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 September 2016 to December 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:

• New legislation.
• Other legislative developments.
• Recent case law.
• Guidance and policy statements.
• Local Government Ombudsman decisions.

NEW LEGISLATION

Social Care Wales (Content of Register) Regulations 2016: content of register

The Social Care Wales (Content of Register) Regulations 2016 (SI 2016/1097) specify the information that must be included on the register established under section 80(1) of the Regulation and Inspection of Social Care (Wales) Act 2016 (RISCWA 2016) of social workers, certain social care workers and visiting social workers from relevant European states.

Social Care Wales (List of Persons Removed from the Register) Regulations 2016: list of persons removed from register

The Social Care Wales (List of Persons Removed from the Register) Regulations 2016 (SI 2016/1111) make provision about the content of the list of persons who have been removed from the register and for publication of the list.

Social Care Wales (Proceedings before Panels) Regulations 2016

The Social Care Wales (Proceedings before Panels) Regulations 2016 (SI 2016/1100) make rules to establish registration appeals panels, fitness to practise panels, and interim orders panels for the purposes of section 174(1) of the RISCWA 2016. These regulations also make provision about proceedings before each of the panels.

Social Care Wales (Constitution of Panels: Prescribed Persons) Regulations 2016

The Social Care Wales (Constitution of Panels: Prescribed Persons) Regulations 2016 (SI 2016/1099) are made under section 174(5)(b) of  the RISCWA 2016, which gives Welsh Ministers the power to prescribe the persons (who in addition to the persons listed in section 174(5)(a) of the Act, may not be members of registration appeals, fitness to practice and interim orders panels).

All four sets of regulations were made on 15 November 2016 and will come into force on 3 April 2017.

Health and Social Care (Safety and Quality) Act 2015 Commencement No 2 Regulations 2016

The Health and Social Care (Safety and Quality) Act 2015 (Commencement No 2) Regulations 2016 (SI 2016/906) were made on 9 September 2016 and bring into force parts of the Health and Social Care (Safety and Quality) Act 2015 (2015 Act).

The regulations brought into force on 26 September 2016:

• Section 5 of the 2015 Act which makes amendments to section 25 of the National Health Service Reform and Health Care Professions Act 2002 (2002 Act), which sets out objectives in relation to the regulation of health and social care professionals. Section 5 of the 2015 Act substitutes a new over-arching objective, namely the protection of the public, for the existing objective of the Professional Standards Authority for Health and Social Care (PSA) set out in section 25 (2A) of the 2002 Act.
• The Schedule to the 2015 Act, which sets out provisions concerning the objectives of regulatory bodies in relation to which the PSA exercises functions.

OTHER LEGISLATIVE DEVELOPMENTS

Law Commission to publish report with recommendations on mental capacity and deprivation of liberty (together with a draft Bill) in March 2017

The Law Commission has confirmed that, following the closure of the consultation that it launched on 7 July 2015 on the law on mental capacity and the deprivation of liberty safeguards (DOLS), it is working on a final report with its recommendations. The Commission anticipates that its final report and recommendations and a draft Bill will be published in March 2017.

RECENT CASE LAW

COP holds that clinically assisted nutrition and hydration of individual in a minimally conscious state should be withdrawn (Briggs v Briggs and others)

On 20 December 2016, the Court of Protection (COP) held that clinically assisted nutrition and hydration (CANH) of the respondent (Mr Briggs) who was in a minimally conscious state should be withdrawn. On the totality of the family evidence, Charles J was convinced that if Mr Briggs had heard the evidence and argument that the court had, he would have decided not to consent to the continuation of his CANH treatment and that therefore the court was doing what Mr Briggs would have wanted, and done for himself in what he thought was his own best interests.

In reaching the decision that he did, it was clear that Charles J was convinced by the evidence given by family, friends and colleagues that Mr Briggs would not have given consent to his treatment by CANH. It has been suggested that the decision will be appealed.

COP holds that patient regained capacity to decide about residence and care (A local authority and X (No 2 Declaration that X has capacity))

On 21 November 2016, the COP made a declaration pursuant to section 15(1) of the Mental Capacity Act 2005 (MCA 2005), that the patient (X) a tetraplegic, had capacity to make decisions regarding his residence and care, after hearing that the two consultant psychiatrists, who had previously advised the court that X lacked the requisite capacity, had changed their opinions.

The COP accepted the submission of the Official Solicitor that when there was clear evidence from two consultant psychiatrists, who formerly considered that X lacked capacity but had now changed their opinion, the court had to be cautious about leaving the proceedings in being. The basis for the proceedings was the earlier interim orders that the patient lacked capacity, and those orders subsisted on the basis of the earlier opinions of both psychiatrists. As their opinions as to X’s capacity had changed, the court could not leave those interim declarations in place.

