This annex covers:
1) The Care and Support (Discharge of Hospital Patients) Regulations 2014 set out:
2) The regulations also set out what is to happen when a local authority disputes that the patient is ordinarily resident in its area and to recover expenditure incurred as a result.
3) All notices issued by the relevant NHS body must be provided in writing to local authorities. This means that each notice (whether an assessment notice, discharge notice or withdrawal notice) must be in a legible form capable of being reproduced (e.g. capable of being photocopied, emailed or faxed). Any notice which is not reasonably legible would therefore not be valid. In order to ensure the legibility of all notification notices, the NHS body who issues the notice should type or print the notices and use a digital format wherever possible. This ensures that the receiving local authority can read the information it requires to comply with its duties and helps to prove that a notice has been issued if ever this was disputed.
4) However, while it is important to establish an audit trail, the system which NHS bodies and local authorities set up around issuing notices should not impede good working practice. Where hospitals and local authorities are already operating joint discharge teams, which are often co-located in the same office with access to a shared database, an update to the database may be all that is required.
5) The NHS is required to issue a notice to the local authority where they consider that an NHS hospital patient in receipt of acute care may need care and support as part of supporting a transfer from an acute setting regardless of whether they intend to claim reimbursement. The relevant local authority who the NHS must notify is the one in which the patient is ordinarily resident or, if it is not possible to determine ordinary residence, the local authority area in which the hospital is situated.
6) Not everyone who is admitted to hospital will need care and support after discharge. Indeed, for the majority of hospital discharges, this will not be the case and it is important within this context that NHS organisations do not issue assessment notices in a precautionary and/or routine way without having satisfied itself that there is a reasonable prospect that there may be a need for care and support for which arrangements may need to be made in order to ensure a safe discharge.
7) A locally agreed protocol between the NHS and local authorities which allows NHS staff to identify those likely to need care and support on discharge will provide help and advice as to when a patient should be considered to have possible care and support needs, in order to ensure the NHS issue assessment notices appropriately.
8) However, the relevant NHS body must issue an assessment notice where it considers that a patient may require care and support on discharge and the local authority must or may be required to meet such needs. Before issuing any assessment notice, the NHS must consult with the patient and, where applicable, the carer. This is to avoid unnecessary assessments where, for example, the patient wishes to make private arrangements for care and support without the involvement of the local authority. Before issuing an assessment notice, the NHS body must have also completed any assessment of the potential Continuing Health Care needs of the patient and if applicable made a decision on what services the NHS will be providing.
9) In general, the NHS should seek to give the local authority as much notice as possible of a patient’s impending discharge. This is so the local authority has as much notice as possible of its duty to undertake a needs and (where applicable) carer’s assessment.
10) However, an assessment notice must not be issued more than 7 days before the patient is expected to be admitted into hospital. This is so the notice is not provided too far in advance of admission to avoid the risk of wasting preliminary planning in the event that the patient’s condition changes. A balance should be struck between giving the local authority early notice of the need to undertake an assessment of the patient and the risk that the patient’s condition may change significantly such that any early planning needs to be reviewed.
11) Accordingly, if the NHS is able either to issue an assessment notice up to 7 days before the date of the patient’s admission into hospital and/or have a good indication of the likely proposed discharge date which is unlikely to change, then the NHS should issue the assessment notice as soon as possible.
12) The information contained in an assessment notification is intended to be minimal, both to reflect patient confidentiality requirements and to minimise bureaucracy – it is only the trigger for assessment and care planning.
13) The assessment notice must state that it is an assessment notice given under paragraph1(1) of Schedule 3 to the Care Act. This is so the local authority is aware of the consequences that could flow from the receipt of the assessment notice (i.e. that it has to take steps to assess the patient and (where applicable) the patient’s carer and put in place any arrangements to meet those needs it proposes to meet. Ultimately if the local authority fails to carry out such steps then the local authority may, in certain circumstances, be liable to pay the NHS for any delayed discharge period.
14) The assessment notice must include the following:
15) The requirements above are intended to make the assessment notice process work more effectively, including the requirements to include the patient’s NHS number and also the contact details of the person at the hospital who will be responsible for liaising with the local authority in relation to the patient’s discharge from that hospital.
