Only England is affected by changes to Hospital Discharge and NHS Continuing HealthcareDownload this Explainer as a PDF here.

30 September 2020

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 CHC can be found on the NHS website.

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 CHC 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 CHC 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 NHS CHC assessments in consultation with the relevant social services authority.

This means that while these changes remain in place, people won’t be assessed to see if they have a primary healthcare need and would be eligible to NHS CHC. It also means 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.

However, earlier this month the Department of Health and Social Care have updated their guidance on NHS CHC. The guidance says that the Government now “request that local health and social care systems reintroduce the NHS CHC processes from 1 September 2020”. The guidance  also states that from 1 September 2020, new or extended health and care support will be funded for a period of up to 6 weeks for people being discharged from hospital, or to provide urgent care for those who would otherwise have been admitted to hospital. This guidance therefore marks the reintroduction of NHS CHC processes, and any NHS CHC assessments which were postponed during Covid-19 must now be carried out. New NHS CHC assessments must be carried out and eligibility decisions confirmed within 6 weeks of discharge from hospital.

This is good news for people who are being discharged from hospital and need extra care or support, but it is important to note that this is guidance to local health bodies and local authorities. In law, such bodies are still not under a legal duty to conduct NHC CHC assessments, and so could decide not to.

What does this mean for people?

NHS CHC 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 vulnerable or make them 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.

We are pleased to hear that the new Government guidance requests the reintroduction of NHS CHC assessments, and we hope this means people will have their needs met when discharged from hospital. However, as noted above, the reintroduction has been made in guidance only, not in law. Legally, local health bodies still do not need to comply with their duties to conduct NHS CHC assessments.

What human rights are involved?

A range of human rights under the Human Rights Act may be engaged due to these changes to NHS CHC 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 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 immediate risk. If discharge from the hospital would put your life at risk, this right is engaged. This is particularly relevant at the moment with discharge into another place of care, such as a care home. Given the evidence at the moment that infection rates are significantly higher in institutional care settings and people in those setting tend to be within the designated vulnerable groups, this is a risk to the right to life.

 

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 or anxiety).

What happens now?

It is important to state that whilst the Act says that relevant authorities do not have to meet their duties to carry out CHC Assessments, it does not prohibit them. This means that authorities can continue to make assessments and following the National Framework, if they choose. What’s more, the new Government guidance actually requests that assessments restart and that any assessments which were postponed should now be carried out. This should mean that local authorities and health bodies restart their NHS CHC assessments, and that more people can access the continuing care they need.

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 UK Parliament’s Joint Committee on Human Rights (JCHR) has raised concerns about the Regulations and their enforcement by the police. On the 19 March 2020 the JCHR started an Inquiry into “The Government’s response to COVID-19: human rights implications.” The JCHR Chair’s briefing states:

"This lockdown is the most significant and blanket interference with individual liberty in modern times.  Such extreme measures can only be considered lawful, justified, necessary and proportionate if (1) the threat from disease and death remains sufficiently significant to justify such extraordinary measures; (2) the measures only interfere with human rights and civil liberties to the extent necessary; (3) the measures are enforced in a clear, reasonable and balanced manner; (4) enforcement is authorised, and does not go beyond what is prohibited, by law." 

The JCHR Inquiry finished accepting evidence from the public and experts in writing on 22 July. BIHR submitted evidence to the JCHR based on our work with 1700 people during lockdown and specific research with 230 representing 1) people accessing (or trying to access) public services, their family and friends; 2) community groups and advocates; 3) frontline staff in health, care, social work, education and housing.

You can find our reports here, including Easy Read version. Overall we found that since March 2020, decisions across the UK, by Governments and in local areas, have compromised people’s human rights.

You can find the JCHR’s final report here. The JCHR concluded, that the Government must urgently address a number of issues to make sure that its handling of the Coronavirus pandemic is compatible with human rights. You can read our Explainer on the JCHR report here.

This week, the Houses of Parliament have been debating the Coronavirus Act for the 6-month review of the Act. We briefed both Houses of Parliament ahead of the debates on what our research during Covid-19 shows about the impact the Act has had on real people’s lives. You can find out more about our work on the 6-month review of the Coronavirus Act and read our briefing here.

Where can I find more information?

You can download PDFs of our previous versions of this Lockdown and Police Powers in Wales Explainer series here:

  1. Original Explainer

  2. 30 September 2020 Explainer

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.