Analysis of ombudsman report on long term care

Despite three sets of guidance from the department of health and
an authoritative decision of the court of appeal in the
Coughlan case, the health service commissioner (“the ombudsman”)
has felt it necessary to issue a special report: NHS funding for
long term care (February 2003) HC 399 criticising both central
government and individual NHS bodies in relation to their approach
to the provision of continuing care from the NHS, and upholding a
number of specific complaints from members of the public denied
free NHS care.

Although the report sets out in detail four complaints about
potentially unlawful criteria (that is, not in line with the
guidance and/or the Coughlan judgement) adopted by health
authorities where individuals have been denied NHS care, the
ombudsman notes a pattern of NHS bodies failing to comply with the
law by adopting overly restrictive criteria for the provision of
health care, and indications that the problems may be
widespread.

As those who are excluded by overly restrictive criteria often
have to pay for services themselves, the ombudsman refers to the
substantial financial injustice to individuals denied free NHS
care. Also of concern is the lack of information provided to
individual service users about important decisions involving
continuing care, especially at the point of discharge from hospital
to a care home, and the unreasonable application of criteria even
where these comply with the law.

The ombudsman makes recommendations in the report which, if
implemented, may have a significant impact both for those wronged
in the past and for those seeking NHS care in the future.

– The ombudsman criticises the department of health’s role in
contributing to the current situation. She recommends that the
department should review the national guidance on eligibility for
continuing NHS health care “making it much clearer in new guidance
the situations in which the NHS must provide funding…”

– The department should take a more proactive role in checking
whether criteria used since the initial 1995 guidance onwards by
NHS bodies has been in line with guidance and case law and to check
in future whether guidance complies with any new guidance. The
ombudsman’s clear view is that the department has done less than it
should in the past in ensuring that the NHS has funded all those
eligible for NHS continuing care.

– The NHS bodies currently responsible for continuing care
policy and delivery (the strategic health authorities and the
primary care trusts) are set the task of reviewing their
predecessors’ criteria (and the application thereof) since 1996
taking into account the guidance, the Coughlan judgement and the
ombudsman¡¦s findings in the cases covered by her report.
The aim of this exercise is to identify individual service users
who may have suffered financial injustice and to make “appropriate
recompense” to them.

Comment: The tasks set for the department and the NHS bodies may
have considerable financial implications if the ombudsman is
correct that the problems she has identified are widespread. If the
department of health acts on the ombudsman’s recommendations then
it should be hoped that a full scale review of criteria adopted and
applied since 1996 by all NHS bodies will be undertaken. Local
authorities may also have a significant role to play.

It has been surprising that there have been no judicial review
challenges by local authorities (so far as the author is aware) of
continuing care criteria adopted by NHS bodies given that it is the
local authorities who have endured greater demands on their
resources to fund service users wrongly denied an NHS service. The
ombudsman’s report should encourage local authorities to be more
forceful in their negotiations with NHS bodies over criteria, and
more willing to refer potentially unlawful criteria to the
department or to threaten judicial review proceedings.

Stephen Cragg

Doughty Street Chambers