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Government Publishes National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care

Recognising the “postcode lottery” that exists regarding fully funded Continuing NHS Care the government has (26 June 2007) issued fresh guidance on how the NHS bodies should approach the question of eligibility for continuing care under the NHS.

People who receive hospital treatment have always been statutorily entitled to receive that free under the NHS. Not only the treatment is free but, of course, so is any incidental personal care and accommodation required.

The law requires that, in given circumstances, these services must be provided free wherever they are delivered, whether a private nursing home or otherwise.

Two leading cases (Coughlan and Grogan) highlighted the fact that not all people eligible were being provided with this entitlement and it transpired that thousands of families were effectively being stripped of inheritances unlawfully.

Current practice
In deciding who should be entitled to “free nursing care” or to give it its correct description Continuing NHS Care, NHS bodies had been encouraged by the Department of Health to develop their own policies and guidelines intended to reflect the legal position espoused in Coughlan and Grogan.

However the guidelines developed and their application were not co-ordinated between the various bodies and the outcome of the eligibility assessments has therefore been inconsistant resulting in a great many people being denied their legal rights simply because of the area in which they live.

New National Framework
The government, having consulted widely, has now sought to standardise NHS bodies’ approach to eligibility by issuing new Framework and guidance centred around the “primary need approach”.

The principal tenet of Coughlan followed by Grogan was that where a person’s primary or lead need for care is a health need then the entire care package should be free at the point of delivery just as though the patient were in hospital.

The new guidance seeks to standardise NHS practice in deciding who should be eligible. It comes into force in October 2007.

The National Framework document summarises itself thus:

“This guidance sets out the principles and process of the National Framework for NHS Continuing Healthcare and NHS funded Nursing Care. It concentrates mainly on the process for establishing eligibility for NHS Continuing Healthcare and principles of care planning and dispute resolution relevant to that process, rather than specifying every aspect of planning NHS Continuing Healthcare. Directions under the National Health Service Act 2006 and the Local Authority Social Services Act 1970 in relation to the National Framework will be issued in October 2007. Until that time, this guidance and associated tools can be regarded as good practice and used to prepare for implementation. In this interim period, we would encourage the efforts of Strategic Health Authorities (SHA’s). Local Authorities (LA’s), Primary Care Trusts (PCT’s) and NHS Trusts to move towards practice that more closely reflects the processes set out here”.

The Framework paper goes on to tell Primary Care Trusts (PCT’s) etc. what action they must take as a result as follows:

1. PCT’s should consider how the principles and process in this guidance relate to what is currently in place and prepare to align their processes with this guidance.

2. SHA’s should help facilitate this process. The obligations of SHA’s to operate review panels (directions 4 to 8 of the Continuing Care (National Health Service Responsibilities) Directions 2004 as modified by the Continuing Care (National Health Service Responsibilities) Modification Directions2006) continue.

3. NHS Trusts will wish to consider those sections of this guidance, which are relevant with a view to reviewing current review and discharge processes.

4. LA’s should read this guidance and consider how their current practice fits with the responsibilities outlined below.

5. NHS Bodies and LA’s are encouraged to work together in a partnership approach when reviewing existing processes.

Transitional arrangements
The government have issued a separate document telling us, and particularly NHS bodies, what is going on and what they should be doing in preparation for October.

The new framework is a significant piece of work and one that will give NHS bodies pause for thought on this issue. Of the hundreds of preliminary assessments we have carried out for clients over 80% have resulted in a finding that the primary need has been a health need, contrary to the Trust’s own finding.

It remains to be seen whether the new guidance achieves its desired objective as this will depend upon the benchmarks used by the Trusts in implementing it..

Robert Campbell
Robert Campbell & Company

July 2007

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