staff support for someone in hospital

[redsails]

my adult son has complex learning and physical disability, autism and is non verbal. He is doubly incontinent and is a wheelchair user. He is also on medication to help him with his anxiety. He has his own flat, one of 10, in a supported living setting and has 1 to 1 support from 7am until 10 pm and shares night time support. He also has 2to1 support for all his personal care needs although he doesn’t always get 2to1 because of staff shortages. He had 20% continuing health funding and 80% council funding. Up until now whenever he has been in hospital he’s had night time support from one of his staff team but the care provider now says he’s not entitled to it as he isn’t funded for it and that when he goes into hospital they take full responsibility for his care. My son is extremely vulnerable and has no obvious concept of the spoken word so wouldn’t understand if someone came to him in the night to ask him to open his mouth, sit up, roll over etc. Up until a couple of years ago his unused 2 to 1 hours were ‘banked’ which I’m assuming would be used to provide night time cover in the event of him going into hospital. Does anyone know if my son’s care provider could apply for extra CHC funding so that he could be supported in hospital during the night? Me and my husband are in our late 70’s and my husband has been going to stay with our son in hospital when his staff leave at 10 pm. Sorry this is a bit of a ramble but can anyone give me some advice please.?

[Hidden]

You MAY be advised to contact the Local Authority that commissioned the s75 agreement that statutorily framed the shared funding mechanism for your son's care.

You need to be specific here because the LA is now essentially overseeing a third party contractor making a change to your de facto experience of your son's prior hospital admissions and the overnight care given by your current care provider (third party contractor), which in your expressions are a presumed banked 2:1 unused hours being taken up in that meaning of your son's hospital admissions.

The s75 agreement allows for a risk assessed agreed share of your son's health and social care funding (by shared service provision), evidence based on a needs assessment and a care plan pursuant to the Care Act 2014.

The 80/20 ratio in favour of the CHC (20%) funding element is itself confused because CHC funding is an all or nothing criteria where the NHS takes full responsibility for a persons health and social care when CHC funding is deemed appropriate.

It SEEMS likely, (based on your expressions), that your son's funding stems from a s75 agreement.

In that meaning your care provider cannot change the arrangement which your son historically experienced, as its provision forms a precedent tort, IF the withdrawal of the informal arrangement (presumed banked 2:1 unused funded hours) can be shown to be a risk to your son - and even if the arrangement itself was a non reported outcome in the needs assessment and the subsequent care plan drafted by the LA - the commercial service to client contract still exists regardless by implied tort.

Your LA is the s75 author with the NHS as a contractually shared participant to the extent and in proportion to primary health care needs - and so the LA is the LIKELY party to address your stated concern.

You MAY need to take legal advice of course if the hospital stay is more extensive than either you or your husband can reasonable sustain having regard to your own wellbeing.

If your present participation could be said to be informal and non specified on the needs assessment or the care plan (drafted and issued by the LA) - then it IS likely that your husband's overnight contribution during hopital visits would be deemed non fundable under your present stated hours of care funding (waking hours) funding contract.

Unfortunately whilst the law MAY seem clear enough when s75 agreements are contracted, it is likely too opaque to argue the point legally. You may need to initiate a safeguarding concern and express it in rather more detail than you have here.

In short you may need to put pressure on your LA and not likely the NHS to reassess your son's health and care needs to specifically include the hospital admissions precept as a stated provision to future proof your son's ongoing wellbeing.

For clarification of my comment here,

I am expressing a personal opinion and NOT offering legal advice. You should always seek for professional and legal advice if you find that the LA is unwilling to act in a proportionate and timely manner if YOU perceive any risk to your son.

[redsails in reply to Hidden]

hello parental, thank you for your very detailed reply, however I’m not sure what an s75 agreement is or what you mean by ‘implied tort’ although I do understand that whilst in hospital my son SHOULD be supported according to his assessed needs during the hours he isn’t funded for. During the time he has currently been a patient no hospital staff have checked his continence issues during the night and apart from having his blood pressure taken while he was asleep no one came to check on him. My husband has had to try and stop my son from dislodging the drip tube which gets tangled round his arm due to the way he sleeps. It’s all very worrying because although we’re aware of what SHOULD happen the reality is something very different. Thank you again for taking the time to reply.

[Hidden in reply to redsails]

legislation.gov.uk/ukpga/20...

The above link will give the bare bones sense of what a s75 agreement is.

I will post later this evening and explain why it is important to understand this in your expressed circumstance.

