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23.Jun.2011

In the first of a two-part series, Linda Walker last week looked at the implications for local authorities of the Birmingham City Council adult care eligibility case. This week she examines the vital issue of consultation.

Following on from my recent article about the case involving Birmingham City Council breaching its equality duties, R (on the application of W) v Birmingham City Council: R (on the application of M. G and H) v Birmingham City Council (2011), in this article I look at the importance of undertaking a proper consultation process when changes to services are under consideration. In this case Birmingham were found to have failed to conduct an adequate consultation process when it was considering restricting adult care services to those whose needs were “critical”.

The parties agreed in this case that a consultation process should have provided consultees with sufficient reasons in support of particular proposals to allow an intelligent response to be made, and ought to have ensured that the responses were conscientiously taken into account when the ultimate decision was made. Mr Justice Walker stated that his conclusion as to the failure to comply with s49A of the Disability Discrimination Act 1995, inevitably carried with it the conclusion that the consultation was inadequate. The fact that the decision-making process failed to address the right questions, consequently meant that the same was true of the consultation process.

He found certain features of the consultation process “troubling” and the consultation was deemed not to have “involved any attempt to look at the practical detail” of what the move to restrict adult care services to those classified as “critical” would entail. In particular, he considered the words initially used by the council – a move to a “funded service for only those of low means who are critical” as leading consultees to believe that needs unrelated to “personal care” would not be supported.

What is more, the consultation process failed, until a very late stage, to make clear that the proposed saving of £33.2 million in 2011/12 involved a saving which had nothing to do with the move to “critical only” care services. Although there was some evidence that the position was understood, the judge believed that there remained considerable scope for confusion for those to whom the consultation had been addressed. He was particularly concerned that the consultees did not get the opportunity to assert that the true sum involved in retaining care services for those with “substantial” as the criteria for eligibility, was a sum which could be properly found by making savings elsewhere. For these reasons he concluded that even if the council had asked itself the right questions, the consultation process had not complied with what the law requires.

So what does the law require?

Judicial guidance on this issue developed during the 1990’s. This culminated in the requirements for a proper consultation process being set out in R v North and East Devon HA exp Coughlan [2001] QB 213.

To be proper, a consultation must be undertaken at a time when proposals are still in the formative stages.

The consultation must include sufficient reasons for particular proposals to allow those consulted to give informed consideration and an intelligent response.

Adequate time must be given for consultees to formulate a viewpoint.

The product of the consultation must be conscientiously taken into account when the ultimate decision is taken.

This is established law and should be followed in all situations where consultation is being undertaken. Birmingham Council has stated that it will re-run the consultation and make decisions about adult social care “consistent with the need to analyse the potential impact on disabled people”.

In cash strapped times, the public sector must do its utmost to avoid the consequences of cuts falling on those who are least able to bear them. This case demonstrates the legal obligations that authorities must comply with and clarifies that proper procedures should be followed even in times of austerity.

When it comes to the consultation process itself, it must be a meaningful consultation, both in relation to the information that is provided to the consultees and the consideration of their response. Other councils (and indeed other public authorities) who ignore this guidance and the lessons learned by Birmingham, do so at their peril…

Linda Walker is Head of Public Law and Corporate Governance at national law firm Dickinson Dees. She can be contacted on 0191 279 9195 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

See also: Counting the cost of cuts

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23.Jun.2011

The right approach to training in health and social care law can make a world of difference, writes Stuart Sorensen.

The abuse of vulnerable adults at Winterbourne View Hospital was extreme, dramatic and horrific. That’s presumably why Panorama chose to investigate it and why it has received so much attention from both press and public. Many bloggers have jumped on the scandal to make a point, some moral and some procedural. I have done as much myself. Several of us have taken the opportunity to write about specific legal issues from the Mental Capacity Act and the Deprivation of Liberty Safeguards to the Mental Health Act and the European Convention on Human Rights. It’s always helpful to have a topical ‘angle’ to focus upon when discussing law.

