By Ben Troke, Partner at Hill Dickinson (www.hilldickinson.com)
In January 2023, the government announced an additional £200 million fund to speed up hospital discharge, for ICBs to fund maximum stays of up to four weeks per person in care homes and other settings with wrap around support, with the money to be spent by the end of March.
The aim, of course, is to reduce the number patients in hospital with no medical need to be there: In December 2022, more than 13,000 beds, out of a total of around 100,000 hospital beds in England, were occupied by patients who were medically fit for discharge and bed occupancy was above 95 per cent for adult general and acute beds, well above the maximum threshold of 92 per cent set by the NHS to maintain patient flow. Delayed discharge not only reduces the availability of hospital beds for newly admitted patients, but also brings additional risk that patients may acquire infections in hospital from longer stays, and makes it harder for people to regain their independence after leaving hospital, increasing their need for post-discharge care.
This funding is on top of the £500 million adult social discharge fund announced in September 2022, which involved a twin-track route where £200 million would go to local authorities and £300 million to ICBs, but was announced before the impact of that first tranche of extra funding has been assessed. Equally, with the new £200 million discharge fund having to be spent by 31 March 2023, it is too soon to really see the impact this has had.
Initial suggestions from local authorities are that the funding helped maintain safe staffing levels in social care during the grant period, whilst also helping to discharge patients from hospital. Nevertheless, the time-limited nature of the fund does restrict its impact on the wider underlying issues within social care, most obviously the workforce challenge, with 1 in 10 posts now vacant, affecting pre-discharge assessments and identifying and securing placements for patients in need.
The number of patients remaining in hospital overnight who no longer meet the criteria to remain still averaged 13,771 in February 2023, a 9.4 per cent increase from the 12,589 patients in April 2022.
There may be a more significant impact from the government adult social care policy paper “Putting People at the Heart of Care” published on 4 April 2023, though the dominant initial response from the sector was to decry the apparent reduction in funding for the social care workforce from amounts previously committed.
It may also be misleading to see on social care services as the main problem. Of the patients stuck in hospital at the end of 2022, only 37% were due to waiting for social care services; problems with social care provision have never accounted for the majority of delays (in February 2020, the NHS was solely responsible for 60% of the delays in discharges).
Diagnosing the key problems for delayed discharge is challenging, as the dataset collection has been suspended since the COVID-19 pandemic. However, rather than simply seeing social care as to blame, there clearly needs to be a collaborative long-term plan for social care and hospital, including coordination of assessments of post-acute care needs, organising discharge to assess (D2A) pathways and ensuring people without complex needs are discharged rapidly.
The idea that they might be swiftly moved out of hospital into block booked residential homes might have a positive effect on delayed discharges, but there is a risk that it is not an appropriate placement for that individual’s care or rehabilitation needs (fewer than 5% of people discharged from hospital actually need 24hour bedded residential care).
In some (but not all) cases we will be dealing with the discharge of a patient who lacks capacity to make a decision for themselves about their discharge destination, in which case there is an issue about whether such a discharge could be said to be in the patient’s best interests (among the available options) per the Mental Capacity Act 2005.
And in some of those cases, there is a question whether such a discharge placement may amount to a deprivation of the person’s liberty (DoL) requiring authorisation under the Deprivation of Liberty Safeguards (DoLS, if a registered care home) which strictly speaking should be put in place before their discharge there, including, if appropriate, an opportunity to challenge that DoLS authorisation before any move if it is contested, either by the patient or by family / others on their behalf.
For patients who lack capacity for the relevant decisions, the same problems of proper MCA compliant best interests decision making and (prior) authorisation / challenge of any DoL may also arise in the context of any move onward from the initial residential placement, whether to another residential setting (perhaps closer to home) or back to the person’s own home, if and when an appropriate dom care package can be arranged.
Capacity or not, in a great many cases, there will be a risk of people staying in those residential placements much longer than is appropriate or necessary. Whilst assessments of care needs were to be done within the four weeks a patient was in a residential care home, the £200 million fund does not provide for a person still being at the care home after the four weeks. The guidance to providers apportions ongoing funding responsibilities to ICBs or to local authorities depending on what stage the assessment has reached at the end of the four weeks, but the fund did not cover long-term care needs following completion of a Care Act or CHC assessment.
Aside from any concerns about ineffectiveness and insufficiency of the fund, there may also be unintended consequences, which raise legal issues.