PARLIAMENTARY BRIEFING______________________________________
England and Wales
April 2003
Update on the Act
The Bill received Royal Assent on 7 April 2003 and, with it,there were a number changes in addition to the last briefing that will affectcarers. The Act does two main things;Part I introduces a new fining system whereby NHS Trusts can fine a localauthority for every day that a patient is delayed in hospital. Part II of the Act introduces freeintermediate care services.
Carers UKs campaigningsuccess
Early campaigning on the Act as it made its way throughParliament secured two significant changes for carers. The first secured recognition for carers inPart I of the Act and improved carers rights to assessments and services priorto the patient being discharged from hospital.The second major development ensured that carers would receive the sameintermediate care services free as older or disabled people.
A change in implementationdates
Originally the Government wanted to implement thelegislation by April 2003, however, a compromise was reached with theOpposition. Part I will commence inOctober 2003 meaning that carers new rights alongside the process of servingnotices of discharge (see explanation under Part I). However, NHS Trusts will not start charging local authorities forevery delayed discharge until
1 January 2004. 50million will also be given to local authorities in the run-up to implementationto help change practice and ensure support is in place. Carers UK has welcomed the delay inimplementation. Giving localauthorities and NHS Trusts 3 months to operate the system without charging,Carers UK hopes that any difficulties can be ironed out before chargingbegins. It also provides anopportunity for local carers' groups and organisations to become involved,although the timing is still tight.
Free carers services fromMay 2003
Part II of the Act, which introduces free intermediate careservices including free carers services when provided under intermediate care,will be introduced in May 2003, once the regulations have been laid inParliament. This means that equipmentunder the value of 1,000 and intermediate care services, could be providedfree for up to a period of six weeks.Where carers services are provided as part of an intermediate carepackage, these are also to be provided free.Even though the extent of free services is limited, Carers UK haswelcomed this development.
New laws on community careassessments promised
When the NHS and Community Care Act 1990 was enacted, itgave the Secretary of State the power to state how community care assessmentsshould be carried out. This power hasnever been used and assessments are supposed to follow guidance. As Carers UKs previous research intocarers assessments has found, this has caused problems where guidance and goodpractice is not adhered to. During thepassage of the Community Care (Delayed Discharges etc.) Act 2003, there was agreat deal of debate and concern raised about how community care assessmentsare carried out. Government thereforepledged to introduce directions under s. 47(4) of the NHS and Community Care Act1990. They said that they would make itclear to the local authority, having assessed the needs of the patient, theyshould consult the patient before deciding which services to provide, gainagreement to the care plan where possible and provide information on the costsof that care plan to the patient. Itwould affect all s. 47 assessments, wherever they are being undertaken, notjust at the point of hospital discharge.
Mental Health Services andhospital discharge
Mental health services will not come under the scope of thislegislation at present. If a Governmentwishes to include mental health services, they would have to bring in aregulation which would have to be discussed in Parliament. Mental health groups, such as Mind, havewelcomed this change.
What does the Act do?
Part I willintroduce fines for local authorities for every day that a person is delayed inhospital. NHS Trusts will have to telllocal authorities when a person is ready for discharge. The local authority then has a limitedperiod of time, probably three days, in which to arrange services to ensurethat the patient is safe for discharge.After this short period of time, the patient is considered delayed andthe local authority will be fined by the NHS Trust.
Part II wouldmake certain community care and carers services free of charge after dischargefrom hospital.
The Act covers England and Wales and the Welsh Assembly hasthe powers to implement either part of the legislation and develop their ownregulations. A later section sets outthe implications for Wales.
The changes will give carers stronger rights to anassessment, services and ensure that any services are delivered promptly. The rights mean that if a carer requests anassessment, the local authority has a duty to respond and has to consider whichservices need to be in place to ensure that the patient is safe fordischarge. This places an implicit duty on local authorities to provideservices to carers in relevant circumstances.This is a big step forward because there is currently no compulsion onlocal authorities to provide any carers services (under s. 2 of the C&DCAct) identified in a carers assessment.
If a carer has asked for an assessment in the last 12months, the local authority still has a duty to respond in the same way,regardless of whether they have had an assessment or not.
If it is not possible to discharge the patient because thelocal authority has failed to provide either the disabled persons or thecarers services, which have been identified as being necessary, then the localauthority would be fined by the NHS Trust.
Remaining concerns about theAct
Carers UK is still concerned about the basic policyunderpinning the Act. We are concernedthat fining local authorities will result in less money being available forother services for disabled people and carers.
We were originally concerned that patients would bedischarged from hospital too soon without adequate support and carers wouldbear the brunt of this early discharge.The amendments for carers provide some safeguards.
The Act covers Wales as well and the Assembly has the powerto introduce regulations under Part I and Part II. The Assembly has already announced its intention not to introduce fines for localauthorities i.e. Part I. If this is thecase, it means that the rights for carers upon hospital discharge may not applyto carers in Wales in the same way that they would in England. Carers Wales, however, will be seekingsimilar improvements to carers rights in Wales.
The Act gives the Assembly the power to implement Part IIand make intermediate care services, including carers services provided underintermediate care, free. Onerestriction is that personal care could only be made free for a maximum of sixweeks. The Assembly has the power todecide which services could be made free and how long personal and non-personalcare services would be free of charge.
2. Guidance will be issued forconsultation on the main part of the Act Part I - over the summer. Carers UK will be summarising the guidancein a further briefing.
3. NHS Trusts and local authorities willbegin working on their policies over the summer ready for implementation inOctober 2003 and it is an opportunity to get involved.
4. Carers UK will be providing a furtherbriefing on the new practice guidance on hospital discharge, in which keyrecommendations
Copies of the Act can be found at www.hmso.gov.uk.
Carers UKs response to the consultation on Part I of theBill, Reimbursement of NHS Trusts by Local Authorities, is available from: 0207566 7617 or info@ukcarers.org.
Carers UKs advice booklets on hospital discharge andcarers assessments in England: 020 7566 7626 or e-mail linda@ukcarers.org or andreas@ukcarers.org. For carers and professionals in Wales,contact Carers Wales for bi-lingual booklets on carers assessmentstelephone: 029 2081 1370 or e-mail: info@carerswales.demon.co.uk.
Carers UKs good practice checklist for hospital dischargepolicy and procedures can be found in the research report, Healths ForgottenPartners, only available on our website: www.carersonline.org.uk . There is also a practice briefing onhospital discharge which is available from our website.
Carers UK has incorporated these new developments into ourtraining programme.
For further information and bookings contact: Chris Hockleyon: 020 7566 7632 or e-mail: training@ukcarers.org or visit the website for course outlines: www.carersonline.org.uk.
Every effort has been made to ensure thatthis briefing is correct, but does not constitute legal advice and details maychange over time. April 2003