Following a community care assessment and decision about what services will be provided, various guidance (but not legislation) states that a care plan should be drawn up containing details about objectives, services, agencies involved, costs, needs which cannot be met, date of first review, and so on. The form and complexity of a care plan will vary greatly depending on the level and types of service involved. The law courts have held that either a failure to follow, or at least to have proper regard to, this guidance can amount to unlawfulness.
At the time of writing, central government is introducing a new policy in social care, referred to as self-directed care involving individual or personal budgets (see Chapter 13). Part of this seemingly involves local authorities encouraging people to decide for themselves how their needs should be met – and to think in terms of overall, general outcomes rather than the specific services required to meet specific needs. It is not entirely clear what the implications are for the traditional notion of a care plan and how this development will fit into the current community care legal framework – especially if service users, rather than the local authority, have the last word about their needs and the services required to meet them. Furthermore, if people’s needs and care plans (or their equivalent) are expressed vaguely, it may become difficult to know when, or if, legal duties are being breached.
CONTRACTING OUT OF SERVICES BY LOCAL AUTHORITIES
Care plans are often implemented by independent care providers with whom the local authority contracts, rather than by the local authority directly. The way in which contracts are placed – their content, terms and conditions, and monitoring and review of performance – will therefore bear on how well, and sometimes whether, the needs of service users are met. Unfortunately, the contracting out of services is sometimes seen by local authorities as an escape route from potential obligations; they see it as a further uncertainty in the system (see Chapter 3) which is to be exploited. However, ultimately local authorities remain responsible for the meeting of people’s needs in a reasonable and safe manner; therefore an ‘out of sight, out of mind’ approach is in principle misplaced. The local government ombudsmen have become particularly concerned about local authorities taking this approach, which in some cases has been linked with service users coming to significant harm, including death.
REGULATION OF CARE PROVIDERS
Care providers are themselves subject to regulatory legislation in the form of the Care Standards Act 2000 (to be replaced by Health and Social Care Act 2008). Together with contract specification and monitoring by local authorities, this should in theory protect service users.
WAITING TIMES FOR SERVICES
In practice, waiting times affect the provision of a range of services, for instance residential care placements, day services, domiciliary services, home adaptations and community equipment. Keeping people waiting for services is obviously a major plank in the attempts of local authorities to control expenditure; waiting times therefore represent a potential ‘escape route’ from obligations, as outlined in Chapter 3. Some waiting times are likely to be lawful and remain within the ambit of good administration; whereas others will err toward the unlawful and constitute maladministration.
In the absence of timescales in either legislation or Department of Health guidance, the legal expectation is that a duty to meet needs will be performed within a reasonable period of time and without undue delay; and that what is reasonable will depend on all the circumstances of the case. The courts have seemed generally reluctant to become involved in such questions, although have done so on some occasions; in contrast, the local government ombudsmen have investigated frequently.
8.1 CARE PLANS
Once a local authority has assessed a person and identified eligible needs, it will generally have a duty to provide services (see 6.10). If services are to be provided, a care plan will be drawn up. Care plans are not referred to in legislation, although community care guidance places considerable emphasis on them (see generally DH 1990, para 3.24 and SSI/SWSG 1991, paras 4.1-4.37). Policy guidance states that care plans should follow assessment and it lists, in order of preference, a number of types of care packages, from support for people in their own homes to institutional long-term care (DH 1990, para 3.24).
Practice guidance states explicitly that users should receive copies of their care plans and goes on to list what their content should be. Guidance issued in 1991 identifies the following as key elements of a care plan. These were:
•specific objectives of users, carers, care providers
•criteria for measuring these
•services to be provided
•cost to the user
•other options considered
•points of difference
•named person responsible for implementation
•date of first planned review (SSI/SWSG 1991, para 4.37).
