There have been a number of developments since the health service ombudsman’s special report on funding for long-term NHS care was published in February 2003.
In the ombudsman's annual report 2002-2003 (HC 760) published in June, she said that she had completed three further investigations into long term care since her special report in February 2003. These have “highlighted serious deficiencies in eligibility criteria and assessments, which had resulted in severe financial hardship in some cases and had widespread implications for other people in a similar position”.
The ombudsman said that as a result of her special report she has had over 1,300 complaints on the subject and expects the issue to be an important theme of her work in 2003-2004. Further case studies (two against the same health authority can be found in the ombudsman’s “Investigations Completed December 2002 - March 2003” (HC 787) also published in June as HC787 (see link below)
The investigation reports showed a reluctance on behalf of health authorities to review over-restrictive criteria, confusion as to the requirements of the law and, in one case, official advice to staff to “duck and dive” rather than introduce new criteria.
The ombudsman also highlighted again the lack of clear guidance from the Department of Health to the NHS after the Coughlan judgment (summarised in the February report (see link below)), in which it was confirmed that local authorities could only provide nursing care which was ancillary or incidental to accommodation provided under section 21 of the National Assistance Act 1948.
The position in relation to continuing care eligility criteria is in the process of being formalised by the Department of Health. The draft Continuing Care (NHS Responsibilities) Directions 2003 have been out for consultation. “Continuing care” is defined as “care provided over an extended period of time to [an adult] to meet physical or mental health needs which have arisen as a result of disability, accident or illness”.
Strategic health authorities (SHAs) will have a duty to “establish a single set of eligibility criteria for the provision of continuing care by primary care trusts in the authority’s area” by 30 November 2003, and to make provision for the review of decisions in relation to such care.
There will be a duty to take reasonable steps to obtain the agreement of PCTs and local authorities to the establishment and revision of the criteria, but ultimately the decision will be that of the SHA if agreement cannot be reached.
Local authorities must fear that, even with the health ombudsman on the warpath, SHAs will continue to produce overly restrictive criteria. Unlike community care where there is a duty on local authorities to carry out assessments, there is only a duty to “take reasonable steps to ensure that the appropriate assessment” is carried out for continuing care. It remains to be seen whether the final directions will be more onerous for NHS bodies.
So far as review of decisions is concerned, a patient or his/her representative can seek a review from a SHA if dissatisfied about a PCTs procedure in reaching a continuing care decision. The right to seek a review only applies if the matter cannot be resolved informally. The SHA must appoint a panel including PCT and local authority members for the purpose of advising on reviews. However, it appears that it is a matter for the SHAs discretion whether it seeks the panel’s advice in any particular review.
Comment: There still appears to be a reluctance at central government level to enforce the provision of continuing care by the NHS. As the ultimate decision on criteria lies with the NHS, there must be very many cases where social services departments are still footing the bill despite the comments of the court of appeal in Coughlan that they are only obliged to do so in limited circumstances.
Whether to allow a review of decisions by the standing panel would also appear to be a matter for individual SHAs, rather than a right afforded those who feel aggrieved that the NHS will not fund their care.
Useful links
Health service ombudsman's report
Health service commissioner's annual report
Health service ombudsman's 'Investigations Completed December 2002 - March 2003'
Draft Continuing Care (NHS Responsibilities) Directions 2003 from DoH
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Doughty Street Chambers
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Details of government consultations
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Private Member Bills
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Government Legislation
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