NHS Trust granted possession of room occupied by patient in hospital care unit (High Court) (Sussex Community NHS Foundation Trust v Price)

On 7 October 2016, the High Court granted an NHS trust’s (trust) application for possession of a bedroom occupied by a patient in a hospital care unit.

The patient (P) had suffered a broken femur and was admitted to the rehabilitation facility in a hospital care unit in August 2015, following a number of operations on her knee. However she no longer had any need to take up a bedroom in the unit. She was assessed as having the same mobility level as before the surgery, and as being able to live at home with help from social services. She had not required a nurse since November 2015 and had declined all therapy.

The High Court held that:

• The trust had clearly established the right to possession of the bedroom occupied by P. It had attempted to engage with P but she had refused to communicate with the trust or the local authority, or to provide them with relevant information about her circumstances which might have enabled other care arrangements to be made.
• The trust had an overwhelming case and P had not put forward any defence. On the medical evidence there was no reason why she could not return home.

The case confirms that in appropriate circumstances, hospitals and care or nursing homes can obtain possession of accommodation provided to a patient or resident.

No power under inherent jurisdiction to attach power of arrest to non-molestation injunction protecting a vulnerable adult (Re FD (Inherent Jurisdiction: Power of Arrest))

On 28 September 2016, the High Court held that it had no jurisdiction to attach a power of arrest to a non-molestation injunction that it had granted under its inherent jurisdiction in respect of a vulnerable adult who had capacity. In doing so, the court followed the Court of Appeal decision in Re G (Wardship) jurisdiction: Power of Arrest) [1983] 4 FLR 538 which held that the High Court had no power to attach a power of arrest to an injunction in wardship proceedings. The High Court in FD concluded that the position was exactly the same when the court used its inherent jurisdiction to protect vulnerable adults.

The case provides helpful clarification on the extent of the High Court’s powers when it is exercising its inherent jurisdiction.

Powers under guardianship still necessary where patient subject to deprivation of liberty standard authorisation (Upper Tribunal)  (GW v Gloucestershire County Council)

On 22 September 2016, the Upper Tribunal (UT) upheld a decision of the First -tier Tribunal (FTT) which refused to discharge a patient (GW) from guardianship under the Mental Health Act 1983 (MHA 1983), in circumstances where she was also subject to a standard authorisation under the DOLS in the Mental Capacity Act 2005 (MCA 2005).

The grounds of appeal on behalf of GW were that the FTT failed to:

• Make findings demonstrating that the powers of guardianship were still necessary.
• Take into account matters that ran counter to its findings, including the appropriateness of guardianship running alongside the standard authorisation.
• Follow the guidance of Charles J in KD v A Borough Council and the Department of Health [2015] UKUT 251 (AAC).

The UT rejected the appeal noting that the FTT had considered the importance of having power under section 18 of the MHA 1983 to ensure GW could be returned to her accommodation if she left and refused to go back, which would be difficult to achieve under the MCA 2005. The FTT had also referred to powers under guardianship being necessary to ensure GW’s treatment and access to the medical team.

The UT observed that the guidance in KD was relevant, but that it was not legislation and should not be elevated to that status. What mattered was the substance of the FTT’s reasoning, rather than whether its reasons followed a particular format.

The case is a useful illustration of the circumstances when guardianship may still be necessary if a DOLS authorisation is also in place.

Litigation friend to decide whether a patient should attend court and participate in proceedings (A County Council v AB)

On 31 May 2016, the COP held that a litigation friend (LF) can decide whether the subject of court of protection proceedings who lacks capacity, should attend a hearing and participate in the proceedings.

The court considered the provisions in the Court of Protection Rules 2007 (COPR 2007) dealing with the role of the litigation friend and the participation of the patient in COP proceedings and found that:

• As a matter of principle and having regard to the COPR 2007, a LF has a wide breadth of discretion as to the conduct of litigation and that the court should only intervene in very difficult situations or cases. Therefore, as part of the conduct of that litigation, the LF can secure the attendance of the patient at court and can tender the patient to give evidence in the proceedings.
• Rule 90 of the COPR establishes the patient’s entitlement to attend proceedings. Even if there was a general case management power to exclude the patient, which was doubtful, it should not be exercised lightly in view of the LF’s role, particularly if that is contrary to the LF’s view.
• To exclude a patient and prevent their participation other than at a relatively low-level meeting with the judge is a serious step and contrary to the spirit of the Mental Capacity Act 2005.

The case provides helpful guidance on both the role of the LF and a patient’s rights, and that includes a patient who lacks capacity to make relevant decisions, to attend court and give evidence.

