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Edition No. 4 - February 2001

Health & Social Care Bill

Introduction

The Health & Social Care Bill contains the way in which the law is to be changed to accommodate the Government's response to the Royal Commission report, particularly paying for nursing care, and to take into account the consequences of the Pamela Coughlan v. North Devon Health Authority case.

It was introduced on Wednesday 20 December 2000 and on 14 February 2001 completed the House of Commons stage. The speed of its progress through the House of Lords will be critical if it is to reach the Statute book before the next General Election.

Extent of the Bill

The Bill is relatively short in length and is divided into five parts:

• Part I National Health Service
• Part I Pharmaceutical Services
• Part III Care Trusts
• Part IV Social Care
• Part V Miscellaneous and Supplementary

The media have already focussed on the Government's intention to replace Community Health Councils with the establishment of Patients' Forums, which is included in Part I. It is suggested that this might prove to be a stumbling block in the House of Lords if the Bill has to be rushed through to meet a general Election deadline.

Part II, as it suggests, is all to do with pharmaceutical services and has little specific relevance to long term care. Part V just deals with a few logistical matters, and again, is of little consequence to nursing home owners.

It is Part III and Part IV which directly effects us. Part III introduces Care Trusts and it will be interesting to note the debates on this area of the Bill.

A Care Trust appears to be an animal which has had a very short gestation period. Introduced for the first time in the NHS plan in July, mentioned in the Queen's Speech and now, in December, part of the new Health & Social Care Bill.

There are only three clauses in this part of the Bill; section 45 deals with Care Trusts where there are voluntary partnership arrangements, section 46 Care Trusts where there are, what could be described as involuntary partnership arrangements and, finally, section 47, contains further provisions about directions in connections with Care Trusts.

There is a huge debate at the moment as to whether the underlying intention of Care Trusts is to replace social services, with obvious implications that health will be taking over the role of social care. Whilst it will be interesting to watch this debate as a purely interested observer, it may well prove crucial to the future funding arrangements for residential and nursing home care and, as such, it is being very closely monitored by the Association at present.

Arrangement for, or purchase of Nursing Care

Part IV deals with various aspects of social care and, to some extent, it is a collection of unrelated issues. Clause 48 at first glance appears to be a real challenge to nursing home care.

The official explanatory notes issued with the Act offer the following explanation "Sub section (1) removes the right of a local authority to provide, arrange or purchase nursing care by a registered nurse. It is intended that the NHS in pursuance of its powers and duties under the 1977 Act will provide or arrange nursing care by a registered nurse and such care will (in accordance with the 1977 Act) be free of charge . The Department of Health is currently working with the Royal College of Nursing and other key stakeholders to develop a tool to be used across the country for assessing for nursing care. NHS staff will be trained in the use of this tool in time for the introduction of free nursing care".

(This is the Stakeholder Group referred to in Care Standards Update No. 3)

Definition of Nursing Care

Sub section (2) gives the definition of "Nursing care by a registered nurse" . This means services provided by a registered and involving either the provision of care, or the planning, supervision or delegation of the provision of care, other than services which do not need to be provided by a registered nurse. In deciding whether services need to be provided by a registered nurse, it is necessary to have regard to the nature of those services and the circumstances in which they are provided. "Registered" in relation to nurses, midwives and health visitors means registered in the register maintained by the United Kingdom Central Council for Nursing, Midwifery and Health Visiting by virtue of qualifications in nursing, midwifery or health visiting (see schedule one to the Interpretation Act 1978) .

The various arguments for and against extending the 'free nursing care' to all personal care were rehearsed in the House of Commons during an Opposition Debate initiated by the Liberal Democrats on 5th February. This was then repeated during the Committee Stage of the Bill when this Clause was debated on the afternoon of the following day.

Preserved Rights

Clauses 49 to 51 concern the abolition of preserved rights. Until 1993 when the community care reforms came into effect, residential care was paid for by the social security benefits received by residents. The community care reforms transferred the responsibility for paying for residential or nursing home care to local authorities. People who were in residential care on 1 April 1993, the day the reforms took effect, retained their right to the higher rate of Income Support that they had been receiving to pay for their care. Responsibility for paying for their care was not transferred to the local authority.

Over time residential care costs have increased at a disproportionate rate to social security benefit, and in some cases social security benefits are not sufficient to cover the cost of the residential care. On rare occasions this has meant that people have had to leave the care home they have been in and find alternative accommodation that will be covered by the social security payment. These clauses provide for the removal of entitlement to higher rates of Income Support and require local authorities to make appropriate arrangements in the same way as they are required to do for those who entered residential accommodation on or after 1 April 1993.

Part III Accommodation

Clause 52 deals with extending the availability of Part III accommodation and also allows for regulations to be made in the future which break the current capital limits when determining whether care and intention is otherwise available. Clause 53 could best be expressed in words that we understand as allowing top up to be charged by local authorities for care they provide in their own homes.

Right to Keep Houses

Clause 54 makes it possible for people going into care to defer selling their homes in order to pay for their care until after they leave the care home or when they die. In practice the local authority will make a loan to the resident and recovery the money from the estate when the person dies or leaves the care home.

Cross Border Placements

The existing legislation does not allow local authorities in England and Wales to make and pay for residential care placements in Scotland, Northern Ireland, the Channel Isles or the Isle of Man. Clause 55 will allow regulations to be made to allow this. It is intended to allow people needing residential care to have care close to their families where their families have moved away.

Direct Payments

Direct Payments are cash payments given to recipients of social services in lieu of services that would otherwise have been arranged for them by social services departments. Social services clients are then expected to arrange their own care. Clauses 56 to 57 introduces new arrangements in relation to how these direct payments can be used by individuals.

House of Lords

During the Committee Stage in the House of Commons a number of amendments were made to the Bill, although there were no amendments to the Clause dealing with 'free nursing care'. There are now three new Clauses in the Bill which has had the effect of moving those that we are concerned with to Clauses 51 - 60.

The revised Bill has now been introduced into the House of Lords and its progress will continue to be monitored by the Association.

General Election

There is speculation that if there is to be a General Election in May then Parliament will not return after rising for the Easter recess. Any Bills which have not received the Royal Assent by that date will automatically fall.