NHS tasks are creeping into social care without funding or legal clarity

By Paul Morgan

Discussions around what constitutes NHS healthcare and what constitutes social care can be traced back to the original post-war legislation that separated responsibilities for health (the NHS Act 1946) and (the National Assistance Act 1948). This statutory separation has been maintained ever since and in many ways it is artificial and not helpful to the person in need of care. Integration is regarded as the way forward.However, as we rush to align, co-locate or integrate, local authorities need to consider the issue of administration of medication by social care staff in the context of local authority-commissioned care for people in their own homes.

From housework to healthcare tasks

Over time, the role of domiciliary care workers has transformed from an old housework and shopping style service to one which sees care workers providing care to some very dependent individuals with a broad range of needs. We now see domiciliary care staff being asked to take on a variety of tasks which may have been (and many may still be) the responsibility of the NHS. Examples include application of creams, putting on surgical stockings, administering eye drops or ear drops, catheter management, using EpiPens, blood sugar pinprick testing, administering of PEG tubes, giving injections, administering oxygen and undertaking manual evacuations.Local authorities are seeing NHS responsibilities creep into the ambit of social care. In anAssociation of Directors of Adult Social Services (ADASS) survey of directors in November 2016, 56% reported increased demand for healthcare activity to be undertaken by social care staff.The 2015 Unison Homecare Training Survey found that:

  • Of the home care workers who administered medication, 24% had received no training despite some administering controlled medication, for example liquid morphine and insulin.
  • 59% of those who attached or changed a convene catheter had received no training in this.
  • 52% of those who undertook stoma care had received no training.
  • 45% of those who changed catheter bags had received no training.
  • 38% who carried out PEG feeding had not been trained.

This issue has been raised by the ADASS safeguarding network in the South East – primarily due to the generally high levels of safeguarding alerts received about medication errors in care homes, in some domiciliary care settings and within the unregulated PA market.The Care Act 2014 eligibility criteria has 10 outcomes which, if a person is unable to achieve them, contributes to their eligibility for care and support. It is essential to state that the list in the original draft included “administration of medication”. Strong representations made by local authorities that this outcome should be withdrawn, as this was an NHS rather than LA responsibility, were accepted and withdrawn it was withdrawn from the final list.

Dealing with the problem

Local authorities are trying to deal with the issue in a number of ways:

  • Employing “hybrid workers” that can undertake both health and social care tasks.
  • Developing a shared care pathway where a single agency provides both health and social care tasks but separates out the invoicing of each task to the local authority and clinical commissioning groups.
  • Not undertaking health care related tasks at all.
  • Using the Better Care Fund.
  • Taking on some limited health tasks but drawing a clear line regarding the scope and nature of their provision in this aspect.

Some areas are not agreeing how to resolve these issues.It is right and proper that integration develops. Such integrated arrangements, in cases where the NHS is seeking to delegate a task to the local authority or to a home care provider via the local authority, should be explicit about the following issues:

  • Where the NHS delegates a task to the local authority, there should be a written agreement about this.
  • The responsibility for clinical oversight, monitoring and reviewing the task remains with the NHS.
  • That legal liability, when something going wrong, remains with the NHS – as the home care agency, via the local authority, are undertaking the task on behalf of the NHS.
  • Explicit clarity and joint agreement regarding whether the individual should be charged.
  • Whether the NHS should reimburse the local authority for any costs incurred for undertaking the task on the NHS’s behalf.

A national solution

The issues highlighted in this article are not insurmountable and collaborative working can deliver a tangible outcome here. The wider solution is for an open, transparent discussion with the public and the care provider sector to happen. This should be led by NHS England in partnership with the Local Government Association and ADASS, along with the Social Care Institute for Excellence (SCIE) and National Institute for Health and Care Excellence (NICE). The purpose of this work would be to clearly identify:

  1. Tasks that are local authorities’ responsibility.
  2. Tasks that are NHS’s responsibility.
  3. Tasks that might be formally delegated to a local authority by the NHS legally with training, supervision and full care reimbursement costs being provided by the NHS. Legal liability would also need to remain with NHS.

Financial analysis should be provided regarding the cost of shifting each task from the NHS to local authorities and the resultant move from national to local taxation that this will cause.It has been accepted in the courts (the Coughlan judgment) that the nature of what might be considered as social care may change over time. It is understandable that NHS England may not want to be over-prescriptive to local health and social care communities. Yet we can manage to be prescriptive regarding charges for opticians, dentistry and prescription charges. It is explicit what we need to pay for and what is provided by the NHS without charge.Similarly, people should have the right to expect clarity about the care that they receive in their own home. Without setting national clarity, the existing postcode lottery will continue with local authorities and local taxation continuing to be compromised.Paul Morgan is head of continuing care at Surrey council

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