‘Why Care Act changes risk shunting NHS responsibilities on to councils and vulnerable adults’

28 Jul 2014

Several aspects of the Care Act draft guidance and regulations risk redrawing the boundary between health and social services, warns Luke Clements

Over the last 18 months great efforts have been made to ensure that the provisions of the Care Act 2014 did not undermine the NHS continuing healthcare boundary. If the draft guidance and regulations to the Act (issued for consultation in June) are adopted in their current form – then this work will have been in vain.

It is possible that the many references in the draft documents to local authorities fulfilling what are currently NHS responsibilities are innocent misunderstandings. In a normal world, these could be resolved without undue difficulty. However the indecent haste with which the Care Act is being implemented – this month, the House of Commons public accounts committee questioned whether the implementation timetable was feasible – makes this much more of a challenge.

Defending the NHS continuing healthcare boundary

The select committee that scrutinised the draft Care and Support Bill recommended that the wording of what is now section 22 be amended to ensure that the current boundary between local authority responsibilities and those of the NHS (the so-called NHS continuing healthcare’boundary as defined in the Court of Appeal judgment in R v North and East Devon health authority ex p Coughlan [2000]) remained unchanged.

The boundary is of immense importance, given that one of the UK’s greatest and most admired achievements is the creation of a health care service that is free at the point of need. The Cinderella social care service, in contrast, is means tested.

If health obligations are shunted into the social services’ siding we undermine the NHS and start charging people for these services – with all the attendant impact this has on health and socio-economic inequalities.

The government’s response to the select committee’s concerns was positive and the re-phrasing of section 22 appeared to achieve the aim of sustaining the current health / social care boundary.

To put the matter beyond doubt the minister, Norman Lamb, responding to a probing amendment from his predecessor, Paul Burstow MP, gave an assurance that:

"The provisions in section 22 are not intended to change the current boundary - let me place that clearly on the record—and we do not believe that they will have that result. The limits on the responsibility by reference, as now, to what should be provided by the NHS remain the same.”

This helpful statement is materially undermined by provisions in the draft guidance and regulations.

Read more about how the Care Act 2014 could impact the NHS continuing healthcare boundary

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