England and the fact that they had achieved a degree of integration at the hospital where they lived established that each had acquired habitual residence in England.

The decision highlights some of the complexities that can arise in the context of the care of patients who might be ordinarily resident in one jurisdiction for the purposes of local authority care and support, and habitually resident in another place in terms of the court’s ability to make decisions about their care and residence.

Local authority’s refusal to exercise power under section 1 of the Localism Act 2011 to provide accommodation for EEA national was unlawful (GS v London Borough of Camden)

On 27 July 2016, the High Court upheld a challenge that a local authority’s decision not to exercise its general power of competence under section 1 of the Localism Act 2011 (LA 2011) to provide accommodation to an EEA national with physical and mental health difficulties who was homeless was unlawful. It did so on the basis that:

• The local authority had conducted a lawful assessment of the claimant’s needs under the Care Act 2014 (CA 2014) and was right to conclude that she had no needs for care and support. The claimant’s requirement was for accommodation alone, which is not a need for care and support.
• Schedule 3 of the Nationality, Immigration and Asylum Act 2002, in particular paragraphs 1 (ka) and 5, applied to the claimant so that she was not eligible for certain forms of support from the local authority, or assistance under section 1 of the LA 2011 save to the extent that the exercise of the power was necessary for the purposes of avoiding a breach of her rights under the European Convention on Human Rights (ECHR).
• Taking into account the entirety of the claimant’s circumstances including her lack of funds, potential social isolation, physical disabilities, pain, mental health condition and her physical difficulties, there would be a breach of article 3 of the ECHR (prohibition against inhuman or degrading treatment or punishment) were she to become homeless. This converted the power in section 1 of the LA 2011 into a duty to provide accommodation in the claimant’s case to avoid a breach of her ECHR rights.

Although the claimant’s success on the ECHR grounds appear to have been fact specific, the decision may cause concern that it could lead to an increase in requests for support with accommodation using powers under section 1 of the LA 2011, particularly from persons from abroad.

Breach of guidelines on recall of mental health patient did not make detention unlawful (R (Lee-Hirons) v Secretary of State for Justice)

On 27 July 2016, the Supreme Court held that a restricted patient’s recall to hospital under the Mental Health Act 1983 (MHA 1983), was not unlawful even though the Secretary of State (SoS) had breached Department of Health guidelines by failing to provide a written explanation for it within 72 hours of the recall.

The appellant (L), who had been subject to hospital and restriction orders under sections 37 and 41 of the MHA 1983, was conditionally discharged from hospital to a care home. The subsequent warrant for his recall to hospital, issued on the SoS’s behalf, gave no reason for the recall, but L was told that it was because his mental health had deteriorated. He was taken to hospital and no further explanation was provided until 15 days later. L’s application for judicial review, and his later challenge in the Court of Appeal alleging the failure to give written reasons was unlawful and infected the legality of his detention, were both dismissed. L appealed to the Supreme Court.

Dismissing L’s appeal the Supreme Court held that:

• The explanation provided at the time of the recall complied with the guidelines and contained an accurate summary of the ground for recall. In that respect, there was no breach of L’s common law right.
• The breach of L’s right to be informed promptly of the reasons for his recall under article 5(2) of the ECHR, did not render his detention unlawful between the third and fifteenth day following his recall as there was no direct link between the lawfulness of the detention and the SoS’s failure to provide an adequate explanation for 12 days.

The case is of interest as the court acknowledged the impact that a strict application of the guidelines would have on other cases, bearing in mind, the need to detain restricted patients under the MHA 1983 in appropriate circumstances.

High Court holds local authority correct to suspend direct payment support service following allegations of fraudulent dealings (R (Collins) v Nottinghamshire County Council and another)

The High Court has held that Nottinghamshire County Council (N) was correct to suspend a direct payment support service’s (D) accreditation on its list of accredited suppliers following allegations of fraudulent dealings.

D acted as a direct payment support service for the three claimants (together, C) managing and maintaining their direct payments for social care services. In 2014, allegations were made about D’s financial practises relating to how it dealt with service users’ accounts. An investigation began and N subsequently informed D that it was suspended from being an accredited direct payment support service provider until further notice and that its service users would be transferred. C applied to judicially review this decision alleging various breaches of the Care Act 2014 (CA 2014) by N, breach of Article 8 rights under the ECHR and irrationality.

The High Court dismissed the application holding that:

• N had not failed to focus on the well-being of C contrary to section 1 of the CA 2014 (the general duty to promote individual well-being). N was faced with an exceptional situation and had promptly assembled a response team to transfer service users over to a new provider, this effectively complied with section 1.
• There had not been a breach of section 42 of the CA 2014 (which requires an authority to commence enquiries where it has reasonable cause to believe that an adult with care and support needs is experiencing or at risk of abuse (including financial abuse)). N had suspended D as part of its safeguarding duty during an ongoing criminal investigation where it was aware of facts that C was not.
• N had not acted contrary to the statutory guidance on the CA 2014 by only having a limited list of accredited providers and following its investigation moving C over to another listed provider, simply because of the exceptional circumstances involved.

