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A | |
Bill | |
To | |
Make provision requiring social services authorities to make payments in | |
cases where the discharge of patients is delayed for reasons relating to the | |
provision of community care services; and to enable the Secretary of State and | |
the National Assembly for Wales to require certain community care services | |
provided by social services authorities to be free of charge to persons receiving | |
those services. | |
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and | |
consent of the Lords Spiritual and Temporal, and Commons, in this present | |
Parliament assembled, and by the authority of the same, as follows:— | |
Part 1 | |
Delayed discharge payments | |
Preliminary | |
1 Meaning of “NHS body” and “qualifying hospital patient” | |
In this Part— | 5 |
“NHS body” means— | |
(a) a National Health Service trust; or | |
(b) a Primary Care Trust (in England) or a Local Health Board (in | |
Wales); and | |
“qualifying hospital patient” means a person being accommodated at— | 10 |
(a) a health service hospital; or | |
(b) an independent hospital in pursuance of arrangements made by | |
an NHS body; | |
who is receiving (or who has received or is expected to receive) care of | |
a description prescribed in regulations. | 15 |
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Determination of need for community care services on discharge | |
2 Notice of patient’s possible need for community care services | |
(1) This section applies where— | |
(a) a person (“the patient”) is or is expected to become a qualifying hospital | |
patient at a particular hospital; and | 5 |
(b) the responsible NHS body considers that it is unlikely to be safe to | |
discharge the patient from hospital unless one or more community care | |
services are made available for him. | |
(2) It is the duty of the responsible NHS body to give notice of the patient’s case | |
for the purposes of this Part to the social services authority in whose area the | 10 |
patient is ordinarily resident when the notice is given. | |
(3) That notice— | |
(a) must state that it is given under this section; and | |
(b) if given before the day on which the patient is admitted to the hospital, | |
must not be given earlier than the beginning of the period of eight days | 15 |
ending with the day on which he is expected to be admitted. | |
(4) Regulations may prescribe— | |
(a) the form and contents of notices under this section and the manner in | |
which they are to be given; | |
(b) circumstances in which such notices may be withdrawn or in which | 20 |
they otherwise cease to have effect. | |
(5) In this Part “the responsible NHS body”, in relation to a person who is or | |
expected to become a qualifying hospital patient, means— | |
(a) if the hospital concerned is a health service hospital, the NHS body | |
managing the hospital; or | 25 |
(b) if the hospital concerned is an independent hospital, the NHS body | |
making the arrangements for the patient to be accommodated. | |
(6) In this Part “the responsible authority”, in relation to a person whose case has | |
been notified under this section, means (subject to any regulations under | |
section 7) the social services authority to which the notice is given. | 30 |
3 Duties arising where a notice under section 2 is given | |
(1) The duties in this section apply where notice of a patient’s case has been given | |
under section 2. | |
(2) But those duties cease to have effect if the notice is withdrawn or otherwise | |
ceases to have effect before they are complied with. | 35 |
(3) The responsible authority must— | |
(a) carry out an assessment of the patient’s needs with a view to | |
identifying any community care services that need to be made available | |
in order for it to be safe to discharge him; and | |
(b) after consulting the responsible NHS body, decide which of those | 40 |
services (if any) the authority will make available for the patient. | |
(4) The duties in subsection (3) apply whether or not the patient’s needs for | |
community care services have previously been assessed. | |
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(5) If it appears to the responsible NHS body that the patient’s circumstances have | |
changed after the decision required by subsection (3)(b), the NHS body may | |
withdraw the notice and, if it considers it appropriate to do so, give a further | |
notice under section 2. | |
(6) The responsible NHS body must consult the responsible authority before | 5 |
deciding what services (if any) it will make available following discharge in | |
order for it to be safe to discharge the patient. | |
(7) The responsible NHS body must give the responsible authority notice of the | |
day on which it proposes to discharge the patient. | |
(8) Regulations may prescribe— | 10 |
(a) the time at which notices under subsection (7) are to be given; | |
(b) the form and contents of such notices and the manner in which they are | |
to be given; | |
(c) circumstances in which such notices may be withdrawn or in which | |
they otherwise cease to have effect. | 15 |
(9) Anything done under subsection (3) above is to be treated as done under | |
section 47(1) of the National Health Service and Community Care Act 1990 (c. | |
19) (but without prejudice to anything to be done under that section in relation | |
to any other community care services). | |
Delayed discharge payments | 20 |
4 Liability to make delayed discharge payments | |
(1) This section applies where, in the case of a person who is a qualifying hospital | |
patient— | |
(a) notice of his case has been given under section 2 (and not withdrawn); | |
and | 25 |
(b) notice of the proposed discharge day has been given under section 3(7). | |
(2) For the purposes of this section “the relevant day” is the later of— | |
(a) the proposed discharge day notified under section 3(7); and | |
