The Law Commission has now concluded its review of adult social care law and has published proposals for new legislation. The Government has pledged to introduce legislation to implement those proposals which it accepts. The Law Commission’s final report, which can be accessed here, therefore provides an indication of the framework that will in future underpin the provision of services in this area.
Key proposals include:
- a single statute to govern adult social care law, replacing the many pieces of legislation currently in place;
- creating a statutory overarching principle for adult social care, which would set the basis for all actions carried out in connection with adult social care;
- creating one assessment duty and empowering local authorities to delegate their assessment duty to others eg, healthcare professionals – so joint health and social care assessment could be carried out by the same assessor;
- creating a new, simpler, test for triggering the duty to assess needs of carers;
- placing a statutory duty on local authorities to lead the co-ordination of adult safeguarding mechanisms; local authorities would also be under a duty to investigate (or ensure that another agency investigates) adult protection cases;
- putting adult safeguarding boards on a statutory basis, with various agencies, including NHS trusts, having a duty to appoint members to sit on the boards; and
- creating a statutory duty on health and social care bodies to cooperate in relation to provision of adult social care.
Although the proposals do not include significant changes to the eligibility threshold for services, the Law Commission has made recommendations in relation to the health and social care divide, in particular on the issue of eligibility for NHS Continuing Healthcare. The report recommends retaining the prohibition on local authorities providing nursing care and setting out in the new statute the “quality and quantity” test which is used to determine whether services are beyond a local authority’s power to provide. The proposals also include making provision for the continuing healthcare eligibility criteria to be set in law, as opposed to in guidance as they are today.
Section 117 Mental Health Act 1983 would also be amended under these proposals. The extent of the duty on health and social care bodies would be clarified (health bodies being under a duty to provide healthcare services, social care bodies being under a duty to provide social care services) and the duties on each could be brought to an end unilaterally, without both the health and social care bodies agreeing to terminate the entire after care package. These particular proposals should implemented by the Health and Social Care Bill.
Implementation of the Law Commission’s proposals would be a significant step forward in this area, and simplification of the current system has to be welcomed by all professionals working in the field.