Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance

Section 13: Social Care and Self-Directed Support - The Role of the NHS

This section considers the role of the NHS and relevant NHS professionals. It clarifies what is possible under the respective legal frameworks and it provides some case study examples of combined packages of support. It encourages the respective professionals and organisations to work together, to conduct assessments based on personal outcomes and to pool budgets at the level of the individual as well as at the strategic level of the Health and Social Care Partnership. It draws on the learning from the NHS Lothian and Fife SDS Test Sites in addition to the examples of Direct Payments which have been jointly funded in the past by health and social care.

13.1 Social care and healthcare, particularly community healthcare, are closely related. It is not uncommon for a supported person to receive on-going healthcare and social care support at the same time. A supported person's needs and outcomes will not always respect traditional boundaries between healthcare services and social care services. In the context of this guidance the authority and the Health Board and the relevant health and social care professionals should consider their respective roles, contributions, expertise and resources.

What is meant by NHS or "health" support?

13.2 This section of the guidance uses the shorthand term "healthcare" or "NHS support". This does not refer to acute healthcare, i.e. hospital based healthcare, treatments or operations, but to community based healthcare. It includes the range of NHS-funded support provided by district nurses and allied health professionals such as occupational therapists. Support funded or arranged by the NHS may be provided to a person alongside social care provision. It is important that the health and social care professionals are aware of this and take steps to collaborate to ensure that the interests and outcomes of the supported person are met.

13.3 It should also be emphasised that when health support is mentioned in this section the reference is not specific to those individuals living with a physical disability but includes individuals with a learning disability or living with mental ill health.

13.4 The principles of self-directed support are aligned closely with the wider principles of outcome focused assessment and support planning. The relevant professionals, including health professionals, should work with the supported person and ensure that they person has the information that they require to make an informed decision regarding their support.

What is meant by a joint approach?

13.5 A joint approach is not simply about the pooling or transfer of budgets. It should be a joint person-centred approach to assessment, support planning and review. It should recognise opportunities to pool expertise, share common approaches and combine resources at every stage in the supported person's pathway. This requires a solution focused approach and a determination on the part of senior managers in health and social care to support the professionals they manage to adopt joint assessment, planning and review processes and take full advantage of the broad powers afforded them in legislation.

13.6 Health and social care staff may require additional training to enable the required collaboration and culture change at all levels.

Case study example: NHS Fife SDS Test Site

Lisa's story: a package of support jointly funded and supported by health and social care delivered as Option 2, an Individual Service Fund

Lisa is 21, she was involved in a road traffic accident 4 years ago resulting in an acquired brain injury, significant physical disability and communication impairment.

In the 3 years following Lisa's discharge from her local rehabilitation unit, Lisa was totally reliant on her parents, including getting out of the house in her manual wheelchair, the physical demands of which limited the scope for family members taking Lisa out. An electric wheelchair had been provided for Lisa but it was not being used.

Lisa's occupational therapist (OT) explained self-directed support to Lisa & her family and the opportunity that it offers individuals to make choices and take control of their care and to direct their support. The OT helped Lisa to identify her outcomes and how those could be achieved and helped her complete the required paperwork.

Lisa and her family, with the support of her OT, identified her need to gain confidence in using her electric wheelchair independently, and part of her Individual Service Fund (Option 2), funded by both health and social care, was used to provide Lisa with the support of a care worker employed by a local care agency to support Lisa using her wheelchair to access her local community.

By using her wheelchair independently Lisa significantly increased her confidence in using it, particularly in crowded places, and developed her social skills. This has resulted in Lisa starting a college course and to begin to participate in activities in her local community i.e. archery.

The impact on Lisa's family has also been very positive, caring for Lisa is now less physically demanding, and they report that life is easier and that they have respite from their caring role when she is out with her care worker. They feel that this experience will enable Lisa to work towards more independent living, through improved communication and more active decision making on her part.

Lisa reports that she feels 'superb' in her ability to go out independently

Examples of shared healthcare and social care needs

13.7 The legal duties in relation to the assessment of social care needs and the provision of healthcare support were broadly framed by the Social Work (Scotland) Act 1968 and the NHS (Scotland) Act 1978. There is no definitive list of social care and healthcare interventions included in either piece of legislation. This provides a high degree of discretion to health and social care professionals and organisations.

