Warning signs

Earlier this year Lord Justice Mumby gave an address to the Elder Abuse/Solicitors for the Elderly conference called: ‘At what point is safeguarding abuse?’ One of the themes of his address was that local authorities are ‘our servants not our masters’ and that they should be circumspect when unilaterally taking action in perceived safeguarding cases which could result in a reduction in the person’s quality of life and happiness.

Similar issues arise in the field of health and social care funding. Local authorities (LAs) and health trusts (trusts) will often unilaterally make a decision regarding funding, in that the person concerned or their family/representative is not properly consulted and, in some cases, there is no assessment at all. This might occur because of the LA’s or trust’s lack of knowledge or ineptitude. However, very often it appears to be because of a deliberate and disingenuous approach on the ‘fur coat and no knickers’ principle, appearing to have the proper and outward form, while in reality the content is bare and all too often arrives at the decision first thought of, namely, that of least funding.

Team work

The fact that there are two separate areas of difficulty – health (and this article will touch only on the continuing healthcare (CHC) funding aspect) and social care funding – is in itself an additional problem. Despite some advances, health and social care authorities still seem to find difficulty in working together. It seems that, until there are integrated budgets, these difficulties will continue, although there are pockets around the country where a more sensible approach is taken and there is some evidence of joined-up thinking.

With regard to social/personal care funding, issues seem to arise on three levels – the individual by whom or by whose family/representatives may be consulted, a business organisation such as a care home or domiciliary care provider whose contracted funding the LA is proposing to cut (such as in the Pembrokeshire case at the end of 2010), and policy decisions of LAs themselves (for example, the Birmingham case earlier this year). However, on each level it is the individual at the core of the issue.

Considering that it is the person whose care needs are being considered who is (or should be) the central focus, inevitably this leads to the issue of personalisation. That a person should be at the centre of any decisions about that person’s care needs, so that that person’s care should be person-centred or personalised, seems to be (to borrow a phrase from John Cleese) “bleedin’ obvious”. It is when personalisation becomes Personalisation, i.e. when it becomes a formal policy, that difficulties arise.

There is no doubt that Personalisation, with its adjuncts including personal budgets and direct payments, best suits the needs of many people in receipt of care and care funding. It is when the Personalisation agenda becomes a policy to be imposed on all care sector service users regardless of its suitability or of an individual’s wishes, and with targets set for LAs as to implementation of the policy, that the problems start. The question to be asked is why, while recognising that personalisation of care is absolutely right, the Personalisation agenda with its adjuncts cannot simply be made available to all service users without being imposed. The answer perhaps lies in the benefits arising from Personalisation to the service users on the one hand, and to the funders and policy makers on the other.

The benefits of Personalisation to the service user are apparent – there is more control and more choice of how care needs can be met to suit that particular individual. As a result there are often better outcomes and greater wellbeing, the individual can arrange staffing and other support to meet daily needs around the individual and not around the convenience of the care provider, and often the service users themselves are in a better position to utilise limited resources in a more cost-efficient and focused manner. Perhaps the most important of these is the sense of control over their own lives, and therefore independence and dignity, which accrues.

The benefits that local authorities derive from the Personalisation agenda, aside of complying with legislation (for example, Mental Capacity Act themes of allowing decision making) and policy directives, are less clear. It seems that the only true benefit accruing to local authorities from the Personalisation agenda relate to cost savings – savings on cost of service, savings on infrastructure and in-house care management and, if there are better outcomes, savings in the long term. Therefore, it is perhaps difficult to escape the conclusion that what motivates LAs with regard to the Personalisation agenda is very little to do with the law and more to do with cost savings in these stringent times.

If this is the case – that what motivates local authorities in assessing care needs and arriving at care-funding decisions are cost efficiencies and savings rather than truly meeting people’s social/personal care needs – then this is surely a matter of fiscal politics rather than the law. This may well be true, but it remains unlawful and, when such behaviour occurs, it can be challenged and hopefully remedied by the law. That is our job.

However, the first part of our job is to recognise whether there has been unlawful behaviour in arriving at a decision or not. This is different from the situation where, although there may have been no unlawful behaviour, it appears that a wrong decision may have been reached, for one reason or another. This needs to be challenged on a different basis. But where it appears that a decision may have been reached on an unlawful basis, then we need to ask whether the decision made in the matter under consideration has been properly and lawfully arrived ?at or whether, on the other hand, this ?is a budget I see before me.

