Government concedes carers’ hospital discharge rights
An earlier posting referred to Baroness Pitkeathley’s amendment to the Health and Care Bill which – although opposed by the Government – was passed in the House of Lords by a significant majority. Extraordinary as it may seem, the Bill (as originally drafted) removed the statutory duty on NHS trusts – when discharging of patients needing after-care – to consult with carers to ensure that the discharges were safe. Baroness Pitkeathley’s amendment simply reinstated the duty – requiring NHS trusts to consult with carers and to satisfy themselves that they were both willing and able to provide the necessary care to ensure that the patient’s discharge from hospital was safe.
When the Bill returned to the Commons on 5th April the Government largely accepted the amendment and so the duty to consult with carers is now embedded in the law. Lord Kamall, the Parliamentary Under-Secretary of State, Department of Health and Social Care, explained the Government’s U-turn on this in the following terms:
The Government listened to the strength of feeling expressed by your Lordships’ House, and I am grateful to many noble Lords —in particular, the noble Baronesses, Lady Pitkeathley and Lady Wheeler—for their insights and persistence in ensuring that we try to get this right. We are also grateful to Carers UK for working with the department to co-produce the new statutory guidance on hospital discharge.
The Government wholly agree that carers should be involved in discharge planning where appropriate. Our amendment in lieu achieves this in a way that can be implemented effectively and does not create unintended discharge delays. It introduces a new duty on NHS trusts and foundation trusts to involve both patients and carers in discharge planning. It explicitly states that they should be involved as soon as is feasible. Unlike Schedule 3 to the Care Act, this duty applies whenever the adult patient has care and support needs following discharge.
Existing discharge guidance stresses that discharge teams should consider carers’ preferences and ascertain whether they are willing and able to provide care and support post-discharge before an assessment of longer-term needs. This will be set out in the new statutory guidance, and because people should not be put under undue pressure to provide care, we will stress that no assumptions should be made about their willingness or ability to care. We anticipate that the new duty, supported by this statutory guidance, will promote a culture of including carers in decision-making while avoiding some of the unintended consequences.
We have heard the concerns expressed in this House about young carers being left out of discharge planning. This duty includes young carers, and statutory guidance will also highlight existing duties for hospitals to notify local authorities if they identify a young carer or have concerns. Local authorities must then carry out a young carer’s needs assessment if it appears that the young carer may have a need for support. Similarly, robust protections already exist in law for parent carers and sibling carers of a disabled child. We will continue working closely with the Department for Education to ensure that we use guidance to signpost existing rights and protections.
Existing carers’ rights to an assessment of their own needs will remain unchanged under the new arrangements. Guidance will make it clear that hospital staff should make carers aware of these rights and signpost them to relevant services. This should trigger local authorities to carry out assessments and put in place support for those who are eligible. I hope that noble Lords will feel reassured that this amendment achieves much of what Amendment 51 sought to achieve, while not putting barriers in the way of local areas adopting the discharge to assess model.
The Government’s concession is not entirely satisfactory, since it only applies to adult carers caring for adult patients. The Bill does not reinstate the duty to consult with parents of disabled children when their child is being discharged. There is no logic for omitting this group of carers – the only possible explanation is that the Bill is being promoted by Department of Health and Social Care and it was simply too complex to get a different department (the Department for Education) to agree to the amendment. The Government may be seeking to promote integration between health and social care – but only at the local level: there is no intention that this would require joint working between Sajid Javid and Nadhim Zahawi.
Not only has the Government accepted Baroness Pitkeathley’s amendment – it has also had a Damascene moment with the Hospital Discharge Guidance (almost certainly due to the tenacious lobbying by Carers UK). As the earlier post noted, the lamentable the 48-page 2020 Hospital Discharge guidance contained only 4 references to carers. The new March 2022 guidance contains, in its 32 pages, 106 references to carers, seven detailed references to the importance of establishing whether carers are ‘willing’ and also ‘able’ to provide and continue to provide the necessary care as well as a section about what has to be done if this not the case.
 HM Government Hospital Discharge Service: Policy and Operating Model (2020).
 Department of Health and Social Care Hospital discharge and community support guidance (2022).
Posted 15 April 2022