Later policy guidance on fair access to care contains more or less the same list, although explicitly refers also to contingency plans to manage emergency changes (LAC(2002)13, para 47). Yet further guidance, on the ‘single assessment process’ for older people, states that care plans should refer to:
•‘eligible need’ being identified in relation to intensity, instability, unpredictability, complexity, risk to independence, rehabilitation potential
•whether the service user has agreed the plan and has consented to information sharing
•of how services will impact on need
•what the service user will do to meet need
•risk management details
•what carers are willing to do
•level and frequency of help, specifying the agency responsible
•details of charges
•nursing plan where appropriate
•level of registered nursing care contribution where relevant
•name of coordinator
•monitoring arrangements and review date (HSC 2002/001, annex E).
The courts have held in more than one case that failure – without good reason – to draw up a care plan approximating in form to that set out in the 1991 guidance is unlawful.
Inadequate care plan. The case concerned a 25-year-old man with Seckels syndrome. He was blind, microcephalic, virtually immobile, doubly incontinent and mostly unable to communicate. He also suffered from severe deformities of the chest and spine, a hiatus hernia and a permanent digestive disorder. His weight and size were those of a small child, his dependency that of a baby.
The care plan drawn up by the local authority was inadequate to meet his assessed recreational needs; it had not sufficiently attempted to adjust what it was prepared to provide, in order to meet those needs.
The court also held that his care plan breached, without good reason, Department of Health policy guidance (DH 1990, para 3.24) stating that the objective of social services interventions should be recorded. In addition, the plan breached practice guidance (SSI/SWSG 1991, para 4.37) in respect of its contents, specification of objectives, agreement on implementation, leeway for contingencies and the identification and feedback of unmet needs. Practice guidance did not, the judge explained, carry the force of the policy guidance, but even so, the authority should have had regard to it: ‘Whilst the occasional lacuna would not furnish evidence of such disregard, the series of lacunae…does, in my view, suggest that the statutory guidance has been overlooked’ (R v Islington LBC, ex p Rixon).
Furthermore, the courts have pointed out that a care plan generally provides evidence of a person’s eligible needs, of the consequent duty on the local authority, and of the way in which the duty will be performed. On this basis, it follows that a significant failure to provide services in accordance with a care plan could well indicate a breach of statutory duty on the part of the local authority (R v Islington LBC, ex p Rixon). Similarly, a substantial discrepancy between assessed need and the care plan is likely to be unlawful and also to constitute maladministration in the eyes of the local ombudsman.
Significant discrepancy in one-to-one support. A man with dual sensory impairment and ataxia was assessed in 1994 as needing significant one-to-one support because of very high dependency, special needs due to a combination of learning disability, physical disability, blindness, partial hearing, and communication difficulties. However, the care plan did not reflect this assessment and the appropriate level of one-to-one support was not provided. He only received two hours per week over a period of time. In 1999, the council offered an increase to six hours, which his mother found unaccept- ably low. It was only by 2001 that he was receiving 33 hours per week from a deaf-blind communicator. In addition, Independent Living Fund funding was obtained in 2000 for 27 hours a week care at home; this increased to 41 hours a week in October of that year.
The ombudsman concluded that for a number of years, the local authority had ‘failed by a wide margin’ to implement the 1994 assessment (Hertfordshire CC 2002).
The failure to produce a care plan, even if an assessment of sorts has been carried out, might lead to costly recommendations by the local ombudsman.
Failure to produce proper care plan for a woman with learning disabilities. A young woman with learning disabilities was in a residential placement. On a visit to her family at Christmas, she decided she wished to live nearby and not return to the placement. The council failed to produce a care plan, relying wrongly on assumptions about what the father wanted. It had now lost the relevant records. However, on the basis of other evidence, it should have been reasonably clear to the council by April that the father was expecting the council either to provide the care or to secure that it be funded with direct payments and Independent Living Fund money if necessary (which eventually happened). It offered only some day centre activity.
The failure to have in place a care plan by April was maladministration. The father had subsequently to look after his daughter for some two years;full local authority funding was not in place for two and a half. As a result, the father had been caused significant financial loss, distress and frustration. The local ombudsman recommended £80,000 by way of remedy to be paid to the father; the council agreed to this (Hertfordshire CC 2003).
