In his speech to the Association of Directors of Social Services (ADASS) on 9 May 2017, the President of the Family Division of the High Court, Sir James Munby called upon social workers to end the practice of separating elderly couples against their wishes when one or both of them move to care home accommodation, describing the practice as “simple inhumanity” (The Times, Wednesday 10 May 2017). His remarks have been followed by calls from care providers for new rules to prohibit elderly couples from being separated and placed in different care or nursing homes against their wishes.
Concerns about the risks of certain care options over others, and the constraints on adult social care budgets are two factors that are likely to affect local authorities’ decisions in these circumstances. In this post we highlight how the legal framework facilitates decisions that enable people to exercise choice and control over their care options, and some of the barriers to the delivery of more person-centred care and support.
Personalisation, choice and control
Part 1 of the Care Act 2014 (CA 2014) (and in Wales, the Social Services (Well-being) Wales Act 2014) sets out local authorities’ responsibilities in relation to adult care and support, see Practice note, Care Act 2014: an introduction. The legislation is based on concepts and principles that are intended to ensure that people have genuine choice and control of the care that they receive. They include the assumption that people should live in their own homes rather than institutionalised care, that people should receive dignity in care, and that local authorities (and their partners) safeguard people at risk of abuse and neglect.
Personalisation and the concept of meeting needs involve recognising that everyone’s needs are different and personal to them. Local authorities must therefore consider how to meet each person’s specific needs rather than simply considering what service they will fit into.
The duty to promote well-being
The “well-being principle” in section 1(1) of the CA 2014 establishes the overarching principle that local authorities must promote the well-being of the adult when it is exercising a function under Part 1 of the Act in relation to that adult. The duty applies to adults who use services, and to carers. Well-being is not defined in the legislation, but section 1(2) sets out a list outcomes or areas of activity that develop the concept of well-being:
- Personal dignity (including treatment of the individual with respect).
- Physical and mental health and emotional well-being.
- Protection from abuse and neglect.
- Control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided).
- Participation in work, education, training or recreation.
- Social and economic well-being.
- Domestic, family and personal relationships.
- Suitability of living accommodation.
- The individual’s contribution to society.
In R (Davey) v Oxfordshire County Council  EWHC 354 (Admin), the court confirmed that sections 1(1) and (2) of the CA 2014 imposed a distinct duty on a local authority, in each individual case, to promote the individual’s well-being, including their physical and mental health and emotional well-being, see Legal update, Council’s decision to reduce personal care package of severely disabled adult not unlawful (High Court) (full update). The concept of meeting needs recognises that modern care and support can be provided in any number of ways, with new models emerging all the time. Section 5 of the CA 2014 imposes a duty on local authorities to promote quality and diversity in the provision of services; there is a clear shift away from the previous statutory framework which focussed on traditional models of residential and domiciliary care.
For detailed guidance on the well-being duty, see chapter 1 of the Care and support statutory guidance (CA 2014 statutory guidance).
Assessment, eligibility and care planning decisions
The needs assessment is the legal mechanism for identifying a person’s needs for care and support. The CA 2014 specifies certain legal requirements for local authorities that are carrying out needs’ and carers’ assessments. For more information about assessing needs for care and support, see Practice note, Care Act 2014: assessing needs for care and support.
The process of determining whether a person has eligible needs (needs that the local authority is required to meet), involves identifying whether a person is unable to achieve the outcomes specified in regulation 2(2) of the Care and Support (Eligibility Criteria) Regulations (2015) (SI 2015/313) and whether as a consequence of being unable to achieve these outcomes there is, or is likely to be a significant impact on their well-being, see Practice note, Care Act 2014: eligibility criteria. Section 25(5) of the CA 2014 is of particular relevance here, as it imposes a duty on local authorities to take all reasonable steps to reach agreement with the adult or carer about how the authority should meet the needs in question.
Ultimately the final decision about how needs will be met rests with the local authority. If the care and support plan cannot be agreed with the adult or carer to whom it relates, the local authority should state the reasons for this and the steps that must be taken to ensure that the plan is signed-off. If the local authority considers that it has taken all reasonable steps to address the situation, but the plan is still not agreed, it should refer the person to the local complaints procedure. For more information about care and support planning, see Practice note, Care Act 2014: care and support, and support plans.
Making care and support decisions for people who lack mental capacity
Section 1 of the MCA 2005 sets out five fundamental principles that apply for the purposes of the MCA 2005, which are that:
- A person must be assumed to have capacity unless it is established that he lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision. The MCA 2005 supports people’s right to make choices, even if others think these are unwise.
- An act done or decision made, under the MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Given the presumption of capacity, a capacity assessment of some description must normally be undertaken in order to establish that an individual lacks the capacity to make decisions about their care and support, see Practice note, Assessing mental capacity. If, following an assessment, it is established that an individual lacks the mental capacity to make a decision about a particular matter, the law requires that any steps and decisions taken for them must be in their best interests. Section 4 of the MCA 2005 provides that determining what is in a person’s best interests requires a consideration of all relevant circumstances in relation to the person concerned, and lists the steps a local authority must take including that they:
- Permit and encourage the person to participate, or to improve their ability to participate, as fully as possible in the decision.
- Consider so far as is reasonably ascertainable the person’s past and present wishes and feelings, the beliefs and values that would be likely to influence their decision if they had capacity, and any other factors that the person would be likely to consider if they were able to do so.
- Consult and take into account the views of the person’s carers or anyone interested in their welfare, and anyone named by the person as someone to be consulted on the matter in question or on matters of that kind.