16) These requirements may be built on at a local level to produce a form that meets the agreed needs of the NHS and local authority. Although not exhaustive, local systems might also want to include on the assessment notice the patient’s address and the lead clinician’s details. The following list provides a model that the NHS might want to use:
Those marked with an * are not legal requirements but should be included where known as a matter of good practice.
17) On receiving an assessment notice, the local authority must carry out a need assessment of the patient and (where applicable) a carer’s assessment so as to determine, in the first place, whether it considers that the patient and where applicable, carer has needs. If so, the local authority must then determine whether any of these identified needs meet the eligibility criteria and if so, then how it proposes to meet any (if at all) of those needs. The local authority must inform the NHS of the outcome of its assessment and decisions.
18) To avoid any risk of reimbursement liability, the local authority must carry out a needs assessment and put in place any arrangements for meeting such needs that it proposes to meet in relation to a patient and, where applicable, carer, before ‘the relevant day’. The relevant day is either the date upon which the NHS proposes to discharge the patient (as contained in the discharge notice – see below) or the minimum period, whichever is the later.
19) The minimum period is 2 days after the local authority has received an assessment notice or is treated as having received an assessment notice.
20) Any assessment notice which is given after 2pm on any day is treated as being given on the following day.
21) The following examples show how these timescales work.
The NHS issues an assessment notice to the local authority at 1pm on Monday. The assessment notice must specify the date of the proposed discharge date. The earliest date which would be permitted is 2 days after the date the assessment notice is given (although a later proposed discharge date could be set out in the discharge notice.) This means that in order to avoid any risk of reimbursement liability, Wednesday would be the earliest day by which the local authority would need to have carried out the assessment and put in place any care and support services and, where applicable, carers’ services that it proposes to meet.
The NHS issues an assessment notice to the local authority at 3pm on Monday. The assessment notice is treated as having been given on the following day, Tuesday. This would mean that if no later discharge notice were given in the assessment notice, then Thursday would be the earliest day by which the local authority would need to have carried out the assessment and put in place any care and support services and, where applicable, carers’ services that it proposes to meet if it were to avoid the risk of any reimbursement liability. Again, the assessment notice and later the discharge notice (see below) could set out a proposed discharge date after Thursday, in which case this would be the actual deadline by which the local authority would be required to have carried out the assessment and put in place any care and support and carers’ service that is proposes to meet in order to avoid the risk of incurring any reimbursement liability.
22) The NHS body which issued the assessment notice may withdraw that assessment notice at any time. Once an assessment notice has been withdrawn by the NHS, this means that the local authority that has been given the assessment notice is no longer required to comply with the requirements to assess or, where an assessment has been carried out, to put in place arrangements to meet some or all of the patient’s care and support needs. Once an assessment notice is withdrawn no liability to the local authority can accrue after that date. This is even if a discharge notice has been subsequently issued. But any liability which may have accrued before the withdrawal of the assessment notice is unaffected.
23) There are a number of circumstances when the NHS must withdraw an assessment notice. These are where:
24) The regulations do not prescribe what a withdrawal notice must contain. However, it must be in writing, and local systems should be established to ensure that the withdrawal notice provides sufficient information for both the NHS and local authority to be clear as to which patient and assessment notice the withdrawal notice refers to, and the reason(s) as to why the assessment notice is being withdrawn. In the context of identifying the person, mirroring either in full or part what is required for the assessment notice itself should be considered.
25) Patients and carers should be informed of the discharge date at the same time as or before the local authority. In addition, hospital staff may give the local authority an early indication of when discharge is likely as part of helping their planning.
26) Where the NHS has issued an assessment notice to a local authority (so as to require the local authority to assess a patient’s care and support needs to facilitate a transfer of care), it must also give written notice to the local authority of the proposed date of the patient’s discharge notwithstanding that it included the proposed discharge date in the assessment notice. This is known as a discharge notice and its purpose is to confirm the discharge date as it either may not have been previously known at the time of the issue of the assessment notice or may have subsequently changed since the assessment notice was issued.
27) The NHS could not seek to recover any reimbursement from the local authority in respect of a patient’s delayed transfer of care unless it has first issued both an assessment notice and a discharge notice.
28) A discharge notice must contain:
29) To ensure that a local authority receives fair advance warning of the discharge, the NHS body must issue a discharge notice indicating the date of the patient’s proposed discharge. The minimum discharge notification allowed is at least one day before the proposed discharge date. Again, where the discharge notice is issued after 2pm, it will not be treated as having been served until the next day.