13.8 Delegation of certain aspects of health care to a non-NHS professional is already established in the community health and is a continuation of the shift towards delivering health interventions previously limited to being delivered in an acute setting to being delivered at home, with well-established examples including aspects of home ventilation and PEG feeding. Part of this shift has included delegation of certain aspects of these interventions to family members or paid carers. The individuals concerned must demonstrate the same competence in delivering these interventions as health professionals.

13.9 It should be noted that there are some interventions that a family member can deliver which a paid Personal Assistant cannot, for example administering controlled medicines and that this delegation must be agreed locally, as some interventions may be allowed by a health board but not by a local authority.

13.10 In addition the duty of care responsibilities of statutory bodies and individual staff cannot be set aside. This requires the creation of a competency framework, including consideration of risk, through which individual staff can demonstrate their competence and confidence in carrying out an intervention.

Joint working and combined budgets: what is "allowed"?

13.11 What can be done under social care and healthcare legislation? The relevant health professionals and/or senior managers can:

• contribute their professional healthcare expertise to a single assessment and support plan, and;
• where the supported person receives both health and social care the NHS professionals and/or senior managers can arrange for the transfer of funding from the NHS Board to the local authority in order to fund the relevant health outcomes within the person's joint plan^[3].

13.12 The funding can then be directed by the supported person under the 4 options laid out in the 2013 Act. The jointly funded package can be a) arranged by social workers on the supported person's behalf (Option 3 in the 2013 Act); b) directed by the supported person in the form of an individual service fund (Option 2 in the Act); c) released direct to the individual in the form of a direct payment (Option 1), or; d) provided as a combination of Options 1-3. There is currently no legal mechanism for a Direct Payment to be paid direct from a Health Board to the supported person where that person has health needs only. However, it is possible for the Health Board to pay funding to a local authority in order for the authority to release to the supported person via a direct payment.

Joint assessment and delegated assessment

13.13 Where the social care assessment function is delegated to the NHS all of the legal powers and duties associated with that assessment will transfer to the NHS professional.

13.14 The NHS Board must comply with this duty to assess and to meet the person's assessed needs under Section 12A of the 1968 Act or Section 22 of the 1995 Act. It must offer the various choices to the supported person as defined by the 2013 Act and it must "give effect" to the supported person's choice. In addition, the relevant healthcare professional should discharge the relevant social care duties in line with this guidance.

13.15 Consideration should be given to the potential implications of the delegation of social care duties to health professionals.

13.16 For this delegation to take place effectively and efficiently and with the minimum impact on the supported person the relevant information should be available to all relevant parties in addition to the financial processes being in place and managers being confident and comfortable with those processes.

Joint Funding

13.17 The proposed Public Bodies (Joint Working) (Scotland) Bill will retain and update the powers currently provided by the Community Care (Joint Working etc.) (Scotland) Regulations 2002 (SSI 2002 No.533) ('the 2002 Regulations'). The 2002 regulations enable local authorities and health boards to transfer funding to each other. This flexibility applies to "high level" strategic budgets and at the "micro level" of the individual supported person. The reforms in relation to the closer integration of health and social care provides a unique opportunity for the NHS and local authorities to develop effective joint approaches towards self-directed support and social care provision.

Where budgets are pooled: what happens next?

13.18 Once a decision has been taken to pool budgets consideration must be given to who will take responsibility for this jointly funded agreement. The combined funding pot can be released in a variety of ways. Some example scenarios are provided below:

• Option 1 - Funding to address health needs is added to funding from the local authority. It is then released to the supported person as a jointly funded direct payment. The payment can be used to employ one or more personal assistants (PAs) to support their employer to achieve their health and social care outcomes. The PA is provided with the necessary training by health to deliver certain health interventions where they have demonstrated competence; this will be reviewed regularly by the relevant health team to ensure the duty of care placed on them continues to be met.
• Option 2 - Health funding is added to a virtual budget in the form of an individual service fund; the budget is then released to a provider by the local authority. The budget can be used to purchase support from an agency with staff trained to assist with healthcare tasks that may otherwise have been provided by the NHS. The relevant health professionals must be assured that the staff provided by the agency are sufficiently trained and competent to meet the health needs of the supported person.
• Option 3 - The relevant health and social care professional's work together to arrange a package of services on behalf of the supported person. The services may be provided by the local authority, a third sector or private sector provider or the NHS.