Unfortunately though this sort of blogging often becomes an exercise in futility. Those people who are interested in matters of law will most likely already be familiar with the principles discussed, or at least know how to find out about them. Those who are not, who simply want to know more about the human drama unfolding as a result of the programme will simply ignore the legal stuff in favour of more lurid pieces. For many the very thought of trying to understand legal concepts conjures up images of dusty textbooks and overly complicated jargon that might as well be written in a foreign language. There’s a perception of inaccessibility that discourages many people from even trying to understand. That’s where I come in.

I’m not a lawyer – I’m a nurse. A mental health nurse to be exact. I’m also a trainer. Oh yes – and I’m a bit of a geek with a passion for law. Well, everybody needs a hobby.

So it’s not too surprising that I regularly find myself training nurses, care workers, social workers, doctors and even police officers on health and social care law related issues. I must have trained tens of thousands of people over the years on topics such as the Mental Capacity Act, the Deprivation of Liberty Safeguards, the Safeguarding Vulnerable Groups Act and its Scottish equivalents the Protection of Vulnerable Groups (Scotland) Act and the Adult Support and Protection (Scotland) Act. Does that make me an international trainer? I doubt it but a nurse can dream.

During these sessions one theme is almost constant. People come into the training expecting to be bored. They also expect to be confused by a topic that they will not be able to relate to and that has little or nothing to do with their everyday experience. Not the best starting place for a jobbing trainer like me.

The problem is that many legal trainers have never taken the time to understand how health and social care workers learn. We’re different from lawyers – at least I think we are. There are many ways to think about learning styles and personality types and generalisations can be misleading but here goes anyway. In my experience health and social care staff from support workers to social workers tend to be more or less ‘top down’ learners. If the training was a jigsaw they’d like to see the picture on the box before they even start to look at the individual pieces.

Introducing care professionals to the minutiae of doctrine has its place but not until they understand the broad picture – the background and purpose of the particular act and how it relates to their work on a day to day basis. These people are not lawyers, they don’t generally think like lawyers and very often they don’t even start with the basic point that the law can help and protect them.

There is a culture of resentment in health and social care, especially regarding mental capacity, rights and safeguarding legislation. It’s not because people would prefer to be abusive – it’s because they don’t understand the law well enough to realise how positive it can be. So we begin with the basics, the purpose, the background and the scope. And we do it through story. This allows us to pull out the basic principles that we will rely upon and return to throughout the rest of the training. It sets up a basic foundation, the ‘picture on the box’ and gives participants the confidence to engage without fear of looking ‘stupid’.

Care workers tend to be ‘hands on’ people. We don’t usually ‘do’ abstract nearly so well as we ‘do’ tangible. That’s not to suggest that we’re not capable, far from it. But tangible is the ‘default’. As a rule we work with people and we get involved in the narrative of their lives. That’s what we do. It’s also how we learn.

So for Safeguarding we begin with Soham and with Miss X. For the Mental Capacity Act we tell the Bournewood story and from this month DoLS training will start with Hillingdon and the ‘Neary case’. By using narrative right from the start we draw people into a world that they’re already familiar with. By asking questions throughout the stories we begin to relate legal constructs to everyday scenarios:

• What should the social worker have done?
• How should the care worker react?
• Is this good practice? If not, why not?

Before they realise it the participants have gone from work to law without a hiccup. This is the value of narrative. From stories and case studies to participants’ own experiences and even newspaper headlines, stories work. Stories are memorable, stories are accessible and stories help people to ‘grock’, to assimilate the true meaning of the law.

That may seem obvious. Indeed it is obvious but it’s also depressingly uncommon. I genuinely have lost count of the number of people who’ve told me how much easier to understand they found social care law after narrative based training. I won’t bore readers with their reports of previous, ‘chapter and verse’ style training but I’m sure you can imagine.

