Confused Discharge in COVID-19
Will it be a banquet for the lawyers?
Author: Alex Leeder
There is of course no question that we are in unprecedented times. It is a tragedy that as a country and indeed as a global society, we have lost so many people to COVID-19.
My father is your quintessential middle-class baby boomer, and he enjoyed living the prime of his life through those ‘heady’ booming 1990’s (those were the true “sunlit uplands” the staunch Brexiteers are really pining for, right?). He was brought up to feel that the only way was up – his life would unquestionably be ‘better’ than that of his parents, and so, quite evidently given the direction of travel, the life of his children would unquestionably be ‘better’ than his. Right?
England. 2020. WhatsApp message from Mr. Leeder (Snr) to Mr. Leeder (Jnr):
“Just have to do what we think is best and try and survive”.
How times, and perspectives, can change.
This was of course – at least partly, in response to the Governments’ fundamentally inadequate and inept handling of the crisis. Unfortunately, my father’s message is essentially playing straight into the Governments’ hands. This Government will accept no accountability for its actions, nor will it accept any responsibility for handling or managing the response to the virus. In announcing its confused changes to the lockdown, changing its slogan from Stay at Home to Stay Alert (but still stay at home), and changing its colours from red (stop!) to green (go!), it is handing the virus, and the responsibility of managing it, over to the people. WE need to stay alert, WE need to ‘control the virus’. It sticks in the throat a little that a Government which did not listen to the advice of scientists, redacted information from a lockdown report when published, has had various debacles over COVID-19 testing and failed to provide adequate PPE to NHS staff, would then essentially tell its citizens that we should be controlling the virus. But this is of course a simple and crude strategy to enable the Government to lay the blame elsewhere should the situation deteriorate:
“We told you to control the virus and you didn’t”.
My Dad believes that “we have to do what we think is best” because he – as with so many others – has no faith in the Government and cannot believe both their ineptitude and the insufficiency of their confused and contradictory ‘advice’. But by making that statement, my Dad is accepting accountability and letting this Government off the hook.
In contrast, Nicola Sturgeon’s message at this point in time is clear and simple, as there is only one simple change. Scotland’s First Minister’s advice is that citizen’s continue to stay at home, but that they can exercise more than once a day. A straightforward lifting of one restriction. And indeed we can see globally how different Governments are approaching the crisis differently.
But as usual, I digress…and so to the point at hand…
At a more local level, one of the many issues which will come out of the COVID-19 crisis will be the individual and differing responses of respective Local Authorities and NHS Trusts. Some will come out of this better than others.
Many of us are disappointed and frustrated – indeed flabbergasted – as to the Government’s handling of COVID-19, and this is mirrored at a local level as well. Enacting the Care Act 2014 easements as permitted under the Coronavirus Act 2020 is arguably the worst of this. It is incredibly disheartening to see the removal of people’s rights after having seen such legislative progress over the last 40 years. My education taught me about the Race Relations Act 1976, the Disability Discrimination Act 1995, the Human Rights Act 1998 and the Equality Act 2010. Soon, social work students could be discussing the watering down or revocation of the Human Rights Act 1998 and the removal of rights under the Coronavirus Act 2020. The Coronavirus Act may well be time-limited, but it might also be seen as an Act to open the floodgates – the thin end of the wedge. Either way, it is something on which this Government will be judged. Social work is a profession concerned with the promotion of people’s rights and as such I am glad to be a part of it – but there is clearly a fight in front of us if we are to continue to champion these rights. As a profession, it is our duty to represent people, and give them the tools to achieve their outcomes. Removing their right to make choices, as the Coronavirus Act 2020 has done, is neither an effective means of dealing with the virus, nor is it indicative of a healthy society. I suspect much will be written about the 8 Authorities which have implemented Care Act 2014 easements. Another issue is that of hospital discharges.