13.19 Pooled strategic budgets provide opportunities for the development of joint commissioning strategies and joint assessment and support planning arrangements. In this respect, the development of integrated arrangements at the level of the Health and Social Care Partnership create an ideal environment for the development of choice and control for all individuals with joint health and social care needs.

Case study example: Steven's story: a package of support jointly funded and supported by health and social care

Steven is a tetraplegic. Paralysed following a serious accident in 1978, Steven was cared for at home by his mother until 1996. Using the Independent Living Fund and a direct payment he moved into his own adapted accommodation when his mother was 73 years old. This package was successful for several years allowing Steven to continue to work and live independently supported by his team of personal assistants.

During this time Steven was also supported by the District Nursing Service daily who attended to various aspects of his care including bowel management and administration of certain medications.

Unfortunately Steven's physical health began to deteriorate and repeated chest infections led to hospitalisations and the subsequent need for overnight respiratory support. Steven was very keen to ensure that he could return home and continue to enjoy his independence. At the age of 60 he felt that a nursing home placement was not for him.

The Care Manager and District Nurse put together a case for joint funding. The District Nurse provided training to all members of the care team on all healthcare interventions and the respiratory team provided training on ventilation which was required overnight. There was significant debate between social work and health service managers on the share of the funding which required evidence from the care manager and the district nurse. Once agreed, Steven was able to come home from hospital to be supported by his trained care team.

Steven says: 'Living independently with joint funding has made a huge difference to my life. The advantages have been: being in charge of my life and making my own decisions; organising my household and shopping myself; choosing my menus; inviting my own friends and family to visit; organising social events and going out with my family and friends; privacy in my home; being able to continue to work as a quantity surveyor, until 2011 when I had to retire because of ill health; and choosing and employing my own staff, which allowed continuity in my care.'

Monitoring and review

13.20 The authority and the Health Board responsible for any jointly funded packages of support should put in place the appropriate joint arrangements for the on-going monitoring and review of the supported person's needs.

13.21 Where healthcare interventions are delegated to a non-NHS professional the duty of care remains with the Health Board to ensure these are delivered safely. It is vital that the NHS professional continues to bring their professional expertise to bear to ensure that the supported person's health needs are being met in a safe and appropriate way and by someone who is competent and trained to deliver those interventions.

13.22 At the organisational level the local authority and Health Board should develop effective arrangements around the corporate policies for the assessment and monitoring of all self-directed support packages where there is a health care component.

Case study example: NHS Lothian SDS Test Site

Mary's Story: a package of support funded and supported by health as a Direct Payment - Option 1

Direct payments were enabled in the NHS Lothian Test Site through a third party.

Mary has a heart condition which required surgery to implant an artificial valve; this resulted in a restricted blood flow and Mary had a number of strokes.

Mary's confidence and independence were severely affected by her ill health, resulting in deterioration in her mental health.

"I just felt that life was so, so low. I didn't feel part of the human race "

When she and her husband moved to another area to be near family, she met Tom from the Stroke Nurse Team.

Tom was one of the health professionals participating in the NHS Lothian Self-directed Support Test Site. He explained SDS to Mary and encouraged her to be one of the participants. Through discussion with Tom, Mary identified her desired health outcomes, Tom supported her with the paperwork and Mary was given a direct payment to go to the gym. The funding paid for her leisure card and some sessions with a personal trainer.

In talking to Mary, Tom said that the particular intervention, i.e. gym membership, came from "you coming up with the idea of what you wanted achieve. What we found was that with a little guidance and a bit of discussion between the two of us that seemed the best option for you at the time and I think that's been the same with all the individuals if they wanted something specific to be able to achieve or to do, it was the individual that kind of led that discussion really.

Mary says that she may not have been the strongest or fastest in the gym but she felt that the support enabled her to exercise safely, and moved the focus from her disability to her abilities, "I felt like I was a part of the human race again".

Tom met regularly with Mary to review the impact that going to the gym was having on her outcomes and her health.

Mary's growing confidence and independence through SDS has also had a positive impact on her relationship with her husband Brian, who said that "I didn't really see how something quite basic as that… a relatively small amount of funding could make the phenomenal difference that it has. We're not talking vast sums of money, but what you received was pretty much worth its weight in gold for your life, my life and probably our marriage as well. It made a phenomenal improvement in not only your quality of life, but mine as well.

Mary says, "I would recommend it to anybody in my shoes, I think it's one of the best things that the health service has come up with".