So if you’re a lawyer, a trainer or a social worker with the responsibility for delivering health and social care law training to care workers remember the rule of ‘T’: Take The Time To Tell The Tale.

Stuart Sorensen is a mental health nurse and freelance health and social care trainer. Read his blog at www.stuartsorensen.wordpress.com

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23.Jun.2011

Misconduct by employees of a local authority – involving the re-writing of its records after a hearing – “seriously impeded” the court process in a deprivation of liberty case, a High Court judge has said.

In addition to taking the rare step of naming the council concerned, Cheshire West & Chester, Mr Justice Baker also ordered the authority to pay some of the costs incurred by the other parties involved in the proceedings.

The principal issue in Cheshire West and Chester Council v P & Anor [2011] EWHC 1330 (Fam) was whether the arrangements in place for the care of a man (P) born with cerebral palsy and Down’s Syndrome amounted to a deprivation of liberty or merely, as the authority argued, a restriction on him.

P also had a history of cerebral vascular accidents and presented with significant physical and learning disabilities. It was accepted that he lacked capacity.

The 38-year-old lived with his mother until 2009 when her health deteriorated and he was taken into emergency respite care. A best interests meeting in June 2009 unanimously concluded that it would be in his best interests to reside in a care setting.

The next day the council filed an application in the Court of Protection under the Mental Capacity Act 2005. A district judge made a number of interim direction orders on the same day. In November 2009 P moved to live in an establishment named as ‘Z House’.

P had a long history of challenging behaviour. Continence management had also been a longstanding and significant problem, a part of his behaviour that caused particular difficulty to those entrusted with his care. A variety of techniques were identified to tackle the problem, but sometimes care staff had to resort to physical intervention.

The staff at Z House had recently adopted a new approach to this, which involved the use of an all in one body suit sewn up at the front. The purpose was to prevent P tearing off parts of his continence pads and ingesting them, which posed a hygiene risk and a danger of choking.

The evidence suggested that while P’s care and treatment at Z House had generally been good, there had been concerns about the management of some of his more extreme behaviours.

The Official Solicitor, acting as P’s litigation friend, was concerned that more restrictive measures would sometimes be needed to deal with these behaviours, and those measures would necessarily involve a significant element of physical intervention and restraint which might amount to a deprivation of liberty within the meaning of Article 5 of the ECHR.

Cheshire West & Chester argued that the level of physical intervention amounted merely to a restriction on P, rather than a deprivation of liberty. As a result the proceedings were transferred to the High Court and listed before Mr Justice Baker in July 2010.

It was originally envisaged that the hearing would consist of legal argument based on contested written evidence filed by the local authority. However, shortly before the hearing, the advocates were alerted to the fact that the evidence did not give a full picture of the degree of physical intervention that appeared to be involved in caring for P. In particular there was no mention in the evidence of two specific incidents that had occurred in April and July 2010, of which one had required P to be taken to hospital.

It was therefore agreed that the proceedings should be adjourned to allow Cheshire West & Chester to file further evidence, including copies of the records kept by staff at Z House. In brief oral evidence at  the hearing, a senior support worker (A) at Z House gave evidence that staff adopted measures to divert P as a first step, and only used physical intervention or restraint as a last resort. This happened “probably a couple of times over the course of a month”, she said.

A said the incidents she had referred to would be recorded on accident forms in the local authority records. She also said the council had a “no restraint” policy, and none of the staff at Z House had received training in these techniques.

At the conclusion of this evidence at the July 2010 hearing, Mr Justice Baker renewed the declaration that P lacked capacity to litigate and make decisions as to his residence. He also ordered that it was lawful and in P’s best interest that he continue to reside at Z House, to have contact with his family arranged informally, and to have continued support in accordance with the care plan and associated support programmes. The judge also ordered that, insofar as his care plan and associated programmes at Z House involved a deprivation of his liberty, it was lawful of the council to deprive him of his liberty in his best interests.

