REUTERS | Jason Lee

The Care Bill 2013: Tinkering round the edges of a bottomless pit? Part 2

The Care Bill 2013-14 aims to reform the law relating to care and support services for adults and carers.

In Part one of her analysis of the Care Bill, Ros Ashcroft, Associate at DAC Beachcroft LLP, discussed the new duties in the Bill in the context of an increasingly difficult financial environment. In this second part, Ros considers the duties in the Care Bill and the Health and Social Care Act 2012 to deliver health and social care services in an integrated way and the barriers to achieving integration.

Integration yes; but the sectors remain distinct

The principal answer to the problems of cost and quality of care is thought to be effective integration of services.  A recent straw poll by ADASS  (4 July 2013) is the latest document to reveal positive benefits from integration between health and social care, showing improved service and user outcomes for less cost.  Even in the last couple of years there has been a huge shift from seeing integration as a nice idea to be explored to something that will just have to happen if there is to be any hope of providing sufficient services within the available budget.  However, there are still considerable practical and legal issues to be negotiated to make integration a widespread reality.

Like the sister duties in the 2012 Act, the integration duties in the Care Bill are duties to promote integration, rather than to achieve it.  While increasingly people are talking about “health and social care” as a single sector, in legal terms that is very far from being the case: clause 6 of the Care Bill (duties to co-operate with NHS bodies and other partners) and clause 22 (when local authorities can and cannot arrange for the provision of health services) present a picture of integration being about reaching across sector boundaries rather than bringing down those barriers completely.  One can see why there is talk across the main political parties of new legislation to amend the 2012 Act/create a single health and social care sector, even though the thought of yet more legislation and change must make hearts sink across the NHS and local government.

Barriers to achieving integration, and is it always a good thing?

In order to change the configuration of services across health and social care, commissioners need a clear view of what they want to commission – this may sound obvious, but it is an important hurdle when many CCGs are still struggling to get to grips with their role.  Considering and agreeing on new approaches requires space and time for clear thought, to ensure that they will achieve more for patients and save money.  Implementation of new solutions often requires innovative co-operation and selection processes.  Standard commissioning and procurement processes are already liable to pitfalls, but moves by commissioners to strongly encourage collaborations or work closely with providers on development of new pathways create new risks in terms of the competition and procurement regimes. Similar risks arise from the triple role of local authorities as service providers, commissioners and developers of a diverse care market in their area.

There is also a danger that integration may lead to a less competitive market, with restricted choice, excluding the smaller local provider who is often the most nimble and innovative.   Collaborative partnerships between providers are forming to strengthen local offerings. This has to be reconciled with the weight given to individual needs and patient choice within the Care Bill and the NHS constitution.  A “winner takes all” situation also increases the chances that decisions about choice of integrated provider will be subject to legal challenges.

Delegation of functions and the limits of the section 75 powers

Another potential barrier to innovative service delivery is the principle against delegation of statutory duties.  Section 75 of the National Health Service Act 2006 permits delegation and sharing of functions between local authorities and NHS bodies; it does not permit delegation to a charitable or private sector service provider. Nor are all functions covered by the powers; for example, the management of continuing healthcare budgets. Although the use of section 75 agreements is widespread and understood, they can be associated with a traditional approach to integration.

While few people would advocate removing direct local authority responsibility for meeting core social care duties, pilot delegations of specific duties or tasks have been successful, for example, the power in the Children and Young Persons Act 2008 for pilot delegations of care functions in relation to looked after children and care leavers, achieved through a contract with a provider of social work services. Practitioners would benefit from some greater clarity about how frameworks of accountability and reporting can be used to outsource tasks without unlawful delegation.

There are undoubtedly ways of achieving integration without reducing competition or infringing other legal requirements.  What is needed is much greater clarity and direction as to what those routes are.  The health and social care integration pioneer projects,  which will benefit from the transferred NHS funding for social care services for elderly people to reduce pressure on the NHS, will be keenly watched. But assistance is needed to ensure that the broader lessons of those pilots are identified and communicated.  If integration is to be achieved on the scale required, all authorities need to have the confidence not just to slavishly copy projects which have already been performed but to build on those approaches and innovate further.

Health and Well-being Boards as key player in promoting integration

The ADASS report recognises that good leadership at a local level is key to successful integration, and Health and Wellbeing Boards are identified as the body to set the local agenda with their health and social expertise.  While many have been sceptical about the Boards, they probably provide the best opportunity for authorities to meet the challenge of building a framework for health and social care provision which enables innovation, delivers choice and enables localism to flourish – and does this quickly enough to meet the immediate need for improved quality and cost savings.

For more information, see Practice notes:

Leave a Reply

Your email address will not be published. Required fields are marked *