The Government released COVID-19 Hospital Discharge Service Requirements in response to the COVID-19 outbreak, and in many respects much of this guidance seemed to be quite clear. However, it does seem as though this guidance has been interpreted differently across different local authorities and NHS Trusts. This will result in different outcomes for different people – perhaps something of a postcode lottery, and I have already seen and heard people challenging some decisions. I can see that it will only be a matter of time before different Trusts and Authorities see legal challenges; I can even envisage the sort of mass litigation we saw borne out of the Hillsborough disaster.
As is the case with many scenarios, people will suffer, organisations will face consequences, and the lawyers will be busy.
There are many things about the COVID-19 Hospital Discharge Service Requirements that sit uneasily with me as a social worker. On the one hand it’s understandable that a view would be taken that hospital beds need to be 'freed up' in anticipation of beds being needed for Coronavirus patients. A big part of the issue here, is that there has been a shortage of beds for many years now already, and one could reasonably argue that the NHS should have received significantly more funding for those many years to resolve this, leading to less of a potential problem during a pandemic. It is hard for anyone to now argue “but where would the money come from”, when the Chancellor of the Exchequer Rishi Sunak states that he would “write a blank cheque” to the NHS to make sure that it has “whatever is needed” during the pandemic. This rather suggests that a more generous fiscal approach, instead of austerity, was possible after all.
Ultimately, the service requirements document explained:
"Implementing these Service Requirements is expected to free up to at least 15,000 beds by Friday 27th March 2020, with discharge flows maintained after that."
There was a danger that this would result in a ‘mad rush’ to discharge patients from hospital as quickly as possible, and if a view was taken that there would be no flexibility on this on a case by case basis, the outcomes for some could be disastrous. Operating in an environment where it is now explicitly stated that patients would have “no choice” over their discharge, places social workers in a morally and ethically impossible situation. The idea of a person having ‘no choice’ goes against the blood in my veins. It was said to me by a manager in one instance that “patient choice doesn’t exist, he can go anywhere in the whole county, just get him out of hospital now”. This is a statement made by someone under great pressure from those above to discharge everyone as quickly as possible. It is also a breach of social work’s professional standards (see standard 1; 1.2).
If we don’t think about the possible consequences in each case then we are failing in our role as social workers and failing our citizens. This is about proportionality. If the COVID-19 cases aren’t coming as feared (they aren’t), if the hospitals aren’t full (they aren’t), then we can facilitate patient choice and we can spend some time ensuring the best outcomes for people. If the hospitals are actually, paradoxically, emptying (they are), then this case becomes even stronger. When should patient choice be removed? I would argue only if there is no conceivable alternative. I cannot speak for the national picture, but I can say that in some areas, the removal of patient choice was, and is, not necessary.
In some areas of the country, there has been a calamitous failure to disseminate clear information as to policies and processes to workers, leading to confusion and to grossly inconsistent practices. Here come the lawyers…
I have been made aware that one NHS Trust/local authority has interpreted the document such that the NHS will fund COVID-19 hospital discharges fully, for the duration of the pandemic. I know of another NHS Trust/local authority which has taken the approach of providing said funding for a 2 week period only, following discharge. If ongoing care or support is needed after this period, the funding would revert to standard social care funding streams – including the usual means-tested financial assessment to ascertain whether a person should contribute towards the cost. Here is an instance of differing interpretations, and I suppose the devil is in the detail.
The guidance states as follows:
"The Government has agreed the NHS will fully fund the cost of new or extended out-of-hospital health and social care support packages, referred to in this guidance. This applies for people being discharged from hospital or who would otherwise be admitted into it, for a limited time, to enable quick and safe discharge and more generally reduce pressure on acute services."
How would we interpret “for a limited time”? If a local body chooses an arbitrary time period – 2 weeks for instance – they are immediately on dubious legal ground if called to defend this. Particularly, I would argue, given that part 2 of the guidance provides more clarity:
"2.1 Patients will still receive high quality care from acute and community hospitals, but will not be able to stay in a bed as soon as this is no longer necessary."