The judge ordered Cheshire West & Chester to disclose to the Official Solicitor for onward disclosure all records relating to P within its control at Z House, but rejected a suggestion that the case required an independent social worker. He adjourned the case for final determination on the issue of deprivation of liberty to the first available date after 1 October 2010.

Following that hearing, “an extraordinary incident occurred which fundamentally affected the course of these proceedings”, Mr Justice Baker said in a ruling published this week.

A member of staff at Z House drew to the council’s attention that A and at her instigation other members of staff had altered a number of records concerning P’s care and treatment. “In particular the incident form relating to 2nd April was re-written and other notes changed inter alia to omit references to (a) P attempting to hit members of staff; (b) P attempting to remove his incontinence pad and (c) a member of staff having to hold P while trying to stop him removing the pad.”

The actions led to disciplinary proceedings being taken against A and others, leading to dismissal.

The discovery of re-written records “understandably” undermined the confidence the Official Solicitor and M and her representatives had in the local authority’s care plan for P, Mr Justice Baker said.

M’s solicitor wrote to Cheshire West & Chester to say that the case now required the instruction of an independent social worker, and called for the council to pay the costs of that instruction. He also argued that it was clear P’s care plan had involved physical intervention and was thus a deprivation of liberty, adding that the council should pay the costs incurred in arguing the issue of deprivation of liberty.

The council rejected the need for an independent social worker, relying on the judge’s earlier comments (made before the emergence of the record tampering) and claiming it would be “disproportionate and unnecessary”.

M’s solicitor therefore filed an application for the instruction of an independent social worker in October 2010. Mr Justice Baker granted the application the following month, but reserved the issue of who should pay the costs.

The report of the independent social worker, Miss Whittaker, was filed on 24 January 2011. She concluded that it was in P’s interests to stay at Z House and that contact between P and M in M’s home was in P’s best interests. However, she expressed the view that his care package did not meet his needs, and made a number of recommendations on how it should be adjusted. In particular, she expressed the opinion that the level of restraint or physical intervention required in P's case was greater than that currently being provided.

Miss Whittaker then gave evidence to the court at a hearing in February this year. After she had done so, the case was adjourned to see if the parties could reach an agreement on amendments to the care plan. Further negotiations and the assistance of the court led to resolution of the outstanding issues.

Cheshire West & Chester also drew up a new physical intervention policy, which was ratified by its Departmental Management Team. In a statement to the court, the head of operations in the adult social care directorate (H) acknowledged that it was clear that staff did not previously have guidance about he issue of restraint.

"One of the key lessons learnt is that the local authority needs to ensure that those working with incapacitated adults presented with challenging behaviour are reassured that a proportion of restraint is lawful," H said. "The legal terms 'deprivation of liberty' and 'restraint' unfortunately invoke negative connotations in lay minds when they are intended to promote a person's best interests."

Mr Justice Baker said that as a result of the amendments to the care plan, the introduction of the new policy and the assurance that the training necessary for implementing that policy would be provided on an urgent basis to staff at Z House, the court was content to endorse the care plan as representing the best solution for meeting P’s multiple needs. A further review by way of oral hearing will be conducted by the court later this year.

On the disputed issue of whether P's circumstances objectively amounted to a deprivation of liberty, Mr Justice Baker acknowledged that the council and those working at Z House had taken very great care to ensure P's life was as normal as possible. There were a number of features that, by themselves, might suggest it was not a case of deprivation of liberty and helped give P's life a strong degree of normality.

However, P's life was completely under the control of members of staff at Z House. "He cannot go anywhere or do anything without their support or assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth (to remove bits of the pads) whilst he is being restrained."

The judge decided that the steps required to deal with P’s challenging behaviour lead to a clear conclusion that P was being deprived of his liberty.

Mr Justice Baker said he wanted to make it clear he was not being critical of the council or the staff at Z House. “In my judgment, it is almost inevitable that, even after he has been supplied with a bodysuit, P will on occasions gain access to his pads and seek to ingest pieces of padding and faeces in a manner that will call for urgent and firm intervention,” the judge said.

