Only England is affected by changes to Hospital Discharge and  NHS Continuing Healthcare.

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On 25 March 2020, the Coronavirus Act 2020 (“the Act”) came into force. Section 14 of the Act makes temporary changes to the provision of NHS Continuing Healthcare. These changes affect the legal duties around hospital discharge and continued care after discharge during Covid-19.

What is NHS continuing healthcare?

NHS continuing healthcare is a package of free social care for people with long-term complex health needs who are assessed as having a 'primary health need'. It is arranged and funded by the NHS. More information on the NHS website, can be found here.

What are the legal changes?

On 25 March 2020, the UK government introduced the Coronavirus Act 2020, which makes sweeping changes to health and care legislation across the UK. Section 14 of the Act modifies legislation regarding NHS Continuing Healthcare:

Why have they been introduced?

The purpose of the Coronavirus Act is to enable the Government to respond to an emergency situation and manage the effects of the COVID-19 pandemic.

The explanatory notes to the Act states the following about NHS Continuing Care: “the Act allows the procedure for discharge from an acute hospital setting for those with a social care need to be simplified”, as this process can take a number of weeks.

What are the changes?

NHS providers do not have to comply with the duty to carry out NHS Continuing Healthcare assessments imposed by regulation 21(2)(a) of the 2012 Regulations. They also do not have to comply with the duty to have regard to the National Framework when making NHS Continuing Healthcare assessments, imposed by regulation 21(12) of the 2012 Regulations. Similarly, NHS Trusts do not have to comply with the duty under the 2013 Directions to carry out Continuing Healthcare assessments in consultation with the relevant social services authority.

This means that while these changes remain in place, patients will not have a choice over their discharge. People will not be able to remain in hospital if they choose not to accept the care that is being offered, including discharge to another place of care such as a care home.

What does this mean for people?

NHS Continuing Care Assessments are vital in ensuring people with complex health needs are supported to be safe and well in the community.

The removal of the duty to carry out continuing care assessments, will disproportionately impact people who have complex needs who may already be in vulnerable positions, or make their situation more vulnerable through lack of proper care and support.

Discharging people from hospital may secure more hospital bed space to deal with Covid-19, but in doing so regard must be had to creating future demand for NHS treatment by exacerbating or creating vulnerability.

At the start of lockdown, in March, BIHR was already being alerted to stories of the impact of discharging people from hospital without assessments of care and support needs. For example:

“a frail 83-year-old with dementia discharged yesterday after 5 months in hospital; no warning, assessment or discussion with his next of kin or carer (his son who has health conditions himself). He has since fallen twice and can barely stand.”

What human rights are involved?

A range of human rights under the Human Rights Act 1998 may be engaged due to these changes to NHS Continuing Healthcare duties. These include:

  • The right to respect for private and family life (Article 8). This protects people’s autonomy and well-being, which includes:
    • making choices about your own life and participating in decisions about your care and treatment, including discharge and their recovery goals; and
    • avoiding protecting people from psychological trauma or physical harm caused by premature or delayed discharge, such as serious distress or hindering recovery
  • The right to non-discrimination (Article 14). This right to be free from discrimination in the enjoyment of our human rights must be used with another right in the Human Rights Act. At BIHR we call it a 'piggy-back' right. The right means that people receiving care should not be discriminated against when accessing care and when decisions about their care are made.
  • The right to life (Article 2). This right includes a positive duty to take reasonable steps to protect a person’s life if it is at known and immediate risk. If discharge from the hospital would put your life at risk, this right may be engaged. This may be particularly relevant in the current situation, where discharge into another place of care, such as a care home, may involve being moved to an institutional setting where there is  evidence of increased infection and death rates. Additionally, people in such institutional care settings tend to be within the designated vulnerable groups.
  • The right to be free from inhuman or degrading treatment (Article 3). This right also includes a positive duty to take reasonable steps to protect a person from inhuman or degrading treatment. The threshold for inhuman and degrading treatment is very high. It covers very serious harm, either physical or psychological (such as extreme distress).

What happens now?

It is important to state that whilst the Coronavirus Act exempts relevant authorities from making CHC Assessments, it does not prohibit them. This means that authorities can continue to make assessments and following the National Framework, if they choose.

Additionally, there may be other powers and duties which authorities want to consider using, where relevant. These include those around Safeguarding under the Care Act, and section 117 support under the Mental Health Act, which remain unaffected by the Coronavirus Act.

The Coronavirus Act is subject to a 6 month review period, this will be due at the end of September 2020. The Joint Committee of Human Rights is also conducting an inquiry into the Government’s response to Covid-19, you can find more information in the Review/s section of our Coronavirus and Human Rights Hub.

Where can I find more information?

PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.