Feature

posted 24 Jan 2001 in Volume 6 Issue 2

Negotiating with Health Authorities and Local Authorities: Does this achieve any change?
By Anne Edis

Legal Considerations

Negotiating with both the SSD and the Health Authority brings into play skills which may not be familiar to practitioners but which are important to consider as to whether to use ADR or when the alternative - litigation may be necessary. However litigation should be the last recourse unless it is quite clear that there is to be no negotiation or the actions of either body are so unreasonable to warrant such action. Negotiation is the key to getting a better package of care.

However it is no use undertaking this unless the necessary ground knowledge is there and there is an understanding of how both these public bodies work and function. It is therefore necessary to have a knowledge of both public and private law.

Where to start?

Essentially this means going back to basics and also looking at the client's case on a lateral basis. Lateral thinking is often the key to varying the package of care. Suggesting alternative solutions as can be seen from the case studies means that a more favourable outcome may be achieved and in the case of hospital discharge a more effective pre-discharge plan may be achieved. This will be more successful than a head-on confrontation - serving Judicial review papers without notice - and from the SSD and HA standpoint is a more effective use of resources (remember that litigation for a public body can prevent resources which would otherwise be available being used for service provision).

To achieve the best results it is necessary to understand the complex legislation regulations guidance local policy and practice. This will also mean identifying and getting to know key personnel who are sufficiently senior to influence and develop policies as well as the staff working with your client. Effectively it means keeping channels of communication open and developing good relationships with these key personnel.

Although it is fundamental to understand the legal framework and the national policy local knowledge of what goes on in your client's area is fundamental. At present there is no formal national framework for undertaking the assessment of your client's needs and there are therefore enormous variations in service provision indeed this kind of variation can occur within authorities where teams work to different protocols and procedures.

It is also important to remember that many social workers are not wholly familiar with the law and may not have been briefed by their legal teams. Equally as the s117 Mental Health Act 1983 cases have demonstrated their department may have chosen to disregard the legal advice they have been given. Equally too managers may not know what their teams are doing on a day to day basis and only become aware of problems when complaints and litigation loom.

Being well prepared for meeting with key personnel is therefore the key to getting a reasonable outcome. Clients may have unachievable aspirations as to what they want and expect; being well informed and having up to date knowledge can assist them by avoiding unnecessarily prolonged discussions pursuing the impossible! Reasonableness does not mean conceding every point what it does mean is working out the possible alternatives which may offer a solution. It means that the practitioner will need to be familiar with the service providers available locally and back up available from independent sources. For example can assistance be obtained via charitable sources or via a Benevolent Fund? Many companies have pensioner welfare schemes and visitors who can help. Local charities may be able to assist.

The Legal framework and the practicalities

Checklist:
You need to know:-

Key personnel within Social Services and the Health Authority - an informal telephone call or meeting in anticipation of problems can speed up the procedures and also stop problems accelerating and getting out of hand
What the local eligibility criteria are for both Social Services and Health
Authority in relation to your client's needs. This means that you can immediately spot if your client is not receiving the right package or the Authority is failing in its statutory obligation. The key element here is to alert to changes in the law and in policy at both a national and local level - watch the press the websites and the professional journals. Keep up to date with case law.

This will be invaluable in knowing who to negotiate with and also what local gloss is applied to the national framework. It is at this level that packages of care are negotiated. Although all authorities work within the same legal framework nevertheless there are wide variations in the way in which that framework is not only interpreted but also implemented.

Do not presume that because a social worker or health care worker make certain recommendations about your client that this is necessarily the correct and only way in which the case and their circumstances should be managed. Often it is the case that the team manager and /or the service manager may not know about the decisions which have been made in relation to your client. In well-run health authorities and social services departments decisions to set up care packages whether for hospital discharge or as a result of section 47 assessment will have to be approved by both the team manager and/or the service manager. Much time will be spent discussing them both internally and with your client and his or her family. In many authorities however these operational decisions will be made without the benefit of legal advice - not all operational departments have direct access to legal input. Hence both local authorities and health authorities can get into difficulties simply because they have not obtained the right advice.

In the early stages therefore of both assessment and discharge processes it is important for advisers to be involved at the early stages before the problems arise. It is clearly apparent from telephone calls received by SFE that in many cases the difficulties which have arisen have been caused by inadequate knowledge on the part of both health care workers and social workers of their legal duties to the clients. Just as legal practitioners need training so do social and health care practitioners.

Key legislation

This is an increasingly complex and shifting field of law:

Local Authority Social Service Act 1970

Remember that SSD are creatures of statute and they can only do what statute authorises them to do. It sets up Social Services but the important section is 7 because of the mandatory nature of guidance issued under this section (See both the Rixon and Hargreaves cases).