Finally, the court stated that it could not be said that it was irrational for N to act as it did based on the evidence and the need to act expeditiously and this combined with its other findings meant that the ground based on Article 8 must also fail.

Court of Protection holds use of covert medication without consent must be closely scrutinised (AG v BMBC and others)

In a case dealing with the covert administering of medication, the Court of Protection concluded that proper consideration was not given to the covert use of medication that was provided to the applicant who was accommodated in a care home. Further, the court concluded that the covert use of medication was not subject to proper reviews or safeguards and the best interest decision-making process did not appear to have involved any family member or the relevant person’s representative. Although it was not an issue for the court to determine, it accepted that treatment without consent is:

• An interference with the right to respect for private life under Article 8 of the ECHR and such treatment has to be administered in accordance with proper safeguards against arbitrariness.
• Potentially a restriction contributing to the objective factors creating a deprivation of liberty (DOL) within the meaning of Article 5 of the ECHR.

What is apparent from this decision is that covert medication is a serious interference with a person’s autonomy and right to self-determination under Article 8 of the ECHR. It is also likely to be a contributory factor giving rise to the existing DOL and safeguards by way of review are essential. The guidance given by the court in the judgment is likely to be of assistance in the future on this complex issue.

Court of Protection holds that private care arrangements constitute a deprivation of liberty (Staffordshire County Council v SRK and another)

On 24 May 2016, the Court of Protection (COP) held that an individual’s regime of private care and treatment and support was an Article 5 deprivation of liberty that required its authorisation by the making of a welfare order.

The decision in this case, which will impose further obligations on local authorities, financial deputies and the court itself, was reluctantly reached by the judge hearing the case. He recognised that a further independent check by the COP will create a further unnecessary expense and divert private and public resources that could be better focused elsewhere. The decision is also likely to increase the number of applications to the COP for welfare orders authorising a deprivation of liberty in cases in which the accommodation and care is provided privately.

Upper Tribunal upholds decision of First-tier Tribunal that continuation of conditional discharge of patient was compatible with Article 8 (RP v Dudley and Walsall Mental Health Partnership NHS Trust and the Secretary of State for Justice)

On 26 April 2016, the Upper Tribunal upheld a decision of the First-tier Tribunal that the continuation of the conditional discharge of a patient was compatible with Article 8 of the ECHR. A patient with a diagnosis of paranoid schizophrenia (RP) had been made the subject of hospital and restriction orders under the MHA 1983 following conviction for offences of violence. Following his conditional discharge, the First-tier Tribunal decided that the conditional discharge should continue and confirmed the existing conditions.

RP appealed to the Upper Tribunal (Administrative Appeals Chamber) arguing that the First-tier Tribunal had failed to comply with his rights under Article 8 of the European Convention on Human Rights (right to respect for private and family life).

The Upper Tribunal held that the First-tier Tribunal had not violated RP’s rights under Article 8 for the following reasons:

• The conditions imposed by the First-tier tribunal were the same as those that were already in force and it was entitled to expect that the patient’s representative would draw its attention to any part of those conditions that might involve a violation of Article 8. This had not been done.
• The tribunal was entitled to be concerned about the risk of relapse and to conclude, from the evidence before it, that the conditions were reasonable. Further, it had adequately explained why it considered an absolute discharge was premature. The tribunal’s reasons demonstrated that the decision it made did not involve any violation of RP’s rights under Article 8.

The case is of interest because of the explanation of the key issues to be addressed by tribunals when considering submissions in relation to alleged Article 8 breaches.

GOVERNMENT CONSULTATIONS

Welsh Government consults on statutory guidance and draft regulations in relation to area plans under section 14A of the Social Services and Well-Being (Wales) Act 2014

On 11 July 2016, the Welsh Government published a consultation on two sets of regulations, the Partnership Arrangements (Amendment) (Wales) Regulations 2016 and the Care and Support (Area Planning) (Wales) Regulations 2016, and statutory guidance on the area plans that are required under section 14A of the Social Services and Well-being Wales Act 2014.

The consultation invites comments on:

• The Partnership Arrangements (Amendment) (Wales) Regulations 2016 (2016 partnership regulations).
• The Care and Support (Area Planning) (Wales) Regulations 2016 (2016 area planning regulations).
• Statutory guidance in support of the 2016 partnership regulations and 2016 area planning regulations.

Consultation published on phase one implementation of the Regulation and Inspection of Social Care (Wales) Act 2016

On 28 June 2016, the Welsh Government published a consultation seeking views on regulations drafted to implement the new system of workforce regulation under the Regulation and Inspection of Social Care (Wales) Act 2016.

The Act provides the statutory framework for the regulation and inspection of social care services and the social care workforce. Regulations under the Act are being developed in two overlapping phases.

The consultation invites views on the first phase which includes:

• Regulations required to achieve a new system of workforce regulation. This includes draft regulations setting out the requirements for registration as a service provider, variation of registration, service provider annual returns, and information to be included in notifications to local authorities. It also includes regulations relating to the requirements for annual reports by directors of social services.
• The proposed definition of advocacy services for the purposes of paragraph 7 of schedule 1 to the Act.