Not passing a care plan on to the relevant care provider will also be regarded as maladministration:
Care plan not given to care home. When a 101-year-old woman was admitted to a care home, where she subsequently developed a chest infection and pressure sore, the local ombudsman found no evidence that her care plan or any other similar documentation was given to the care home manager. Yet the care plan was an ‘important document’ and drew attention to significant issues of washing and medication, including treatment for her legulcer. This was maladministration (Kent CC 200l).
8.1.1 CARE PLANS: INTERRUPTIONS TO SERVICE PROVISION
Interruptions to, or unreliability of, service provision will not always be unlawful or constitute maladministration. It will depend on the degree and the circumstances.
Discontinuity in home care service. Following meetings, conversations and visits from local authority staff, the applicant had been informed that his home care service might suffer from discontinuity in certain circumstances (e.g. when home carers were ill or on leave). The applicant complained about the discontinuity that duly followed.
The judge found that the council had (a) performed a proper balancing exercise ‘taking into account resources and the comparative needs of the disabled in their area’; (b) given clear notice about the possible interruptions to the service; (c) provided what they had undertaken to provide and what had been assessed as needed; (d) at no time withdrawn the service; (e) not interrupted a service to a person for whom any interruption of the service would have been intolerable. For instance, missing a day’s meal would not have been acceptable, but missing a day’s cleaning would have been (R v Islington LBC, ex p McMillan).
However, if home help services fail significantly the local ombudsman will find maladministration:
Irregular home help service. Over the course of a year, a man had frequently less than his planned three home help visits a week; no sufficient reason was given for this failure, and the local authority anyway had no system to tell people about cancellation or delay. This was maladministration (Westminster CC 1996).
In another case, the care plan stated that a woman with osteoporosis should receive 14.5 hours a week care; yet the council conceded that it had been providing only 12 hours. This was maladministration (Croydon LBC 2000). The ombudsman, like the courts in the McMillan case (immediately above), has recognised the obvious importance of food:
Meals. The ombudsman criticised the period of two or three months which it took the council to respond to the request from the man’s general practitioner to change the type of meal he received – this was important because of his medical condition. He required meals for people controlling diabetes by diet (copper coded), rather than by insulin (red coded). Despite the request, red coded meals continued to be delivered for some time. This was maladministration, caused injustice and warranted a compensation payment of £150.
The man also complained about the irregular visiting times of his home help service; however, the ombudsman accepted that it might take a little time to establish a regular visiting time, and it would be unrealistic to expect visits to be made at exactly the same time each week (Kensington and Chelsea RB 1992).
Nevertheless, the court’s observation in the particular circumstances of the McMillan case, elevating cooking above cleaning, should not be taken as a general dismissal of the importance of cleaning. In one case the local ombudsman found maladministration, because a local authority had prioritised shopping over cleaning without taking account of the individual circumstances of the service user. He was an amputee, diabetic and doubly incontinent with an undoubted and significant need for cleaning ( Westminster CC 1996).
8.1.2 CARE PLANS: SERIOUS DISCREPANCIES IN PROVISION
Substantial failures in the delivery of services will anyway attract criticism from the local ombudsman, and may relate to the quality of service provision, including the competence of staff, as well as to the amount or quantity of service as set against the care plan.
Serious shortcomings in services in hostel. A woman with epilepsy, severe learning difficulties, behavioural problems and urinary incontinence was placed in a hostel by the local authority under s.2l of the National Assistance Act 1948. The placement failed; the local ombudsman found serious shortcomings. These included the care plan not being fully in place when she moved in, insufficient monitoring of the placement, chronic understaffing, inadequate training, and lack of proper evaluation of the woman’s needs (Hackney LBC 1992a).
Serious failures in provision of support to a person in a care home. A local authority placed a man with severe learning disabilities in one of its own hostels. The parents complained of poor staffing, their son’s sleep disturbance through sharing a room with a man who required attention several times a night, personal belongings being stolen or destroyed, lost laundry, missing lavatory seats, and their son being left with tooth pain. The ombudsman found serious failures and maladministration. Although a support worker was provided, there was a lack of precision in setting, working toward and recording the meeting of targets; this, too, was maladministration – as was a failure on several occasions to administer the medication necessary for his epilepsy (Manchester CC 1993).