I will also try and explain why tort contract is implicated in your expressions as well.

addendum:

Firstly your point about your son's overnight care whilst an in patient is of course agreed at every level of asking. Who could disagree if asked? But that is the problem in a country where appearance is more important than substance when it comes to Learning Disability. All of us need to get a reality check and wake up to what this country actually means where Learning Disability is concerned.

LD is defined within the scope of the Mental Health Act 1983 at the moment, and here is a Hansard record to the discussion that was had regarding removing Autism and LD from that definition.

hansard.parliament.uk/Commo...

Don't be put off by the direction of the debate. Its critical meaning is what you have experienced when you were told that the overnight care of your son was not funded.

I will leave you to make the obvious connection when the current white paper is enacted into law.

local.gov.uk/parliament/bri...

Further:

landmarkchambers.co.uk/wp-c...

This above link gives a Barrister's Opinion on the complexity and history of CHC funding. Its just about as plain and detailed as one could read on the matter.

To yourself in specificity:

The reason why you were told that the care provider isn't going to be providing the previous overnight 1:1 care is because the law is changing and a precept of choice along with a strengths based approach to social care is being implemented on a running scale in the UK.

How the law, beginning with the Mental Health Act 1959 to the present, as enacted, has within it a constant struggle between health care and social care.

Our (UK NHS) resolution is now the new National Framework released in July 2022 here:

assets.publishing.service.g...

It is the Health and Care Act 2022 that gives this updated NHS Framework its impetus.

By now you will no doubt sense the complexity for any parent trying to understand how it is possible for an LD or Autistic person to find themselves being clinically defined as needing 24/7 care and yet being formally funded under qualifying needs pursuant to the Care Act 2014 as waking hours care.

So I raised a tort consideration to circumnavigate the matter and reduce it to a more common law precept.

In short, your son's service provider has historically provided sleepover care 1:1 whilst your son has been an in patient in hospital. That fact, places them in the common law domain of a duty of care where the risk assessed premise is incumbent on them to give YOU the detail of how that risk is mitigated when they remove the service.

The hospital clinicians are operating on a similar basis and the reason, as expressed previously, why they can provide simple nursing duties for your son and not care duties in the sense of continence issues, is because they are a central agent in why this whole concern exists now. You might say, the law is the directing force. But truth to tell is less complex when viewed from a Care Act 2014 position where the 'wellbeing' principle is the dominant domain of meaning.

A s75 agreement is an historical attempt to provide a unitary mechanism for joined up service provision in the Heath and Social Care spheres.

You could begin by formally advising the care provider (third party care provider) that they have a common law duty of care and a legal responsibility to uphold that meaning regardless of the changes that are in place which have given them the confidence to remove the 1:1 overnight care whilst your son is an in patient.

You could also formally advise the LA ASC LD team that your son is being put a risk and cite the Care Act 2014 'wellbeing' principle. You MAY also wish to tell them that both yourself and your husband have equal regard with your son in that meaning as parents who have cared for, and are still caring for your son to uphold his wellbeing.

As far as the NHS is concerned you will need a lawyer because they are spectacularly indifferent to parental input.

Not wishing to distress you, it must be plain to see that were your husband not in the hospital with your son you would NOT know about continence issues unless the care provider informed you of a developing skin transgression, were it to arise. It MAY also be somewhat clear that it is because your husband attends to your son over night that everyone else can simply step back. That's the British way.

Sorry for the length of this post but it is just a shadow of the complexity

When I worked in an asylum hospital in the 1970's a Church of England Bishop used to visit his LD son every weekend on the ward I worked on. The first thing he did was to examine his son's bottom to ensure that he was being looked after properly in the most basic way humanly imaginable. I always wondered about his practise at the time and like all my colleagues I was somewhat indignant. But he was intelligently on point. We were focused on his son's mental health and then his son's care and he being a Bishop was looking to the only thing he could look to, his son's bottom.

Skin integrity is a marker risk for CHC assessment. Use it to address the care provider and the LA.

[BenjiB]

I’d get hold of his care manager at CHC or his social worker at the council. That’s not acceptable. He’s vulnerable and needs specialist support.

[HolisticMum]

I do hope someone who makes the decisions helps you and your husband. I hope your Council and social workers are not like ours. I can never get answers by email. Always Out of the Office automatic replies. Their telephone numbers don't seem to be available ever. When you need things to move fast for your son's sake, I really feel for you and wish you all the very very best. I have 2 young adults similar circumstances to yours and it's a scary situation.