Since the Health and Social Care Act 2012 (the Act) came into force after a very swift passage through Parliament, steps towards the new commissioning organisations taking on full responsibility on 1 April 2013 have been in full throttle. Before the majority of the Regulations supporting the Act came into being, I considered how the changes may affect my particular practice, which focuses on the care and support of mentally disordered and vulnerable adults who lack mental capacity to make decisions themselves and specifically, those who may be deprived of their liberty.
Prevention of Mental illness should be promoted too
Section 1 of the Act, in force since 27 March 2012, states that ‘The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement: (a) in the physical and mental health of the people of England, and (b) in the prevention, diagnosis and treatment of physical and mental illness.‘
This replaces the similar duty of promotion contained within the National Health Service Act 2006, which intended only to secure improvement, yet not to prevent, mental illness. The difference in wording is minor, but denotes a real recognition of the importance of treatment of mental illness, before individuals reach crisis point.
On a first glance, this could be taken as being another step in the right direction towards person centered healthcare provision because each locality has its own profile and its own set of needs and GPs are often the first point of contact for patients. In cases brought by patients trying to enforce duties to provide services set out in the 2006 Act, the Courts have generally not interfered with how these ‘target duties’ ought to be fulfilled and have always considered arguments from the Primary Care Trust (PCT) on behalf of the Secretary of State concerning lack of resources when considering how or whether the duty had been fulfilled in any particular case. Other than considering whether a Clinical Commissioning Group (CCG) on behalf of the Secretary of State has acted unlawfully in public law terms the Courts are generally unlikely to continue not to interfere.
So, in terms of individuals being able to enforce these duties, the Act may not be of much help. But in terms of recognising that prevention is better than cure I think that this is a step in the right direction. I am aware that a large number of mental health hospitals being closed down means that increasingly only the most unwell are being provided with hospital beds for treatment. If work is done to prevent as many crises happening, then the mental health system could perhaps start to maintain itself more evenly
The new landscape of health care provision in England
What the Act does on a broader scale is to establish a new NHS; it represents the largest shake up of the public health structure since its inception in 1948. The Act is supported by Regulations, the majority of which will take effect on 1 April 2013. It is an interesting time for the Health Service in England as the majority of responsibilities for commissioning health services will be taken further away from Central Government and put into the hands of clinicians.
Interestingly, in one area of health and social care involving individuals with mental impairments, which is an area of where we frequently assist vulnerable adults – the responsibility for overseeing a legal framework established to protect mentally unwell individuals who are deprived of their liberty is to be transferred solely to Local Authorities.
Despite consistent objection to the Bill by health care professionals and legal commentators, the Act became law on 27 March 2012 and since then has been careering towards a very new system being in place. Recently, Regulations have been issued in order to establish exactly how the newly formed organisations should function, what are their roles, duties and responsibilities. As well as introducing public health responsibility to Local Authorities (for issues such as anti-smoking, obesity, vaccinations etc) it removes the Commissioning bodies currently responsible for the organising and buying of £60 – £80 billion worth of care for patients from hospitals and other healthcare providers and replaces it with a clinician led organisation. The Strategic Health Authorities (SHAs) at regional level and 152 Primary Care Trusts (PCTs) at local level will be replaced by around 212 local CCGs, which will be largely be made up of GPs. The CCGs will operate at local level and will be supported by, and held to account by a new national body called the NHS Commissioning Board, which is to take on its full statutory functions from 1 April 2013.
Competition between providers will be encouraged and Regulations have set overriding objectives to ensure that the needs of the people who use the services are secured and the quality and efficiency of the services are improved. Integration of services (health and social) is also required, together with the requirement that any commissioner of health care services must be transparent and proportionate and providers should be treated equally and in a non discriminatory manner.
Failure to comply with the Regulations can result in action by ‘Monitor’, the body established in July 2012 that currently regulates NHS foundation trusts and will be developed into an economic regulator to oversee aspects of access and competition in the NHS sector regulator. We are yet to see to what extent this will drive up standards. We are encouraged to see that there is a mirror duty of co-operation with the Care Quality Commission (CQC) and that the role of the CQC is strengthened. From the perspective of health and social care provision, this is encouraging. Our understanding is that Mental Health hospitals appear to be more robustly investigated due to the existence of Mental Health Commissioners and the CQC has recently published its 2011/2012 Annual Report highlighting where improvements are necessary. Such thorough, informative and useful reports of other care providers and hospitals would be welcomed and remaining optimistic – perhaps the changes brought in by the Act will ensure this.
