The Uk's Healthcare Law Service
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Long
Term Nursing Care Funding Scandal
By Robert T. Campbell
March
2003.
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Thousand
of patients in private nursing homes across the country may have
been unlawfully refused free care and could be eligible for
substantial refunds.
So
says Ann Abraham, the NHS Ombudsman in an interim report issued to
Parliament in February 2003. In a Foreword to the report Ms Abraham
says:
"Over
the last 18 months my office has been investigating a number of
complaints about arrangements for long term NHS care (often referred
to as continuing care) for older and disabled people. Similar
concerns have been raised by many of the complainants, particularly
about the local criteria used by health authorities between 1996 and
2001 to decide whether people were eligible for NHS funding for care
in nursing homes. Four of the investigations, involving four
different health authorities, are now complete. The complaints
concerned were largely justified. Authorities were using
over-restrictive local criteria which were not properly in line with
Department of Health guidance nor with a crucial judgment by the
Court of Appeal in 1999 (the Coughlan judgment). The effect was that
in at least one case a patient had to pay for their own care when
the NHS should have paid for it. The complaints I have seen also
raise other concerns detailed in the report, about how the system
for assessing eligibility for NHS funding has been working.
Although
I have more similar investigations underway, the evidence from the
first four suggests that it is in the public interest for me to
publish the results of our work so far, by laying this report before
Parliament in accordance with Section 14(4)(b) of the Health Service
Commissioners Act 1993.
I
do that for two reasons. First because although as Health Service
Commissioner I cannot investigate the actions of the Department of
Health, in my view weaknesses in the Department’s guidance have
contributed to the difficulties. Health authorities and trusts will
need further support and very clear guidance from the Department
both to avoid similar problems in the future and to ensure that
previous problems are properly identified and remedied. I look to
the Department to provide that.
Secondly,
I am concerned that all those who have suffered injustice from such
failings should obtain redress. In the investigations completed, we
have asked authorities to identify any other patients who may have
been adversely affected by the over-restrictive criteria and to
remedy any injustice caused. However identifying such patients is
not easy and a greater public awareness of the issue may assist in
that. Also the findings of the initial investigations make me wonder
if there were similar problems in other areas of the country. I hope
that all NHS bodies concerned with such matters will review whether
the criteria used since 1996 conformed to national guidance and, if
they conclude that they did not, will act now to remedy any
injustice caused."
How
this situation arose is an interesting question. In 1999 the Court
of Appeal heard a case called Regina – v – North and East
Devon Health Authority, Ex parte Coughlan. This considered the
issue whether nursing care for a chronically ill patient might
lawfully be provided by a local authority as a social service (in
which case the patient paid according to their means) or whether it
was required by law to be provided free of charge as part of the NHS.
The judgment said that whether it was unlawful to transfer
responsibility for the patient’s general nursing care to the local
authority depended, generally, on whether the nursing services were:
- Merely
incidental or ancillary to the provision of the accommodation
which a local authority is under a duty to provide; and
- Of
a nature which it could be expected that an authority whose
primary responsibility Is to provide social services could be
expected to provide.
In
a 57 page report the Ombudsman says that she has completed
investigations into four complaints and that:
"I
hope that by making this special report to Parliament I can
contribute to the debate about this important issue. My office has
dealt with a cluster of complaints about the funding of continuing
care. We have now completed the first four investigations and in
each case have found the complaints to be largely justified. There
is evidence that the Department of Health’s guidance has been
misinterpreted and misapplied by some health authorities and trusts,
leading to hardship and injustice for some individuals. But there
are also more fundamental problems with the system. The Department
of Health’s guidance and support has not provided the secure
foundation needed to enable a fair and transparent system of
eligibility for funding to be operated across the country."
Ms
Abraham said that health authorities and trusts should review the
criteria in use since 1996 to ensure that they reflect Department of
Health guidance and the law as it was defined and clarified by the
Coughlan judgment in 1999*. In each of the four completed
investigations the Ombudsman has recommended to the health service
organisations concerned that they should attempt to identify any
other patients who may wrongly have been made to pay for their care
in care homes and to make appropriate recompense to them or to their
estates. (The original health authorities involved have all been
succeeded by new authorities.) They have all agreed to do this. The
Ombudsman has also recommended that the Department of Health review
and clarify their guidance, and that they are more proactive in
checking that local criteria follow the guidance.