30) Taking the examples above:
The NHS issues an assessment notice to the local authority at 1pm on Monday. The assessment notice must specify the date of the proposed discharge date where known. The earliest discharge date which would be permitted to be specified is 2 days after the date the assessment notice is given (although the proposed discharge date can be later than this) i.e. Wednesday. This means that where the minimum period were to apply, the discharge notice must be issued no later than Tuesday.
The NHS issues an assessment notice to the local authority at 3pm on Monday. The assessment notice is treated as having been given on the following day, Tuesday. This would mean that if the minimum period were to apply then Thursday would be the earliest date by which the local authority would need to have carried out the assessment and put in place any care and support services and, where applicable, carers’ services that it proposes to meet if it were to avoid any risk of reimbursement liability. So, this means the discharge notice must be issued no later than Wednesday.
31) The NHS body can issue the discharge notification with a much longer period of advance warning if appropriate and it should continue to seek to provide the local authority with as much notice of the proposed discharge date as possible. However, it will need to consider the likelihood of such a date being inaccurate and then the potential need to withdraw and reissue the discharge notification in the event the patient’s condition changes in the meantime.
32) The NHS body is required to inform the local authority, by way of a withdrawal notice withdrawing the discharge notice, when it considers that it is no longer likely to be safe to discharge the patient on the proposed discharge date for any reason other than the fact that it would be likely to be unsafe to discharge the patient because the local authority has not taken the require steps. So, for example, the NHS must inform the local authority of changes in circumstances affecting the discharge date, for instance if the patient’s medical condition changes or the patient dies.
33) The NHS should also consider the appropriateness of issuing the assessment and discharge notices too closely together, as this may result in extremely short time frames for local authorities to put in place what may be complex and comprehensive packages of care, which will also need to be subject to discussion with the patient and/or their carer. This potentially could lead to decisions being made, which while supporting a safe discharge may not be in the best long-term interests of the patient.
34) The NHS body which issued the discharge notice to a local authority may withdraw that discharge notice at any time. Such a withdrawal must also be in writing. It is important that the NHS body informs the local authority as soon as possible of a withdrawal of a discharge notice so that the local authority is not unnecessarily expending resources arranging a discharge on a date, which is no longer correct.
35) A discharge notice must be withdrawn where the NHS body considers that it is no longer likely to be safe to discharge the patient from hospital on the proposed discharge date.
36) However, this does not apply where the reasons for withdrawal are that the local authority has not taken the steps required to inform the NHS body of the outcome of the assessment the needs of the patient (and the carer, where applicable), and whether it Intends to put in place care and support to meet any eligible needs.
37) Local systems should be established to ensure that the withdrawal notice provides sufficient information for both the NHS and local authority to be clear who the person is that the notice refers to, and the reason(s) as to why it is being withdrawn. In the context of identifying the patient, mirroring either in full or part what is required for the discharge notice itself should be considered.
38) Once a discharge notice is withdrawn, no further liability for the local authority to pay the NHS for any delayed transfer of care arises.
39) While reimbursement remains available for use by the NHS body, they and local authorities are encouraged to use the provisions on the discharge of hospital patients (such as the issue of assessment and discharge notices) to seek to focus on effective joint working so as to improve the care of those people whose needs span both NHS and local authority care settings. While reimbursement is a potential way of exposing local difficulties in the relationship between the NHS body and the local authority, NHS bodies should not use reimbursement as the first approach to address any local difficulties around delayed transfers of care.
40) The NHS will only be able to seek any reimbursement from the local authority arising from a delayed transfer of care, if the NHS has first sent both an assessment notice and a discharge notice to the local authority, but the local authority has then either not carried out an assessment or put arrangements in place for the meeting of care and support and, where applicable, carer’s needs which it proposes to meet by the end of the relevant day (i.e. the proposed delayed discharge date in the discharge notice or the minimum period and it is for this reason alone that there has been a delay in the patient’s delayed transfer of care.
41) In these circumstances, it is then in the NHS’s discretion whether to recover payments for reimbursable delayed discharge days. In terms of the level of reimbursement, the regulations provide that:
42) The amounts above have risen in line with the Consumer Price Index (CPI) measure of inflation since 2003, and the higher rate only applies to local authorities in London.
