5. Letter from Jacqui Smith, Minister
of State, Department of Health,|
to the Chairman
Thank you for your letter of 5th December to Alan
Milburn regarding the Community Care (Delayed Discharges etc.)
Bill. You report that the Committee is considering whether to
report to each House on the Bill and raise a number of points
on which you would like further clarification. My apologies for
the delay in responding.
It may help if I give some context for the measures
that we are proposing in the Bill. Currently there are around
5,000 delayed discharges throughout the acute sector of the NHS
on any given day, of which approximately 60% are the responsibility
of social services departments. Local Authorities social services
are responsible for assessing individuals when they are ready
for discharge from hospital and for arranging a suitable package
of onward care for those who cannot afford to fund themselves.
The Bill introduces a system of reimbursement for
the costs to the NHS of bed, board and personal care when hospital
discharge is delayed at the point when responsibility for a patient's
care transfers from the healthcare provider to the local authority.
This provides a strong financial incentive for social services
to make prompt assessment of a patient's community care needs
and make provision for them in a timely fashion.
We have not stated on the face of the Bill which
patients its provision will apply to but have taken a regulation
making power that will allow us to define the types of 'qualifying
hospital patient' to whom it will apply. We have said that we
intend the Bill to apply only to patients in acute hospitals in
the first instance, since these are patients who are most at risk
from being in a very inappropriate setting. We also need to make
the initial implementation manageable. But we do recognise that
there are other patients in sectors such as mental health and
intermediate care that also suffer from delayed discharges and
it is our intention to extend the scope of the Bill to these patients
as soon it is appropriate to do so.
Turning to the particular points on which you have
asked for a response:
1. Why the scheme proposed by the Bill is
not intended to apply to mental health from the outset?
The Bill is designed to set up a structure that will
enable more effective joint working to take place between the
NHS and local authorities at the interface between the acute sector
and community services. It aims to ensure that that an individual
receives community care services (ie social services provided
by the local authority) when they are needed, rather than remaining
in an acute hospital when acute hospital care is no longer required.
The case that the Committee raises in respect of
mental health differs from the cases that this Bill is intended
to apply to. You refer to cases where a health body does not make
available services under section 117 of the Mental Health Act
1983, which would enable a person to be released from detention.
In such cases both the NHS body (in England the PCT or in Wales
the Health Authority) and the local authority have duties under
section 117 of the 1983 Act.
In the cases that the Bill is intended to deal with
an individual would not be compulsorily detained in hospital but
will be free to leave and return home at any time. Even if the
scope of the Bill is later extended to apply to mental health
patients, it will only apply in those cases where the only reason
for the person's continued detention was that they were not receiving
from social services the community care services that they need..
In almost all cases a person who is about to leave detention under
the Mental Health Act will need continued NHS services from the
relevant Primary Care Trustreimbursement payments would
not apply to such patients, if they are waiting for NHS services.
2. Why is it not proposed to apply the same
scheme to local health authorities in cases arising under s.117
of the Mental Health Act 1983
The duty to provide services under section 117 rests
on both the Primary Care Trust and the Local Authority. The scheme
that we are proposing under the Bill does not apply to services
to be provided by the NHS. It is only intended to apply to cases
where a person has to remain in a hospital bed when he should
be receiving community care services from the local authority.
We do not intend to extend such a scheme of financial
incentives to the NHS because it is neither necessary or appropriate
to do so. Primary Care Trusts, as the commissioners of the vast
majority of NHS services already have sufficient incentives in
place to ensure that individuals are discharged from hospital
as soon as they are ready. They have a double incentive in that
they will be paying for the person whilst they are delayed in
hospital, and will also not be able to admit other patients who
are in need of NHS services. The system that we are proposing
under this Bill would not add any further incentive to this, since
the PCT already has the incentiveit is funding the delay
in acute care and it is responsible for providing the next stage
of care. Performance management of the NHS by the Strategic Health
Authorities also ensures that the NHS fulfils its responsibilities.
3. What other steps are being taken to alleviate
the risk, arising from a lack of aftercare services in the community,
of violating the Convention rights of mental health patients who
cannot be discharged from compulsory treatment.
Most patients will need some form of continuing care
from health and social services after they have been discharged
from compulsion. In the past practical problems such as resource
issues have occasionally made the transition from detention under
the 83 Act to unfettered normal life difficult.
Increased investment has made mental health a key
priority in England and Wales alongside cancer and coronary heart
disease. Implementation of the National Service Framework in England
and Wales and the NHS Plan will deliver more effective and accessible
support for patients, limiting the need for compulsion and delivering
However these developments in the delivery of quality
services in the community are only part of the answer. The Government's
strategy for modernising mental health services also introduces
an up to date legal framework, which promotes patients rights,
protects their safety, and protects the safety of the public.
In the new Mental health Bill we are addressing the concern that
people who do not meet the conditions for compulsion receive the
support that they need at the time that they need it. This will
ensure that no one shall be deprived of their liberty save in
accordance with the law. The Mental health Bill will be introduced
as soon as Parliamentary time allows.
You have also asked what other representations we
have received in connection with this Bill in relation to human
rights issues. At Second Reading of the Bill concerns were raised
by Liberal Democrat MPs that the Bill might raise concerns because
it did not make explicit on its face any right to consultation
and consent throughout the discharge process. This was obviously
based on Age Concern's briefing on the Bill. A number of respondents
to the Consultation document also raised concerns about the use
of phasing for the implementation of the reimbursement system.
These were that patients in nonacute settings would experience
longer delays as a result of the provisions of the Bill, because
local authorities would focus all their efforts on discharges
from the acute sector. However, the Bill does not in any way take
away from local authorities responsibilities towards patients
who are ready for discharge from a nonacute setting and
require community care services.
To conclude can I just emphasise that the Bill does
not add or take away any responsibilities upon social services
departments, or affect any patient's current rights to consent
and consultation during discharge. In essence all it does is to
introduce new timescales in which local authorities must assess
patients and put an onward package of care in place, or otherwise
face the need to reimburse the NHS for the costs it has incurred
while a patient is delayed unnecessarily in a hospital bed.
23 December 2002