Adult social care is facing a time of almost unprecedented change and difficulty. On one hand, the funding gap social care departments up and down the country are facing is well documented and the arguments well-rehearsed. On the other, there are significant reforms planned to key legislation which will have ranging impact, as well as developing case law.
At ELS, we have been advising on this process for some time and have been watching the developments carefully.
Over the next few months we will prepare a linked series of articles and updates focussing on the changes, the challenges and importantly, what impact these changes have on the vulnerable adults the social care system serves and the partner organisations it works with. Whilst we will ensure that these articles are not littered with unnecessary technical jargon we will, at times, shine a light on some of the murkier aspects of change.
We will release a new article every month and our aim is create a library of all the articles accessible online. We would welcome your feedback and any suggestions of areas that you would like us to focus on.
In particular, the series will follow and offer expert commentary on the proposed changes to the three key pieces of social care legislation – the Care Act 2014, the Mental Capacity Act 2005 and the Mental Health Act 1983. These Acts address different legal areas but in reality they all should link together carefully because the same adult may well find themselves affected by all three areas of law in their journey through the social care system (sometimes at the same time!)
The law has a tendency for silos that can sometimes mirror the artificial structural divisions – is an adult’s care the responsibility of the social care local authority, of the hospital trust, of the Clinical Commissioning Group, or Mental Health services etc. Our aim is to show how the law is (or is not) tackling these boundaries to support an integrated care system and perhaps most importantly, how to navigate these.
The first article will set out where the change process has reached as it gathers pace.
Where we are
The mental health and social care landscape is littered with past commissions and reports. Mostly, the diagnosis of the challenges and the recommendations of how to meet those challenges remain the same.
Simply, the UK is gradually growing older and more people survive with serious physical and/ or mental health conditions. Adults with serious mental health conditions can be particularly disadvantaged which is why the government talks about the ‘parity of esteem’; between physical and mental health. How the reforms seek to put this into practice will be interesting. Inevitably, funding the care required will mean either the government or the individual (or both) will need to pay more.
It may seem like the government and the political class is side-tracked by the ongoing drama that is Brexit but in the background, there are serious reforms in process that affect the major parts of social care.
The venerable Mental Health Act 1983 has been through many piecemeal amendments and is currently in the midst of a government commissioned Independent Review chaired by Professor Sir Simon Wessely. An Interim Report was produced in May 2018 and a series of recommendations are expected imminently in Autumn 2018.
Perhaps even more immediate, will be two decisions of the Supreme Court which focus on deprivation of liberty and mental health - Welsh Ministers v PJ will look at whether a Community Treatment Order can authorise a deprivation of liberty and Secretary of State for Justice v MM will consider whether a Mental Health Tribunal can impose a deprivation of liberty as part of a conditional discharge. Whilst these may seem esoteric, both judgments will have a practical effect on those adults awaiting discharge from mental health units.
It will be interesting to see how the Independent Review will take account of the Supreme Court decisions and whether the decisions will mention the Review.
Our series of articles will follow what this will mean in practical legal and policy context – how does an adult who has been sectioned in a mental health unit for over 20 years under the criminal part of the Mental Health Act 1983 for serious offences against children return to the community. What are the legal considerations that need to be taken into account and what are the duties, and risks, for the various public bodies?
The Deprivation of Liberty Safeguards have been criticised almost since their inception in 2007. Some 10 years later, a draft piece of legislation is making its way through the House of Lords designed to make things simpler, more effective and, perhaps optimistically, cheaper.
The proposed legislation is the subject of constructive criticism itself. Currently, this focuses on the intended new responsibilities that will fall on care home managers which will see them taking a significant role in identifying a deprivation of liberty and gathering information. It is argued, most recently by the Joint Committee on Human Rights, that this is a potential conflict of interest. This is not the only concern raised by any means.
Whilst this debate is taking place, the statistics for 2017/18 (released in Oct 2018) show that there were almost 227,000 applications to authorise a deprivation of liberty using the Safeguards. Of those, around 125,000 were not completed by the end of the year (the statutory target is 21 days). This means that those adults’ European Convention Rights are being breached.
Local authorities are simply not able to fulfil their statutory duty to assess and authorise deprivations of liberty using the current Safeguards. It is important to remember that these statistics only cover care homes and hospitals.
We will follow the progress of the legislation and the steady stream of case law such, as the Supreme Court matter of D (A Child) which will consider how children are affected by deprivation of liberty.
The Care Act 2014
The Care Act represented the first attempt to reform the legislation governing ‘traditional’ social care since it was created, along with the NHS, over 50 years ago in 1948.
Four years later, with numerous significant sections yet to be enacted including most of the key ones relating to funding, a further Green Paper is due, we are told, by the end of the year. It will attempt to square the circle of growing demand for services and lack of financial resources as well as reforms to social care and the wider provider market.
Calls are regularly made that social care is ‘at tipping point’ due to the funding gap. Austerity related case law challenging service closures continues as service users and campaign groups regularly issue judicial review proceedings against local authorities and other decision makers. The Local Government Ombudsman reports that complaints to it about adult social care are increasing, as are the amount of those complaints that it upholds – now around 60%.
We will analyse the reform as it takes shape and provide ongoing commentary.
We will provide a ‘one stop shop’ where each of the major areas of reform are considered together with a view of how they will affect each other.
How we can help
Here at ELS we advise a variety of public bodies and have experience in assisting those organisations to anticipate risk, avoid it where possible and minimise it where it is unavoidable.
Please feel free to give our team a ring or send us an email if you would like to discuss or have any questions.
Carolyn Whaymand, Legal Service Manager / Health and Social Care and Deputyship
T: 03330 139613 / M: 07557 081539 / E: firstname.lastname@example.org
Jennifer Mellani, Legal Service Manager / Health and Social Care and Deputyship
T: 0333 0133 277 / M: 07747463390 / E: email@example.com