Will the Care Act blur the distinction between health and social care?

Call for greater clarity ahead of new legislation

Thursday 14 August 2014 08.30 BST
David Brindle, guardian Professional
Chief executive of the NHS, Simon Stevens, who has suggested he would like to see care homes close. Photograph: Owen Humphreys/PA

There’s still a good deal of muttering about a comment a few weeks ago by new NHS chief executive Simon Stevens that he was looking forward to the demise of care homes. “It would be a disappointment,” he told charity Age UK’s annual Later Life conference, “if in 30, 40, 50 years’ time, nursing homes still existed.”

Stevens enjoys casually lobbing such grenades and standing back to observe the fallout. He made a similarly provocative comment in his first weeks in the job about community hospitals, interpreted in some quarters as opposing any further closures. But his use of the term “nursing homes” has caused some confusion.

There is a clear and important difference in the UK between nursing and residential homes, though some are both. Stevens confirmed as he left the conference that he had meant all care homes, making the point that models of care change over time and could be expected to do so. We should be disappointed if they did not.

He has, of course, just returned from working in the US, where nursing home is a generic term. So his slip of the tongue, if that is what it was, may be forgiven. But those standing guard at the critical UK boundary of NHS care (free at the point of use, including “continuing care” in nursing homes) and social care (means-tested) remain vigilant about such blurring of the distinction.

The guards are currently twitching nervously, alarmed by some of the proposed wording of the all-important regulations for implementation of the new Care Act. As consultation on the proposals comes to an end on Friday 15 August there are mounting calls for greater clarity to avert problems of interpretation – and the inevitable costly legal challenges that would result – after the act starts to take effect in England next spring.

A joint submission by the Local Government Association and the Association of Directors of Adult Social Services is warning that the regulations, as they stand, appear to give local councils responsibility for accessing “medical services” when identifying people’s needs.

Similarly, the associations point out, the regulations require councils to give people information and advice on available services including “effective treatment and support for health conditions”. As the submission states: “This suggests social care staff giving information and advice outside of their knowledge base.”

While the associations at present seem to view these instances as likely sloppy phrasing, rather than anything particularly sinister, other parties are more suspicious. Luke Clements, director of the centre for health and social care law at Cardiff Law School, thinks the regulations as they stand “materially undermine” the health and social care boundary.

Clements questions whether it is a social care function to arrange – and therefore charge, subject to means testing – for, in the words of the regulations, “services like checking whether medicine has been taken”.

He notes also that social services are to be responsible for training family carers “to feel confident performing basic healthcare tasks”, again subject to a charge, and to “provide or arrange healthcare services where they are simply incidental or ancillary to doing something else to meet the needs for care and support”. This latter point breaches NHS continuing care rules, he asserts.

When the act was going through parliament, care and support minister Norman Lamb insisted that “the limits on the responsibility by reference, as now, to what should be provided by the NHS remain the same”.

If there is to be confidence in the push for greater integration of health and social care, preserving the delicate balance between a largely free NHS and increasingly charged-for social care, ministers must be able to stand by Lamb’s pledge. As of now, the regulations raise too many doubts.