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Community Care (Delayed Discharges etc.) Act 2003

Determination of need for community care services on discharge

Section 2: Notice of patient’s likely need for services on discharge

11.Under subsections (1) and (2), NHS bodies with responsibility for patients are required to inform local authorities with social services responsibilities (in Part 1 referred to as “social services authorities”) of patients who are likely to need community care services in order to be safely discharged.

12.Under subsection (2)(a), the social services authority to be notified is the one which appears to the NHS body to be the one in which the patient is ordinarily resident when the notice of likely need is given. The NHS is not required to undertake lengthy investigations to establish with certainty which authority this is, as the notice will be effective even if the NHS notifies an authority other than the one in which the patient is ordinarily resident. Provided the NHS body has made reasonable efforts to identify which authority is responsible, then it must serve notice to that authority. Subsection (2)(b) provides for cases where a patient appears to have no settled residence, e.g. in the case of a homeless person.

13.Subsection (3)(a) requires the NHS body to make explicit that it is giving notice under section 2. This is to ensure that the recipient social services authority can recognise this notice as the formal start of the process provided for under this Act. Subsection (3)(b) requires that notice is not given earlier than eight days before the day of expected admission. The admission day is itself to be counted in this eight day period. This ensures that a section 2 notice is not provided too far in advance of admission. Otherwise there is a risk that preliminary planning would be wasted if the patient’s condition changed.

14.Subsection (4) places a duty upon the NHS to consult the patient, and where appropriate his carer, before issuing a notice to the social services authority of the patient’s likely need for community care services upon discharge under section 2. This is to prevent the NHS from initiating assessments which are not required, because, for example, the patient will make his own arrangements. It also means that a patient will know that the process in the Act applies. The NHS body only has to consult the carer if they know who the carer is, and if it is reasonably practicable to do so.

15.Subsection (5) defines “the responsible NHS body” which is required to give notice of possible need. This can be either the NHS body which is providing the care, (usually the NHS trust which manages the hospital that the patient is in) or, in the case of NHS patients whose treatment is provided by an independent hospital, the NHS body which made arrangements for this non-NHS treatment.

Section 3: Notices under section 2: supplementary

16.Section 3 sets out the administrative procedures for issuing and withdrawing a section 2 notice, and deals with issues such as what the notice must contain. Subsections (1) to (3) provide for how long a section 2 notice remains in force. Subsection (3) allows for regulations to provide when the notice ceases to have effect (if the notice has not previously been withdrawn by the responsible NHS body under subsection (2)). The intention is that the notice ceases to have effect if the patient dies.

17.Subsection (4) then provides that if a notice ceases to have effect, the social services authority is no longer liable to make delayed discharge payments, but that any existing liability to pay remains. The NHS body may issue a fresh section 2 notice to the social services authority if the patient’s circumstances make this necessary. Re-notification of this kind restarts the process, meaning that the social services authority must reassess the patient and, after consulting the NHS body, decide what services to provide.

18.Subsection (5) allows for regulations to set out the contents of the notice and the notification process. The NHS body may be required to withdraw the section 2 notice in prescribed circumstances. This is to make sure that the social services authority do not continue needlessly to carry out duties arising after a section 2 notice has been issued, such as arranging a care package, when the NHS is aware that the patient has made arrangements of his own, or may now need services of a very different nature than had originally been expected due to a change in circumstances. This could be because an admission which is elective (rather than emergency) has been postponed due to a significant deterioration in the patient’s condition. Subsection (5)(c) allows regulations to be made to define the day on which it will be considered that the NHS body has issued a notice to the social services authority.

Section 4: Duties of responsible authority when section 2 has been given

19.This section applies when notice of likely need has been given under section 2 of the Act. The social services authority must then assess, and after consultation with the NHS body, determine what services they will provide for a patient or carer. Statutory requirements under this section, if not complied with, form part of the trigger for payment (see Section 6).

20.Subsection (2) requires that, following notification under section 2 from an NHS body, the social services authority must carry out an assessment in order to determine what community care services a patient will need in order for him to be safely discharged.

21.Subsection (3)(a) then provides that, in prescribed circumstances, the social services authority must also assess the needs of any carer of the patient for services necessary to make the patient’s discharge safe. Subsection (3)(b) provides that, having done this, the social services authority must consult the responsible NHS body before deciding what services to provide.

