Closing care homes is never easy, but there are legal pitfalls which can be avoided, claim Nicola Williams and Trish D’Souza
In the current financial climate, there is pressure on councils to achieve efficiency savings at the same time as improving standards of care.
As part of the process, this may involve closing residential and nursing care homes, and moving residents to modernised accommodation – hopefully, with improved standards of care.
So, how can local authorities go about this?
Consult, consult, consult
Local councils are under a duty to consult before making a final decision about altering service provision.
When considering modernising care provision, it is important that key stakeholders – including care home-owners, staff, residents, relatives and carers – are kept informed at every stage of the modernising process.
Case law establishes that consultation should take place at a ‘formative stage’ of proposals, and a recent case in the field of education (R (Elphinstone) v Westminster City Council) confirmed that even where certain details remained unknown, a valid consultation could still take place.
Alternative accommodation
The NAA 1948 (Choice of Accommodation) Directions 1992 (1993 for Wales) will apply, so service-users must be allowed to make a choice between different institutions, with their relatives or carers.
The new capacity rules – as implemented by the Mental Capacity Act 2005 and the associated 2007 Code of practice – mean local authorities need to consider whether an individual has the mental capacity to make a decision about the future of their care provision on his or her own behalf, and to involve independent mental capacity advocates, where necessary.
Risk assessments
Full, needs-based assessments need to be carried out to make sure any changes in the location of care are not going to pose an unacceptable level of risk to the welfare of any resident in a home that is being considered for closure. In the recent case of R (Thomas & Others) v London Borough of Havering [2008] EWHC 2300 (Admin), the court accepted that for some elderly residents, it was inevitable there might be a risk involved with moving them from one care home to another.
However, the judge found the expert clinical studies were not conclusive as to the link between mortality rates and involuntary moves, and that local authorities could minimise any risks by taking appropriate steps to assess the risk to individuals.
Moreover, there was nothing to prevent a local authority making an ‘in principle’ decision to close a care home before individual assessments of risk had been completed, provided that individual assessments were carried out on all service-users before deciding to move any individual.
The judge concluded that this balancing of risks was part of a wider balancing exercise local authorities needed to undertake when implementing any policy decision. Therefore, local authorities need to work to minimise any risks involved in a carefully-handled transfer, and to balance this with the benefits of moving residents into a modernised, cost-effective care home.
Effective outsourcing
Last summer, the case of YL v Birmingham City Council and Others [2007] 3All ER 957 came before the House of Lords.
The claimants in this case argued that, where a public function was contracted out by a public body, obligations under the Human Rights Act 1998 automatically became the responsibility of the commercial or voluntary sector entity which took over responsibility for the provision of those services. The Lords rejected this argument.
However, there have been several attempts to revive this argument in different contexts, including a section in the Health and Social Care Act 2006 (section 145(1)) which has the effect that care home providers will become susceptible to claims of violation of a service-user’s human rights as if they were themselves a public body for that purpose.
At the time of writing, there is no date set for the coming into force of this section. However, although private care home operators are already highly regulated, the possibility of further avenues of claim might deter some from entering the market. These are just some of the issues for a local authority considering modernisation to adult social care provision.
As part of the process, this may involve closing residential and nursing care homes, and moving residents to modernised accommodation – hopefully, with improved standards of care.
So, how can local authorities go about this?
Consult, consult, consult
Local councils are under a duty to consult before making a final decision about altering service provision.
When considering modernising care provision, it is important that key stakeholders – including care home-owners, staff, residents, relatives and carers – are kept informed at every stage of the modernising process.
Case law establishes that consultation should take place at a ‘formative stage’ of proposals, and a recent case in the field of education (R (Elphinstone) v Westminster City Council) confirmed that even where certain details remained unknown, a valid consultation could still take place.
Alternative accommodation
The NAA 1948 (Choice of Accommodation) Directions 1992 (1993 for Wales) will apply, so service-users must be allowed to make a choice between different institutions, with their relatives or carers.
The new capacity rules – as implemented by the Mental Capacity Act 2005 and the associated 2007 Code of practice – mean local authorities need to consider whether an individual has the mental capacity to make a decision about the future of their care provision on his or her own behalf, and to involve independent mental capacity advocates, where necessary.
Risk assessments
Full, needs-based assessments need to be carried out to make sure any changes in the location of care are not going to pose an unacceptable level of risk to the welfare of any resident in a home that is being considered for closure. In the recent case of R (Thomas & Others) v London Borough of Havering [2008] EWHC 2300 (Admin), the court accepted that for some elderly residents, it was inevitable there might be a risk involved with moving them from one care home to another.
However, the judge found the expert clinical studies were not conclusive as to the link between mortality rates and involuntary moves, and that local authorities could minimise any risks by taking appropriate steps to assess the risk to individuals.
Moreover, there was nothing to prevent a local authority making an ‘in principle’ decision to close a care home before individual assessments of risk had been completed, provided that individual assessments were carried out on all service-users before deciding to move any individual.
The judge concluded that this balancing of risks was part of a wider balancing exercise local authorities needed to undertake when implementing any policy decision. Therefore, local authorities need to work to minimise any risks involved in a carefully-handled transfer, and to balance this with the benefits of moving residents into a modernised, cost-effective care home.
Effective outsourcing
Last summer, the case of YL v Birmingham City Council and Others [2007] 3All ER 957 came before the House of Lords.
The claimants in this case argued that, where a public function was contracted out by a public body, obligations under the Human Rights Act 1998 automatically became the responsibility of the commercial or voluntary sector entity which took over responsibility for the provision of those services. The Lords rejected this argument.
However, there have been several attempts to revive this argument in different contexts, including a section in the Health and Social Care Act 2006 (section 145(1)) which has the effect that care home providers will become susceptible to claims of violation of a service-user’s human rights as if they were themselves a public body for that purpose.
At the time of writing, there is no date set for the coming into force of this section. However, although private care home operators are already highly regulated, the possibility of further avenues of claim might deter some from entering the market. These are just some of the issues for a local authority considering modernisation to adult social care provision.
Local authorities need to consider whether an individual has the mental capacity to make a decision about the future of their care provision
Nicola Williams is a partner, and Trish D’Souza is a solicitor in Eversheds LLP’s litigation and dispute management team
