Commentary on Sections Nursing care Section 49: Exclusion of nursing care from community care services
239.Currently, people in nursing homes may be required to contribute towards the cost of their nursing care. There are two categories of such people. The first are those who make their own arrangements for nursing home accommodation; the second are those for whom local authorities make arrangements (under Part 3 of the National Assistance Act 1948 (“the 1948 Act”)) and who may be liable to make contributions under the means testing regime provided for by sections 22 and 26 of that Act . Those who receive nursing care from the NHS, however, receive their nursing care free of charge.
240.Section 49 removes local authorities’ functions to purchase nursing care by a registered nurse under community care legislation. This is intended to strengthen the incentives for the NHS to ensure effective rehabilitation after acute illness or injury. It is estimated that around 35,000 people who are currently paying for their nursing care will receive free nursing care through the NHS.
241.Subsection (1) removes the right of a local authority to provide or arrange nursing care by a registered nurse. It is intended that the NHS in pursuance of its powers and duties under the 1977 Act will provide or arrange nursing care by a registered nurse and such care will (in accordance with the 1977 Act) be free of charge. The Department of Health is currently working with the Royal College of Nursing and other key stakeholders to develop a tool to be used across the country for assessing peoples needs as regards nursing care. NHS staff will be trained in the use of this tool in time for the introduction of free nursing care.
242.Subsection (2) defines “nursing care by a registered nurse” as services provided by a registered nurse and involving either the provision of care or the planning, supervision or delegation of the provision of care, other than services which do not need to be provided by a registered nurse. In deciding whether services need to be provided by a registered nurse, it is necessary to have regard to the nature of those services and the circumstances in which they are provided. “Registered” in relation to nurses means registered in the register maintained by the United Kingdom Central Council for Nursing, Midwifery and Health Visiting by virtue of qualifications in nursing (see Schedule 1 to the Interpretation Act 1978).