Warehousing to save money - and cost-capping home

Warehousing to save money - and cost-capping home

Warehousing to save money - and cost-capping home care packages by reference to the cost of a care home bed: lawful or unlawful? Belinda Schwehr Care and Health Law 07974 399361 [email protected] 2 Conclusions My view is that a council or a CCG can have a policy to meet needs in a cost effective way, as long as it doesnt allow cost to be the only driver or determinant of care planners professional discretion as to what is an appropriate way to meet need, and as long as human rights and mental capacity considerations are properly grappled with. I think that that potential for a lawful policy extends to adding in the cost of supporting the carer, formally, so as to signal that

carers matter but their robustness and willingness are crucial to real choice. If it wants this to be understood, so that it influences carers to go on caring, without further funding, then it has to take peoples no for a final answer, but only after some very unpalatable conversations with everyone involved not for the junior end of the health or social care profession. Belinda Schwehr, 2017 3 What would be dangerously legally risky I think that JUST having a general policy that it will usually or normally be the bodys expectation that the cheaper setting will be the one offered, is not safe. Not without examples of exceptions, or some proof that exceptions ARE in fact made and that the staff know that they have a critical role in determining whether a person is even one who can be regarded as able to be cared for other than in their own home. Having any kind of a clear cost cap, as a policy, whatever it had been set by reference to, would mean undermining the care planners view about managing impact to wellbeing, or even a best interests decision about an

appropriate service setting. It would also be an over-rigid fetter of discretion, a quick way to getting JRd. Using the price of a suitable vacant care home over a buffer percentage allowing for person centred care planning and choice, as a reason for a discussion in the context of a review cannot however be unlawful. If the cost of meeting needs increases, above that buffer, then thats not necessarily sustainable in times of financial difficulties. Belinda Schwehr, 2017 4 Further considerations for a lawful policy If I had insufficient capacity in my local care home sector, anyway, to treat people fairly and really be robust about this policy, Id be even more worried. A care home has to a) be suitable for the individuals needs and wellbeing and b) have an actual vacancy before the cost of the care home package can feasibly be relevant to anything a purchasing body needs to decide! If the going rate for care home care in your area has been bullied and suppressed down by hugely successful dodgy commissioning practices and nobodys challenged that, and top ups are running

as a collusive bridge between what commissioners want to spend and what homes say that they need in any event, do not risk using that particular rate as the indication of what an own home based package should cost. Belinda Schwehr, 2017 5 Some final advisory thoughts Assuming you are going to consult in advance of bringing in this sort of an approach, consult on some proper principles and social work values as to what sort of factors should inform exceptions to the aim to offer costeffective care. Should those principles take account of the cost of sustaining the carer? Consider whether a persons expenditure on their own needs, in order to achieve their supposed preference to stay at home count as DRE? Or deliberate deprivation of assets? Should they take account of individuals means, and the consequential charge, or not governing whether one compares the gross or net costs of settings? If the reason a person is charged the most, is that they have the most needs, and the most money, and therefore get the most choice, is this politically fair? It would not have been in the old days, but is it just a

reality? How would the comparison between settings costs work, when the person is not chargeable at all (CHC or s117) or where there was agreed to be a need for a split package? Belinda Schwehr, 2017 What councils and CCGs CAN do, if they are faced with too many people wanting to stay at home? They should indicate senior health/social work professionals views on who needs to be at home, whatever the cost young dying fathers and mothers with young children, couples who still like each other after 50 years, and who are co-dependent, and people who would be de-skilled, significantly depressed, or disturbed, or destabilising in a care home setting all come to mind. They should require assessors or care planners to decide which clients / patients actually need to be in a care home because nowhere else is actually workable, even if money were no object and respect the DoLS cases about the BIAs authority to decide (not recommend, decide) that deprivation of liberty might not be necessary and proportionate, if just a bit more money for a care home package would enable it not to happen. In the middle ie where either setting would do but being cared for at home is more expensive, adopt a general best value policy for being willing to keep people at home for a while longer, if it only costs say 20% more than a care home would cost the purchaser the gross cost, not net of social care charges in council package cases, in my view.