(b) the last day of the period prescribed by regulations as the minimum | |
interval after a notice under section 2 is given. | 30 |
(3) The period prescribed under subsection (2)(b) must— | |
(a) begin with the day after that on which the notice under section 2 is | |
given; and | |
(b) be a period of at least two days. | |
(4) If by the end of the relevant day— | 35 |
(a) the responsible authority has not complied with its duties under section 3(3); | |
or | |
(b) it has not been possible to discharge the patient because, and only because, the | |
local authority has not made available for the patient a community care service | |
which it decided under section 3(3)(b) to make available for him, | 40 |
the responsible authority must make a payment of the amount prescribed in regulations | |
for each day of the delayed discharge period. | |
(5) For this purpose “the delayed discharge period” is, subject to subsections (6) | |
and (7), the period— | |
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(a) beginning with the day after the relevant day, and | |
(b) ending with the day on which the patient is discharged. | |
(6) If on any day before that on which the patient is discharged the responsible | |
authority gives notice to the responsible NHS body that— | |
(a) it has complied with its duties under section 3(3), and | 5 |
(b) every community care service that it decided under section 3(3)(b) to | |
make available has been made available for the patient, | |
the delayed discharge period ends with that day. | |
(7) Regulations may— | |
(a) require days after the relevant day not to be treated as days of the | 10 |
delayed discharge period; | |
(b) prescribe circumstances (other than those mentioned in subsections (5) | |
and (6)) in which the delayed discharge period ends; | |
(c) make provision for determining the day on which a notice under | |
section 2 or 3(7) is given (including provision prescribing | 15 |
circumstances in which a notice is to be treated for the purposes of this | |
section as having been given on a day other than that on which it was | |
in fact given); | |
(d) make provision for determining the day on which a patient is | |
discharged (including provision prescribing circumstances in which a | 20 |
patient is to be treated for the purposes of this section as having been | |
discharged on a day other than that on which he was in fact | |
discharged). | |
(8) Any payment which a social services authority is required to make under | |
subsection (4) shall (subject to subsection (9)) be made to the responsible NHS | 25 |
body. | |
(9) If the case is of a description prescribed in regulations the payment shall be | |
made to the person prescribed in relation to cases of that description. | |
Disputes | |
5 Ordinary residence | 30 |
(1) Any question arising under this Part as to the ordinary residence of a person | |
who is or is expected to become a qualifying hospital patient shall be | |
determined by the Secretary of State or by the Assembly. | |
(2) The Secretary of State and the Assembly must make and publish arrangements | |
for determining which cases are to be dealt with by the Secretary of State and | 35 |
which are to be dealt with by the Assembly. | |
(3) Those arrangements may include provision for the Secretary of State and the | |
Assembly to agree, in relation to any question that has arisen, which of them is | |
to deal with the case. | |
6 Dispute resolution | 40 |
(1) Regulations may require each Strategic Health Authority in England and each | |
Local Health Board in Wales to establish and maintain a panel to assist in the | |
resolution of disputes under this Part between two or more public authorities | |
(other than disputes to which section 5 applies). | |
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(2) Regulations may make provision about the panels to be established by virtue | |
of this section, including in particular provision about— | |
(a) the constitution of a panel in the case of any dispute referred to it; | |
(b) which disputes may be referred to a panel; and | |
(c) which panel may assist in the resolution of disputes involving bodies | 5 |
not all situated in the area of a Strategic Health Authority or a Local | |
Health Board. | |
(3) Regulations may prohibit a public authority from bringing legal proceedings | |
against another public authority in relation to a dispute under this Part before | |
such steps have been taken in relation to a panel established by virtue of this | 10 |
section as may be prescribed in the regulations. | |
(4) For the purposes of this section “public authority” means an NHS body or a | |
social services authority. | |
Supplemental | |
7 Adjustments between social services authorities | 15 |
(1) Regulations may make provision as to the application of this Part in cases | |
where, in relation to a qualifying hospital patient— | |
(a) it it uncertain (without a determination under section 5) where the | |
patient is ordinarily resident; or | |
(b) it appears to the responsible authority for the time being that the | 20 |
patient is ordinarily resident in the area of another social services | |
authority. | |
(2) The regulations may, among other things, authorise or require a social services | |
authority— | |
(a) to accept a notice given to it under section 2 notwithstanding that it | 25 |
may wish to dispute that it was the right authority to be notified; | |
(b) to become the responsible authority for a patient’s case in place of the | |
social services authority previously responsible; | |
(c) to recover expenditure incurred as the responsible authority for a | |
patient’s case in the performance of functions under this Part, or in the | 30 |
provision of community care services which are the subject of a | |
decision under section 3(3)(b), from another social services authority. | |
