The United Kingdom divided? – The impact of devolution in healthcare

Health and social care are devolved matters leaving the assembly in Cardiff to set the agenda for the perceived needs of the Welsh public. This has resulted in Wales increasingly developing distinct legislation which practitioners practising both sides of Offa’s Dyke need to be aware of.

The legislative framework in England for health revolves around the Health and Social Care Act 2012 (H&SCA) which set out to reorganise the NHS in England with services being commissions by Integrated Care Boards (ICBs). The stated aims of this legislation were to improve patient choice; make services more efficient; put the experts (doctors) in charge of decisions and to improve standards of care. This built on the Health & Social Care Act 2008 which also established the Care Quality Commission (CQC) as the independent regulator of health and adult social care in England.

The consequences of this, whether intended or not, have arguably been an increase in the role of the private sector and market influence in the provision of services; a fragmented system which is, as a result, more complicated and a resulting increase in costs.

In addition to the H&SCA came the Care Act 2014 which deals mainly with social care. The purpose of this legislation was to put wellbeing first. Local Authorities were required, under the legislation, to promote a person’s wellbeing when making decisions about what care and support that person may need. It included one set of clear national eligibility rules to decide who qualifies for care and support funded by the state and who does not. Those people who do qualify must have a written care plan explaining the support they will receive.

The Care Act also provides support for carers stating that those carers have the same right to an assessment as the person they care for. In addition, the legislation shines a light on safeguarding adults setting out that local authorities must protect adults at risk of abuse or neglect and must establish Safeguarding Adults Boards.

There were big changes from the perspective of managing the funds set aside for paying for care. Through personal budgets people are now to be told how much money is available for their care and they can choose how it is spent as opposed to being dictated to by statutory services.

However, the situation in Wales is different. Firstly, the CQC does not operate in Wales. Instead, the Healthcare Inspectorate Wales (HIW) and Care Inspectorate Wales (CIW) act as the independent regulators. The latter was established in 2002 as the Care and Social Services Inspectorate Wales (CSSIW). It was later rebranded to its current name on January 15, 2018.

The key legislation in Wales is the NHS (Wales) Act 2006. Health services are devolved to the Welsh Government which controls and funds NHS services in Wales. The government organises the seven Local Health Boards (LHBs). In turn the LHBs plan and provide health services in their areas.
There is a focus on public healthcare with NHS Wales mainly providing services through public organisations. This means less use of the private sector compared to England. An example of this is the fact that prescriptions are free for everyone in Wales.

Social Services and Well-being (Wales) Act 2014 focuses on care with a real emphasis on wellbeing. Local Authorities must promote a person’s physical, mental and emotional wellbeing when providing support. The legislation tries to give individuals more control around decisions about their care and support. As in England carers have equal rights to an assessment and support themselves.

The wellbeing focus includes early intervention and prevention with statutory services being required to engage early on and help to prevent problems from getting worse. Stronger safeguarding systems were introduced citing new duties to protect children and adults at risk of abuse or neglect and requiring health and social services to work more closely together.

Despite these variations in the legislative framework between England and Wales we are still part of the same legal system and so when the Court of Appeal or Supreme Court make a decision it is binding on both sides of the border. An example of this is the case of R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46. The case concerned the meaning of “ordinary residence” when it came to deciding which local authority should pay for
an adult’s care. The Supreme Court decided that a person lacking mental capacity cannot choose where they live. If their placement is arranged by a local authority then their ordinary residence normally remains with the authority that arranged the placement and funding responsibility stays with that authority.

The focus in Wales has been much more on Health Boards planning and providing services with no internal market model as in England. However, there are signs of that system fraying around the edges. An example is it now being possible to use Personal Health Budgets in Wales when previously healthcare would have been organised and paid for by the Health Board leaving the individual with little say in the care they are given. A small step in the direction of a less devolved system? Unlikely but a welcome change nonetheless.