In its coalition agreement, published in July 2010, the Government stated that there was an urgent need to reform the social care system, so that individuals and carers had more control over care. Consequently, the Government set up a Commission on the funding of long-term care, led by the economist Andrew Dilnot, which investigated alternatives for funding long-term care.

After launching a call for evidence on ideas for a future social care funding system in December 2010, the Commission published its report containing the following recommendations:

1. Capping individuals’ lifetime contributions towards their care costs – which are currently potentially unlimited – to between £25,000 and £50,000, but ideally around £35,000. After the cap is reached, individuals would be eligible for full state support;

2. Means-tested support should continue, but the asset threshold, above which people are liable for their full residential care costs, should increase from £23,250 to £100,000;

3. Individuals should contribute a standard amount of between £7,000 and £10,000 to cover their living costs;

4. National eligibility criteria for social care service entitlement should be standardised, and a more objective eligibility and assessment framework should be developed by the Government;

5. Carers should be supported by improved assessments, which aim to ensure that the impact on the carer is manageable and sustainable;

6. The Government should run an awareness campaign to help people understand the system and to encourage people to plan for later life;

7. Those individuals who have entered adulthood with a care and support need should immediately be eligible for free state support, rather than being subjected to a means test; and

8. Local authorities should have sufficient government funding in order to implement these reforms.

The Dilnot Commission estimates that its proposals – based on a cap of £35,000 – would cost the State around £1.7bn per year. It believes that the combination of a cap on contributions and the higher means-tested threshold would ensure that individuals going into residential care would not have to spend more than 30 per cent of their assets on their care costs. Currently, some people can lose over 90 per cent of their assets.

The Government plans to consult on social care reform before publishing a progress report and White Paper in spring 2012.

Whilst the report is welcome and the Health Secretary, Andrew Lansley, described it as an “immensely valuable contribution”, we are in an era of public sector spending cuts and the Government will be aware of the significant costs (and year-on-year increases) of reforming the system and supporting an ageing population. Consequently, major change may still be some years away.

For the foreseeable future, individuals must consider the financial implications of meeting their care home costs and ensure that they protect their assets through careful tax and estate planning. If you would like to discuss your options, please contact me at iain.donaldson@mablaw.com.

The High Court ruled against Amberley. The Court of Appeal (CA) has now dismissed Amberley’s appeal. The CA considered whether the parties intended to grant Amberley such a unilateral right, and noted that unilateral variation clauses are enforceable, even if they are detrimental to the other party. However, those clauses had to be clearly drafted in order to be enforceable. In this particular clause, the CA took a narrow interpretation as the wording was not clear enough for what Amberley had wanted. The CA ruled that Amberley only had the right to ‘review’ the rents as costs increased and not impose a unilateral increase. The contract gave no indication of what such a review would involve, who would perform it, how often or on what basis. The CA thought the contract meant that Amberley would conduct the review but if it wanted to increase rents following the review, it needed to get a resident’s approval before doing so.

This is an important case for businesses to be aware of. If a unilateral clause is intended, then the clause should state this specifically. Otherwise, there is a risk the courts will give the clause a narrow interpretation and rule that it is not unilateral.

A statutory will is a will made on behalf of someone who lacks the necessary capacity to do so themselves by application to the Court of Protection.

In the case of Re D (statutory will), the Court of Protection considered what principles should be applied in determining whether to order the execution of a statutory will for and on behalf of a person who lacked the mental testamentary capacity to do so.

The Court of Protection held that under the Mental Capacity Act it can authorise a statutory will on the grounds that the validity of an earlier will is in dispute.  Decisions taken on behalf of a mentally incapacitated adult must be taken in his or her best interests.  This can include being remembered for having done the ‘right thing’ in his or her will.  In this case the judge ruled that the ‘right thing’ meant ensuring Mrs D’s memory was not ‘tainted by the bitterness of a contested probate dispute between her children’.

Comment

It is heartening to see the Court taking such a practical (and sensitive) approach.  The alternative would have been for the beneficiaries to have waited until Mrs D had died and to then contest her will in the courts.  This would have been far more stressful and expensive and would almost certainly not have been what Mrs D would have wanted.

If you would like advice on statutory wills or mental capacity please contact me on iain.donaldson@mablaw.com or 01923 202020.

Something else that will never change is politics.  Whatever party or parties are in power, election promises and campaigns remain, shall we say, subject to later interpretation.

A beautiful example of this was reported in yesterday’s press (see here for the Telegraph’s take) .  

During the election campaign Andrew Lansley, the new Health Secretary, attacked Labour plans to force people to provide money towards care whether they needed it or not.  This was emotively referred to as  Labour’s “death tax” with some of those famed Tory posters stating “Gordon Brown wants £20,000 when you die.”

