19.1Joint working between NHS and local authorities
Department of Health policy has long been to encourage joint working between the NHS and local authorities, and a number of legislative provisions allow for this. For instance, the NHS Act 2006 permits pooled budgets, lead commissioning of services and transfer of functions (e.g. where an NHS primary care trust discharges community care duties on behalf of the local authority). In principle, joint working would appear to have much to recommend it, insofar as it circumvents the rigidity, inflexibility, artificial demarcation, and duplication of assessment that can afflict health and social care.
Nonetheless, far from working jointly, local authorities and NHS bodies all too often continue to find themselves at loggerheads, as they attempt to pass the financial buck, in order to avoid unwanted responsibilities. Because of the political imperative to be seen to be working jointly, transparency is sometimes a casualty; sometimes even, this imperative has militated against local authorities challenging NHS bodies over matters such as NHS continuing health care (see Chapter 18); even if this has meant local authorities ending up unlaw fully providing services, charging for them, and effectively forcing people to use up their savings and sell their homes to pay for care that should have been free.
An additional trend has been for local authorities and the NHS sometimes to assume that the usual legal obligations to assess and provide services no longer apply in the context of joint working. If thinking of this type takes hold, joint working becomes a byword for excising certain legal duties from everyday practice.
INTERMEDIATE CARE AND REHABILITATION
Under guidance issued by the Department of Health, the NHS and local authorities provide intermediate care services, which are designed either to prevent admission to hospital or other institution, or alternatively to enable people to return home by means of (usually up to six weeks) provision of rehabilitation or other services. The policy of intermediate care, which was intended to enhance and add to existing rehabilitation services, has in some areas arguably been misused and exploited by NHS bodies as an excuse to run down other rehabilitation beds, services and units. Although difficult to challenge legally (but it has been done), this has had an unfortunate effect. This is because, whilst intermediate care may be suitable for a significant number of people, it is usually insufficient to deal with more complex needs for rehabilitation and recuperation. Intermediate care is generally intended to represent a short, sharp response for people with simpler needs.
COMMUNITY EQUIPMENT SERVICES
Community equipment services have long been an enigma, perceived to be important in principle, but in practice badly neglected. Department of Health policy has stated that community equipment services should be integrated between health and social care. It would appear that after several years this policy has not resulted in significant improvements for service users. With some exasperation, central government has proposed a radical change to the way in which equipment is provided, taking provision largely away from local authorities and NHS bodies and replacing it with a ‘retail market model’ of provision. However, to date no legislation or definitive guidance has been issued.
SINGLE ASSESSMENT PROCESS
Guidance on a single assessment process for older people provides for the NHS and local authorities to streamline and integrate health and social care assessments, and to organise it in terms of four levels: contact, overview, specialist and comprehensive assessment. However, arguably the guidance and policy has been superficial both in practice and law and is of limited significance. In practice, this is because older people and disabled people can still find themselves subject to a range of different assessments from varying professionals – partly of course because they need such multiple assessments. For example, general practitioner, consultant, district nurse, occupational therapist, physiotherapists all have expertise to contribute. In law, it is because the guidance represents a veneer only; disparate social and health legislation remains beneath, thus hindering a true merging of local policy, assessment and provision of services.
19.1 JOINT WORKING BETWEEN NHS AND LOCAL AUTHORITIES
There has long been legislation allowing, and sometimes demanding, joint working between the NHS and local authorities. However, more recent legislative provisions passed by central government are designed to facilitate such working and make it more prevalent.
The reasons for joint working would appear to be compelling, namely, to simplify assessment and provision of services for service users, to reduce duplication of function – and to reduce the unseemly wrangling and cost shunting between local authorities and the NHS that sometimes results in delay in the provision, or even non-provision, of services. Thus, original community care policy guidance stated that the objective was to provide a service in which the boundaries between primary health care, secondary health care and social care did not form barriers from the perspective of the service user (DH 1990, para 1.9). Examples of legis-lation (as amended) allowing or demanding joint working include the following:
•Cooperation. NHS bodies and local authorities must cooperate in order to advance the health and welfare of the people of England and Wales (NHS Act 2006, s.82).
•Joint strategic needs assessments. A local authority and local NHS primary care trust(s) must prepare an assessment of relevant local needs – which either the local authority or PCT could meet to a significant extent, and which the other could meet, or affect, to a significant extent (Local Government and Public Involvement in Health Act 2007, s.116).
•Local authorities. A local authority must make services available to each NHS body acting in its area, as far as is reasonably necessary and practicable, to enable the NHS to discharge its functions (NHS Act 2006, s.74).
•Arrangements with other organisations. The NHS can arrange with any person or body, including a voluntary organisation for that person or body to provide, or assist in providing, any service under the NHS Act 2006; also the NHS may make available to such a person or body goods, materials, premises, etc. (NHS Act 2006, s.12).
