We see it on the news almost daily – the NHS is in crisis. It has too few beds to cope with demand, many of those ready to leave hospital have nowhere to go and there is not enough money to carry on caring for those in need. What can solicitors do to assist families who are caught up in these problems which are not of their own making?
As a preventative measure, and before any crisis occurs, we can encourage people to make Health and Welfare LPAs. At least that way, it is possible for family members to speak up for a loved one with real authority in the event of a lack of mental capacity. But what about those who are vulnerable yet retain capacity, or those who lack it and have no LPA?
Families need to know their rights. First, before discharge, a social needs assessment should be done, particularly if the person is elderly or vulnerable, to establish what needs there are and how they can best be met. At least one family member should be there to assist in the assessment and a copy should be supplied.
If a care home is recommended, what type of home? Residential? Nursing? Do there need to be any mental health specialists on hand in the home to give a therapeutic approach as opposed to one based on medication?
If a nursing home is the better option, a preliminary assessment for continuing health care funding (CHC) should be undertaken and again a family member included. If a full assessment is the outcome, again, the family should be invited and copies of the assessments provided. CHC is where a person’s main needs are for health care and the NHS pays for all the care and accommodation.
In no circumstances should discharge take place without completing all appropriate assessments and adopting the correct procedures. It is worthwhile families having representation from a suitably experienced solicitor to enable the individual’s rights to be upheld.
If there is no CHC entitlement, what are the funding issues? If the patient has been sectioned, is there any entitlement to aftercare funding? Again, there is no substitute for taking expert advice to ensure that the correct legal principles are followed by the local and health authorities.
Other issues include disputes as to where a person should live upon discharge. This is not just relevant to those who lack capacity to make a decision, but also where a person has capacity but the local authority or health authority will not fund the preferred care home or a return to the person’s own home. So, for example, can a person with capacity insist upon a return home, even where this would cause additional expense to the Local Authority? Do funding issues trump the autonomy given to the individual under the Care Act?
Leaving hospital is not always easy, and care should be taken to ensure that people who are in a vulnerable position are properly looked after, both health-wise and legally.
Consultant at Higgs and Sons
Philip Martin-Summers is a consultant with Black Country firm Higgs and Sons, which is widely respected both locally and nationally for its expertise in serving the needs of both private and commercial clients for the last 140 years.
Philip specialises in advising individuals and their families on a wide range of matters relating to care and care funding issues.