22.Subsection (4) provides that the circumstances mentioned in subsection 3 are that the carer requests an assessment or has had an assessment in the previous year.

23.Subsection (5) provides that the duty to assess and decide under subsection (2) or (3) applies whether or not the person’s need for community care services, or the carer’s need for services, has previously been assessed. This is to prevent provision of care services being based only on an existing assessment which may not have taken account of possible changes in the patient or carer’s circumstances and needs, although existing and unchanged information can still be used.

24.Subsection (6) requires the social services authority to keep under review the needs of patient and carer and the services they have decided to provide. Subsection (7) then allows the authority to change their decision about what services to provide to enable a safe discharge, so as to cover situations where the patient’s condition changes. This means that if a patient recovers more quickly than expected, the social services authority would not have to provide all the services they originally said they would, even though some of them were no longer needed. However, the authority will not be able to make such a change without first consulting the NHS body (subsection (8)).

25.Subsection (9) provides that any assessment carried out under subsection (2) is to be treated as assessment under section 47(1) of the National Health Service and Community Care Act 1990, although this assessment does not necessarily fulfil everything which needs to be done under section 47. Section 47 is the provision under which social services authorities assess a person’s need for community care services, and decide whether or not those needs call for the provision by the social services authority of any such services. Assessment under this Act is carried out for the purposes of determining what a patient needs in order to be discharged from hospital safely. The person may well need other community care services in the longer term, determination of which will require completion of a full section 47 assessment.

26.Subsection (10) provides that carers’ assessments carried out under subsection (3) are regarded as being carried out under the provisions of section 1 or 2 of the Carers and Disabled Children Act 2000. The carers’ assessment under this section is carried out only for the purposes of determining what a carer needs in order for the patient to be discharged from hospital safely and further, fuller assessment may be required later.

Section 5: Duties of responsible NHS body when section 2 has been given

27.This section applies where a section 2 notice has been given. Subsection (2) ensures that the NHS body responsible for issuing the section 2 notice to the social services authority, and any other NHS body which may need to provide services to the patient upon discharge, must consult the social services authority before deciding which services it will make available upon discharge. This is to ensure that a complete package of care can be put in place smoothly and without duplication or omission of any particular service. The responsible NHS body will in the first instance normally be a hospital but the majority of NHS services upon discharge are likely to be provided by the patient’s Primary Care Trust. The social services authority must be consulted about all NHS services that are to be provided.

28.Subsection (3) provides that the NHS body must notify the social services authority of the day on which it is proposed that the patient will be discharged.

29.Subsections (4) and (5) deal with when a notice issued under subsection (3) is in force and when it may be withdrawn. The intention is that the social services authority should be informed as soon as possible by the NHS body of circumstances which change the proposed discharge date, so that the social services authority can make corresponding changes to their arrangements to provide services. This ensures clarity of communication between the NHS and social services authority leading to better joint planning.

30.Subsection (6) defines “the relevant day” for the purposes of charging under Part 1. This day is the later of the proposed date of discharge as communicated to the social services authority, or the last day of a minimum interval provided for the authority to carry out their duties under section 4 which starts after notice under section 2 has been given.

31.Subsection (7) provides for this minimum interval to be prescribed in regulations but places limits on what the regulations may prescribe. The minimum interval starts on the day after the social services authority has received notification under section 2 that a patient is likely to require community care services, and must be at least two days. This in effect means that a social services authority will always have at least some of the day of notification under section 2, plus two more days to assess the patient’s community care needs and put in place sufficient services to allow for discharge from hospital. Furthermore, Sundays and public holidays cannot be counted towards the two day period prescribed at subsection (7)(b) until 31 March 2005 at the earliest (subsection (8)). In England and Wales, public holidays are Christmas Day, Good Friday and bank holidays.

32.If the notice under subsection (3) is withdrawn, subsection (9) provides that the NHS body is under a duty to issue a fresh notice when a new discharge date has been identified, and that a new relevant day is identified.

33.Subsection (10) provides for regulations to define the form, content and manner of issuing of discharge notices under subsection (3) and withdrawal notices under subsection (5). The aim is to ensure that the social services authority receives fair warning of the intention to discharge or of changes to this decision. The subsection also aims to prevent disputes about when such notices can be regarded as given or received. Subsection (10)(d) allows regulations to be made to define the day on which it will be considered that the NHS body has issued or withdrawn a notice to the social services authority.

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