Coronavirus Act 2020 - Changes to NHS continuing healthcare and NHS funded nursing care

The Coronavirus Act 2020 (the ‘Act’) came into force on 25 March 2020. The legislation is extensive and amends many duties and responsibilities of public bodies in existing legislation across the board.

It should be noted, if at any time the Government suspends provisions contained within the Act, public bodies will need to revert to their duties set out in existing legislation.

Section 14 of the Act changes CCGs and NHS England’s (the ‘Relevant Body’) duties to carry out assessments in respect of Continuing Healthcare (‘CHC’). The Impact Assessment accompanying the legislation confirms that these provisions have been implemented to facilitate discharge from hospital, with the priority being patients who are ready to leave hospital to be discharged rapidly and with the minimum administrative burden.

Section 14 of the Act needs to be considered alongside the Guidance “COVID-19 Hospital Discharge Service Requirements” (19 March 2020) (the ‘Discharge Guidance’) which sets out requirements for health and social care commissioners. Specifically, the Discharge Guidance sets out a ‘Discharge to Access Model’ using 4 clear pathways to facilitate discharge. The specific discharge pathways will be considered further in a supplementary guidance note.

The provisions under Section 14 came into force on 25 March 2020. Of importance, the provisions of the Act apply to obligations that arise before Section 14 came into force i.e. it applies to any request for assessment that has already been made but for which the assessment has not yet taken place. It also applies if the section is “revived” in the future.

CHC Assessments: What is Changing?

There are a number of key changes under the Act which will impact the way in which the Relevant Body will carry out its functions in respect of CHC assessments.

CHC Eligibility Assessments:

Under the Act, a Relevant Body does not have to comply with its duty under existing legislation to take reasonable steps to ensure that an assessment of eligibility for CHC is undertaken for a person for which that body has responsibility where it appears to that body that:

• there may be a need for such care; or
• an individual who is receiving CHC may no longer be eligible for such care.

Practically, this enables a Relevant Body to delay assessing an individual for CHC until after the emergency period has ended.

The National Framework:

Whilst this provision of the Act is in force, a Relevant Body is not required to have regard to the National Framework in so far as it relates to its duty to assess.

NHS Funded Nursing Care:

In addition, the duty of a Relevant Body to assess for NHS Funded Nursing Care (‘FNC’) only applies if a Relevant Body chooses to undertake an assessment of eligibility for CHC.

It should be noted that, if despite the provisions in the Act, an assessment of eligibility for CHC is undertaken, the Relevant Body must ensure that assessment is carried out in accordance with the National Framework prior to any assessment for FNC.

Hospital Discharge: What is Changing?

Under the Act, changes have also been made to the delayed discharge process under Schedule 3 of the Care Act 2014. The effect of these changes means that it will no longer be necessary to consider CHC prior to any assessment notice being given to a social services authority in respect of individuals who the responsible NHS body does not consider it is safe to discharge until the patients’ needs for care and support are in place.

The Act also provides that the responsible NHS body will no longer be required, as part of the assessment notice, to confirm whether or not consideration has been given as to whether the patient should be provided with CHC, and the result of that consideration. However the new discharge process is likely to put the financial and commissioning burden on the CCG. The Discharge Guidance supplements the change in legislation to shift patients who are likely to need ongoing care onto an NHS-funded discharge pathway.

How Does this Affect Practice?

CCGs:

It is anticipated that there will be a significant backlog of CHC assessments following the emergency period which will result in future resource implications. The Discharge Guidance suggests that a handling plan will need to be developed to enable the system to ‘normalise’ following the emergency period.

Financially, there may be an impact on CCGs funding under the discharge to assess arrangements as part of the hospital discharge pathways for longer periods than usual. The Discharge Guidance provides that the COVID-19 emergency money can be used for this purpose.

Whilst these measures have been implemented under the Act, clinicians involved in CHC assessments and reviews are required to assess the needs of highly vulnerable individuals and to commission relevant care. Notwithstanding the impact of the Act, it is important that care packages are commissioned to meet the needs of these individuals in those cases where provision is deemed necessary in the circumstances.

The Act does not address CCGs responsibilities in respect of CHC reviews or individual requests to review an eligibility decision (i.e. via the Local Resolution Process) however the Discharge Guidance provides some clarification as to expectations on CCGs during the emergency period –

• response times to individual requests to review an eligibility decision will be relaxed; and
• CCGs are expected to take a proportionate view to undertaking 3 and 12 month CHC reviews and will need to ensure that any concerns raised are appropriately addressed.

Hospital Discharge:

The Impact Assessment accompanying the Act provides that individuals who the CCG considers may be eligible for CHC funding will be directed towards NHS-funded discharge routes and assessed for CHC following the conclusion of the emergency period. 

The Government has published the Discharge Guidance which provides further guidance on the 4 hospital discharge pathways and how local partner organisations should work together. We will be considering this as part of a separate guidance note.

Assessments:

It may also be the case that where CCG nursing staff are diverted to frontline care, there may be delays in CHC assessments for patients already in the community. Similarly, there may be delays for CHC assessments for individuals who are on the acute hospital discharge pathway.

Providers:

It is clear that an assessment notice under Schedule 3 of the Care Act 2014 can be served on a social services authority without a CHC assessment having taken place. The need for the notice itself to stipulate if an assessment has considered whether CHC should be provided and the result of that consideration is no longer required – this essentially could allow notice to be given at an earlier date. Instead of taking such steps, the intention is for there to be cooperation between social services authorities, CCGs and providers to implement the Discharge Guidance.

Summary

Position Under Existing Legislation	Changes under the Act
Regulation 21(2)(a) of the Standing Regulations 2012 : a Relevant Body must take reasonable steps to ensure that an assessment of eligibility for CHC is undertaken for a person for which that body has responsibility where it appears to that body that: there may be a need for such care; or an individual who is receiving CHC may no longer be eligible for such care.	Section 14 (1)(a): a Relevant Body is able to delay an assessment for CHC for a person for which that body has responsibility where it appears to that body that: there may be a need for such care; or an individual who is receiving CHC may no longer be eligible for such care. until after the emergency period has ended.
Regulation 21(12) of the Standing Regulations 2012: a Relevant Body must have regard to the National Framework when carrying out its duties to assess.	Section 14(1)(b): a Relevant Body is not required to have regard to the National Framework in so far as it relates to its duty to assess.
Regulation 28 of the Standing Regulations 2012: where it appears to a Relevant Body, in respect of a person which is has responsibly for, is: a resident in relevant premises or may need to become resident in such premises; and may be in need of nursing care that Relevant Body must carry out an assessment of the need for nursing care.	Section 14 (2): the duty of a Relevant Body to assess for FNC only applies if a Relevant Body chooses to undertake an assessment of eligibility for CHC.
Schedule 3 of the Care Act 2014: duties in relation to the discharge of hospital patients with care and support needs – assessment and discharge notices	Section 14(8): no longer necessary to consider CHC prior to any assessment notice being given to a social services authority in respect of individuals who the responsible NHS body does not consider it safe to discharge until the patients’ needs for care and support are in place; and a NHS body is not required to confirm whether or not consideration has been given as to whether the patient should be provided with CHC, and the result of that consideration.

We will be issuing separate guidance notes on:

• Coronavirus Act 2020 – Hospital Discharge
• Coronavirus Act 2020 – Local Authority Care and Support

For specific advice please get in touch with:

• David Owens
• Anna Davies

For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service Page.

This article was co-written by Anna Davies, Associate and Lisa Mulholland, Trainee Solicitor.