National Assistance Act 1948

Key sections:

Section 21 - obligation to provide residential accommodation for the elderly and disabled - amended by NHSCCA to include nursing home placements
Section 22 - imposes duty to charge for residential care of Health which is free at the point of delivery
Section 29 - empowers authorities to make registers of disabled adults and inform them of the services available under that section - needs consideration with section 2. The Chronically Sick and Disabled Persons Act 1970 incorporates ability to claim and to provide domiciliary and day care services - see post.

Mental Health Act 1983

Sections 1 2 3 4 5 35 36 56 relate to compulsory detention.

S117- provision of aftercare conjointly with health - Richmond case holds to be free and to include residential care. This is a key section in relation to funding.

National Health Service Act 1977

Section 1 definition of health care - relates and defines primary health care responsibilities (see also Coughlan).

Schedule 8 - Enables some provision by social services of services to service users but consider the Health and Social Care Bill published in December 2000 and the proposals which are being debated and in particular the issues of what is meant by nursing care and social care. This issue is often one of the key areas of negotiation and discussion both on discharge and in reassessment.

Health Services and Public Health Act 1968

Promotion of the welfare of elderly people:

Disabled Persons (Services Representations and Consultation Act) 1986

Entitlement to assessment of the carer (automatic)

Where services are provided under s2 CSDPA - mandatory duty - and not discretion to make service provision if need has been identified. Automatic right to disabled person and their carer to an assessment - this is often overlooked and instead reliance is placed upon the Carers Act 1995.

National Health Service and Community Care Act 1990

Key provisions:

Section 47 Duty to assess but a discretion as to service provision Compare this with the provisions under the Chronically Sick and Disabled Persons Act 1970 and s 2 issues. This should be a needs-led assessment which must identify need before setting service provision against criteria. Only after this process does a financial assessment follow. Service provision can be negotiated in terms of the criteria and it is at this point that alternative case management provision can be discussed and negotiated. This is also the point at which joint service packages provided by Health Social Services Education and in some cases Housing may be identified. An appeal is possible against assessment but not against financial assessment. Assessment of need is an ongoing process and reassessment can be requested at any point. Indeed this should be a priority if the package is not meeting the client's needs or their condition has changed. Most discharge and SS packages have a built in review but there is nothing to stop a fresh assessment being requested. The assessment of need should be multi-disciplinary and there should be consultation. The assessment should be made available in writing indeed best practice will enable the draft to be discussed and agreed both in terms of the identified needs and in demonstrating what will be provided when the service will be provided and by whom and also funding and cost (see Coughlan). Best practice should also incorporate not only a statement of need but also the package of care who is to provide services and when how to complain and the cost of the package with details of contributions
Statutory duty to assess - needs application of local criteria- copy from SSD.

Children Act 1989

[Note provisions re Child carers under this and s2 CSDPA]

Carers (Recognition and Services) Act 1995

Carers are able to request an assessment in their own right provided they meet relevant criteria for assistance in their own right But look also at rights under CSDPA.

Community Care (Direct Payments Act) 1996

Enables service users of all ages to obtain cash payments to buy in services to provide care in their home. There are strict rules about who can be employed in this capacity. It is not possible to use this method to fund residential care. It can be a means to a more flexible car regime and gives greater control to the client but there are dangers and pitfalls as the client moves to become an employer of carers. Criteria over capacity of service user and entitlement. Note also that this is an issue in the Health and Social Care Bill.

Human Rights Act 1998

[Now in force impacts in many areas of HA and SSD care. As yet largely untested but UK law now has to be HR compatible]

Principle Articles for SSD/HA 2 3 5 6 7 8 9 10 14.

These cover the right to life the right not to be treated in a inhumane and degrading manner the right to liberty and security the right to a fair trial no punishment without law the right to respect for private and family life freedom of thought conscience and religion right to freedom of expression and the right not to be discriminated against - claims under these heads will need to be justifiable and the remedies will not be available for frivolous claims.

Care Standards Act 2000 - replacing in part the Registered Homes Act 1984

The regulatory framework for care homes changes in 2002 and there will be further changes in the legal framework in and around vulnerable adults.

Data Protection Act

Key regulations:

CRAG- Charging for Residential Accommodation Guidelines
National Assistance (Assessment of Resources) Regulations - as amended
Residential Care Home Regulations 1984.