“Those actions will be in his best interests and therefore justifiable, but they will, as a matter of concrete fact and legal principle, involve a deprivation of his liberty. The reason for attaching that label to those actions is not to stigmatise either P or his hard-working and dedicated carers, but so that all involved with his care recognise the implications of what is happening.”

The judge said two important things flowed from this conclusion. “First, those working with P are under a clear obligation to ensure that the measures taken are the least interventionist possible,” he explained. “That requires a regular reassessment of his circumstances, to see if there are alternative strategies that can be adopted that meet his needs without involving actions that would limit the impact on his liberty. The bodysuit is one example of such a strategy. Another example would be an intensive programme of education trying to teach and encourage P not to behave in ways that require restraint.”

The second result was that there must be regular reviews by the court to comply with Article 5. “In this case, the local authority has conceded, in the light of past events, that there should be such reviews in any event whatever my conclusion on the question of deprivation of liberty,” Mr Justice Baker said. “In my judgment, however, that concession does not obviate the need for the Court to scrutinise the circumstances and declare whether or not the circumstances do amount to such a deprivation.”

On the subsidiary issue of costs, Mr Justice Baker said the misconduct of the local authority’s employees in tampering with the records was serious.

“The local authority’s failure to disclose some relevant documents, followed by the attempt to interfere with those records, unquestionably lengthened the proceedings,” he concluded.

The judge said it had not been unreasonable for Cheshire West & Chester to contest the issue of whether there had been a deprivation of liberty, particularly in light of the decision of Parker J in Re Mig and Meg at first instance. “But overall the proceedings were rendered significantly more complex, time-consuming and costly as a result of the actions of the local authority and its employees.”

Mr Justice Baker said it was impossible to put a precise value on the extra costs incurred, but he was satisfied that a substantial proportion of the overall costs of the proceedings were attributable to that misconduct and its consequences.

He therefore ordered Cheshire West & Chester to pay: the full costs of the instruction of Miss Whitaker; all of the Respondents’ costs of the hearing on 29 July 2010 to be assessed on a standard basis if not agreed; and one half of the remaining costs incurred by the Respondents in the proceedings after 29 July 2010 up to and including the hearing on 4 April 2011 (again on a standard basis).

Cheshire West & Chester argued before the judge that the publication of its name was likely to lead to the identification of P. The Official Solicitor was neutral on the issue, but counsel for M argued that the authority should be named.

Mr Justice Baker said: “In my judgment, the public interest in holding public authorities accountable for the actions of their employees manifestly amounts to a ‘good reason’ for publishing the judgment in an anonymised format but authorising the naming of the local authority in any published report of the judgment.

“I also endorse the submissions made by Mr. O'Brien (counsel for M) that such publication will help to sustain public confidence that the Court of Protection is carrying out its functions in the public interest within the restrictions imposed by Parliament.”

The judge said the facts of the case meant there was “little likelihood that naming of the authority would lead to identification of P on a scale that would amount to a significant infringement of his right to respect for privacy, or have detrimental effect on his new support workers or the other residents at Z House”.

On publishing the names of past or present employees of the authority, the judge said he could see prima facie grounds for saying there was a “good reason” for publishing some of them. However, he said he was conscious that none of them had been consulted on the point, nor had they had the opportunity to take advice.

He therefore decided against relaxing the prohibition on publishing their names. Any party or organisation who wanted to argue for their identification would have to make a further application to the court.

As a postcript, the judge said he was acutely conscious that, as in G v E, he had made significant criticisms of local authorities and their employees, and that in each case he had concluded that it was in the public interest that those authorities should be named.

“I am also acutely aware, as I observed in G v E, that there are thousands of social workers, care support workers, and other professionals who dedicate their lives week in, week out, to caring for people like P who have profound and challenging disabilities,” he said.