The consultation closes on 20 September 2016 and responses can be submitted online at R&ISCAct2016@wales.gsi.gov.uk.

GOVERNMENT GUIDANCE AND POLICY STATEMENTS

House of Commons Library briefing paper on the integration of health and social care published

On 2 August 2016, the House of Commons Library published a briefing paper on the integration of health and social care in the UK.

Integration of health and social care services aims to put the needs of people at the centre of how services are organised and delivered.

The briefing paper addresses issues surrounding integration, and includes:

• A definition of what integration is.
• Policies to enable integration and examples of integration in England.
• Analysis of the challenges of achieving integrated services, and the difficulty of assessing the effectiveness of differing approaches.

House of Commons Library briefing paper on paying for care home places and domiciliary care in England published

On 27 July 2016, the House of Commons Library published a briefing paper setting out the means-test that applies to care home residents and those in other settings (such as care at home) in need of social care in England.

The Care and Support Statutory Guidance sets out guidance on the new rules for means testing and personal budgets applying to those who either reside in a care home, or receive domiciliary care, and are in need of care and support from their local authority. The guidance came into effect in April 2015, and was updated and amended in March 2016.

The briefing paper discusses:

• Personal budgets.
• The previous approach to means testing before April 2015 and provides a full summary of the present means-test.
• Alternative ways to fund care.

House of Commons Committee of Public Accounts makes recommendations to improve outcomes for recipients of social care personal budgets

On 8 June 2016, the House of Commons Committee of Public Accounts published a report on personal budgets in social care.

The Care Act 2014 requires local authorities to give all eligible individuals a personal budget, embedding personalisation of care services into the legal framework for adult social care. The committee observed that when they are implemented well, personal budgets give individuals more choice and control over the care they receive and the opportunity to achieve the outcomes they want from their care. However, it expressed concern that financial constraints could prevent local authorities from fully implementing personalised care. The committee also warned that the fragility of the care market was putting people at risk.

The committee recommended that the Department of Health should:

• Ensure that it publishes good practice for local authorities and providers showing what high quality and proportionate support looks like, how much it costs and how it meets the diverse needs of users.
• Address existing barriers to implementing personal health budgets and integrated health and social care budgets by establishing a robust regime to monitor their effectiveness as they are rolled out, applying relevant lessons that have been learned from the implementation of adult social care personal budgets.
• In conjunction with the Department for Communities and Local Government, write to the committee explaining how housing policy supports people with care needs and how both departments will monitor local authorities’ progress with making housing and care work together.

Law Commission publishes interim statement on reforming the deprivation of liberty safeguards

On 25 May 2016, the Law Commission published an interim statement setting out its initial conclusion on the consultation that it launched in July 2015 inviting feedback on a comprehensive scheme of protective care to replace the deprivation of liberty safeguards (DoLS).

The Commission’s statement confirms that, following the four-month consultation, its initial conclusion is that the problems with the DoLS can be resolved only by wholly replacing the DoLS and reform of the law. The aim of the DoLS was to provide a process for ensuring that individuals in hospitals or care homes who lack capacity to consent to their care are deprived of their liberty only if it is in their best interests. However, the system which has been described as “deeply flawed” is placing increasing burdens on local authorities and health and social care practitioners.

LOCAL GOVERNMENT OMBUDSMAN DECISIONS

LGO issues first joint investigation report into private care home and local authority’s subsequent safeguarding investigation following allegations of neglect  

On 30 June 2016, the Local Government Ombudsman (LGO) issued its first joint investigation report into a private care home provider and a local authority’s subsequent safeguarding investigation following allegations of neglect.

The complainant’s wife, who suffered from advanced dementia and had problems with swallowing, had stayed in a private care home for a week on a privately funded basis. When he returned to collect her, he found her severely dehydrated and suffering from oral thrush. She was hospitalised for three weeks following her stay and passed away a week after being discharged from hospital.

The hospital had made a safeguarding referral to Oxfordshire County Council and the care home also conducted an investigation but found no issues with the complainant’s wife’s care. The council conducted its own investigation, but failed to involve the complainant, to conduct a strategy meeting, or to chase up delays with receiving a report from the care home provider. In addition, the council also appeared to have accepted the provider’s version of events closing the initial assessment but still reaching a finding of partial neglect (it was not clear whether this finding was relayed to other departments of the council, the provider or to the Care Quality Commission).

The LGO found that there had been fault causing injustice and that:

• The council had failed to act in according with both its own policy and the Department of Health statutory guidance on safeguarding.
• The provider had administered a poor standard of care and failed to complete records relating to the complainant’s wife satisfactorily. In addition, it had dealt poorly with the complainant’s complaint.
• The council should pay the complainant £250 for the time and trouble associated with pursuing the complaint and £500 for the distress caused. Further, the care provider should provide a full written apology to the complainant and waive the fee for his wife’s stay at the care home.