Then costing it out, and working very hard with the service user and carer to think about other ways of lightening their burden or reducing the impact of the caring role for them, without taking on any more care work that has to be funded to be sustained. The carer does not have a right to care, and also be supported by the State, regardless of the cost, any more than the service user could demand to be cared for in their own home, regardless of the cost. Negotiate maturely to keep costs within that policy based percentage with all those who actually have friends, relatives, their own money and neighbours who are willing and able to help, particularly with small important unpredictable needs for intervention, and anything that tends to Belinda Schwehr, 2017 cost twice as much, like night time care,etc. Or get them to help during the day, so that the person Belinda Schwehr, 2016 6 7 Train staff to have the difficult conversation about it being the client/patients acceptance of this input from informal carers that is what is going to give the service user ongoing actual choice, since it all comes out of public money. With those who have nobody who can help, but who are determined to stay at

home, in their own home, explain that the commissioner has to be fair to everyone, and that the staff are willing to reconsider the risk of staying at home, to them, without a full package, in the context of their properly understanding it, so that they may be able to be regarded as capacitatedly refusing SOME of the care inputs that the staff first thought was needed, thus justifying the councils paying for some of their needs at home, but not all. Consider whether to ask for a person to put it in writing. Do capacity assessment regularly about the specific issue of deciding where to live - but based on the purchasing bodys Panel final and reasoned explanation of the most generous package their senior staff believe feasibly meets needs in the persons own home, and why theres still a shortfall based on the needs that would arise if a person stayed at home and whether the body is willing to spend that money or would be prepared to say our offer is the lower cost care package in the care home. Belinda Schwehr, 2017 8 Take a best interests decision in the case of an incapacitated person, using the CoP if necessary to prevent obstruction by relatives, and move a person bodily to a care home which staff positively thinks will suitably meet their needs, under the MCA, or guardianship, using DoLS if legitimate, and paying the full cost, rather

than compounding the problem by contending that a top up is needed. If you decide to walk away, take steps to prepare elected Members and CCG officers to manage press attention when a person who has been regarded as refusing services altogether, or in part, goes to the press. Meet the needs in full, of anyone who wont consent to leave their own home, but who clearly lacks capacity to be able to be said to be refusing the actual care services. If a commissioner bound by the statutory duty to meet needs appropriately and lawfully chooses to support a person to stay at home, I do not think it is legal to cost cap the inputs that will be paid for, to the cost of meeting need in another setting, just because it avoids the council having to be seen to walk away. Prepare those Members and CCG operating officers yet further, to cope with press attention when a person whose services have been cost capped, is harmed by the inadequate care package put in. Goodness knows, that WILL be interesting, given the foreseeability of the harm! Belinda Schwehr, 2017 9 I hope that that has been useful. I have found it hard to interest the supposedly serious press in paying for the airing of the expertise. I am shortly to focus on launching a charity to help try to put right the dearth of legal

literacy - in a field in which it has been public law, more than anything, for 20 years, since the Gloucestershire case, that has managed to enforce peoples rights to care and support. That charity is to be called CASCAIDr The Centre for Adults Social Care Advice, information and Dispute Resolution It will be providing free legal advice to people struggling with advocacy rights, assessment, eligibility and care planning or cuts on revisions of care plans. It will use crowdfunding in support of particular cases where a principle needs to be established, and will even bring cases in the charitys own name, so that the principle cant be bought off and buried. The charity will charge other people low rates, for out of free scope matters. You can be a paid adviser or a volunteer to help people explain their concerns to our paid advisers; you can be a MEMBER, if thats better than making a donation, in return for webinar training packages and some advice per year. CASCAIDr will open the floodgates after a months start up funding campaign, probably on MyDonate.com, as soon as it is approved as a charity: the government must be made to pay an extra 25% by way of Gift Aid, in my view! Belinda Schwehr, 2017

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