“Indeed, I make it clear that those who currently work with P clearly fall into this category. The excellent work of professionals in this field deserves greater public recognition. For my part, I can certainly envisage circumstances in which the high standard of care being provided by a local authority would amount to a good reason to identify that authority in a published judgment.”

A spokesman for Cheshire West & Chester said the council would not be commenting on the case until it had taken a decision, based on counsel's advice, on whether to appeal.

Philip Hoult

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20.Jun.2011

Major problems in the home care system mean that older people’s basic human rights are being overlooked, the Equality and Human Rights Commission has warned.

The watchdog added that the extent of human rights breaches was likely to be masked by a fear of complaining and the low expectations about the quality of homecare that many older people believe they are entitled to.

The EHRC said it had uncovered “many worrying cases” as part of its evidence-gathering for a major inquiry into home care for people over 65.

These include: people being left in bed for 17 hours or more between care visits; a failure to wash people regularly and provide people with the support they need to eat and drink; and people being left in soiled beds and clothes for long periods.

The research has also revealed high staff turnover, with some people having a huge number of different carers for tasks such as washing and dressing. The EHRC cited the case of one woman who recorded having 32 carers over a two-week period.

The Commission said it had identified several key issues with the system already. They are:

• Inadequate time to deliver care: “The very brief time allocated to homecare visits – just 15 minutes in a number of cases – does not allow even basic essential tasks to be done properly,” the EHRC said. “As a result people sometimes have to choose between having a cooked meal or a wash. The short visits also mean that staff have to rush tasks like washing and dressing.” According to the watchdog, older people and care staff alike had expressed dissatisfaction and frustration about the issue.
• Lack of control over timing of care visits: “Many older people have little or no control over what time the homecare visit happens,” the EHRC said. “As a result, we have heard of people being put to bed at 5pm and not helped to get up until 10am, a period of 17 hours.”
• Failure to deliver adequate homecare: “We have had some reports of neglect, in which people have been left in filthy nightwear and bedding after a homecare visit or without a wash or hair wash for several weeks.”
• Lack of staff awareness and training:
“Some older people have described feeling that their privacy and dignity is not respected,” the EHRC suggested. The watchdog said a thorough training process would make sure staff took the simple steps required to avoid basic mistakes. “This would have a huge impact on the day-to-day lives of those they care for.”
• High staff turnover: “People have described the emotional impact of being washed and dressed by a large number of different people, and having to repeatedly disclose personal information every time a new care worker comes to the house,” the Commission said, adding that it would be exploring further the experiences of care workers themselves, together with the reasons for high staff turnover.
• Lack of complaints and low expectations: One in five older people who responded to the call for evidence said that they would not complain because they didn’t know how to, or for fear of repercussions, the EHRC said. The Commission said it would explore what protection and support is in place for whistleblowers who want to expose poor or abusive practices.

Michelle Mitchell, Age UK's Charity Director, said: "Despite commitments made by both the previous and current government, basic rights to dignity, respect and autonomy are still being breached. The biggest threat to the human rights of older people receiving care at home is from cuts to adult social care budgets and it is very unclear whether tightening eligibility criteria to care will allow local authorities to continue to meet their human rights obligations.

"We all share a responsiblity to ensure that we respect and care for those in the last years of their lives. We need to ensure that the funding, training and systems are in place to ensure that every single older person is allowed to live safely and with dignity. That is why the Dilnot commission must act as a clarion call to government to create a social care structure that ensures a sustainable and fair provision for this generation of older people and those to come.”

The Commission has been gathering evidence from a range of sources, including 54% of local authorities and 250 home care providers. It received 503 written submissions to its call for evidence, including 344 from individuals (older people, their friends and family).

A full report will be published in November 2011.

Philip Hoult

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17.Jun.2011

The Local Government Ombudsman has attacked the London Borough of Bromley for “extraordinary and inexcusable” delays in reviewing the care of an elderly man.

