Please find the previous articles in this ongoing series here.
Article 5 - Reform and a Majority Government
On 13 December 2019, the UK woke up to a new political landscape and, for the first time since 2010 (other than a short period in 2016/17), a government with a secure majority.
This meant that the reform of the adult social care landscape that we have been exploring was presented with a government with the power to press ahead with new laws in a way that some of the predecessors had not.
The issues of mental health and especially adult social care were much discussed in the election and is a focus of Boris Johnson as his inaugural speech as prime minister showed:
‘I am announcing now – on the steps of Downing Street – that we will fix the crisis in social care once and for all with a clear plan we have prepared to give every older person the dignity and security they deserve’
So, now the legislative program for the new parliament has been announced, this is a perfect time to take a step back and see what the new government’s plans are, although interestingly, we note that there is no specific bill for social care.
Reform of social care is littered with complex and contentious issues and the government has opted to seek a cross-party consensus to address these as set out in the Queen's Speech in the following terms:
‘My Ministers will seek cross-party consensus on proposals for long term reform of social care. They will ensure that the social care system provides everyone with the dignity and security they deserve and that no one who needs care has to sell their home to pay for it.’
It will be interesting to see whether the stipulation that no one has to sell their home to afford their care has the same limitation as it does now, which is that, if an adult meets the criteria for a Deferred Payment, they will not need to sell their home, until they pass away.
However, the other side of the coin there is the sustainability of local authorities and ensuring they can continue to provide social care services to the ever growing and ageing population. It will be interesting to see how this will be achieved by the new government.
As public sector lawyers, at ELS we work closely with both local authorities and the NHS to explore innovative and joined up ways of operating in this changing landscape. Our knowledge of the challenges ahead and in depth understanding of the public sector dynamics and requirements enable our clients to evolve and future proof their processes.
The government has committed to support the NHS with an NHS Long Term Plan Bill. It will be based on the recommendations of NHS England and NHS Providers and it has been listed to be considered in this parliamentary session.
These reforms are expected to ease the process of integration between NHS bodies and it will be interesting if the government follows the recommendation to limit competition by repealing s75 of the Health and Social Care Act 2012.
The practical effect is likely to encourage Sustainability and Transformation Partnerships, Integrated Care Systems and similar integration in the NHS.
However, it is not yet clear how creating different legal frameworks for the NHS and Local Authorities is going to facilitate integration of health and social care (for example, what procurement framework will prevail when an NHS body and a local authority decide to jointly procure services?).
NHS England’s recommendations do not appear to focus on health and social care integration as much as they focus on integration of pathways and process within the NHS, in our view this appear to indicate that health and social care integration will need to happen through local agreements and initiatives such as the Better Care Fund and the Transforming Care Programme.
ELS works with both the NHS and local authorities on the integration agenda. It is our experience that integration of different systems does not appear to be a natural response to higher care demand, instead it requires strong leadership and commitment to overcome the barriers in terms of different systems and processes, culture and organisational boundaries.
ELS prides itself on being an enabler, acting jointly for our NHS and local authority clients, in turn ensuring consistency of approach and a single joined up legal advice based on our deep understanding of their legal and governance requirements.
In December 2018 the government favourably received the Final Report of the Independent Review of the Mental Health Act chaired by Professor Sir Simon Wessely and indicated that an early response from the government was likely in 2019 and a new Mental Health Bill should be expected.
In the Queen’s Speech, the government announced that ‘My ministers will continue work to reform the Mental Health Act.’
However, no new Bill is announced in this legislative calendar. It may be that more detail about the proposed reforms will be disclosed in the coming months because a White Paper is expected in ‘early’ 2020 and we shall update you as and when that happens.
The NHS Mental Health Implementation Plan 2019/20 - 2023/24 states that a ringfenced local investment fund worth at least £2.3 billion a year in real terms by 2023/24 will ensure that the NHS provides high quality, evidence-based mental health services to an additional 2 million people.
We do anticipate Mental Health remaining high on the government’s agenda. ELS have a team of specialist mental health lawyers supporting our clients with all mental health regulatory matters and we act to enable our NHS clients, local authorities and other agencies to work together towards an integrated system approach.
Mental Capacity and Liberty Protection Safeguards
This is the area of reform that is most advanced, with the enabling amendment to the Mental Capacity Act 2005 having sneaked through the maelstrom of the past Brexit focussed parliament.
As set out in our previous article, the Liberty Protection Safeguards, designed to replace and improve upon the Deprivation of Liberty Safeguards (‘DoLS’), are scheduled to come into force on 1 October 2020.
This reform will provide a useful test as to the ability of government and the wider public sector to oversee a complex reform in practice. There are already murmurings that ill prepared areas are requesting that the reform is delayed.
We will know much more when the two new Codes of Practice are published in Spring.
We know that there were 240,455 applications for DoLS received during 2018-19. We know that at the end of that reporting year, 131,350 applications were outstanding, and we know that those that were completed took an average of 147 days. The statutory timescale is 21 days. It is certainly a system in need of reform.
One benefit of this reform is to encourage local authorities and local NHS bodies to work together to manage the implementation of a reform that serves to protect the human rights of those who lack capacity and imposes a significant new statutory duty on the NHS. ELS is leading in Essex to achieve this aim by liaising with the NHS bodies in Essex and Essex County Council, this includes the provision of free training to all our clients to prepare them for the changes to come.
How we can help
ELS are specialist public sector lawyers with a wealth of expertise in taking their clients through the complexity of bureaucracy, legislation and regulatory processes. If you wish to discuss your requirements with us or would like an informal chat, please do not hesitate to contact us.
Jennifer Mellani | Health and Social Care Specialist – Legal Service Manager
T: 03330 133 277
Robin Donaldson | Associate Solicitor
T: 03330 139 610