A lawyer's view of health and social care integration

When the welfare state was created, health and social care were separate, distinct services with separate eligibility criteria. Health services were universal: available to all without charge, irrespective of the ability to pay. Access to social care was more limited. Families were expected to continue to look after relatives and only those who were unable to manage would be helped.

‘The task of making strategic local plans has now devolved to CCGs, local authorities and health and wellbeing boards’

Since then the NHS has grown exponentially, and demands on social care have increased dramatically, with an ageing population, public intolerance of imperfection, and statute upon statute, policy upon policy, layering duties on local authorities.

Local authorities know that, unless something radical is done, they will soon have no money to spend on anything other than mandatory services and social care. The only solution is early intervention, in a way that has never been attempted before, to keep people healthy and out of expensive institutions.

The Health and Social Care Act 2012 brought about the largest structural overhaul the NHS has seen since its creation. Now clinical commissioning groups and NHS England’s local area teams are responsible for £65bn of the NHS budget. They will commission services from any service provider that meets Monitor’s standards as regulator.

Local authorities have taken over a £2.6bn public health budget, mostly for commissioned services. Within social care, personalisation − giving service users the right to select their provider − is now entrenched. Outsourcing has been trialled. More and more local care services are devolved to third and private sector providers to reduce costs.

If you can commission one service, you can commission a different one. You do not have to be a trained social worker or a doctor to write a specification or run a procurement process, and you will be looking to bundle services for economies of scale together with a holistic, outcome based approach.

Service integration

A pilot of six local authorities working on “whole person care” with CCGs and health and wellbeing boards has already begun. There will be endless arguments about the means but the direction of travel is obvious.  

The act has already integrated much of the regulatory, advisory and scrutiny framework. That leaves integrated policy making, commissioning and above all, service delivery. This is where we are going, but what stands in the way?

Service integration has been seen as a way of improving service delivery and making efficiency savings from as far back as the joint consultative mechanisms of the 1960s and 1970s through to the joint finance initiatives of community care.

‘Conflict will remain built into the system and conflicts of interest in the provision and receipt of these services will remain, regardless of how these services are commissioned or managed’

Joined up care solutions has been the mantra since 1997, via cross delegation of functions, pooled budgets, integrated teams and joint managerial appointments. But these strategies have been patchy, with varying degrees of success. The new mechanisms for joint working have fostered closer cooperation but have failed to achieve the streamlining and savings sought.  

In 2009, the government launched integrated care pilots in 16 areas requiring primary care trusts and local authorities to produce joint strategic needs assessments of the health and wellbeing of their population to assist in the joint planning of services.

The task of making strategic local plans has now devolved to clinical commissioning groups, local authorities and health and wellbeing boards. How well they perform will be a key measure of the success of the legislation. 

Disappointing start

The Department of Health commissioned a report into the success of these pilots.

Ernst & Young and Rand Europe’s findings were disappointing. They found that these attempts at integration have been fraught with health and social care agencies facing different government performance regimes, using different IT systems and working to different terms and conditions, and by cuts in one budget creating demand pressures on the other.

Perhaps the main barrier to integration is more fundamental than this, in the difference in the eligibility criteria for the two services.

Access to the NHS remains universal and free at the point of contact. Access to social care remains limited, by assessment of need and means testing, requiring service users to make a financial contribution.

‘Until there is a common assessment framework and common eligibility criteria for access to health and social care, conflict will remain in the system’

People do not categorise themselves as patients or service users. They have a problem and they need a solution. But if it is a health solution, it is free and they should not have to worry about the commercial substructure. If it is a social care solution, contracts and funding are immediately important, especially in the current financial climate.

The last government tried to legislate to ease the pressure points between health and social care with, for example, the “bed blocking” legislation to prevent services fighting over responsibility for patients.

But until there is a common assessment framework and common eligibility criteria for access to health and social care, conflict will remain built into the system and conflicts of interest in the provision and receipt of these services will remain, regardless of how these services are commissioned or managed.

The lawyer’s perspective

Lawyers advising local authorities see this particularly clearly. They are increasingly being asked to advise mixed professional teams, which is not easy.

At a commissioning level, the lawyer’s role is to assist commissioners to navigate through the legislative maze, correctly identifying statutory duties and powers, rules and regulations, assisting the managers to manage this conflict while negotiating change.

At a service delivery level, the lawyer’s role is to assist social workers, doctors and nurses looking after patients or service users either in hospital or in the community, to problem solve and manage conflict at a practical level. At service consumption level, the lawyer’s role is to ensure the weak and vulnerable receive the protection to which they are entitled.

‘The local authority and the CCG are shadow boxing in the fog until the funding issue is resolved’

Yet at every point of contact there is a fundamental difference between the two services. Every legal challenge risks exposing the conflict of “legal” interests within these newly integrated teams.

Six problems

In community mental health where integrated health and social care teams are well established, there are local authority managers dealing with staff employed by health and vice versa. Those assessing and identifying the eligible need are often employed by one service with the other service being responsible for commissioning and paying for identified need, creating management, commissioning and budgeting problems for managers lacking expertise in the statutory responsibilities of the other service. For example:

• Most practitioners have been involved in cases where no one is sure whether meeting the complex needs of an individual should be categorised as social or healthcare, and who will pay. There are mechanisms for resolving this, but in the meantime the unlucky party on whose desk the problem has landed needs to seek authority or guidance from the Court of Protection to address immediate problems. The authority and the CCG are shadow boxing in the fog until the funding issue is resolved, as the “lead applicant’s” legal costs escalate.
• Community mental health teams comprise of health and social care staff in the same teams and buildings but with different equipment, operating systems and employers. Staff seconded from health bodies act as local authority care managers, undertaking need assessments and drawing up of care plans. The plans bind the local authority to provide the service and impact on local authority budgets, but the staff are ultimately accountable to, and trained and disciplined by the health body.
• Often within integrated teams, employees from health and from social care will have different computers, operating systems and email addresses. Sharing information within their own networks will be secure but if they email the person sitting opposite them and they are on a different system, the exchange is no longer secure.
• Integrated teams can present problems for lawyers. If the senior manager and the social worker on the ground is employed by a local authority but the middle manager is employed by a health body, confidentiality is at risk because “legal privilege” only applies to communications with the actual client. There can be a difference of opinion between the respective managers on the correct way forward.
• S75 agreements are often silent as to legal representation and advice. Who is to fund litigation if judicial review is sought on a spending decision made on a jointly funded package of care? How is any potential conflict of interest to be managed?
• In April 2013, local authorities became the supervisory body for hospitals in relation to the deprivation of liberty safeguards. Many best interest assessors remain employed by health bodies, but complete best interests assessments for the supervisory body. These can include conditions that bind the managing authority of the relevant hospital or care home and could give rise to conflicts or difficulties for the local authority. Despite this, the local authority has no control of the assessors input other than ensuring that the assessor is selected in accordance with regulations.  

Hopefully the Care Bill, expected to become law in 2015, will go some way to consolidate the maze of community care legislation, easing the path to greater integration. Hopefully, too, the decision to adopt some of Lord Dilnot’s recommendations on capping service users’ contributions will help to even out the difference in cost to the individual service user.

Until that happens, health and social care professionals seeking to navigate the almost impenetrable maze of statute, regulation and guidance without falling foul of these conflicts of interest will need the assistance of multidisciplinary teams of lawyers. This is not how it is meant to work.

Graeme Creer is a consultant in the local government group at Weightmans LLP