Policy responses and statements
- Name of organisation:
- The Law Commission
- Name of policy document:
- Adult Social Care - A Consultation Paper
- Deadline for response:
- 1 July 2010
Background: This is the Law Commission’s consultation
paper on adult social care. It sets out all of the provisional proposals
and questions, and provides a brief outline of the Commission's main
arguments. The provisional proposals put forward represent the Commission's
preliminary view about how the law should be reformed. The Commission
invited comments and feedback on the proposals and questions put forward
and will be reviewing every proposal on the basis of responses made
to the consultation paper.
Politics and law reform:
It is important to distinguish the respective roles of the Law Commission
and the Government in this project. The Law Commission has a statutory
function to review the law with a view to its systematic development
and reform. Political policy, such as the setting of spending priorities
and the making of value judgements about rights and responsibilities,
is a matter for Government. In certain areas, however, this is not
a bright-line distinction. In this project, the Commission has tried
to distinguish areas for political policy and areas for law reform
on a case by case basis. The Commssion would welcome views on whether
it has taken the correct approach.
While politics is not a matter for the Law Commission, law reform
must operate within the broader context of Government policy, such
as personalisation. The policy environment for adult social care is
in a state of development, and there are divergences in policy between
England and Wales in some areas. The Commission's proposed statute
must be capable of accommodating both existing and future policy developments.
The approach that it has adopted in its proposals is to create, asfar
as possible, a neutral legal framework that is not wedded to any particular
policy and is capable of accommodating different policies and practices
in the future.
Underpinning this framework are the core entitlements and rights that
are crucial to the existing community care legal framework.
The Commission's central goal is to achieve a coherent, effective
and modern legal framework for adult social care. Its preliminary view
is that this would be best achieved by consolidating and reforming
the existing provisions in adult social care law into a unified adult
social care statute. While there are differences in the law that applies
in England and Wales, the Commission believes that they are not currently
such as to require separate statutes for each country. However, it
will continue to monitor any divergence in policy between England and
Wales throughout this inquiry.
Provisional Proposal 2-1: The Commission provisionally proposes that
there should be a single adult social care statute for England and
Wales, unless policy in Wales diverges enough to require separate statutes
for England and Wales.
In general, the Commission has tried to adopt a straightforward approach
to the hierarchy of rules in its proposed reforms. As a first level,
it believes that its proposed statute, as primary legislation, should
set out the duties imposed and powers conferred on local authorities.
In doing so, the Commission has avoided the use of directions and approvals.
As a second level, where more detail is required or more prescription
is considered appropriate, this may appropriately be placed in statutory
instruments such as regulations. As a third level, the Commission has
proposed that statutory guidance continues to be used when the Department
of Health and Welsh Assembly Government want to guide the exercise
of social services functions and discretions by local authorities.
While the Commission has not made any proposals in relation to consolidating
the guidance, it is interested in views on whether there should be
a statutory code of practice for adult social care, which would sit
alongside the unified statute and would bring the existing statutory
guidance together into one place.
The Law Commission believes that the most effective way of providing
a coherent legal framework for adult social care is by establishing
tightly defined processes for determining the scope of adult social
care. At the centre of its statute are the community care assessment,
the eligibility decision and the formation of a care plan. In addition,
there are a number of other aspects of its proposed legal structure
that would help to determine, in a more general sense, the scope of
adult social care. These are the statutory prohibitions on the services
that can be provided by social services authorities, a broad list of
community care services, and the use of statutory principles to guide
decision-making.
In summary, the Commission's general approach is that adult social
care should be understood as those community care services (broadly
described and subject to statutory prohibitions) provided or arranged
by social services authorities to those individuals, whose identity
is determined through an assessment and eligibility decision (and recognised
in a care plan), in a process which is prescribed in legislation and
guided by statutory principles.
COMMENTS ON
THE LAW COMMISSION
ADULT SOCIAL CARE - A CONSULTATION PAPER
The Royal College of Physicians of Edinburgh is pleased to respond
to the Law Commission concerning the proposed changes to the law on
Adult Social Care. The documents were considered by a number
of our Fellows involved in the area of Elderly and Community Care,
and this response is based upon their comments.
In general, the proposed reforms of the Adult Social Care legislation
are welcome. Any clarification and simplification of legislation
and guidance in this area is to be applauded. The College recognises,
however, that it is important to get the balance right between the
three levels of regulation ie statutory (primary legislation), statutory
instrument (regulations) and statutory guidance. As a point of
principle only those things that have to be put in legislation should
be. There is no argument that certain aspects of Adult Social
Care do require to be in primary legislation, such as the right to
protection from abuse. However, at the other end of the scale
there is an inherent conflict in strengthening and increasing individual
rights that will require expenditure to be met at a time when the political
agenda is moving towards local determination of priorities, coupled
with intense pressure on public expenditure. It follows that
there needs to be a degree of caution about the affordability of care
plans which are written in response to identified care needs. The
College certainly agrees that, at present, care plans tend to concentrate
on the provision of services currently available through the Local
Authority, so there is a natural tendency to identify and include only
those needs in the care plan that can be fitted into the service framework
available. In other words, the tendency is to assess for services
rather than the person’s needs. Equally, however, there
needs to be some cognisance that where services do not exist or are
not affordable, such as 24 hour one-to-one care for dementia patients
living within their own home, that whilst these services might be aspirational
and might best meet the needs of the patient, they may not be affordable. The
College recommends that, rather than the proposed statutory duty to
provide and pay for a care plan, this might more appropriately be a
statutory duty to provide a community care assessment, the formulation
of care needs followed by an eligibility decision (in response to those
needs) and a financial assessment (for either free service provision
or appropriate charging) according to the relevant regulations. More
detailed comments on some of the individual proposals and questions
follow with numbering as appropriate.
