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 2017 to July 2017. 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:
- Recent case law.
- Guidance and policy statements.
- House of Commons Library briefing papers.
RECENT CASE LAW
First-tier Tribunal and Mental Health Review Tribunal for Wales have no jurisdiction to impose discharge conditions amounting to a deprivation of liberty of restricted patients or amend community treatment orders (Court of Appeal) (Secretary of State for Justice v MM, Welsh Ministers v PJ)
The Court of Appeal (CoA) has upheld two appeals, heard jointly, of decisions of the Upper Tribunal (UT) concerning the application and discharge of restriction orders (MM) and community treatment orders (CTO) (PJ) under the Mental Health Act 1983. The UT’s judgments related, respectively, to earlier decisions of the First-tier Tribunal (FTT) and the Mental Health Review Tribunal for Wales (MHRTW).
In allowing both appeals, the CoA held that:
- The FTT did not have the power to impose conditions for discharge of restricted patients that would objectively amount to a deprivation of liberty (DOL).
- If the FTT or MHRTW was satisfied that a patient validly consented to supervision in the community and that this would protect both the patient and the public then it was open to the tribunal to grant an absolute discharge or a conditional discharge provided the conditions did not amount to an objective DOL.
- Any power to issue a CTO that has the effect of a DOL on a patient with capacity lies solely with the responsible clinician. Such a condition must, however, constitute the “lesser restriction of movement than detention in hospital”. The MHRTW did not have the power to discharge or amend a CTO, even where this infringed Article 5 of the European Convention on Human Rights.
In restricting the scope of the tribunals’ powers, the judgment is of particular relevance to authorities and clinicians involved in the conditional discharge of a patient from hospital and poses potential difficulties in cases where a patient is mentally unwell but not necessarily mentally incapacitated.
High Court quashes council’s needs assessment and decision terminating claimant’s residential placement (R (JF) v Merton LBC)
The High Court has quashed a needs assessment carried out by Merton Borough Council (council), ruling that it was unlawful as the council had failed to consider and promote the claimant’s well-being under section 1 of the Care Act 2014 (CA 2014), or to comply with the requirements for conducting needs assessments under section 9 of the CA 2014, and the Care and Support (Assessment) Regulations 2014 (SI 2014/2827).
The case will be of interest to adult social care practitioners as it is still one of the few decisions to examine the application of the well-being principle and assessment provisions under the CA 2014.
Councils’ claim against SoS for failure to adequately fund deprivation of liberty regime dismissed (High Court) (Liverpool City Council and others v Secretary of State for Health)
The High Court has dismissed a claim brought by four English local authorities, challenging the government’s alleged failure to provide local authorities with additional funding to implement the deprivation of liberty (DOL) regime under the Mental Capacity Act 2005.
The claimants argued that the government was under an obligation to provide adequate funding to local authorities to meet the increased costs of implementing the regime, following the Supreme Court’s decision in P v Cheshire West and Chester Council and P and Q v Surrey County council  UKSC 19 (Cheshire West), see Legal update, People without capacity cared for in domestic settings were deprived of their liberty (Supreme Court).
The court rejected the argument that the Secretary of State’s failure to fund the costs of the DOL regime created an unacceptable risk of illegality, as none of the claimants had established that they were unable to meet the costs of complying with their duties under the regime.
The court also found that the case had not been brought promptly, as required by CPR 54.5, see Practice note, Judicial review procedure: a practical guide: Timing. The grounds for making the claim arose on the date that the Local Government Finance Settlement for 2016 – 17 was published, but the claim had been filed two days short of the three month period from that date. The court observed that the claim was a challenge to a budgetary decision of central government and therefore had to be brought very promptly indeed, since it potentially threatened the budgetary arrangements of the government for an entire year.
The case is of particular interest to local authorities, given the significant funding pressures facing the adult social care system (see Legal update, House of Commons Communities and Local Government Committee publishes final report on adult social care). The court’s findings in relation to the timeliness of the application and the claimants’ compliance with CPR 54.5 will be of wider interest to legal practitioners dealing with judicial review claims.
GUIDANCE AND POLICY STATEMENTS
CQC report on the state of adult social care services 2014-2017 published
On 6 July 2017, the Care Quality Commission (CQC) published a report with the findings from its comprehensive programme of adult social care inspections.
Since the introduction of its new regulatory regime for adult social care in October 2014, the CQC has carried out over 33,000 inspections of approximately 24,000 different services, including residential homes, nursing homes, domiciliary care services, shared lives schemes and supported living services. The CQC found that while the majority of adult social care services are of a high quality and many are improving, too many people across England are receiving domiciliary care services and care in care homes that is not good enough.
NAO publishes findings of investigation into NHS continuing healthcare funding
On 5 July 2017, the National Audit Office (NAO) published a report setting out the findings of its investigation into NHS continuing healthcare (NHS CHC) funding.
The investigation was announced by the NAO in May 2017 and examined the facts relating to NHS CHC and access to NHS CHC funding.
Department of Health care and support statutory guidance updated
On 28 June 2017, the Department of Health updated the Care and Support statutory guidance.
Paragraph 33 of Annex B (treatment of capital) and paragraph 29 of Annex C (treatment of income) to the guidance have both been updated to include additions to the list of capital assets and other income that must be disregarded. The figures in paragraph 33 of Annex C dealing with the treatment of income for individuals and couples have also been updated.
Welsh Government publishes consultation on workforce aspects of phase 2 implementation of the Regulation and Inspection of Social Care (Wales) Act 2016
On 12 June 2017, the Welsh Government published a consultation seeking views on the workforce aspects within phase 2 of implementing the Regulation and Inspection of Social Care (Wales) Act 2016.
Phase 2 implementation includes regulations and statutory guidance on the requirements and standards expected of service providers and responsible individuals in domiciliary and adult residential care that are currently out to consultation. It also includes the workforce related draft regulations and proposals.
LGA publishes paper on how to make best use of resources in adult social care
The Local Government Association has published a paper for local authorities on how to make the best use of scarce resources in adult social care. Given that adult social care tends to account for the largest proportion of councils’ controllable expenditure (in 2014/15 the national average was around 35%), lead members for adult social care are having to re-think how their authorities’ scarce resources are used to benefit the most vulnerable members of their communities.
HOUSE OF COMMONS LIBRARY BRIEFING PAPERS
The House of Commons Library has published the following briefing papers:
- The structure of the NHS in England.
- Delayed transfers of care in the NHS.
- Adult Social Care Funding (England).