43) The period for which liability can be sought, if the NHS so chooses, starts on the day after the relevant day i.e. after the date of the proposed discharge date contained in the discharge notice or the minimum period which is, at the earliest, 2 days after the assessment notice is given.
44) It then ends on the earliest date as to when any of the following occurs:
45) It is intended that both the NHS and local authorities should have established systems in place by April 2015 that provide for 7-day coverage. Accordingly, the exemptions that previously existed for weekends and Bank Holidays are no longer to apply and as such all days become potentially reimbursable. However, a day is not to be treated as a day for which a local authority could be liable for reimbursement when the local authority has by 11am that day put in place arrangements for meeting some or all of the needs that it proposes to meet in relation to the patient and, where applicable, the carer.
46) Also, no liability will arise for any day where the NHS considers that the patient is not able to be discharged because they have suffered a deterioration in their condition on that date so that it would not be safe to discharge them even if the local authority had put in place arrangements for meeting the patient’s care and support and, where applicable, the carer’s needs.
47) If the patient’s deterioration becomes more established such that the patient requires a further course of treatment in hospital, and it would be unsafe to discharge the patient then the NHS body must withdraw the discharge notice and should consider withdrawing the assessment notice.
48) The NHS should serve the assessment notice on the local authority where the patient is ordinarily resident or where the patient has no settled address, the local authority in which the hospital is located. Where a local authority disputes the assertion that they are responsible for that individual based on ordinary residence, they must in the period of dispute still comply with the requirements of the Regulations in terms of providing an assessment and any care and support provision which is identified as being needed to secure a safe transfer from one care setting to another.
49) Where any dispute arises because a local authority disputes that the patient is ordinarily resident in its area (so that it should not be the local authority to whom an assessment notice is given), then that local authority must accept provisional responsibility and undertake the steps required under the discharge of hospital patient provisions. If no agreement can be reached on ordinary residence, it must then seek a determination as the patient’s ordinary residence from the Secretary of State or an appointed representative. Further information on this process can be found within the Ordinary Residence Regulations, which have also been established as part of the Care Act 2014.
50) All other disputes in relation to delayed discharge payments (e.g. whether to seek reimbursement, whether the day should be counted as a day of delayed discharge period etc.) should be resolved between the NHS body and local authority. Where they cannot be resolved then resolution would have to be way of an application for judicial review to the High Court.
51) As set out in existing guidance, the NHS organisation must ensure that before reporting days attributable to care and support that it has verified their accuracy with the local authority, irrespective of whether the NHS body is seeking reimbursement or not. This should happen in advance of them being reported into the formal system so that any errors can be identified and addressed. The system by which this happens is for local determination, although it is expected that it would be the relevant Director of Adult Social Services or their nominated representative who would be the local authority point of contact for this.
52) Irrespective of whether the delayed days fall into the reimbursement category or not, they must be reported by the relevant NHS body, this is reflected in the NHS Operational Guidance delivered via SitRep. These days include any person with a delayed discharge at any point in the given month, as well as that those patients who meet the Delayed Transfers of Care (DTOC) definition on the last Thursday of each month. In terms of definition, DTOCmean that individuals are in a setting that is recognised as not being appropriate for the care they need. This potentially contributes to worse outcomes for the individual, particularly in the context of their quality of life, as well as placing additional and sometimes costly burdens on the NHS and local government. The definition of a DTOC provided for within SitRep is when a patient is ready for transfer after being in receipt of acute care but is still occupying a bed even though:
53) The exchange of data needed for the purposes of NHS bodies and local authorities carrying out their respective functions is allowed in accordance with the common laws of confidentiality and data protection legislation. It is the responsibility of the individual bodies to ensure they have robust data protection safeguards in place to ensure a patient’s personal data is kept secure and only used for the purposes that it is required (i.e. seen by those it needs to be seen by on a needs to know basis).
54) It is fundamental that both the NHS body and the local authority involve the patient and, if appropriate, their carer about their current and ongoing care and support needs. In doing this, it should have already undertaken an assessment of the patient’s capacity to participate in an informed way in these discussions and, where they do not believe that the capacity exists, they should move forward by taking account of other existing regulation and guidance such as for example the Mental Capacity Act.
55) Other provisions and requirements under the Care Act may also be relevant to considerations arising to the discharge of hospital patients with care and support needs. Reference should be made to these, most notably those relating to:
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