"2.5 For patients whose needs are too great to return to their own home (about 5% of patients admitted to hospital) a suitable rehabilitation bed or care home will be arranged. During the COVID-19 pandemic, patients will not be able to wait in hospital until their first choice of care home has a vacancy. This will mean a short spell in an alternative care home and the care coordinators will follow up to ensure patients are able to move as soon as possible to their long term care home."
"2.6 During the COVID-19 pandemic, all of the above support will be paid for by the NHS, to ensure patients move on from their acute hospital stay as quickly as possible."
It doesn’t help that 2.1 refers to “acute and community hospitals” whereas 2.6 seems to refer only to “acute hospitals”, but 9.3 clears this up:
"9.3 It is vital that discharges from community hospitals are increased and delays eradicated with the same approach and action taken in acute settings."
Ultimatelyppart 2 makes it clear that “a suitable rehabilitation bed or care home”, i.e. “all of the above support”, will be paid for by the NHS during the COVID-19 Pandemic. Quite clearly, the pandemic has already lasted longer than two weeks.
Furthermore, the guidance reads:
• On decision of discharge, the patient and their family or carer, and any formal supported housing workers should be informed and receive the relevant leaflet (see Annex D).
• Individuals and their families must be fully informed of the next steps.
Frankly, there will be individuals and families who will be arguing that they were not at all informed as to the next steps. If a locality implements a 2 week-only COVID-19 funding policy, without actually producing a policy document to indicate this, and without providing written explanations to patients about this, they run the risk of leaving themselves quite open to legal challenges.
It may well be feasible to provide this funding for a limited period – but this has to be made expressly clear. In writing.
Section 10.18 reads:
"10.18 Commissioners should plan throughout the period that the enhanced discharge support process is running to ensure appropriate processes are in place for the period following cessation of the enhanced discharge support process. As part of this, planning conversations should be taking place with patients and their families about the possibility that they will need to pay for their care later, as appropriate."
There will need to be evidence that these "planning conversations" took place. Again, whilst this is arguably fairly vague, it is part of a theme that runs through the document – namely, that the NHS will fund care following hospital discharges (with exceptions made clear – see section 10.4 for instance), without a finite or fixed period of time. As such, it falls to NHS trusts and local authorities to produce documents and information for patients to make their policies, intentions, and future planning & funding intentions clear. Without this, they would be very open to challenge.
I have also come across a scenario where it was agreed that a self-funder needed nursing care on discharge, in a nursing home, and that her family could no longer manage to support her at home. But the managers concluded that because she had had ‘respite’ at a care home before, she was not eligible for COVID-19 funding as she had already been receiving out of hospital care. This is the part of the national document that they were, presumably, thinking of:
"10.4 This NHSE&I funding support will commence from Thursday 19th March 2020 and will reimburse, via CCGs, the costs of out-of-hospital care and support that arise as a result of the approach outlined in this document (both new packages and enhancements to existing packages), where it is provided to patients on or later than this date. Any patients already receiving out of hospital care and support that started before this date will be expected to be funded through usual pre-existing mechanisms and sources of funding."
This assertion is, of course, ludicrous, as the respite was not a permanent arrangement, it may not have ever been needed again, and it was to give a carer a break, rather than to meet the individual’s ongoing nursing needs.
I envisage that there will be all sorts of potential challenges to many of the decisions taken in relation to hospital discharges. Self-funders discharged into care homes being expected to pay for the care in full with no hint of COVID-19 funding on discharge. Funding provided for a “limited time” with no policy document produced to detail this. Continuing Health Care Assessments not completed, mental capacity assessments not completed (I had a manager say to me that capacity does not need to be assessed during the pandemic – which is entirely contrary to the guidance, a potential breach of both our professional standards and of human rights), advocates not instructed, best interest decisions not taken.
Give it time. The only ones to come out of this well will be the lawyers.
The publisher is the Centre for Welfare Reform.
Confused Discharge in COVID-19 © Alex Leeder 2020.
All Rights Reserved. No part of this paper may be reproduced in any form without permission from the publisher except for the quotation of brief passages in reviews.