Money talks

Why then are decisions made more ?on budgetary considerations than on a real assessment of care needs and a proper evaluation of the cost of those care needs unlawful? There are a number of reasons, some of which were touched on in the Pembrokeshire and Birmingham cases, including discrimination against service-user groups under discrimination legislation and lack of impact assessments of policies decided upon. There are, however, some more fundamental issues, which can only be touched on briefly here, as to why such decisions may be unlawful.

In the rash of cases in the 1990s, soon after the switch to funding of social/personal care by LAs under the NHS and Community Care Act 1990, which came into force in 1993, it was made clear that the lack of resources is not sufficient reason for an LA to deny services, or the funding of services, to service users. LAs are entitled to take their resources into account when making decisions as to how best to meet the assessed and agreed care needs, but it cannot attempt to reduce or to escape entirely meeting those care needs for budgetary reasons.

Therefore the very first step is to ensure that the local authority carries out an assessment, which is full and focused, under section 47. Thereafter, if a decision is made as to meeting the care need thus established by the assessment which appears to be budgetarily driven (it is either, quite commonly, stated to be so, ?or it is apparent from a schism between the assessed care need and the care suggested to be provided, or the level ?of care need assessed is itself challengeable), then the local authority should be so challenged.

Among the panoply of legislation relating to these issues, some pieces of legislation stand out as being helpful. ?For example, the Mental Capacity Act 2005 (have decisions been made entirely in the best interests of the service user?), disability and other discrimination legislation (as in the Birmingham case), and human rights legislation (article 8 – the right to a private life, family and home; article 2 – the right to life, including the right to be protected from actions by health and social services authorities which may be harmful, such as the closure of care homes; article 3 – the right not to be subjected to degrading treatment, although the recent McDonald case has been unhelpful in this regard; and article 6 – the right to a fair hearing).

The question of the implementation of cuts in the health milieu can be dealt with more quickly. As lawyers, we need to examine extremely carefully how decisions regarding a person’s eligibility for continuing healthcare are arrived at. This involves not only a close examination to ensure that the process pursuant to the national framework has been properly conducted, not only that the decision support tool has been completed in a lawful manner, with a proper assessment having been conducted beforehand (including all necessary reports having been obtained), but also that overall judgment has been applied, including an assessment of the interaction of different care needs with each other.

It is not sufficient for a trust simply to say that, because of the “nature, predictability, complexity and intensity” of the care need in each domain, eligibility is denied. Full reasoning must be provided. These four factors, which are now standardly rolled out by trusts as if they were a magic formula to allow them to evade their duty under the National Health Service Act, must be looked at in conjunction with the interaction of care needs between domains and not merely as relating to each domain individually. If there is an interconnectedness between domain care needs – such as weight loss, high skin viability risk, incontinence and inability – this surely means that the care is more complex than if only one of those domains required care. Interconnectedness of care needs, if more complex than dealing with only one care need, and if taken together care needs are more complex than otherwise, surely must automatically mean complexity of care is involved?

If, on a review of CHC funding already granted, the funding is removed, we must look carefully at a comparison of the domains. Often on a review, where there have previously been two domains at a severe level, one has been (dare I say, cynically?) reduced to high, rendering the person no longer automatically eligible for CHC funding. Not only should it be questioned as to whether the care need has actually reduced by one level but (even if that is the case) also, for example, whether it is the case simply because the care need is well-managed. The national framework is quite clear that “well-managed needs are still needs”. CHC eligibility decisions which smack of being budgetarily driven should be robustly challenged.

Institutional abuse

But, if it is the case that LAs and/or trusts are deliberately manipulating the decision-making process and/or are knowingly arriving at a decision, often in the face of evidence to the contrary, that fits budgetary requirements, is this not more than mere cynicism and disingenuousness, not to say unlawfulness? If a private individual – say a family member or an attorney or deputy – takes from someone vulnerable money to which that person is entitled, this is financial abuse. If an institution deliberately and knowingly denies a person’s right to funding, and therefore withholds or reduces or takes from that person such funding/money, for budgetary reasons, is this much different? Where money is deliberately and knowingly kept from vulnerable individuals by institutions for reasons which transpire to be unlawful, is this not then tantamount to institutional financial abuse?

If it is, then, although it is unlikely ever to become a ground for challenging a decision, the stark understanding that it is a budgetarily driven mindset that forms many LA and trust decisions and that this is tantamount to institutional financial abuse of the vulnerable individual, should lead us to be not only more impassioned when tackling such cases, but also more vigilant, more knowledgeable, more perspicacious, more tenacious and, always, more professional.

 

Lawrence Tudin is a consultant in ?the private client group of SAS Daniels LLP