GUIDANCE AND POLICY STATEMENTS

Department of Health publishes government response to Health Select Committee report on the impact of the spending review on health and social care

On 16 December 2016, the Department of Health published its response to the House of Commons Health Select Committee Report into the Impact of the Spending Review on Health and Social Care (First Report of Session 2016-17).

The Health Select Committee’s report, published on 19 July 2016, expressed significant concerns about the impact of spending cuts on health and social care services, and the ability of the government to meet its Five Year Forward View. The DH states that the challenges facing the NHS, as identified by the Select Committee, will be met by extra investment and financial discipline. The DH has responded, in particular, to the following concerns highlighted by the Health Select Committee:

• Payments to providers.
• The impact of pressures in social care funding on health.
• Health education funding.

The DH states that the devolution of functions to local authorities, acting with Directors of Public Health, will continue to increase the opportunities available to them.

House of Commons Library briefing paper on social care funding and the care home market in England published

On 14 December 2016, the House of Commons Library published a briefing paper considering the current state of the market for residential care and discussing funding for social care in England.

The paper provides background on the residential care market, including its domination by the private sector and the increasing trend for care home providers to seek cross-subsidisation of local authority residents’ fees from self-funded tenants due to local authority budgetary pressures. The paper also includes an analysis of the November 2015 Spending Review and the introduction of the “Better Care Fund”, and the lack of additional funding for social care in the 2016 Autumn Statement, despite calls from a range of organisations for more funding amidst concerns about the long-term sustainability of the market.

Department of Health publishes update to Care Act 2014 statutory guidance on determining ordinary residence

On 9 December 2016, the Department of Health (DH) published a note providing an update on the department’s change in approach to determining ordinary residence disputes referred to the Secretary of State under section 40 of the Care Act 2014. Following the decision of the Supreme Court in R (Cornwall Council) v Secretary of State for Health and R (Cornwall Council) v Somerset County Council [2015] UKSC 46 (see Legal update, Ordinary residence under Care Act 2014: Supreme Court judgment in Cornwall and note on DH position published), the department has considered the policy implications of the judgment and has published guidance on its change of approach to determining ordinary residence disputes between local authorities in relation to:

• Adults who lack capacity to decide where to live.
• Looked after children transitioning to certain adult social care and other accommodation.

Department of Health guidance on adult social care market shaping published

On 11 November 2016, the Department of Health published new guidance on adult social care market shaping.

Section 5 of the Care Act 2014 (CA 2014) introduced a new duty on local authorities to facilitate and promote a diverse and high quality market of care and support services for all people in their local area (otherwise referred to as “market shaping”). Section 5(2) lists certain factors that a local authority must consider when it is exercising this duty. These include the importance of ensuring the sustainability of the care market, supporting continuous improvement in the quality of services, and facilitating the local market by maintaining awareness of the current and future demand for care and support services in the local authority’s area.

The guidance is aimed at local authorities, clinical commissioning groups, residential and nursing care providers, personal budget holders and self-funders. It provides an overview of:

• The legislation and statutory guidance on market development in adult social care.
• Adult social care market shaping, including how responsive and sustainable markets can be developed and supported.
• The market oversight regime set out in sections 53 to 57 of the CA 2014, which deals with the procedures for identifying those care providers who are most difficult to replace, and are therefore subject to financial oversight by the Care Quality Commission.

Department of Health updates Care Act 2014 statutory guidance to local authorities

On 27 October 2016, the Department of Health (DH) updated its Care and support statutory guidance to local authorities in respect of their duties and powers under the Care Act 2014 (CA 2014). The statutory guidance is intended to support implementation of part 1 of the CA 2014 by local authorities. The current edition, which this update amends, was first published in March 2016.

The DH’s update clarifies and corrects parts of the statutory guidance, and includes the following more substantive amendments:

• More prescriptive guidance in respect of local authorities’ powers to delegate functions when acting in partnership arrangements with NHS bodies. The guidance now clarifies when local authorities’ functions cannot be the subject of partnership arrangements either at all or only where there are also partnership arrangements in place to meet needs under sections 18 and 19 of the CA 2014 (amendment to paragraph 6.128).
• An increase in the prescribed interest rates local authorities are permitted to charge for deferred payment agreements, from the market gilts rate to the market gilts rate plus a 0.15% default component, and guidance that local authorities ensure any changes in this respect are reflected in extant agreements (amendment to paragraph 9.67).

House of Commons Library briefing paper on carers published

On 25 November 2016, the House of Commons Library published a briefing paper providing information about the number of carers in the UK and the issues the profession faces. The paper also explains the rights, benefits and support available to carers and government policy on caring.