The Ombudsman, Dr Jane Martin, said the man – Mr B – was living in unsatisfactory conditions at a care home (D House) arranged by Bromley but situated outside its area. Mr B had been receiving an inadequate standard of care “for a considerable period of time, perhaps as long as 18 months”, she said.

The key conclusions in the LGO’s report were:

• There appeared to be no doubt that care standards at D House were unsatisfactory, even if they were not always so bad as to warrant a change of care placement. A series of poor inspection reports dating back to the time of Mr B’s first placement should have put Bromley on alert that closer monitoring of the contract might be required, but it appeared not to have had significant contact with the ‘host’ local authority for the area in which the home was situated, if at all.
• “If, as the council says, it did not have the resources to carry out reviews of care provision out of its own area, then it could have asked Kent County Council to assist with information or a visit at the appropriate time, and not leave the matter until over a year later,” the LGO said. “Failure to follow either of these courses of action amounts to maladministration. I do not believe that the council’s reliance on any absence of complaint from the family during this time excuses this lack of proper attention to its statutory responsibilities.”
• A review in December 2007 highlighted some concerns about Mr B’s care provision and in February 2008 Mr A began to complain formally that the standard of care being provided to his father was unsatisfactory and that his health was deteriorating as a result. It took until December 2008 before Mr B was moved to another placement. “During this time the council appears only to have dealt with Mr A’s correspondence as matters of fees and finance, and its responses generally do not properly address the care issues which were being raised.” This was maladministration, the LGO said. She added that the council’s failure to ensure that adequate care was being provided was confirmed in its own investigation report in July 2009.

The LGO also found that Bromley had delayed significantly in properly investigating Mr A’s complaints, which he first made in February 2008. An investigation officer was not appointed until March 2009, and the report concluded in July 2009. The council’s response accepted the findings but did not offer a satisfactory remedy for the injustice flowing from its faults, according to the Ombudsman.

“In fact, the council’s position remains that it is not directly responsible for the standard of care provided to Mr B, and it has suggested more than once that Mr A pursues that with D House direct,” the LGO said.

Dr Martin said that position was “significantly flawed” for a number of reasons:

• Neither Mr A nor Mr B had any contract for service with D House; the contract was made by Bromley, and so D House could not be liable to anyone but the council for the service it provides.
• The Department of Health’s Charging for Residential Accommodation Guidelines make it clear that the council retains legal responsibility for a contract it arranges with a care provider, even if the resident must make a contribution to care costs, and whether or not it is paid directly to the provider
• The law says that the council has a statutory duty to provide care services which meet the needs of those persons assessed as having care needs which are eligible for services provided by the council. “So the council cannot escape responsibility for ensuring that services are of a satisfactory standard simply by contracting them out to a third party provider.”

"Overall, the council's failure through the complaint process to accept responsibility for what has happened to Mr B amounts to further maladministration which compounds its earlier faults, and has added to the injustice Mr B and his family have been caused," the LGO said.

The Ombudsman recommended that Bromley pay £1,000 to Mr B in recognition of the fact that his care was likely, on balance, to have been less than adequate, in addition to its agreement to write off £2,000 owing to the council. It also called on the authority to pay £1,000 to Mr A “in recognition of his separate injustice of uncertainty, distress, time and trouble”.

The LGO called on Bromley to: review its procedures for reviewing and monitoring care home placements; review its accounting procedures; review its complaints procedures so that the extraordinary and inexcusable delays seen in this case are avoided in future; and report to the Ombudsman in six months the outcome of its procedures review.

Philip Hoult

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16.Jun.2011

What do the NHS Listening Exercise reforms mean for local government? Olwen Dutton explains.

After all the talk that has been around the NHS reforms since the Health and Social Care Bill was first published at the beginning of the year, the Government has now responded to the report from the NHS Future Forum and have indicated that they do after all recognise the need for a number of key changes.

