Joint Committee On Human Rights Third Report

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 Trust—reimbursement 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 incentive—it 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 better aftercare.

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

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