5 April 2017

Leaving Hospital – a national obsession?

By Miranda Marshall, Director, Hayes + Storr

We have all seen headlines such as ‘NHS in Crisis!’. There are not enough hospital beds to cope with demand, people are left on trolleys in corridors and ambulances queue round the block. At the other end of the system, people ready to leave hospital, but not well enough to go home, have nowhere to go and so ‘bed-blocking’ results, with some desperate cases.

As a preventative measure, and well before any crisis occurs, I would encourage people to make a Lasting Power of Attorney – Health and Personal Welfare (“LPA”). At least that way, trusted family members or friends have fully-recognised legal authority to speak on your behalf, in the event of mental incapacity.

But what about those who are vulnerable but have mental capacity or those who lack capacity but have no LPA?

Families need to know their rights. First, before discharge, a social-needs assessment should be done, particularly if the person is elderly or vulnerable, to establish their needs and how they can be met. Ideally, at least one family member (or trusted friend) should be present to assist at the assessment. A copy of the assessment should be supplied. Often hospital staff (even including doctors) are unaware that Local Authority Social Services should be involved in the discharge process.  This is so even if the person is ‘self-funding’ (i.e. they have enough money to pay for their own care); in that case Social Services still have a duty  to assist in putting  a care plan in place.

If a care home is recommended, what type should this be: residential or nursing? What if there are mental health issues?

If a nursing home is considered best, a preliminary assessment for Continuing Health Care (CHC) should be carried out, with a family member present. If a person is eligible for CHC, the NHS pays for all care and accommodation: sadly, this is rarely awarded.

Discharge should never take place without all the appropriate assessments and the correct procedures being adopted. Representation by a specialist solicitor enables the person’s rights to be upheld.

If CHC is not awarded, then addressing how the cost of care is to be funded is the next step. If the person has been ‘sectioned’ under the Mental Health Act, this sounds worrying, but an advantage is that it ensures eligibility for NHS ‘aftercare funding’. Taking legal advice at this stage helps to ensure that the correct procedures are followed by the local and health authorities.

Sometimes there is a dispute about where a person should live on their discharge from hospital. This is so not just if a person does not have mental capacity, but also if the local or health authority will not fund the preferred care home, or will not fund a return home with in-home care. Can someone insist on returning home with in-home care, if it costs the local authority more than a care home? Does the question funding take precedence over the autonomy given to individuals under the Care Act?

Leaving hospital is rarely easy, especially for the elderly and vulnerable. Special care is needed to make sure they have both the right medical care and also the right legal advice and care.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 710210. For legal advice on any other matter call 01328 863231 or email law@hayes-storr.com.

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