Hi, with the big push on for ‘virtual wards’ has anyone caught wind of any discussions happening about which organisation would be the Responsible Body should someone be ‘in’ a virtual ward and be in need of an LPS authorisation? The way things stand at the moment it looks like the LA would be the Responsible Body, unless the person ‘in’ a virtual ward would be treated as if in a hospital. The numbers being bandied about for virtual wards mean that this will be a significant extra demand on LA s as responsible bodies, which they may not have taken onto account during their implementation planning.Virtual wards don’t seem to be mentioned at the moment in either the LPS in their current format, or in the draft Code of Practice. The relevant bits in the draft Code appear to be:
Who is the Responsible Body for arrangements in an NHS Trust or NHS Foundation Trust or Local Health Board?
14.6 For all cases where arrangements are being carried out mainly in an NHS hospital, the Responsible Body is the “hospital manager” of that hospital. This term is given a specific meaning for the purpose of the Liberty Protection Safeguards. In England, in most cases it means the NHS Trust or NHS Foundation Trust responsible for that hospital
Who is the Responsible Body for Continuing Healthcare in England?
14.13 In England, the CCG is the Responsible Body when the arrangements are carried out mainly through the provision of NHS Continuing Healthcare (NHS CHC). The CCG commissioning the NHS CHC is the Responsible Body, regardless of where the person is residing.
14.24 If a person is not eligible for NHS CHC, they may potentially receive a joint package of health and social care. This is where an individual’s care or support package is funded by both the NHS and the local authority. In these cases, the Responsible Body is the local authority.
14.25 If a person is not eligible for NHS CHC but has a need for care from a registered nurse and their overall needs would be most appropriately met in a care home with nursing, they may be eligible for NHS-funded Nursing Care. All other care needs may be subject to an assessment under social care legislation such as the Care Act. Irrespective of whether or not their needs are being assessed or met by a local authority, in such cases the Responsible Body will be the local authority is (assuming that the arrangements are not being carried out mainly in an NHS hospital).
Do you think it likely that “virtual ward” arrangements would involve a deprivation of liberty that wasnt already present ?
But if they did, the LA would be the Responsible Body for LPS, unless the arrangements are mainly NHS Continuing Care (NHSCC) (or Welsh equivalent), in which case it would be the commissioning Integrated Care Board (or Local Health Board). That’s fixed in the promary legislation - see para 6 of the new Schedule AA1 to the MCA,
As an aside, the NHSCC part of this strikes me as potentially giving rise to disputes necause the definition of NHSCC in the legislation doesn’t necessarily match how it is understood in practice.
Para 8 of the new MCA Schedule AA1 says that NHSCC “is to be construed in accordance with standing rules under section 6E of the National Health Service Act 2006.” That means Part 6 of The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 which sets out the procedures for assessing eligibiity for NHSCC.
Regulationn 20 says NHSCC “means a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs which have arisen as a result of disability, accident or illness;”
Taken literally, it strikes me that virtual ward arrangements are likely to meet that definition, even though no-one would normally think of them as such and the patient hasn’t have gone through any assessment of their eligibility for NHSCC. So there could be scope for arguments between LAs and the NHS about whether the MCA reference to NHSCC means only packages of care which the NHS has consciously designated as NHSCC after an assessment of eligibility in accordance with the Standing Rules, or whethet it covers anything which meets the literal meaning of the definition above.
Hi Richard, you have asked, in detail. the question I was trying to get at.There are so many unknowns and potential unintended consequences with the development of these virtual wards. They seem like a ‘good thing’ on the whole, but isn’t there a phrase about roads leading somewhere being paved with good intentions?
My main concern, I think, is that within the huge number of people ‘in’ virtual wards there will be a proportion who will lack the capacity to consent to their treatment which will be being provided in circumstances amounting to a deprivation of liberty, and the only state involvement will be from the NHS. LAs, in those circumstances, may well think it unreasonable that they become the Responsible Body. Especially as one of the driving forces behind the creation of the LPS was to remove workoad from LAs.