Local authorities currently face uncertainty as one of the lesser-known parts of the Health and Care Bill (which received Royal Assent in April) repeals the ‘delayed discharge’ provisions.
Under these provisions, a local authority can have to pay the NHS if a patient's discharge from an acute hospital or rehabilitation unit is delayed because that local authority’s adult social care department has not carried out a Care Act assessment.
Unfortunately for local authorities (and their advisers) the commencement schedule has, as yet, not been published on parliament’s website. Therefore, it is unclear:
- whether the repeal of the delayed discharge provisions under s.89 has already taken effect, and
- if the repeal has been implemented, whether the repeal was retrospective.
This leads to interesting questions about whether a local authority following the Hospital Discharge and Community Support Guidance (updated with effect from 1 April 2022) is nonetheless acting unlawfully.
That guidance advocates the discharge to assess, home first model of working adopted during the pandemic.
Irrespective of the current legal status of the 'delayed discharge' provisions, the NHS and local authorities are expected to work together on planning a patient’s discharge.