We now learn that since coming into power Mr Lansley has set up a commission to report on how care for the elderly will be paid for in the future and that one of the options for them to consider is a compulsory levy.  Sound familiar?

There is no getting around the need for some kind of funding solution since the deficit for funding care for the elderly is expected to reach £6 billion by 2020, however the best and fairest route towards this remains unclear.  What seems clear to me is that it would be inequitable for someone to have to pay for care which they never intend to take up.

It is still early days for this story since the Commission has a while still before it reports, but we will report in the future once there is more detail.

If you would like to discuss care home planning or tax planning for retirement, please contact me on iain.donaldson@mablaw.com or on 01923 202020.

Sal has already written about the event on her blog, http://www.salbrinton.org/

The deleagtes were drawn from the local HR business community and were able to net work with fellow HR collegues to share ideas and experiences. Our next meeting will be in June.  Please email Heloise Paull (heloise.paull@mablaw.co.uk) if you work in the HR sector and would be interested in attending.

Mike Delaney

Partner – Employment

This follows the decision of the European Court of Human Rights in the case of HL v United Kingdom.  48 year old HL, autistic from birth,  living with carers, and lacking the capacity to consent to treatment, and was admitted to the Bournewood Hospital (hence the name) informally and not under the Mental Health Act 1983.  Despite the carers’ strong objections, he was kept in hospital for four and a half months and the carers were not allowed to see him for three months.  The European Court had no doubt that he had been deprived of his liberty, but because he was admitted to the hospital informally, there was no procedure available in English law by which he or anyone on his behalf could challenge his detention. This decision has resulted in the introduction of a new procedure strictly regulatating the circumstances in which a Care Home resident (and a hospital patient), can be deprived of liberty.

The object of this article is to provide a broad overview of the new amendments as they affect Care Homes.

Restraint and Deprivation
It is essential to understand the difference between “Restraint”, to which the amendments do not apply and “Deprivation of Liberty”  to which they do. 

The Act excludes from authorisation restraint of a resident, unless it is a proportionate response to prevent the resident from harm.  “Restraint” is defined as either use or threat of force to secure the doing of an act which the resident resists, or which restricts the resident’s liberty of movement, whether or not the resident resists.  The Code of Practice issued in relation to the original Act (to which all carers must “have regard”) gives useful guidance and examples of what amounts to justifiable restraint – e.g. restraining a resident to facilitate a necessary blood test.  

There is no statutory definition of “Deprivation of Liberty” and the nearest to it is that it is a state of affairs which breaches Article 5 of the European Convention of Human Rights (now part of the Human Rights Act).  The difficulty in making the distinction between “Restraint”  and “Deprivation of Liberty” is that the same basic Acts can constitute both.  The difference between the two is that of degree and intensity and not nature and substance.  “Restraint” is limited; “Deprivation” is unlimited.  “Restraint” is short term; “Deprivation” is without limitation of time. The Bournewood Hospital “exercised complete and effective control over (HL’s) care and movement”.  Although HL was completely compliant, this was irrelevant.  He was effectively imprisoned in the hospital. Neither he, nor anyone on his behalf, could make any independent decision.  Contrast this with the case where the Home only imposed “ordinary restriction of liberty”, allowed unrestricted family limits and home outings, and the resident had the capacity to, and did, express himself happy in the Home.  In that case, the English High Court ruled that there had been no deprivation. (LLBC v TG. November 2007)

The machinery of Deprivation
If you are caring for, or anticipate caring for a resident who may need to be deprived of liberty, you must apply for a Standard Authorisation or issue an Urgent Authorisation.  Both of these Authorisations allow the carer to deprive the resident of liberty, but only for a limited time and only within the terms of the Authorisation. 

A Standard Authorisation can only be issued by a Supervisory Body.  For Care Homes, this will be the local authority for the area in which the resident is “ordinarily resident” or if not ordinarily resident anywhere (e.g. the resident has “no fixed abode”) then the local authority for the Home itself.  An Urgent Authorisation can only be issued by a Managing Authority i.e. the person registered or required (by Part 2 of the Care Standards Act 2000) to be registered in respect of  the Care Home.

The basic rule relating to Deprivation of Liberty is that it is forbidden – but there are exceptions as a last resort and then only to ensure the safety and well being of the resident. 

So how do you go about it?

If deprivation can be safely delayed for at least 28 days, then apply for a Standard Authorisation.  This must be done when you perceive the need for the Authorisation within that timeframe.  It applies to the person you anticipate will be resident within that time as well as an existing resident. The Supervisory Body must then make the decision and in so doing, ensure that the “Qualifying Requirements” are satisfied.  Briefly, these are that the resident is over 18, is not able to make the necessary decision for themselves, has not made a valid Advance Decision forbidding any intended treatment and is not subject to, or potentially subject to, the various regimes laid down by the Mental Health Act 1983. 

