Continuing care funding crisis deepens

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

Stephen Cragg
Doughty Street Chambers