It is possible that the courts might recognise lack of competence or appropriateness in the provision of care, as they were prepared to do in an education case:
Competence of staff. A dispute arose over the competence of a supply teacher who had been taken on to teach an autistic child. The child’s statement of special educational needs required that she be taught by a teacher experienced in teaching children with significant learning difficulties and autism and communication disorders. The court expressed its reluctance to intervene except when a decision appeared legally irrational. However, in this case, the judge found that the local authority could not reasonably have characterised the teacher as ‘experienced’. Thus the authority was in breach of its duty to arrange the special educational provision specified in the statement of need (R v Wandsworth LBC, ex p M).
Serious failures in care plans might not only mean that people’s needs are not met, but be maladministration – and be associated with, if not necessarily proved to have caused, serious consequences including death:
Death of woman with learning disabilities. The case concerned a woman in her thirties who,the coroner found, died accidentally by drowning (perhaps following an epileptic fit or cardiac arrhythmia) in the bath at a six-person residential care unit run by the council.
The woman had an ‘Individual Programme Plan’, but the ombudsman criticised the fact that it still contained an objective about learning certain skills – despite the fact that the officer with responsibility for the ‘Goal Plan’, designed to achieve such an objective, said that the woman was not capable of learning those skills. The absence of a formal decision to relax the requirement about these skills was maladministration. More specifically: ‘No formal decision was ever taken that Anne had reached a stage where she could safely be left to bath alone. I can understand staff’s concern to maximise her privacy and independence. Such concerns needed to be balanced against the needs of safety. It may be that, had a proper assessment been made, a decision could have been properly reached that Anne was able to bath alone but this is not what had happened and no such decision was conveyed to [the parents].’
This, together with a temporarily reduced staffing level, was maladministration, although the ombudsman – in line with the findings of the coroner – did not conclude that it had resulted in the woman’s death. However, the staffing level was a factor that delayed discovery of what had happened. The ombudsman concluded that there was maladministration in the way in which the woman was cared for (Cleveland CC 1993).
In a similar type of case, considered judicially, the court concluded that the absence of the issue of bathing from the care plan, even if negligent (in civil law), was not sufficient to warrant a charge of manslaughter (in criminal law) on the grounds of gross negligence (Rowley v DPP).
If accidents involving bathing seem to be regularly reported, so too do incidents of ‘wan- dering’, about which complaints might be made to the local ombudsman:
Death of elderly man with Alzheimer’s disease. An 82-year-old man was admitted on 25 April for respite care to one of the council’s residential homes. He suffered from Alzheimer’s disease but was otherwise fit. He was prone to wandering off and had difficulty finding his way home in an unfamiliar area. Undetected by staff, he left the home on 29 April; he was found dead six weeks later.
The ombudsman found no fault in the local authority’s original assessment of the need for respite care. However, it was at fault for not properly checking that the care home could meet his needs. Furthermore, there had already been a ‘wandering’ incident on 27 April before the final disappearance; the family should have been informed of the incident, invited to think again about the placement and involved in the risk assessment process. In addition, the care home should have reconsidered the suitability of the placement when it finally found and opened his assessment documents on 26 April; ensured that all its staff were aware of his needs and propensity to wander; recorded the 27 April incident; and ensured he was adequately supervised. This was all maladministration (Hounslow LBC 1999).
8.2 PROVISION OF COMMUNITY CARE SERVICES: CONTRACTS
Since community care was formally introduced in April 1993, a so-called ‘mixed economy of care’ has meant that local authorities make extensive use of independent care providers (both voluntary organisations with charitable status and private sector organisations) to deliver community care services. This involves a large scale of contracting, for instance, for residential accommodation (under s.26 of the National Assistance Act 1948) and for non-residential services (under s.30 of the National Assistance Act 1948).