The
report contains a full account of the four completed investigations
in Dorset, Wigan and Bolton, Berkshire and Birmingham. In the Dorset
case (E.208/99-00) Mr X, who suffered from Alzheimer’s
Disease, was admitted to a nursing home in December 1997. He
remained there until its closure in February 2000, and then moved to
another home where he stayed until his death a year later. Mr X’s
son had been told by the former Dorset Health Authority that his
father did not meet their eligibility criteria for the provision of
NHS-funded continuing care (which would have been free to him) but
only qualified for social services funding (to which he had to
contribute). Mr X’s son tried to resolve his complaint against the
Authority about what he saw as over-restrictive criteria but failed
to do so and approached the Ombudsman. As a result of the subsequent
investigation, the Dorset and Somerset Health Authority agreed to
refund the money which had been paid for Mr X’s care.
In
another case (E.420/00-01) a woman who was severely disabled
following several strokes was wrongly judged to be ineligible for
NHS funding by the former Wigan and Bolton Health Authority. The new
health authority for the area agreed to reimburse the woman’s
estate appropriately.
Case
E.814/00-01 concerned the care of a woman with vascular
dementia. The Ombudsman upheld her son’s complaints that the
former Berkshire Health Authority had not amended its criteria in
line with the Coughlan judgment. The new health authority
agreed to review the criteria in use across its area, to reconsider
the woman’s eligibility and, if she should have been deemed
eligible to make an appropriate payment to her estate.
The
complainant in case E.1626/01-02 felt that the
over-restrictive eligibility criteria used by the former Birmingham
Health Authority led to her mother Mrs R missing the opportunity to
move to a nursing home closer to her family until only a few days
before her death. The new Authority agreed to review the criteria
which had been in use, but was not prepared to adopt in full the
recommendation about identifying patients who might have wrongly
been refused funding.
*Regina
v North and East Devon Health Authority, Ex parte Coughlan
Court
of Appeal 16 July 1999
Nursing
care for a chronically sick patient could, in appropriate cases, be
provided by a local authority as a social service, rather than by
the NHS, and the patient could, depending on his or her means, be
liable to meet the cost of that care. However, if the needs of the
patient were primarily health needs, the health authority was as a
matter of law responsible.
When
Coughlan was decided in 1999 I envisaged there would be a
clamour for fair treatment on behalf of patients – their rights
had formally been established and I wrote along those lines at the
time. Nothing, however, seemed to happen.
As
the Ombudsman says I hope that her report will bring under public
awareness to this injustice and that those concerned for patients
whose rights have been ignored, will stand up for them and redress
this as soon as possible.
The
Ombudsman’s recommendations included the following:
- Review
the criteria used by their predecessor bodies, and the way those
criteria were applied, since 1996. They will need to take into
account the Coughlan judgment, guidance issued by the Department
of Health and my findings;
- Make
efforts to remedy any consequent financial injustice to
patients, where the criteria, or the way they were applied, were
not clearly appropriate or fair. This will include attempting to
identify any patients in their area who may wrongly have been
made to pay for their care in a home and making appropriate
recompense to them or their estates.
- Consider
how they an support and monitor the performance of authorities
and primary care trusts in this work. That might involve the
Department assessing whether, from 1996 to date, criteria being
used were in line with the law and guidance. Where they were
not, the Department might need to co-ordinate effort to remedy
any financial injustice to patients affected.
- Consider
being more proactive in checking that criteria used in the
future follow the guidance.
Anyone
who thinks they have a relative or know someone who is in this
position and who would like to do something about it is welcome to
call the author for a free discussion about their circumstances as
we are in the course of establishing an action group to assist.
ROBERT
T. CAMPBELL is a leading solicitor specialising nationally in
healthcare and employment law.
Tel.
0870 168 1048
Fax
0870 240 1136
Email: rob@carelaw.co.uk
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