The Supreme Court in Aintree University Hospital Trust v James  UKSC 67 observed that the purposes of the best interests test is “to consider matters from the patient’s point of view” see Legal update, Supreme Court gives guidance on best interests in relation to life-sustaining treatment. The best interests decision-making process should involve drawing up a best interests “balance sheet”. The balance sheet will identify each of the care options that are under consideration (for example residential care as one option, and remaining at home with extra support in the form of domiciliary care services as another) and the benefits and dis-benefits of each option in relation to the person’s physical, emotional and psychological welfare.
For more information about needs for people who lack capacity or who have difficulty participating in the assessment process, see Practice notes, Care Act 2014: assessing needs for care and support: other assessments: mental capacity and Care Act 2014: care and support, and support plans: People who lack capacity.
Prior to the CA 2014, carers (usually family members or friends) had no legal entitlement to receive support, although local authorities could provide support at their discretion. The CA 2014 has given carers the same legal rights to assessments and support as the adults they care for. For more information see Practice note, Care Act 2014: key requirements for assessing carers. A carer must be involved when the local authority is carrying out an assessment of the adult they are caring for (section 9(5) CA 2014), and when the local authority is formulating the adult’s care and support plan (section 25(3)(b), CA 2014).
Human rights considerations
It is unlawful for a public authority to act in a way that is incompatible with the articles and protocols in the European Convention on Human Rights (ECHR), see Practice note, Human Rights Act 1998: overview. Care and support decisions that involve separating couples, or other family members from each other must be carefully considered, as they will engage article 8 of the ECHR (right to respect to private and family life), and possibly articles 3 (prohibition against torture, inhuman and degrading treatment), and article 5 (deprivation of liberty).
Section 46 of the CA 2014 has repealed section 47 of the National Assistance Act 1948 (NAA 1948), a provision that previously allowed people who were “suffering from grave chronic disease or, being aged, infirm or physically incapacitated” and living in insanitary conditions, to be removed from their homes if they were unable to look after themselves and were not receiving proper care and attention from anyone else. Section 47 of the NAA 1948 had fallen into relative disuse long before the power was formally repealed, due to concerns that it was incompatible with the ECHR. The Mental Capacity Act 2005 now sets out a statutory regime for authorising a deprivation of liberty for people who lack mental capacity, see Practice note, Deprivation of liberty and mental capacity: overview.
Safeguarding and managing risk
Local authorities and care providers have a duty of care to people to whom they provide services, and are vulnerable to litigation if their actions in or inaction place people at unnecessary or unacceptable risk. Local authorities must therefore to strike a balance between ensuring they don’t put people at risk, whilst still enabling them to exercise their own choices about taking reasonable risks.
Local authorities (and their statutory partners) are also charged with undertaking enquiries and other relevant steps where they reasonably suspect that an adult in its area is at risk of neglect or abuse (section 42 – 44 and Schedule 2, CA 2014, and chapter 14, CA 2014 statutory guidance). This might include protecting an individual from a violent spouse. Risk issues must be discussed with the adult and their carer, unless there is evidence that doing so may increase the risks. A wide range of tools are available to help social work and other professionals to assess and manage risks. The Social Care Institute for Excellence has issued a safeguarding risk assessment and risk rating tool that has a standardised framework for assessing risk as part of the adult safeguarding process. Skills for Care have published resources aimed at supporting social care professionals to better understand and manage risks. Local authorities have developed their own guidance documents that provide a framework to help local authorities to shift the balance from risk aversion to supported positive risk taking (see for example A Positive Approach to Risk and Personalisation: A Framework, developed by Local Authorities and NHS West Midlands).
Resources and decision-making in adult social care
Given the extent of the adult social care funding crisis, the question of resources inevitably influence care and support decisions. The statutory guidance, reflecting the principles established by the House of Lords in Barry v Gloucestershire CC and another  UKHL 58, explains the extent to which local authorities are able to take into account the costs of different options that might be available when it is deciding how to meet a person’s needs for care and support.
Paragraph 10.27 of the statutory guidance states that “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population”. The statutory guidance goes on to state that local authorities should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes as that would not deliver an approach that is person-centred or compatible with public law principles. However, “The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value”.
The principles that underpin the adult social care legal framework are clearly aimed at facilitating care decisions that are person-centred and give choice and control to people in need of care and support. However fewer than one in 12 directors of adult social care are fully confident that their local authority will be able to meet its statutory duties in 2017 – 18, due to the funding shortfall in adult social care, see Legal update, House of Commons Communities and Local Government Committee publishes final report on adult social care.
The government has promised local authorities an extra £2 billion over the next three years to make up the funding shortfall, see Legal update, Spring 2017 Budget: key implications for local government: Adult social care. In April 2017, the Local Government Association (LGA) published a briefing setting out the policy priorities that councils want each of the political parties to adopt in their manifestos. The LGA has called upon the government to close the funding gap of £2.3 billion facing social care and to commit to a formal review to help secure a longer term sustainable solution to adult social care. The LGA recommends that proposals for the long term funding of adult social care should be taken forward on a cross party basis, with a view developing a lasting solution that is supported across the political spectrum.
Munby P’s remarks are timely reminder of the need to develop the right attitudes towards older people, their needs and dignity. Demographic trends and population projections show that as adults are living longer their care needs are increasing, and more people with complex health conditions are living longer. There is increasing pressure on a health and social care system that is struggling to meet the needs of older people.