Deprivation of Liberty Safeguards – transfer of Responsibility
The DOLS framework was incorporated into the Mental Capacity Act 2005 in October 2007 following a decision of the European Court of Human Rights (ECHR) in 2004, which determined that individuals were being held in care homes and hospitals in the UK against their will, without a Human Rights compliant framework in place. As a result, the law was changed and established a framework that applies when someone is placed in a care home or hospital and cannot consent to being there themselves because they are assessed as lacking the mental capacity to do so. If the individual is saying that they want to leave or if their movement is being controlled or restricted within that placement, it may be that they have been deprived of their liberty. If this is the case, then their placement must be ‘Authorised’ by the Supervisory Body responsible for the care home or hospital.
The Supervisory Body was, under the previous legislation, either the PCT or local authority responsible for the hospital or care home that the individual was held. The hospital or care home is referred to as the Managing Authority. If concerned that an individual may be deprived of their liberty within their home or hospital, the Manager of the Managing Authority would have to request a Standard Authorisation (or if necessary an Urgent Authorisation to begin with) from the Supervisory Body who would put in place a series of assessments to determine whether an individual is deprived of their liberty, whether they are eligible to be deprived in that way and whether it is lawful.
The framework provides protection to the individual deprived of their liberty by way of establishing a process of review to ensure that the deprivation is in accordance with Article 5(4) the European Convention on Human Rights (ECHR). The individual can make an application to the Court of Protection (or to the High Court in the most serious of cases) for a review of his or her circumstances if they do not agree that they should be deprived of their liberty in that way under Section 21A of the Mental Capacity Act 2005.
Further information relating to Deprivation of Liberty safeguards (DOLS) can be found here and recent developments in the case law will be covered in more depth in a forthcoming series of articles coming up on our elderly law blog in the near future.
Schedule 5 of the Act amends all laws affected by the changes in the structure of the NHS. With the abolition of PCTs, the responsibility for any future Standard Authorisations will lie with the local authority where the individual has ordinary residence. CCGs will retain the responsibility for any matters that were previously held by its equivalent PCT.
To assist local authorities and [CCGs?] to manage the practical changes, The Social Care Institute for Excellence (SCIE) has produced a good practice resource setting out a suggested timeline for handing over responsibility to ensure a smooth transition of responsibility from PCTs to Local Authorities and how the CCGs will remain as the commissioning arm of the services provided to those who are assessed as incapable of making health and care decisions themselves . It sets out in its introduction the following helpful key information:
- Primary care trusts (PCTs) will be abolished from 1 April 2013.
- The supervisory body responsibilities held by a PCT will be transferred to the local authority where the person has ordinary residence.
- Each hospital managing authority will need to continue to actively understand the wider requirements of the Mental Capacity Act 2005.
- Each hospital managing authority will need to become more familiar with practice concerning ordinary residence.
- In preparation for the transfer, the ‘sending’ PCT supervisory body will need to identify the ‘receiving’ local authority for each patient subject to a Standard Authorisation. This will not necessarily be the local authority in which the hospital is situated.
- Each local authority will need to be prepared to receive applications from hospitals in Wales or any part of England.
- Clinical commissioning groups (CCGs) will be responsible for commissioning services in hospitals that comply with the Mental Capacity Act and the Deprivation of Liberty Safeguards.
- CCGs retain responsibility for dealing with matters relating to authorisations granted by PCTs prior to 1 April 2013.
As a Solicitor who has represented many individuals and family members in cases involving a deprivation of liberty and legal challenges to the same, I welcome the transfer of responsibility. Although this may cause some problems in the first instance: ie the inevitable clash of personalities as health care professionals in the PCT hand over yet more responsibility to Social care professionals; the rush to review any individuals who may have slipped the net (no bad thing) before the transfer is made; the invariable lack of additional funds made available to already stretched Local Authorities to cover the additional case load., having responsibility all under one roof will promote consistency of approach and will enable local authorities, with local responsibility for care homes and hospitals in their remit, to respond to local need more cohesively.
Only time will tell
Rightly or wrongly, we are where we are and the new system takes effect next week. There are many criticisms that have been and will continue to be levied against the new structure and the regulations, which are supposed to reflect the Government’s commitment to cut NHS administration costs by a third. But as with any whole scale change it is impossible to know how it is going to work in reality. There are many huge changes that work well in reality, but there are also some costly overhauls of systems that end up being pushed under the carpet and quickly forgotten about. The Government will not be able to hide this if it results in being a huge mistake. Will it save money? Will it ensure that the vulnerable are better protected? The optimist in me wants to say yes – but the proof will be evident in time.