The paper discusses employment conditions for carers, earnings and income, and poverty levels amongst carers. Benefits for carers are listed, and statistics provided on Carer’s Allowance recipients. The paper also examines:

• Care and support in schools.
• The health and wellbeing of carers.
• Local authority assessments for carers

COP: New guidance published on facilitating the participation of P and vulnerable persons in Court of Protection proceedings

On 14 November 2016, the Vice-President of the Court of Protection, Mr Justice Charles, issued practical guidance on facilitating the participation of the person who lacks capacity (P) and vulnerable persons in COP proceedings.

The guidance is primarily directed towards health and welfare cases but will also be of assistance in property and affairs cases. The guidance is not prescriptive and is not a required checklist of all issues for consideration in all cases. Rather it is a list of suggestions for consideration by those representing P as well as other parties in COP proceedings, as to how P’s participation in proceedings might be enhanced.

The Welsh Government (WG) has a published a revised code of practice for Wales on the Mental Health Act 1983

Section 118 of the Act requires the Secretary of State to prepare and from time to time revise a code of practice. The revised code reflects views received on the WG’s consultation on the previous code and takes account of the changes to legislation since the previous code was written in 2008, including the Mental Health (Wales) Measure 2010 (which aims to improve mental health provision in Wales) and the Deprivation of Liberty Safeguards.

The revised code came into force on 3 October 2016.

Follow-up to PHSO report on unsafe discharge from hospital published

On 28 September 2016, the Public Administration and Constitutional Affairs Committee of the House of Commons published a follow-up to the report published by the Parliamentary and Health Service Ombudsman on unsafe discharge from hospital.

Its conclusions and recommendations include the following:

• The Secretary of State for Health (SoS) and the NHS, as part of the government response, must set out how they will improve understanding of the scale of early discharge and its impact in terms of unplanned readmission. Further, the SoS must explain how he intends to ensure that only those who want to be are discharged between 11pm and 6am and what steps will be taken to promote improved communication with relatives and carers by hospital staff.
• The NHS must support local areas to achieve the best models of integration between health and social care, co-ordinated around the patient’s needs. The committee considers that the historic split between health and social care, which means independent services are being managed and funded separately, to be political maladministration. Although the government has plans to tackle this structural disconnect from the Discharge Programme Board to the Better Care Fund, these are far from implemented and suitable funding arrangements must be made so the proposals may be effectively delivered.

NHS England publishes managing care home closures good practice guide

On 26 July 2016, NHS England published a good practice guide on managing care home closures.

The guide is aimed at all organisations involved in planning and carrying out care home closures, including local authorities, clinical commissioning groups, the Care Quality Commission, care providers, NHS England and voluntary and third sector organisations.

The guide is intended to ensure that where temporary or permanent care home closures arise, there is a joined-up and effective response from all partners involved to minimise as much as possible the impact on the people using services, their families, carers and advocates.

LOCAL GOVERNMENT OMBUDSMAN DECISIONS

LGO publishes 2015-16 Annual Review of Social Care Complaints

On 10 November 2016, the Local Government Ombudsman (LGO) published its Annual Review of Social Care Complaints 2015-16. The report shows that the LGO has seen a 25% rise in the number of complaints about home care for vulnerable adults in England. Complaints included care workers being late for or missing appointments, not staying long enough and not fulfilling their duties.

Of the complaints the LGO investigated in detail, 65% were upheld, 7% higher than for Adult Social Care complaints in total. The data also reveals those people receiving care in their own home are less likely to be supported by a representative when making a complaint than those living in residential care.

The report also contains data covering other areas of complaint, including:

• A 21% increase in complaints and enquiries about self-funded care.
• A 19% increase in the number of independent providers about whom the LGO has received a complaint.
• A rate of 70% of detailed investigations being upheld about care planning, the area with the highest percentage of upheld complaints.

LGO upholds complaint over delay in provision of suitable care home and failure to provide speech and language therapy

On 16 August 2016 the Local Government Ombudsman (LGO) published a report into a complaint by a parent (D) on behalf of her son (B), against Herefordshire Council (council), regarding the Council’s failure to move B to a care home suitable for his needs and provide speech and language therapy. The LGO, in the course of its investigation, found that the council had not been sufficiently pro-active in its attempts to secure suitable accommodation for B, and had failed to provide adequate support and communication to D regarding the delay in the process. The council also failed to ensure the compliance of B’s original care home with the agreed speech and language therapy plan.

The LGO concluded that these faults had caused injustice to B, and agreed with the council that:

• An apology should be issued to both D and B.
• Compensation of £2000 will be paid to B, and £500 to D.
• Improved training for social workers will be provided on the importance of keeping accurate case notes.