Specialist Community Care lawyers answer the most frequently asked questions about being discharged from hospital
You may wish to read our list of Abbreviations Used in Community Care Law to help understand some of the language health and social care staff use.
Social work teams should be there to ensure a safe discharge takes place by ensuring that the immediate discharge destination can meet a person’s needs – whether this is in their home or in a care home or nursing home. This may mean arranging additional services on discharge. If mental capacity and best interests assessments are required, the Hospital Social Work team should ensure that these are completed while the person is still in hospital, before decisions are made about discharge destination.
Sometimes a temporary placement is a good opportunity for further assessments to be carried out away from the acute hospital setting. Under the discharge to assess model, in place from 1 September 2020, your father should not be charged for his care placement until after the appropriate health and social care assessments have been completed and his care and support needs are properly established. If you think your father is really too unwell to leave, this should be taken up with the clinicians at the hospital. Under the new model, a person only needs to be ‘medically optimised’ and not ‘medically fit’. This means they do not require treatment in the very near future.
If your mother has mental capacity to decide where she lives, the choice is essentially hers – however, there it may be necessary to challenge Social Services to get a safe and adequate package of care at home. If she lacks capacity on this issue, it is more complicated. In either case there are a range of assessments that should be undertaken by Health and Social Services to consider both her care needs and funding options. It is paramount that your mother’s best interests remain at the centre of any decision-making.
From 1 September 2020, NHS Continuing Healthcare (NHS CHC) assessments should no longer take place in the hospital setting. You can tell the staff members organising the assessment you want to attend– they do not normally have a problem with this and in fact it should be encouraged. If your father has mental capacity to give consent to you being his representative, then he can do so if necessary. Consider whether your father may need to make Lasting Powers of Attorney to prevent any issues in future should he lose mental capacity. If your father has already lost mental capacity to consent to you representing him, Health or Social Services should make a Best Interest decision about your involvement. You may need to seek advice about the longer term options.
Since 1 September 2020, the policy has changed so that assessments for NHS CHC should no longer be carried out in hospital. If the person requires health or social care support on discharge this should be provided for free (whether at home or in a care home) until the assessments have been carried out – for up to 6 weeks or longer if necessary.
Although the new discharge policy requires hospitals to discharge patients very quickly there are still ways to resist an unsafe discharge. For example, if your mother lacks capacity then mental capacity and best interests assessments should be carried out before a discharge takes place. Although the emphasis is now on ‘medical optimisation’ and very swift discharge prior to needs assessments and care planning being undertaken, there are still ways to resist an unsafe hospital discharge however advice should be sought as soon as possible given the restrictiveness of the new model.
The emergency Coronavirus law, guidance and policy makes a number of important changes to hospital discharge arrangements and funding. For further information, please see our Frequently Asked Questions on Hospital Discharge and the Coronavirus Crisis.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2021