Integration of services

Many of the changes will affect local government, and for the most part these are likely to be viewed by councils as positive. Certainly if the majority of the changes contained within the Patient Involvement and Public Accountability section of the report are accepted, councils’ main worry – about a reversal in the attempts to bring together health and social care – should be averted. Simply accepting the wisdom of the Forum’s recommendation about the necessity for the boundaries of the clinical commissioning group to match those of local authorities, with any departure clearly justified, makes the process of that integration much more achievable.

The NHS Future Forum recognised (and the Government has accepted) that the original Bill’s proposals around commissioning and competition would have directly affected that close integration between health and social care which many councils have spent considerable time and effort to achieve.

The Forum members who dealt with these issues, many of whom were from the local government sector, say that they approached the Listening Exercise through the lenses of “ensuring that the NHS delivered patient-centred care that is defined, designed and accountable to people and their communities” and with three priorities:

• integrated care for patients and communities
• the voice of patients and the public embedded in our health services, including children, vulnerable adults, carers and those who are often excluded
• effective assistance of accountability and government.

Joint accountability

The key to achieving these recommendations is strong support for the integration of services by making the local system, both NHS commissioners and local authorities, jointly accountable for setting, delivering and monitoring the outcomes sought for their communities. As part of this, the Forum recommended that those areas which have already implemented joint commissioning with a fully integrated approach to delivery of services should be supported as demonstration sites for other communities.

The role of local authorities is recognised as crucial to this integration, and there are significant implications for councils. Central to the achievement of the integrated system around health and social care is the effective setting up and operation of the Health and Wellbeing Board (HWB), where councils are set to be the controlling element. This comes through two parts. Firstly, the HWB itself - it is clear that these are now intended to be integrated into councils as they will be operating their executive functions in these areas, that they should operate as equivalent executive bodies do in local government, and that it will be up to councils to insist upon having a majority of elected councillors on the HWB.

These proposals seem to be intended to strengthen significantly the influence that councils will have, as shown by the intention for the clinical commissioning groups to have to involve the HWB as they develop commissioning plans. Whilst the changes do not go so far as to give the HWB a veto should the plans not meet with approval, the HWB will have a clear right to refer plans over to the all powerful NHS Commissioning Group if they are not satisfied.

Scrutiny

There is also a strengthened role provided for scrutiny, as the HWB, as a whole, will be subject to the existing overview and scrutiny functions of local authority executive functions and the greater discretion to exercise those powers which is contained within the Localism Bill. There is, however, much still to be sorted out about how this will work.

Drawing up arrangements around the HWB that get the balance right, get the accountability right, the liabilities and duties right and, increasingly important as shown by the number of recent high profile judicial reviews, the consultations right, is not impossible but it will not be easy. It is likely to be made more difficult in a situation where the different parts of the delivery mechanism are under different funding streams, with different expectations about financial restrictions, and with different statutory duties. Local authorities are political bodies, with members elected on political mandates, very different from the way in which the clinical commissioning groups will be governed.

Elections can of course change things. And how does the position of an elected mayor, possibly at odds with the elected councillors, affect this? Local government will also need to get used to the role of Monitor and how that particular regulator chooses to exercise its duties about the support of integrated services. And finally, they will have to develop a much closer relationship and understanding than most can realistically claim they have with the Acute Trusts and FTs in their area, who will have to be included and integrated within what is intended to be a far more holistic system.

What should local authorities do now?

There is time to think it through, and the Coalition Government and their advisers will no doubt be relying heavily on their civil servants to get the final delivery of these plans, well, deliverable. But now they have that steer, it is not too early for councils to start thinking about how the approach can best be put into effect for their community, and  what they will need to do and how they should work to achieve the outcomes their communities will want to see.

Some places are more ahead than others, but everywhere has made a start; and councils have an outstanding advantage - they are, unlike the clinical commissioners, already there. Councils should make that count.

Olwen Dutton is a partner at Bevan Brittan. She can be contacted on 0870 194 5006 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..