Discharge to assess: protecting elderly people during the pandemic

Daniel Doswell of Coodes’ Mental Health and Community Care team, raises concerns about the impact of the discharge to assess policy on some elderly people during the Covid-19 pandemic.

We are experiencing a surge in enquiries from people who are unsure about decisions being made about the care of elderly family members who are leaving hospital. Since the start of the Covid-19 pandemic in March, we have seen many more of our clients raising concerns about the impact of the discharge to assess policy on their loved ones.

It seems that some elderly people are being failed as a result of being rushed out of hospital into care settings that are not right for them.

While the pandemic has created significant new challenges for hospitals and care homes, it is crucial that people continue to have access to the most appropriate care. It is also vital that the wants and needs of each individual is taken into account. Where possible, they should be empowered to make the decision on where they will live and how they will be cared for after they leave hospital.

What is discharge to assess?

When an elderly patient is recovering in hospital, the usual approach would be for the hospital and local authority to assess their care needs before deciding on whether they should return home or move into a care setting.

Discharge to assess is an approach to care, in which people are removed from hospital as soon as possible and then assessed in a different setting. This is usually a residential care home. It can mean they are placed in a care home when they could have returned to their own home or are later required to move somewhere more permanent.

How has the Covid-19 pandemic changed things?

Since March, we have dealt with a high number of situations in which elderly people have been discharged from hospital into a care home, which is unnecessary or not ideally suited to their needs. A typical scenario would be someone being hospitalised following a fall and then very quickly being transferred into a care home.

Hospitals are currently under great pressure to discharge patients as quickly as possible, with a care home often being perceived as being more Covid-secure than a hospital setting. It is, of course, questionable whether or not this is the case, but hospitals are understandably focused on patients having a quick and safe discharge.

We have been contacted by several concerned families whose relatives have been quickly moved into a home, when they believe their loved one could instead be supported to continue to live at home. nWe are hearing from others who feel their loved one has been moved into a care home that is not right for them. This could be because it does not cater for their specific healthcare needs, or because it is a long distance away from their friends and family members.

Once someone is in a care home, it can be difficult to move them and highly stressful for the individual concerned. While moves are sometimes unavoidable, the aim should always be to find the right home first time around.

Has the legal position on discharge to assess changed during the pandemic?

Emergency legislation introduced through the Coronavirus Act 2020 has temporarily suspended some elements of the Care Act. Local authorities are not currently expected to carry out the detailed assessment of an individual’s care needs, which is usually required. However, the legislation states they should respond “as soon as possible” to any requests for care and support.

Another key change is that local authorities do not now need to carry out financial assessments before moving people into a care home. That means that some people face having to move homes because the first home is found to be too expensive once the assessment has been completed.

How should a decision on post discharge care be made?

The first stage in deciding the best next step for anyone being discharged from hospitality is to establish whether or not they have mental capacity. Mental capacity is someone’s ability to make decisions for themselves and the Mental Capacity Act 2005 sets out how someone’s capacity is assessed. Elderly people may sometimes lack capacity as a result of cognitive impairment, dementia or Alzheimer’s disease.

If the individual lacks capacity to choose their future care, a decision should be made on their behalf. The principles of the Mental Capacity Act have not changed, so their best interests must be at the centre of any decision made.

If the individual has put in place a Lasting Power of Attorney (LPA) for Health and Welfare, their designated attorney may be responsible for making the decision on their behalf.

In the absence of an LPA, family members and professionals involved in the person’s care and treatment should try to make a collaborative decision. If that fails or there is disagreement, the Court of Protection would be required to make the decision in the person’s best interests.

Getting support through the process

If you have a family member who is in hospital and facing the possibility of going into a care home, it can be difficult to navigate the system. Many people are unsure what their options are and what rights their loved one has. During the pandemic, being unable to make visits to see your relative and hospital staff in person can add to the difficulties.

It is important to know that, while decisions on care may need to be made more quickly during the pandemic, the basic principles still apply. The Mental Capacity Act must be followed and the aim should be to make the right decision so the individual concerned is given the most appropriate care from the outset.

Our specialist Mental Health and Community Care team is here to advise on and coordinate these situations, working together with families, care homes and hospital teams.

For advice on this issue, contact Daniel Doswell in Coodes Solicitors’ Mental Health and Community Care team on daniel.doswell@coodes.co.uk.