Duty-bound to provide

It is not easy to determine when and how much
a health authority or primary care trust must contribute to a
resident’s nursing home fees. Luke Clements explains why becoming a
care trust may be the only solution.

What is a health authority’s obligation tofund
nursing home fees?

A health authority or a primary care trust is
obliged to contribute towards a resident’s nursing home fees in
four distinct situations, all of which have been the subject of
recent developments.

First, patients detained under section three
or one of the criminal provisions of the Mental Health Act 1983 are
entitled to after care services under section 117 of that act. In
two recent Court of Appeal decisions it has been held, first, that
the duty to provide these services is a joint one shared by the
health authority and the social services department – and secondly,
that these services must be provided free of charge (this decision
is currently on appeal to the House of Lords). So where such a
patient is discharged into a nursing home, the home care fees will
be paid either by the social services department or the health
authority (depending upon whether the patient meets the relevant
“continuing care criteria” discussed below).

The second situation occurs as a result of an
NHS ombudsman’s report in 1994 (and 1995 guidance). Health
authorities are required to publish “continuing care” statements
that explain which patients’ nursing home fees they will pay.

In 1999, the Court of Appeal gave its landmark
judgement in the Coughlan case, which again concerned a health
authority’s refusal to fund patients’ general nursing care needs.
Not surprisingly, it concurred with the ombudsman’s assessment:
“substantial general nursing” was a health authority
responsibility.

In the aftermath, the Department of Health
undertook to issue guidance re-emphasising health authority
responsibilities for “continuing care”. Two years later on 28 June
2001 it added circular LAC (2001)18, Continuing Care: NHS and
Local Councils’ Responsibilities, to its website.

In large measure, this merely restates what
was said in the 1995 guidance, although it fails to emphasise the
obligation on health authorities to fund the full nursing homes’
fees of residents, who require “substantial general nursing”.
However, it does require health authorities and social services
departments to undertake a review of their “continuing care”
responsibilities. This must result in the boundary being re-drawn
to require greater health authority funding for such nursing home
residents.

The third situation arises from two new major
initiatives, the first being draft guidance “on providing free
nursing care for people in nursing homes”. The scheme is to be
implemented in two phases. From 1 October 2001 all self-funders in
nursing homes will receive between £35 and £110 per week
in subsidy from the health authority or primary care trust
depending upon the extent of their nursing needs. The second phase
will commence in April 2002 when the remainder of nursing home
residents (such as those fully funded by a social services
department) will then be assessed and receive their allotted health
authority or primary care trust contribution to cover nursing
care.

Finally, a second initiative will result in
health authorities funding increasing numbers of older patients in
specialist “step-down” rehabilitation nursing homes for periods up
to six weeks.

It appears inconceivable that health
authorities will be able to re-draft their “continuing care”
statements, implement the intermediate care reforms and assess all
the 35,000 eligible residents in nursing homes between October and
April.

In the medium term there appears only one
sensible option for both health and social services authorities:
however unpalatable it may appear, merger into a care trust is
likely to be the least painful option.

Luke Clements is a solicitor and
fellow of the school of health and social studies, Warwick
University.