(3) The regulations may modify the effect of any provision of this Part as it applies | |
in any cases falling within subsection (1). | |
8 Regulations | 35 |
(1) Any power to make regulations under this Part is, subject to subsection (2), | |
exercisable by the appropriate Minister. | |
(2) The power to make regulations under section 6(3) is exercisable by the | |
Secretary of State. | |
(3) Regulations under this Part may— | 40 |
(a) make different provision for different cases and circumstances; | |
(b) make supplementary, consequential, incidental, transitional or saving | |
provision. | |
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(4) Any power to make regulations under this Part is exercisable by statutory | |
instrument subject, in the case of regulations made by the Secretary of State (or | |
by the Secretary of State and the Assembly acting jointly), to annulment in | |
pursuance of a resolution of either House of Parliament. | |
9 Interpretation | 5 |
In this Part— | |
“community care service” has the meaning given by section 46(3) of the | |
National Health Service and Community Care Act 1990; | |
“health service hospital” has the same meaning as in the National Health | |
Service Act 1977; | 10 |
“independent hospital” has the same meaning as in the Care Standards | |
Act 2000; | |
“NHS body” has the meaning given by section 1; | |
“qualifying hospital patient” has the meaning given by section 1; | |
“the responsible authority” has the meaning given by section 2(6); | 15 |
“the responsible NHS body” has the meaning given by section 2(5); | |
“social services authority” means a local authority for the purposes of the | |
Local Authority Social Services Act 1970. | |
10 Application of Local Authority Social Services Act 1970 | |
In Schedule 1 to the Local Authority Social Services Act 1970 (social services | 20 |
functions to which that Act applies) at the appropriate place there is inserted— | |
| | “Community Care (Delayed | | | | | | Discharges etc.) Act 2003 | | | | | | Part 1 ............................................ | Functions relating to hospital | | | | | | patients likely to need | | 25 | | | | community care services to be | | | | | | made available in order to be | | | | | | discharged safely.” | | |
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11 Power to extend the application of Part 1 to NHS patients in care homes | |
(1) The appropriate Minister may by order provide for this Part to apply in | 30 |
relation to qualifying care home patients as it applies to qualifying hospital | |
patients. | |
(2) An order under this section may— | |
(a) specify such modifications of this Part as appear to the appropriate | |
Minister to be necessary for it to apply satisfactorily in relation to | 35 |
qualifying care home patients; and | |
(b) make supplementary, consequential, incidental, transitional or saving | |
provision. | |
(3) In this section— | |
“care home” has the same meaning as in the Care Standards Act 2000 (c. | 40 |
14); and | |
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“qualifying care home patient” means a person being accommodated at a | |
care home, in pursuance of arrangements made by an NHS body, who | |
is receiving (or who has received or is expecting to receive) care of a | |
description prescribed in regulations. | |
(4) The care prescribed under subsection (3) must be care which is prescribed | 5 |
under section 1 for the purposes of the definition of “qualifying hospital | |
patient” (or which as nearly as possible corresponds to care that is so | |
prescribed). | |
(5) The power to make an order under this section is exercisable by statutory | |
instrument subject, in the case of an order made by the Secretary of State (or by | 10 |
the Secretary of State and the Assembly acting jointly), to annulment in | |
pursuance of a resolution of either House of Parliament. | |
Part 2 | |
Local authority community care services | |
12 Free provision of certain community care services | 15 |
(1) The Secretary of State may by regulations require that the provision of any qualifying | |
service of a description prescribed in the regulations is to be free of charge to the person | |
to whom it is provided. | |
(2) The regulations may (without prejudice to the generality of subsection (1))— | |
(a) prescribe circumstances in which a qualifying service is to be provided | 20 |
free of charge; and | |
(b) limit the period for which a qualifying service is to be so provided. | |
(3) In this section “qualifying service” means— | |
(a) the provision of accommodation under Part 3 of the National | |
Assistance Act 1948 (c. 29) in pursuance of arrangements made by a | 25 |
local authority in England; or | |
(b) any service which is provided to a person by, or in pursuance of | |
arrangements made by, a local authority in England under any | |
enactment mentioned in section 17(2)(a) to (c) of the Health and Social | |
Services and Social Security Adjudications Act 1983 (c. 41) (charges for | 30 |
local authority services). | |
(4) The regulations may not require that any accommodation of the kind referred | |
to in subsection (3)(a) is to be free of charge for a period exceeding six weeks. | |
(5) The regulations may— | |
(a) make different provision for different descriptions of qualifying | 35 |
service; and | |
(b) make supplementary, consequential, incidental, transitional or saving | |
provision. | |
(6) The power of the Secretary of State to make regulations under this section is | |
exercisable by statutory instrument subject to annulment in pursuance of a | 40 |
resolution of either House of Parliament. | |
(7) The Assembly may by regulations made by statutory instrument make | |
provision in relation to local authorities in Wales corresponding to any | |
regulations made by the Secretary of State under this section. | |
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