•Arrangement with local authorities. The NHS must make available to local authorities services, facilities, etc., so far as is reasonably practicable to enable local authorities to discharge their functions relating to social services, education and public health (NHS Act 2006, s.80).
•NHS payments to local authorities. A primary care trust may make payments to various bodies including a social services authority, a housing authority, education authority, voluntary organisation or registered social landlord, in connection with the functions of those bodies. Payments may also be made, if such an NHS body thinks fit, to a local authority in connection with any of that authority’s functions if the NHS body believes that those functions have an effect on the health of any individuals, have an effect on or are affected by any NHS functions, or are connected with any NHS functions (NHS Act 2006. s.256).
•Local authority payments to NHS. A local authority may make payments to a primary care trust, strategic health authority or local health board (Wales) (NHS Act 2006, s.76).
19.2 JOINT WORKING AND THE NHS ACT 2006
Section 75 of the NHS Act 2006 (formerly s.31 of the Health Act 1999) refers specifically to the pooling of budgets and to the delegation of functions. It does not impose a duty, but instead places a power on the NHS and local authorities to work jointly in this way. Section 75 empowers the Secretary of State to make regulations enabling prescribed NHS bodies and prescribed local authorities to enter into particular arrangements in relation to their respective functions. This is on condition that any such arrangements are likely to improve the way in which those functions are exercised. The section goes on to state that the prescribed arrangements may include (a) the establishment and maintenance of joint funds; (b) the exercise by an NHS body of prescribed health-related functions of a local authority and vice versa; (c) the provision of staff, goods, services or accommodation in connection with (a) or (b).
19.2.1 NHS ACT 2006: SERVICES INVOLVED IN JOINT WORKING
Regulations spell out the detail of which bodies and services the joint working arrangements apply to. Relevant NHS functions are those under s.2 and s.3(1) of the NHS Act 2006, including rehabilitation services and those services intended to avoid admission to hospital. Also included is aftercare under s.117 of the Mental Health Act 1983. Excluded are surgery, radiotherapy, termination of pregnancies, endoscopy, Class 4 laser treatment, other invasive treatment and emergency ambulance services, medical and dental inspections of school age children – and advice, examination and treatment on contraception, substances and appliances (SI 2000/617).
Relevant local authority functions are many (with a few specific exclusions). The regulations were amended in 2003 to allow charging functions, for both residential and nonresidential accommodation, to be included. Other local authority functions covered, in addition to social services functions, include education authority functions, and housing authority functions under both Part 1 of the Housing Grants, Construction and Regeneration Act 1996 (containing disabled facilities grants), and under Parts VI and VII of the Housing Act 1996 (housing allocation and homelessness).
The Regulations state that partners may establish and maintain a pooled fund, and that NHS bodies may exercise health-related local authority functions, and that local authorities may exercise NHS functions (SI 2000/617).
19.3 CARE TRUSTS
Joint working can take the form of a care trust, comprising an NHS trust or primary care trust that may exercise health-related functions of a local authority (NHS Act 2006, s.77).
19.4 JOINT WORKING: LEGAL FUNCTIONS AND AVOIDANCE OF PITFALLS
The NHS Act 2006 makes quite clear that any arrangements made under it affect neither the liability of NHS bodies or local authorities for the exercise of their functions, nor the powers or duties of local authorities to recover charges for services (s.75). Likewise, in respect of care trusts, it states that existing functions of both NHS and local authority are not affected (s.77).
This is a cautionary reminder to those local authorities and NHS bodies who enter joint working agreements without an appreciation of the legal implications. When joint working takes place, it is sometimes forgotten that existing duties on each partner (local authority or NHS) remain unaltered. This can lead to unlawfulness where either partner improperly gives up its decision-making responsibilities. Single health and social care assessments are one thing, unduly restrictive assessment quite another. This was illustrated in a court case where the local authority improperly determined the outcome of its community care assessment with reference to NHS matters. It had therefore in effect lost its own legal identity:
Fundamental error of local authority in giving up its decision-making responsibility. An assessment was carried out as to whether a man was eligible for assistance through the Care Programme Approach (CPA), which is primarily an NHS responsibility. The final decision was that he was not eligible, because he did not have a severe and enduring mental illness. It was then concluded, on the basis of the CPA decision, that he was not eligible for community care services either. This was legally impermissible; before a decision was taken about community care, an assessment was required to investigate the risk, self-neglect and vulnerability to deterioration that had already been identified. There had never been a proper and comprehensive community care assessment; this was a demonstrable, fundamental and serious error (R(HP) v Islington LBC).
Likewise in another court case, reliance on health reports was not enough for the local authority to discharge its decision-making obligations:
Local authority failing to take community care decision.