Foreword
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Over the last 18 months my office has been investigating a number of complaints about arrangements for longer 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.
Ann Abraham
Health Service Commissioner for England