However, overall, it is the local authority that retains statutory responsibility for meeting a person’s community assessed care needs and for ensuring that a person’s care plan is adhered to – and it is the local authority that is spending public money on the contracts. Therefore, they have to pay serious attention to contracting matters such as the tendering process, allocating sufficient money to contracts, terms and conditions within the contract, penalty clauses, monitoring and review of contract performance, responding to complaints – and so on.
8.2.1 CONTRACTS AND SERVICE USERS
When health or social care is provided by the NHS or by local authorities, the courts have hitherto declined to recognise the existence of a private law contract created between provider and service user. This is despite individual care plans, which bear the language of agreement, being signed by all parties. Users of services and local authority staff sometimes believe wrongly that enforceable contracts are being created. This is not to say that such care plans might not be legally enforceable against local authorities; but this would be by way of judicial review (see 8.1 above) rather than through an action for breach of contract.
The reason for this is that the courts generally hold that the existence of statutory arrangements preclude the free negotiation and bargaining that are meant to be the hallmarks of a genuine contract. This means there will be no contract between the user of a statutory service and a statutory provider. This might be so even when money changes hands – as in a case concerning an NHS prescription charge, when the House of Lords stated that the transaction was governed by statutory obligations and not by contract (Pfizer Corporation v Ministry of Health).
A further obstacle to the identification and enforcing of contracts by users of services arises in relation to independent providers. This is the rule in English law called privity of contract. This means that a third party (i.e. the service user) cannot enforce a contract by two other parties (the local authority and the independent provider), even if it has been made for his or her benefit. The Contracts (Rights of Third Parties) Act 1999 was passed in order to enable third parties to enforce, in certain circumstances, a contract made between two other parties. However, whether the courts would interpret the Act as effective in the case of statutory social care and health care services is doubtful.
Of course some people fund themselves privately and enter directly into a contract with independent care providers, in which case contractual obligations exist directly between care provider and service user.
8.2.2 LOCAL AUTHORITY AND CARE PROVIDER CONTRACTS
Under regulations, passed under the Care Standards Act 2000, registered care providers, are obliged to have care plans in respect of each individual service user – for instance in respect of domiciliary care (SI 2002/3214, r.14) and care homes (SI 2001/3965, r.15). This duty is expanded upon further in standards published for the purpose of registration and inspection of such providers – for example standard 7 of both the Domiciliary care national minimum standards (DH 2003b), and of the Care homes for older people national minimum standards (DH 2003a). In future, such regulation will come under the Health and Social Care Act 2008. Nevertheless, the overall duty of the local authority to draw up a care plan and ensure that it is implemented remains, notwithstanding its contracting out of services to an independent provider.
8.2.3 CONTRACTED OUT SERVICES: OUT OF SIGHT, OUT OF MIND?
Local authorities must beware of improperly shedding their duty to ensure that the needs of service users are met. The local ombudsmen have expressed increasing concern about this issue. For instance, in the following case, a woman died against a background of failures on the part of the care agency involved, and on the part of the local authority to do anything about these known failures:
Woman’s death following council’s apparent indifference to the fate of elderly people. The complainant’s elderly parents were both in their nineties when they began to receive services provided by care agencies on behalf of the council. Even before his father died, he had been complaining to the council that agency staff frequently missed calls, or arrived late – in which case, many elderly people like his mother tried to get up to make their own meals, putting their health in danger. On one occasion, his mother fell in the bedroom at 12.30 pm. She was unable to get up, but expected a lunch time visit so lay on the floor waiting for the carer. After an hour, she realised nobody was coming. She then used her alarm. A few days later there was no breakfast time call; she managed to get herself up, but she went without breakfast or medication.
Carer arriving with no torch: woman startled and falls and dies. The final chapter was when a home help made a tea time call in January. She did not have a torch, which she was meant to have, to illuminate the door entry key pad. So she banged on the living room window. The woman was startled. As she tried to hurry into the kitchen to switch on the light, she fell on to the corner of a table. The home help let herself in, got the woman off the floor, made her a cup of tea and sandwich, wrote up the daily log without mentioning the fall, and left. Two hours later, the woman’s son arrived to find his mother slumped in her chair unable to move. A doctor was called. She suffered eight broken ribs as a result of the fall. The doctor made an incorrect diagnosis; appropriate treatment was delayed. She died two weeks later after the onset of pneumonia. The carer was dismissed for failing to report the incident.