Key cases

R v Avon CC ex parte M 1994 2FLR 259
R v Gloucestershire C C ex parte Barry and others HL 1997 2AllEng 1
R v Sefton Borough Council ex parte Help the Aged 1997 1CCLR
R v London Borough of Islington ex parte Rixon 1997 1ELR 477
R v Birmingham City Council ex parte Taj Mohammed 1 CCLRx 441
R v Bristol City Council ex parte Penfold 1998 1 CCLR 315
R v N E Devon Health Authority ex parte Coughlan CA 1998 R v E Sussex CC ex parte Tandy HL 1998 2CCLR
R v Derbyshire Health Authority ex parte Fisher 1998 8MLR 327
R v N Yorkshire CC ex parte Hargreaves 1997 2CCLR
R v Powys CC ex parte Hambidge 1999 3 CCLR
R v Bournewood Community and Mental Health NHS Trust ex parte L 1998 1CCLR 390 HL
Re T 1992 4AER 649 - one of a series of Caesarean intervention cases.
Gillick v West Norfolk and Wisbech HA 3AER 1985 402.

This list is not exhaustive but illustrates some of the key principles highlighted in the case studies. Reference should also be made to the BMA/Law Society Guidance on the Assessment of Mental Capacity the BMA guidelines on Advance Directives and the BMA guidelines on Withholding and Withdrawing Treatment.

Successfully negotiating a package can be achieved by using the negotiators skills to the full.

Case study one

Mrs Taylor is a 72-year-old woman who cares for her husband George who has advanced dementia. They have one child Mary who is 42 years old has Downs Syndrome and also displays the classic signs of early onset dementia. Mary is extremely vulnerable and has been subject to financial and sexual exploitation in the past.

Two weeks ago Mrs Taylor approached you to request your help in preparing her will. Today you have heard that she has died suddenly - before you have managed to prepare her will - and that there is a likelihood that both George and Mary will need to be admitted to residential care immediately.

From your previous discussion with Mrs Taylor you are aware that she has a younger brother who appears to be committed to providing a home for George and Mary and to providing appropriate care and support. However before her untimely death Mrs Taylor informed you that her brother's son (who lives with her brother) has allegedly been one of the individuals who subjected Mary to financial and sexual abuse.

The situation is also compounded by the fact that Mrs Taylor had previously advised you that she wanted to ensure that should anything happen to her on no account should her husband and daughter be admitted to care.

As you are the family's solicitor what are you going to do?

What will you say to the Social Services Department?

You may wish to consider issues such as confidentiality capacity (of both the husband and daughter) risk choice and the protection of both from financial and sexual exploitation. What about Mrs Taylor's dying wish that her husband and daughter should not be admitted to residential care?

What other issues do you need to consider?

Finally how will you protect the financial interests of both George and Mary?

Case study two

Mr Jones consults you about his mother Mary Jones who is currently in hospital after suffering a series of strokes. The consultant has told Mr Jones that they intend to discharge his mother within the next three weeks as there is nothing further to be done for her. There is an additional complication as Mary Jones also suffers from dementia and is not capable of making decisions of any kind. The Health Authority is adamant that discharge should occur and that they need the bed as they have been put on alert.

Mr Jones is concerned because quite clearly mother cannot go home as she is unable to do anything for herself with any safety because of her physical incapacity; indeed there had been concerns before she went into hospital about her ability to care for herself. Mr Jones lives at some distance and often works overseas his wife also works part time and their teenage children are both coping with external examinations this year. His mother does own her home as do the Jones. However the Jones' house is a three bedroomed house and only has a through reception room so there would be difficulty if mother lived with them. In any case the level of care could not be managed.

Mrs Jones is immobile doubly incontinent has very little speech and virtually unable to manage her own basic care - washing dressing personal hygiene and eating. During the time in hospital it was also discovered that she has a slow-developing tumour which will require ongoing management and she already needs fairly heavy medication to control the growth and to clinically manage the situation. She will need regular checks and treatment. At this stage the consultant is reluctant to give any prognosis but he has indicated that regular monitoring and management will be needed as the prognosis is so uncertain.

If she were to return to her own home it would have to be adapted to meet her needs as there is no downstairs lavatory and it is clear that she would not be able to access upstairs. She would need 24-hour support and care. The hospital is not offering any help and although the ward staff are sympathetic they have not offered any practical assistance and Mr Jones is at the end of his tether. Neither he nor his mother have the funding to pay for this kind of package .His mother has capital of around £17 000 and a weekly income of £115 as well as her house which is worth approx.£65 000.The house is in a poor state and unlikely to sell very easily nor will it be easy to adapt. Subsequent investigations suggest that the property ownership may be complicated by an outstanding loan/mortgage/home income plan.