The difficulties faced by many people attempting to claim NHS continuing care are well known. Certainly, the widespread recognition that eligible people were missing out finally led the government to launch a framework in October to tackle the issue.
It replaces regionally based criteria with a national system of eligibility and, the Department of Health predicts, will result in 5,000 more people becoming eligible for continuing care in its first year. Four months on, while early indications from some adult services departments are promising, others argue that the expected surge in cases is failing to materialise and the system remains inconsistent.
David Behan, director general of social care in the Department of Health, is unaware of problems with consistency but acknowledges they may exist. “It’s not come to my attention and that’s not to say there isn’t an issue about consistency, but it’s too soon to assess the impact. The government review we will carry out in September will give us the evidence.”
Question over consistency
It may be too soon for the government to assess the impact of inconsistency, but it is already being felt in some local authorities. Jeff Jerome (pictured), director of adult and community services at Richmond Council and the Association of Directors of Adult Social Services’ lead on continuing care, says: “We don’t know yet but the sense is that there are different approaches being taken [across England] and we are not assured that there will be enough consistency exercised by the NHS.”
Although social workers at Jerome’s authority have told him that the new system is better than the one it replaced, it is unclear whether it will lead to more people qualifying.
“It needs to lead to substantially more people qualifying but I still think the NHS will deal with this on the basis of resources not need,” Jerome adds.
Michelle Sheldrick, a specialist palliative care social worker at Queen’s Hospital in Romford, east London, agrees: “Different primary care trusts are practising in different ways. My hospital has four locality PCTs, all with different procedures. Unfortunately we are in that postcode lottery as to who gets funding.”
Professionals at West Sussex Council are having a better experience. They find the new system is an improvement and more people are eligible. Margaret Guest, strategic commissioning manager in the adult services department, says it introduces a better partnership approach between health and social care and is leading to less conflict over who pays for what.
“We have no cases in the arbitration process whereas in the previous system we could have 20 at any one time,” she says.
The framework emphasises the need for views from both health and social care to be taken on board throughout the process. And while tensions may have diminished in West Sussex, Community Care has been told that some continuing care panels are giving greater credence to evidence from district nurses than social workers. However, Behan says this issue has not been flagged up to him and emphasises that it is right health has the final say as continuing care is funded by the NHS.
The framework was prompted by two landmark court cases – those of Coughlan and Grogan – in which both claimants’ primary need for care was based on health grounds but continuing care had been wrongly denied. Community care legal expert Luke Clements, a consultant solicitor at Birmingham firm Scott-Moncrieff, Harbour & Sinclair and a professor of law at Cardiff University, says despite this Coughlan would be unlikely to qualify for continuing care under the new framework. He adds that, whereas the courts and the ombudsman have set the bar for continuing care quite low, the framework places it much higher.
“The government is making the noise that it’s lowering the bar but when you look at the document it’s not lowering the bar at all – it’s confirming where the bar is,” Clements says.
He accuses the new framework of being from the “same stable” as previous government guidance on continuing care which he also sees as ineffective.
“The government expected an increase [of people eligible] of 20%. In my experience it has not happened at all. In one or two areas [of types of conditions] it’s getting better but for others it’s got more difficultWe have a situation where there’s a mentality of ineligibility and the government is not providing guidance to change that.”
Behan refutes Clements’ claims, pointing to the views from adults’ services as evidence, and argues Coughlan and Grogan would qualify under the new framework.
He says: “We would not have published it if we didn’t think it was Coughlan compliant but the only way we will know [for sure] is if it’s challenged.”
Under the previous system there was a rule of thumb that end-of-life care for people with 12 weeks or fewer to live would be seen as continuing care. This guide no longer exists under the new framework and Adass knows of cases where people are only receiving continuing care when they have one week to live.
In some areas the wait for continuing care decisions is leading to delayed discharges, and adding to the pressure on already stressed professionals. Guest says overall the new framework is working well in West Sussex but admits that the crunch point will be hospital discharges, especially those vacating acute beds.
And continuing care decisions are still causing delayed discharges in Sheldrick’s hospital. Her view is that the new system doesn’t work well for patients receiving palliative care.
“The new framework seems to hinder more than help them as they have to ‘fit’ rigidly into the domains. If they don’t, as is often the case with our patients, they are refused funding,” she says.
So although the new framework is seen as a vast improvement by many, some argue that the NHS needs to be more tightly performance managed on the issue. Jerome says “certain things” are being addressed by the DH on this front.
For Clements, this isn’t enough. “If the government valued continuing care it would have a performance indicator that evidences that, but it doesn’t. PCTs have to fear that they will lose a star.”
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This article appeared in the 28 February issue under the headline “Is it easier to clear the bar?”