It is not just about the cost of care
| Date | 14 April 2010 |
| Published date | 14 April 2010 |
| Pages | 40-42 |
| DOI | https://doi.org/10.5042/jpmh.2010.0162 |
| Author | David Hewitt |
| Subject Matter | Health & social care |
40 journal of public mental health
vol 9 • issue 1
© Pier Professional Ltd, 2010
10.5042/jpmh.2010.0162
Key words:
National Care Service;
The Big Care Debate;
social care;
Law Commission;
national assessment
process;
ordinary residence;
personal care
care and support. Although this fig ure is quoted in
the green paper, it is not new. Late in 2008, the Law
Commissi on published a report, reveal ing that at
present levels, this increased demand would cause a
funding deficit of over £6 billion (Law Commission,
2008; para 1.18). The Law Commission (2008) also
noted the following predictions:
• by 2028, the number of people aged over 85 years
will have ri sen by more tha n 60%, compared
with a 10% rise in the population as a whole.
• by 2041, the number of disabled people will have
doubled.
• by 2051, the care needs of people ove r 65 years
will have risen by 87%.
It seems likel y that these people, or thei r children
or care rs, will expe ct to have mor e choice abou t,
and mo re control over, the ir care (u nless, one is
tempted to add, they ha ve read the gr een paper).
As much as anything, of course, it is expectati on
that fuels l itigation. We have seen this frequently
over the last few years, when decisions have had to
be made about right-to-life issue s or the fundin g of
innovative medi cal treatments. If more people are
likely to be involved in litigation, there is likely
to be more li tigation. That is no reas on, however,
for the government to neglect so cial care la w. In
fact, there is now compelling reason for it to do
the opposite.
A complex and confusing patchwork
A maj or prob lem tha t t he Law Co mmis sion
identif ied and the green paper s eeks to addr ess is
the now-By zantine nature of the adult social care
system. That sy stem is the product not of a single,
cohe rent vi sion, bu t of d ecades of incre mental,
and occasio nally co ntradic tory, c hange. As the
The gov ernment has big plans fo r the
future of adult social care in E ngland.
It says it w ants to create nothing less
than a National Care Service (NCS),
that will be fair, simple and affordable,
and wi ll have th e interest s and righ ts of fami lies
and carers at its heart. To that end, the government
has initia ted Th e Big Care D ebate (See ht tp://
care andsuppo rt.dire ct.gov. uk/) an d publi shed a
sizeable green paper (HM Government, 2009a).
It is, of course, the financial implications of the
green paper that have attracted most attention, with
media reports focusing on the lump sums that many
retired people could be asked to pay (Gentleman,
2009) . But th at is on ly part of the story, fo r the
implicat ions of the new proposals are likely to be
felt in t he law courts, as much as in hosp itals and
care homes across the land.
Man y a spect s o f th e N CS w ill have to be
enshrined in legislation, some for the first time, and
while that might help clarify a few troubling issues,
it should also create the conditions for further legal
chall enge. Yet , cases decided by the c ourts ove r
the last ha lf a ce ntury s uggest that an y chang e,
and the litigation it will surely produce, will simply
compound existing problems.
Those problems are as, if not most, likely to be
experie nced in the field of publ ic mental he alth,
wher ever patien ts rec eive afterc are wh en th ey
leave detention, elderly service users receive paid-
for support or people with learning disabilities, and
those that care for them, a community service.
Demographic change
It seems that the main impetus for the new proposals
is the coun try’s changing demogr aphic profile. By
2026, for example, 1.7 million more adults will need
POLICY
David Hewitt
Partner
Weightmans LLP
Correspondence to:
David Hewitt
Partner
Weightmans LLP
3 Piccadilly Place,
Manchester
M1 3BN
Email:
david.hewitt@weightmans.com
There is to be a Nationa l Care S ervice. It has become necessar y because the number o f older
and/or disabled people in England and Wales will rise dramatically over the next four decades; and
because social care law is cur rently complex, contradictory and confusing. The legal framework will
have to change if problems, and costs, are to be minimised.
It is not just about the cost
of care
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