On Wednesday, we reported on the Coronavirus Bill. Parliament has since published the full Bill, with explanatory notes, following the First Reading today.

First Reading to Second Reading

For those unfamiliar with the legislative process, the First Reading simply means any proposed new legislation is introduced to the House of Commons. It is a formal process and takes place without any debate or scrutiny of the proposals.

The next stage is for the Bill to be considered at the Second Reading, which is usually the first opportunity for proposed legislative reform to be debated in either the House of Commons and/or House of Lords and is the stage where the overall principles of the Bill are considered.

The date for the Second Reading is Monday 23 March 2020, given the unprecedented situation we find ourselves in with the progress of Coronavirus.

Current Process

Under the current rules, patients with health and social care needs must undergo a series of needs assessments before they are discharged from hospital.

This includes both social care needs assessments to determine what means-tested support an individual may require from a Local Authority, along with the completion of an NHS Continuing Healthcare Checklist Assessment to identify whether a full assessment for eligibility for non-means tested NHS Continuing Healthcare is required.

The Bill proposes to allow the procedure for discharge from an acute hospital setting for those with a social care need to be simplified.

Care & Support from a Local Authority

The duties on a Local Authority to assess and meet needs for care and support will be replaced with what is described as a power (not a duty), to meet needs for care and support.

The power will be underpinned by a duty to meet those needs where not to do so would be a breach of an individual’s human rights, and a power to meet needs in other cases.

The explanatory notes to the Bill add that there will still be an expectation on Local Authorities to meet needs if they are able to and to prioritise provision as necessary.

It is suggested that Local Authorities will be permitted to provide urgent care to individuals without completing a full needs assessment, and without a financial assessment.

The intention is to reduce the operational burden on Local Authorities and enable them to prioritise the service they offer in order to ensure only the most urgent and serious care needs are met.

Guidance on how Local Authorities should make decisions using these new powers is to follow.

Care & Support from the NHS

The changes to the procedure for hospital discharge are expressed with an alteration to the duty on a Clinical Commissioning Group or NHS body to assess an individual for eligibility for NHS Continuing Healthcare (i.e. non-means tested, free care arranged and funded by the NHS) and the duty to have regard to the National Framework for NHS Continuing Healthcare.

Crucially, it will not be necessary for such an assessment to be completed before a patient enters a care setting.

The proposed relaxation on the duty placed on an NHS body to have regard to the National Framework, will be of concern to many, particularly in the wake of the recent decision in R v Gossip where the Court held Surrey Downs Clinical Commissioning Group was entitled to depart from a Multi-Disciplinary Team’s eligibility recommendation on the basis that the CCG’s Panel did not agree there as sufficient evidence to support the recommendation.

Given that the circumstances in which an NHS body is entitled to depart from the National Framework are already a point of contention, it seems likely that many NHS bodies will need Guidance as to how they are to take the decision to depart from the National Framework’s rules during the emergency period. Individuals and patients will also be desperately trying to make sense of what they can expect from NHS bodies if and when an assessment is completed – and will also benefit from clear guidance as to what NHS bodies should be doing in these circumstances. This relaxation in the duty to have regard to creates a huge and worrying uncertainty for patients, families, and care providers.

If Local Authority and NHS funded care assessments are to be delayed, how will patients fund care?

The explanatory notes to the Bill state:

“This clause allows NHS providers to delay undertaking the NHS Continuing Healthcare (NHS CHC) Assessment and pending that assessment, the patient will continue to receive NHS care”.

There is nothing, however, explicitly provided for within the Bill to reflect this statement.

All we can assume at this stage until further clarification is provided is that a patient will be entitled to receive NHS care during the waiting period.

Perhaps the government and legislators envisage a situation whereby patients will continue to receive NHS care using the principles of intermediate care. By this, I mean that care is provided at no charge to the patient until such time as it possible for an NHS Continuing Healthcare assessment to be completed. This is, after all, a concept provided for within the National Framework, commonly referred to as ‘discharge to assess’. Many Hospitals have ‘discharge to assess’ protocols which provide for short-term NHS funded, non-means tested intermediate care packages, but they are often time limited. If this is the intention, the time limit may need to be much longer than the current standard to ensure a patient’s needs can be met until resources allow for the necessary needs assessments to be completed.

If this interpretation is not correct, patients and their families face the problem of a funding gap.

What is likely to happen if there is a funding gap?

Patients and their families may be expected to self-fund their care until such time as resources allow for the necessary needs assessments to be completed.

If it transpires that there is a possible funding gap, will the patient be entitled to reimbursement of any care costs paid which but for the delayed assessment, the NHS would have paid for?

It is not clear at this stage. Again, the explanatory notes suggest a patient will continue to receive NHS care until an assessment is completed, but it seems likely that guidance will need to be provided as to how NHS bodies are to implement these proposals in practice.

One can only hope that if a patient self-funds care during this period when they may have otherwise received non-means tested, NHS Continuing Healthcare, the usual principles of NHS England’s redress guidance will apply, thereby entitling patients and their families to retrospectively recover care fees incurred once an assessment has been completed.

Further updates will follow in due course.

If you have any questions about this article, please contact our healthcare solicitors or community care solicitors. To read our previous article on the coronavirus bill, please click here.