News

Nearly a year after the health ombudsman sent shockwaves through the NHS with her ground-breaking rulings against health authorities that had been incorrectly charging individuals for their long-term care in nursing homes, Ann Abraham has done it again.

Her latest ruling, made public last week by the wife of an Alzheimer's sufferer, has reopened the debate on the provision and funding of long-term care, raising the potential for further compensation and review.

The issue was supposed to have been laid to rest in 1999 by the Royal Commission on Long Term Care and the Court of Appeal's "Coughlan ruling" on when it might be lawful to transfer responsibility for a chronically ill patient's nursing care to a local authority.

But, five years on, Abraham proves the issue is still not resolved.

The latest ruling, made in November 2003 but not due to be officially published until later this year, comes in response to Barbara Pointon's four-year battle with the former Cambridgeshire Health Authority and South Cambridgeshire Primary Care Trust for free NHS care at home for her husband (see panel, facing page).

Pointon complained that the former health authority and the PCT had misapplied its local eligibility criteria and Department of Health guidance by using assessment tools biased towards physical conditions and against care at home.

She said that, in particular, the PCT "relied on inaccurate or inadequate information, failed to take account of relevant facts in their assessment and took account of irrelevant factors".

Abraham upheld all Pointon's complaints. In her findings, she says the health authority's policy and eligibility criteria for NHS-funded continuing health care reflected the relevant DoH guidance. But she adds: "The ambiguities within the criteria, particularly those referring to dementia and sensory and/or physical disabilities, caused staff to produce inappropriate assessments that concentrated solely on Mr Pointon's physical needs."

As for the PCT, Abraham says it "assessed Mr Pointon against the wrong criteria, once again focusing on physical needs and also failing to recognise that the standard of care provided by Mrs Pointon was equal to that a nurse could provide".

The DoH contends Abraham's latest decision changes nothing. It insists all the points raised by the ombudsman are covered by existing DoH guidance, by the revised criteria strategic health authorities had in place by the end of 2003 and by the review of continuing NHS health care decisions due for completion by the end of next month.

It seems unlikely, however, that Abraham would agree. Last year, she said the DoH's guidance and support had failed to provide "the secure foundation needed to enable a fair and transparent system of eligibility for funding long-term care to be operated". She recommended new national guidance on eligibility for continuing NHS health care, with detailed definitions and case examples, to make it much clearer when the NHS was obliged to provide funding and when it was down to the discretion of NHS bodies locally.

That new guidance has not been forthcoming, and Abraham obviously believes the problem of ambiguous eligibility criteria is still an issue. She concludes her latest ruling with a call for all PCTs and strategic health authorities to review their eligibility criteria again "to ensure that the criteria for funding care at home and the recognition of patients' psychological as well as physical needs are clearly defined".

The Alzheimer's Society believes the ruling and proposed review could have significant implications.

Chief executive Neil Hunt says, given the focus in last year's ombudsman's report on people living in care homes, it is likely that PCTs and strategic health authorities have been limiting their review of people refused continuing NHS health care to those in care home settings. "I can't imagine there's been a whole-scale review of people who have applied and been unsuccessful. We think there will be implications for thousands of people."

Stephen Lowe, community care policy officer at Age Concern, agrees. He says the ruling could also lead to more people receiving continuing care at home in the future and more transparent assessment and decision-making processes in the NHS.

"The NHS may need to be more flexible in its response to social and psychological needs in relation to how it tends to fund," he says. "Abraham has taken the line that the NHS could not refuse to provide respite care at home on the grounds of cost if care at home was necessary to meet the psychological needs of someone with continuing care needs."


Responses among strategic health authorities to the latest ruling vary. Thames Valley, for example, states there is no need to alter its eligibility criteria as a result of the Pointon case because "it is certain Mr Pointon would have been eligible for NHS continuing care in the area".

At Avon, Gloucestershire and Wiltshire, retrospective review project manager Jon Tomlinson describes the case as "a reminder to do things properly" rather than a precedent.

He is confident the strategic health authority's revised continuing care policy is fully Coughlan-compliant and that its eligibility criteria already reflects the latest judgement. But in response to the ombudsman's ruling that South Cambridgeshire PCT was wrong to ignore the level of care provided by an unqualified carer when calculating an individual's nursing needs, Tomlinson admits it would be difficult to recommend someone for continuing NHS health care if they did not need regular NHS supervision.

A spokesperson for Birmingham and The Black Country Strategic Health Authority says its new eligibility criteria are not affected by the latest ruling but admits none of the continuing care cases reviewed so far involve individuals living in their own homes.

Liberal Democrat older people's spokesperson Paul Burstow says the ruling's political and financial implications are far-reaching. He believes the series of continuing care guidance produced so far has "obscured who is responsible for what" and calls on ministers to look again at the whole issue of long-term care, including revisiting the royal commission's recommendations.

But there are also several things to consider at a local level, such as whether local authorities will be able to claim back the cost of their share of means-tested services provided to people who should have qualified for free continuing NHS health care, and whether they have been - and could still be - breaking the law by accepting responsibility for providing and charging for these services. This could potentially lead to compensation claims from individuals against social services departments, Burstow warns.

After four years, the Pointons' case is now resolved, with the PCT providing fully-funded continuing NHS health care worth £1,000 a week via social services direct payments. After five years, however, it would appear an end to the long-term care debate remains rather more elusive.

Help at last

Malcolm Pointon was diagnosed with Alzheimer's in 1991, aged 51, and is now severely disabled and unable to do anything for himself. His physical and mental health problems result from his condition and he needs a high level of health care. His wife, Barbara, cares for him full time in their home at Royston, Hertfordshire.

Between 2001 and 2003, Pointon was assessed three times to determine whether he qualified for continuing NHS health care. The first two assessments concluded that his needs were social, not nursing, because he did not require frequent intervention by a trained nurse. The third judged that he was eligible to fully funded continuing health care - but only in a hospital or nursing home.

In September 2003, after allegedly seeing a draft of the ombudsman's report, South Cambridgeshire PCT agreed to fully fund Pointon's care at home to the tune of £52,000 a year - the same as a hospital bed. This covers the cost of a live-in carer, a night nurse four nights a week and one-day's respite a week for his wife.