Provisional Proposal 2.1
A single Adult Social Care statute between England and Wales is particularly
important in view of the very large number of people whose residence
is close to the border and whose health and social care services straddle
the 2 geographical areas.
Question 2.3
Some flexibility on the definition of social services care would be
desirable, particularly as health services move increasingly to a community
setting. The legislation needs to be future proofed in this regard
if closer working between health and social services is to be developed
in the future.
Questions 3.1 – 3.8
The principle of a person’s choice and control should indeed
be paramount as long as this does not place another person such as
a carer in the position of being at risk or of being abused. The
principles in questions 3.2 and 3.3 seem to be different aspects of
3.1 and could be encompassed within an overall definition of 3.1. 3.4
is appropriate. The College feels that 3.5 and 3.6 are not appropriate,
as these principles would restrict the principle of choice and may
force some individuals into situations such as group homes which they
dislike or where others may be abusive towards them. Again 3.7,
the principle of dignity, follows from the principle of placing the
person at the heart of the decision making process and responding to
their individual care needs according to their choice and within the
limits of their capacity to make those choices, as well as affordability. We
agree that the principle of 3.8 is important, and it is also important
to recognise that adults need to be safeguarded from other safeguarded
adults who may be in a similar care situation such as group homes.
Question 4.1
The right to have an assessment on request may be abused. However,
in practice, it might be difficult to refuse a request for assessment,
and a request from an individual might well be a trigger to the Local
Authority that a person “appears to the Local Authority to have
social care needs”. It may therefore be a case of regulation
to specify the circumstances in which Local Authorities would consider
requests for a social care assessment without making it an absolute
right by statute.
Question 4.3
Similarly, the idea of pure self-assessment seems open to abuse of
the system.
Provision Proposal 4.3
The College would recommend that, in drawing up regulations regarding
how assessments should be undertaken and by whom, provision should
be made for Local Authorities to accept assessments made by appropriately
skilled and qualified people, particularly health service staff, to
avoid unnecessary duplication of assessments and to facilitate joint
working.
Provisional Proposal 5.2
We feel that the proposal to assess carers regardless of the amount
of care they are providing, or their relationship to the person receiving
the care, is unworkable and over inclusive. It may be better
to link the carer assessment with the assessment of the individual
person’s care needs ie to assess the effect on carers of the
person’s care needs, particularly where a carer would provide
care that would in their absence be provided by statutory services. The
College therefore supports question 5.1 that the proposed Adult Social
Care statute should encourage a more unified assessment process for
carers and cared-for people.
Provisional Proposal 6.1
As alluded to at the beginning of our comments, the College would
recommend that legislation should clearly indicate whether affordability
will be included amongst eligibility criteria, as authorities may be
placed in an impossible position otherwise.
Provisional Proposal 6.5
For this proposal to work, it would be important that there should
be clear monitoring and accountability arrangements to demonstrate
that payments given to meet certain needs have been used to meet those
needs. There would also be a concern that many people will not
be able to cope with personal budgeting and may require assistance
in this regard.
Provisional Proposal 8.1
The proposal where there is a duty to provide services for people
ordinarily resident and have power to provide services for people who
are not ordinarily resident seems sensible. In the health service
we are often aware of patients who have moved to live with relatives,
but are not yet resident within a particular area. The reverse
situation may also arise should a person requiring care choose to move
to be with a carer in another area, so the idea of the portable assessment
under 8.3 would be a good one.
Question 9.1
Whilst our earlier comments about affordability still apply, we think
it is important that community care services do remain defined, as
Local Authorities might find it tempting to disinvest in services that
are undefined.
Provisional Proposals 9.6 and 9.7
Any provision should assist the development and delivery of joint
services provided by health and social care. It must be noted
that many tasks currently done by carers at home would need a nurse
in hospital eg administration of injections, such as insulin, and that
the division between residential and nursing home registration required
by current legislation seems completely arbitrary. It would be
much more desirable to change the care provided than force the individual
to have to change the place where their care is received.
Question 9.2
Asylum seekers present challenges to the system. If they are
prohibited from social care and become destitute, then there is a risk
of physical ill health occurring. The physical ill health leads
to a consumption of health care resources, and may ultimately be more
expensive than providing social care.
Question 10.1
Views differed within the College as to whether direct payments should
be extended to cover residential accommodation. This does appear
to allow choice and is helpful in allowing patients to remain within
their own homes. However, once a person has chosen a residential
home, then direct payments should not apply.
Provisional Proposal 11.2
The prison population will contain individuals who may require social
care on their release but, while the person is in prison, the prisoner
should not be included in Adult Social Care. It would be appropriate
to refer an ‘at risk’ individual to social services prior
to their release.
Provisional Proposal 11.5
From a health service point of view, this proposal is important as
it retains provisions whereby social services are charged for delayed
discharges.
Provisional Proposals 11.10 and 11.11
These proposals relate to joint working in single assessment with
co-operation and information sharing between authorities such as Health
and Local Authority Social Work services. We would recommend
that there should be a duty to share information needed by another
authority; both information needed by Social Work Departments which
could be provided by the NHS, but also the Local Authority should share
information with the NHS when they make their assessment. This
would include a requirement to notify the GP and provide the assessment
of care needs.
Provisional Proposal 12.5
There was general agreement that Section 47 of the National Assistance
Act 1948 should be repealed.
PART 12: SAFEGUARDING ADULTS AT RISK
Safeguarding adults at risk is broadly welcomed by the College.
Copies of this response are available from:
Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.
Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939
[2 July 2010]
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