However, if in your judgement authorisation cannot be delayed, it is for the Managing Body itself to issue an Urgent Authorisation.  It can be for a maximum period of 7 days only, and although the Managing Authority cannot issue a further Urgent Authorisation in relation to the same circumstances, the Supervisory Body can extend it for a further 7 days.  Clearly, an Urgent Authorisation is a last resort and if not following a Standard  Authorisation application, then one must be made simultaneously with the issue of the  Urgent Authorisation.  There are also detailed provisions for the review and discharge of Standard Authorisations.

The new supplementary Code of Practice for Deprivation of Liberty recently issued and to which you must also “have regard” will give invaluable assistance in mastering this new procedure.

Conclusions

Just as there will be differences of opinion over “Capacity” and “Best Interests”, so there will be differences of opinion as to whether or not Deprivation of Liberty is justified. However, as long as you have mastered the technical requirements of the Act and have made decisions taking into account all that the Act requires, then the Courts will not penalise you, even if they do not agree with you.

Finally, start assessing now, those of your residents who may, in their own best interests, need to be deprived of their Liberty.

It may be a comfort to know that the ultimate responsibility for deciding whether DoL is necessary, rests with the appropriate local authority (known as the “Supervisory Body”) in whose area the resident lived, or where the care home is if there was no fixed address. That comfort, however, is tempered by the fact that it is the responsibility of the individual care home (known as the “Managing Authority”) to ensure that a resident is not deprived of liberty without lawful authorisation.

Authorisation is achieved ultimately by a Standard Authorisation issued by the local authority. However, in an emergency, the care home management can issue a short term Urgent Authorisation. There are standard forms for making all the necessary applications in relation to DoL. They are all available on the Web from many sites. I would, however, recommend the site of the Sheffield City Council. Not only does it provide all the forms but also standard letters to accompany each form.

The Standard Authorisation

Before the local authority can issue a Standard Authorisation it must ensure that six requirements are all satisfied.  If they are not then the authorisation must be refused.  The  requirements are explained in the Guide the “Deprivation of liberty safeguards” published by The Stationary Office” and to which you mast “have regard”.

Unless an Urgent Authorisation has been issued (see below) the Standard Authorisation must be issued within 21 days of receipt of the application. It can authorise DoL for a maximum of 12 months and it can impose conditions as to how the DoL regime is to be managed.

Renewal, Review and Objections

The care home may apply for a renewal of the Standard Authorisation when it is about to expire.   It must also keep the DoL regime under review at all times and if it becomes apparent that the authorisation is no longer necessary or necessary in its present form, then the care home must apply to the local authority to review the authorisation to see if it should be modified or withdrawn.

If a resident or any proper person on his/her behalf believes that that resident is being deprived of liberty without proper authorisation then that challenge is made first to the care home. If the care home agrees with that challenge, then within 24 hours it must either apply for a Standard Authorisation or change the regime. If it does neither, then the matter can be raised directly with the local authority who must then investigate the challenge and take the appropriate action.

Urgent Authorisations

A Standard Authorisation may be applied for, not only for existing residents, but also for residents about to come into the care home. However, if, in the opinion of the care home, the DoL regime needs to be imposed within  28 days , then the care home itself must issue an Urgent Authorisation which allows it to operate a DoL regime for a maximum of 7 days. If a Standard Authorisation has not already been applied for, then on the issue of an Urgent Authorisation, an application for a Standard Authorisation must be made. Upon receipt of an application for a Standard Authorisation, when an Urgent Authorisation is in force, the local authority must complete the application process within 7 days although it has the option in “exceptional circumstances” to agree an extension of the Urgent Authorisation for a further 7 days.

When not to apply

The Guide emphasises that before issuing an Urgent Authorisation and thus triggering an application for a Standard Authorisation, the Care Home must have a “reasonable expectation” that the six requirements will be met. It also emphasises the “vital importance” of involving family, friends and carers in the decision making process.

Conclusion

There have been far fewer applications for a Standard Authorisation than I at least, thought likely when the new procedure came into force in April 2009.  That may be because care homes are following the Guide and always looking for less restrictive regimes than a DoL regime. However, it may be because care homes are not yet fully familiar with the new requirements and are unknowingly depriving residents of liberty without obtaining the necessary authorisation. I would suggest therefore, that care homes should undertake an immediate review of the regimes under which residents are living to satisfy themselves either that no DoL situation has arisen, or if it has, then to make immediate application for Standard Authorisation if necessary supported by an Urgent Authorisation. Failure to do so, may leave care homes vulnerable to claims for damages, criminal prosecutions, CQC interventions or even de-regulation.

Unsafe deletion of personal data is a breach of the Data Protection Act. In this case, though, the solicitor may face additional consequences. If his clients were already in a litigious frame of mind when they were looking for legal action in respect of the hospital, they may next decide to vent their spleens, so to speak, at their legal advisers!