Failure of council to respond to reports of missed or late calls: routine contract compliance checks not enough.The ombudsman was scathing. She stated that ‘councils must respond to reports of missed or late calls by agency staff and follow up complaints by or on behalf of vulnerable service users as a matter of urgency. It cannot be left to routine contract compliance checks to find out whether planned services are really being delivered. It can never be acceptable for elderly people whose care is the responsibility of the Council to wait long periods of time for the next meal or for their medication to be given.’ The council’s failure promptly to take up complaints of missed calls was maladministration; likewise its failure to consider whether to make alternative arrangements. When an agency is failing, the council ‘must simultaneously look and act in two directions at the same time – to the contractor to improve performance and to the client to assess and respond to the risk posed to them by the contractor’s failures.’
Furthermore, the way in which the complaint was then handled – including a failure to coordinate papers for the review panel stage – contributed to the complainant’s impression that the council was merely going through the motions and that it ‘did not care what was happening to its elderly and vulnerable clients’ (Sheffield CC 2007).
The report was disturbing. Equally so evidence given to the ombudsman by the woman’s social worker in the same investigation, who explained as follows:
Systemic failure in domiciliary care provision, and in reporting and responding to concerns. The council had a traffic light system, with agencies placed on red, amber or green depending on compliance with the terms of their contract with the council. In theory, a move to red or amber triggered a higher level of monitoring. But the system did not work. There was a general problem with care agencies not able to attract staff of a reasonable quality, and not providing basic training. The agency in question had managed to move from red to green, despite missed calls still being reported.
The council had introduced new monitoring arrangements since the woman’s death, including financial sanctions for missed calls. But the social worker stated that the care agencies did not inform the responsible social worker when a call was missed. Further, social workers were not completing contract monitoring forms because they had not seen any changes to the system. Home helps were routinely given jobs to complete which were impossible; for example, it was not unusual for carers to be given four one-hour calls within one hour. The social worker also believed that records of visits were often completed fraudulently (Sheffield CC 2007).
In another case, the relevant council staff knew that things were going badly wrong with the care agency concerned, but bureaucracy within the council prevented anything being done about it.
Councils wasting money and placing people at serious risk: by paying care agencies for not providing the services they are contracted to provide. The complainant’s brother lived alone. He was unable to stand on his own or walk, so he used a wheelchair all day. He had limited use of his arms and hands. He could not get himself in and out of bed or on to and off the toilet. He had some brain damage, diabetes, high blood pressure, hearing impairment and heart problems. Other members of the family could not provide all the care he needed.
The council assessed and drew up a care plan. A care agency was meant to implement it, including personal care needs (with a weekly shower), food preparation, opening/shutting windows and curtains, washing and drying dishes and cutlery, cleaning work surfaces and floors, making the bed daily, changing the bed weekly, attending to laundry weekly. However, the agency did not carry out many of the tasks either at all, properly or regularly (for instance, he had never had a shower from the agency).
The council took no corrective action because there was no mechanism in the council for social workers – who knew about agency shortcomings – to report concerns to the contracts unit. So nothing was done. This meant that the latter was ‘paying the agencies without considering the fundamental issue of whether the care plan requirements have been provided’. Thus,in Liverpool, ‘agencies can fail to implement care plans yet still get paid because the part of the Council that has the knowledge, on a day to day basis of whether care plans are being met, has no input into the administration of the contract’. This had the potential to put some of the most vulnerable members of the community at serious risk. This was maladministration (Liverpool CC 2007).
In yet another case, the complainant’s niece brought the complaint, after her aunt lay on the floor all day, after care workers had failed to arrive, and subsequently died. Again the local ombudsman was immensely critical of the council since it had known previously of the systematic failings of the agency involved: