This is the second in my series of posts about supporting hospital discharge during the pandemic. It will explore the as yet unnamed proposals for discharge hotels in all their complicated, vague glory.
The first of those posts discussed designated settings for covid positive patients, and the complications involved in the creation of such settings from a local authority perspective. If you haven’t read that, it is available here.
Anyway, I first heard about the concept of using hotels as short term discharge beds in May 2020, when it was reported in the news that one local authority had implemented this as a temporary emergency arrangement during the first UK lockdown and the ‘first peak’ of coronavirus cases. This didn’t seem to catch on, and that local authority soon put in place other arrangements meaning this was no longer required.
Things went quiet for a while, and then time passed (was it days? Was it weeks? Does anyone know anymore?) and NHS England and NHS Improvement sent out a letter to local authorities and clinical commissioning groups dated 20th, January 2021 which suggested this same model as a way to support and expedite hospital discharge and alleviate some of the pressure on the NHS.
Now I think its telling that this letter came from NHS leadership, who are no doubt very busy at the moment and have very little understanding (or will to care) about local authority working. But anyway, I digress.
The letter also discusses hospital at home services, which I won’t discuss in any great detail as I don’t have a detailed grasp of that, not working for the NHS. It also discusses the provision of short-term indemnity cover to support the setting up of designated settings. I’ll not go over all of that again.
The letter doesn’t discuss this concept in any great detail, and it doesn’t come with a catchy name. I’ve heard them called ‘step down beds’, ‘isolation units’, ‘designated settings for home care’ and other unclear names.
But what these are, essentially, is hotels that are to be booked out by commissioners, for use by people who are medically fit for discharge but can’t go home and don’t need to be in residential care. A bit like what is being used for people entering the country and quarantining, except that as far as I am aware, the hotel bills in this situation are going to be picked up by local authorities and CCGs, rather than individuals themselves.
The letter makes all of this sound very straight forward, but it isn’t in actuality (as if anything ever is).
As has been a theme throughout the government coronavirus guidance, there is a shortage of detail in the letter, and little reference to the legal frameworks relied upon. Which is a bit of an issue for us lawyers since any public body can only do what it has a statutory power to do, and can only carry out functions in the ways set out in statute. This letter isn’t even guidance, it is just some ideas that are being suggested, so it has no statutory effect whatsoever and existing powers have to be relied upon.
So as with everything, there are contracts that need to be drawn up setting out things like who will pay for the services, and what the hotel will actually provide for that money, and the systems for booking, accepting individuals to the service and moving them on from the service. As with designated settings, procurement rules need to be complied with. In my authority, this meant that because of the shortened process that was followed, the service can only operate for 6 weeks and 2 days before there would be a breach of the procurement regulations. No big issue there though.
As with designated settings, once a suitable hotel has been identified, there is still the issue of equipment and staffing. Equipment should be relatively straightforward, since the people who are supposed to be using this service are supposed to have low level needs. But there will still be PPE and cleaning equipment to be provided. Likewise, whilst the hotels identified will hopefully have their own staff who will carry out ‘hotel’ tasks like cooking, basic cleaning and manning reception, there will still be a need for care staff, and perhaps more specialist cleaners to deal with infection control and prevention measures etc.
This is the first issue that jumped out at me, from a purely logical perspective. Because if an authority is, like mine, being told that hospital discharges are being delayed because of a shortage of care in the community then this might not solve the problem. Yes, it is theoretically possible to create capacity because the same staff can look after a number of people in a hotel without travelling. It is also theoretically possible that there will be staff sitting in this hotel waiting for people to be discharged to the hotel, that could actually be out and about supporting other people. My authority, for example, is planning to man these hotels for more than 12 hours a day, 7 days a week. Yet so far it has been nowhere near full. So maybe we’re fixing the problem, maybe we are just creating a new one. Data and demand predictions are so difficult just now, it is incredibly challenging to map where the demand actually is and will be from one day to the next.
Assuming that this will, in fact, provide a valuable service and relieve particular pressure points in the system, the letter is very unclear as to who is expected to do what. Which invites a certain element of to-ing and fro-ing that isn’t needed right now. The letter refers to responsibility resting with the ‘discharge authority’ but gives no definition to explain which organisation that is. It could be the local authority each area, it could be the CCG. It isn’t clear, which means it has gone exactly no way to identifying which powers are relied on. The old ‘local arrangements’ phrasing appears again.
It’s also not entirely clear who is expected to use this service. The letter suggests three categories of person that might be discharged to these support hotels:
– Those who will be discharged on pathway 1 but are awaiting the start of care at home package of care
– Those awaiting community equipment and minor adaptations to their housing
– Those who are homeless/have no right of recourse to public funds/no place to safely discharge to.
The first category refers to the Discharge to Assess model set out in the hospital discharge operating model that I will discuss in the next post about hospital discharge. But for now, let’s just say that these are people who have been identified as needing health or social care support in order to be safely discharged home. The idea here is that if demand can’t support them at home, they can be supported at the hotel until a package of care and support can be put in place. The issue I can potentially see with this is that these placements are supposed to be temporary and last for ‘days not weeks’ and I struggle to see what will change in a few days that will enable support to be available in such a short space of time, especially if there truly are capacity issues in the local domiciliary care market.
The next category is pretty self-explanatory, but I can’t help but see a tension in the plans here. There are few minor adaptations that can be completed in a few days without the added complications of coronavirus.
Inclusion of the third category clearly demonstrates that no thought has been given to the powers that are to be relied upon. Whilst the first two might be provided under Care Act powers, the third are much less likely to be covered by the Care Act. Indeed, local authorities are prohibited from using the Care Act to provide services that should be provided under housing legislation. And we’ll not even discuss no recourse to public funds because that’s potentially a whole other series of posts!
There’s also a lot of reference to health or social care needs. And pathway 1 applies to those with health or social care needs. But these are, actually, two different things. If these beds are to be used for people with health needs, then it is necessary to staff it with nursing staff too, or reach agreement with district nursing teams. I think the same issues with finding social care staff will apply to nursing staff too.
Provision of health care is also an issue, because if local authorities are arranging this support, they are prohibited from providing health services unless they are anciliary or incidental to services they could be expected to provide. So if health needs are going to be met in these beds too, that makes the governance arrangements even more complicated. Unless you adopt the approach my authority did which was to just naively state ‘all health needs will be met by GP services’. Because GP services aren’t under immense pressure too right now, are they?
The issue of CQC registration concerned me initially. But the letter advises that CQC registration will not be required for these settings, and they will be treated like domiciliary care. CQC should be notified, however. I have reservations about that, given registration as a care home is required under the regulations if personal care is delivered ‘together with’ accommodation. My local authority has a in-house provider who will be staffing these hotels, and the local authority is also funding the accommodation. That accommodation is, ultimately, provided by the hotel. So whilst future academics may well argue about whether this meets the definition of ‘together with’ for now, let’s assume that guidance in the letter is accurate. It’s certainly been approved by CQC so the risk of challenge seems low.
Although we know that the government’s guidance has fallen foul of the law more than once recently. But more on that here.
I also have to assume that issues of deprivation of liberty are not going to come up in these placements because, well, yikes! If I hear of that coming up in practice, I will discuss it in depth. And if it comes up in your area, do please let me know.
The final thing that I wanted to say, because I am, frankly baffled by it, is that the guidance and accompanying funding arrangements say that for the placement to be funded through the emergency covid funding a care and support plan must be in place when they arrive there. Now it is possible that the government didn’t mean to mirror the Care Act 2014 wording. But if they did, that means that an assessment and eligibility decision will need to be made before the person is discharged to the halfway hotel. Which seems to run contrary to the Discharge to Assess arrangements that are supposed to be in place.
But more on those next time.
In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority