Annex B
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Case no. E.208/99-00 Funding for a patient's care in a nursing home
Complaint against: The former Dorset Health Authority (the Authority) and Dorset HealthCare NHS Trust (the Trust)
Complaint as put by Mr X
1. The account of the complaint provided by Mr X was that his father, (Mr X senior), suffered from Alzheimer's Disease. In December 1997 his father was admitted to a nursing home in Hampshire (the Nursing Home), initially for respite care. In February 1998 a team which included Trust staff decided that Mr X senior did not meet the Authority's eligibility criteria for the provision of NHS-funded in-patient continuing health care. He remained at the Nursing Home until its closure in February 2000, with his care being funded by means-tested Social Services benefits and his own resources. From 2 February 2000 until his death in February 2001, he resided at another nursing home in Devon, where his care continued to be funded in the same way. In January 1998 Mr X suggested to the Authority that the NHS should be responsible for funding his father's long-term nursing care. The Authority explained that if a person were sufficiently ill to require NHS care, then that would be provided within a local hospital; its policy was to fund nursing home placements only if there was no suitable hospital or other in-patient facility available. The outcome of Mr X senior's assessment meant that responsibility for funding his care rested with the local authority. Mr X was dissatisfied with the Trust's final reply. On 22 April 1998 he made a request for an independent review (IR), principally on the basis that the Authority's criteria for funding long-term in-patient continuing health care were more restrictive than allowed for in national guidance. After a further attempt at local resolution he made a second request for an IR. The Authority closed its file in April 1999 because Mr X had not clarified his outstanding concerns. Mr X remained dissatisfied.
2. The complaints investigated were that:
(a) the Authority's eligibility criteria for funding long-term NHS in-patient continuing health care were unreasonably restrictive and did not reflect the principles laid down in the relevant NHS guidance; and
(b) the Trust failed properly to assess Mr X senior's eligibility for NHS-funded continuing in-patient care.
Investigation
3. The statement of complaint for the investigation was issued on 8 November 2000. Comments were obtained from the Trust and the Authority and relevant documents, including clinical records, were examined. I have not included in this report every detail investigated; but I am satisfied that no matter of significance has been overlooked.
National guidance
Eligibility criteria – health care needs
4. In 1995 the Department of Health issued guidance HSG(95)8 on NHS responsibilities for meeting continuing health care needs. The guidance detailed a national framework of conditions for all health authorities (HAs) to meet, by April 1996, in drawing up local policies and eligibility criteria for continuing health care and in deciding the appropriate balance of services to meet local needs. The guidance stipulated that the NHS had responsibility for arranging and funding continuing in-patient care, on a short or long-term basis, for people:
'…. where the complexity or intensity of their medical, nursing care or other care or the need for frequent not easily predictable interventions requires the regular (in the majority of cases this might be weekly or more frequent) supervision of a consultant, specialist nurse or other NHS member of the multidisciplinary team ….
'…. who require routinely the use of specialist health care equipment or treatments which require the supervision of specialist NHS staff ….
'who have a rapidly degenerating or unstable condition which means that they will require specialist medical or nursing supervision.'
The in-patient care might be in a hospital or in a nursing home.
5. In further guidance, EL(96)8, in February 1996 the Department of Health said:
'…. It will be important that eligibility criteria do not operate over restrictively and match the conditions laid out in the national guidance. Monitoring [of authorities' criteria] raised a number of points where eligibility criteria could be applied in a way which was not in line with national guidance:
….
- an over reliance on the needs of a patient for specialist medical supervision in determining eligibility for continuing in-patient care. There will be a limited number of cases, in particular involving patients not under the care of a consultant with specialist responsibility for continuing care, where the complexity or intensity of their nursing or other clinical needs may mean that they should be eligible for continuing in-patient care even though they no longer require frequent specialist medical supervision. This issue was identified by the Health Service Commissioner in his report on the Leeds case and eligibility criteria should not be applied in a way to rigidly exclude such cases.'
6. In August 1999 the Department of Health issued further guidance on continuing health care in a circular HSC 1999/180. This was in response to a Court of Appeal judgment in the case R.v.North and East Devon Health Authority ex parte Coughlan (the Coughlan case). That judgment summarised its conclusions as follows:
'(a) The NHS does not have sole responsibility for nursing care. Nursing care for a chronically sick person may in appropriate cases be provided by a local authority as a social service and the patient may be liable to meet the cost of that care according to the patient's needs. …. Whether it was unlawful [to transfer responsibility for the patient's general nursing care to the local authority] depends, generally, on whether the nursing services are
'….(i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and
(ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide. Miss Coughlan needed services of a wholly different category.
The Department's guidance included in its description of the judgment:
(b) The NHS may have regard to its resources in deciding on service provision.
(c) …. HSG(95)8 …. is lawful, although could be clearer.
(d) Local authorities may purchase nursing services under section 21 of the National Assistance Act 1948 only where the services are
i) merely incidental to the provision of the accommodation which a local authority is under a duty to provide to persons to whom section 21 refers; and
(ii) of a nature which it can be expected than an authority whose primary responsibility is to provide social services can be expected to provide.
(e) Where a person's primary need is a health need, then this is an NHS responsibility.
(f) Eligibility criteria drawn up by Health Authorities need to identify at least two categories of persons who, although receiving nursing care while in a nursing home, are still entitled to receive the care at the expense of the NHS. First, there are those who, because of the scale of their health needs, should be regarded as wholly the responsibility of a Health Authority. Secondly, there are those whose nursing services in general can be regarded as the responsibility of the local authority, but whose additional requirements are the responsibility of the NHS.'
Authorities were advised to satisfy themselves that their continuing and community care policies and eligibility criteria were in line with the judgment and existing guidance, taking further legal advice where necessary. Where they revised their criteria they should consider what action they needed to take to re-assess service users against the revised criteria.
7. A Royal Commission on Long Term Care had reported in March 1999. That had recommended that housing and living costs for those in long-term care should be paid for by individuals according to their means, but that the cost of necessary personal care should be met by the state. In England the government decided to adopt a rather different approach: from October 2001 the NHS has funded care in nursing homes provided by registered nurses (for those who would otherwise have to pay): but not all personal care provided by other staff.
Responsible authority
8. In 1993 the Department of Health issued guidance on establishing district of residence: the health authority where the person was usually resident was responsible for funding care. The guidance explained that where a placement by Social Services was temporary, then the health authority of usual residence remained responsible for health care funding. If a permanent placement in a home was funded totally by a health authority outside their area, then they remained responsible for funding: otherwise the health authority in which the home was situated became responsible.
9. However in 1998 a Guidance note HSC 1998/171 was issued to NHS bodies on allocation of funds to HAs and Primary Care Groups (PCGs) in 1999-2000. This said that HAs would 'continue to be primarily responsible for all those resident in their boundaries' and linked their responsibilities to patients registered with GPs which were part of PCGs for which HAs were responsible. In 1999 Primary Care Trusts (PCTs) were being established and regulations (The PCTs (Functions) (England) Regulations 2000) determined that a PCT was responsible for funding care for patients of GPs within the PCT's remit. Those regulations came into force in April 2000.
10. A replacement for the 1993 guidance on district of residence (paragraph 8) was issued in draft form in October 2002.
Local guidance
11. In April 1996, the Authority published its original policy and eligibility criteria for the provision of continuing health care. A revised version, under which Mr X senior was first assessed, was published in April 1997. It included:
Health Authority Responsibility
2.2 The Health Authority sees as its responsibility the provision of continuing in-patient or residential care for people who:-
- need regular specialist medical or nursing supervision or treatment; or
- have complex medical, nursing or other clinical needs; or
- are likely to die in the very near future and for whom discharge from hospital would be inappropriate.
Explicit eligibility criteria are contained in each of the care group sections which follow.
Nursing Homes
2.19 People in nursing homes are funded either privately or through the local authority …. Exceptionally the placement might be funded by the NHS where no suitable hospital or other in-patient facility exists. …. The Health Authority will not fund nursing home placements other than in the exceptional circumstances described above.'
…
OLDER PEOPLE SUFFERING FROM MENTAL ILLNESS OR DEMENTIA
5.1 The Health Authority will continue to fund continuing care for people who meet the eligibility criteria set out below. The policy and criteria outlined below apply to older people suffering from dementia and those with severe functional mental illness. ….
In-patient Continuing Care
5.2 People will be provided with NHS continuing in-patient care if, following clinical assessment, one or more of the following apply:
a) The person's behaviour is extremely restless and in any other residential setting they would be at risk.
b) The person's behaviour is highly aggressive, either physically or verbally, to such an extent that it requires specialised multi-disciplinary team management, including behavioural strategies, in a controlled environment.
c) The person's behaviour is highly uninhibited and could not be managed in any other residential setting.
d) The person has difficult behaviour coupled with heavy physical dependency requiring active regular supervision (weekly or more frequently) by a consultant.
e) The person requires secure care under Home Office Regulations.
f) After acute treatment or palliative care in hospital or hospice, the person is likely to die in the very near future and discharge from [NHS] care would be inappropriate.
5.3 In Dorset such provision will usually be made in a local NHS facility, either a small residential unit or as part of a community hospital. Clinical management will in all cases be by a consultant psychiatrist.'
Annex four to the policy lists the services then purchased to meet needs in the area. It indicates that the Authority funded 131 continuing care beds for older people suffering from mental illness or dementia.
Mr X's concerns
12. In a letter to this Office on 13 June 2000, Mr X summarised his complaints as being:
'The Dorset Health Authority misled me, through protracted correspondence and prevarication to conclude that they were responsible for meeting my father's continuing health care needs. It was only after many months of delay that their convenor …. refused to grant me an independent review on the grounds that the [Authority] were not, in fact, the responsible authority.
I contend therefore that either [the Authority] were deliberately obstructive with the intention of frustrating my legitimate complaint, or .... they were grossly incompetent if they really were unaware of the geographical and administrative boundaries of their own jurisdiction ....
'.... My original complaint was that my father was entitled to fully funded continuing health care as he was suffering from a disease and that the eligibility criteria against which he was assessed were unlawful in that they did not accord with published guidelines ....
'The (later) judgment .... and the subsequent Appeal Court ruling .... in Coughlan, vindicates my contention that my father always was, and remains, entitled to receive fully funded NHS nursing care ....'
A letter dated 18 October 2000 from Mr X to the Ombudsman included:
'.... my father is in the final stages of Alzheimer's Disease .... He .... requires 24-hour nursing care. The law says .... he is entitled to receive that care free of charge from the NHS ….
'....
'[The Authority's refusal to fund his care] is unlawful because in July 1999 the Court of Appeal decided that Miss Pamela Coughlan was entitled to have all her care costs met by the NHS. In their judgment their Lordships concluded that a local authority may purchase "nursing services merely incidental or ancillary to the provision of (the) accommodation …". Their Lordships added "Miss Coughlan needed services of a wholly different category". Clearly Miss Coughlan's care was not considered "merely incidental or ancillary" to her need for accommodation and she was therefore entitled to receive NHS-funded care.
'In fact it is the law that if the primary reason for being in a nursing home is to meet a health, not a "social" need, then all care must be free ....
'A comparative analysis between the care supplied to Miss Coughlan and to [Mr X] …. shows conclusively that there is no fundamental difference whatsoever between the nursing services supplied to [Mr X] and those supplied to Miss Coughlan ….
'The Appeal Court did not create new law, but simply clarified the existing law. My father is therefore entitled to receive full retrospective care funding from the date he first entered [the] Nursing Home in December 1997. His daily nursing records show that his needs are basically unchanged and illness was, and is, his sole reason for being in a nursing home. In other words, had he not developed Alzheimer's Disease he would have remained in his own home ....'
Correspondence and key events
14. I set out below a summary of the key correspondence and events.
1997
Mr X senior lived with his wife in Dorset. He suffered from Alzheimer's Disease. From July 1997 he received periods of assessment and respite care by the Trust in Wimborne, under the care of a consultant in the psychiatry of old age (the consultant).
1 December 1997
Mr X senior was discharged home after a period of respite care. Subsequently Mr X expressed concern to NHS staff about his mother's ability to continue caring for his father, saying he felt that long-term care was needed.
19 December 1997
Mr X senior was admitted to the Nursing Home initially for a four-week placement of respite care, organised by Dorset Social Services.
1998
13 January 1998
Mr X wrote to Social Services saying that there was no question of his father being able to return home at the end of the planned period of care on 16 January. He said he felt that his father's long-term care was the responsibility of the NHS not Social Services. He said he had been in touch (where Mr X senior received respite care in Wimborne) about the situation. Mr X senior remained in the Nursing Home as a long-term resident.
26 January 1998
After speaking to Mr X on the telephone, the Authority's contracts manager wrote to the Trust about the arrangements for Mr X senior.
27 January 1998
Mr X wrote to the contracts manager expressing the view that as Mr X senior was suffering from an illness, the Authority - rather than Social Services - had a statutory duty to fund his long-term nursing care. Three days later he sent the contracts manager invoices for his father's care at the Nursing Home, and requested that they be settled by the Authority on behalf of the NHS.
6 February 1998
The contracts manager replied reiterating what he had said in the previous telephone call. He said that Social Services departments were responsible for funding care in nursing homes. If someone was sufficiently ill to require NHS care, then that would be provided in a hospital. Social Services had confirmed the assessment previously made by the consultant that Mr X senior did not require admission to an NHS in-patient facility for his continuing care. Responsibility for funding of the care therefore rested with the local authority. He returned Mr X's invoices. He also sent Mr X a copy of the Authority's eligibility criteria for continuing in-patient care.
1998
Mr X rejected the contracts manager's contention that the Authority was not responsible for funding Mr X senior's care, on the basis that his father appeared to meet some of the Authority's criteria for continuing in-patient care.
10 February 1998
The consultant and a community psychiatric nurse (CPN) re-assessed Mr X senior at the Nursing Home and said that he did not meet the Authority's criteria for NHS-funded continuing care.
11 February 1998
The contracts manager informed Mr X that the consultant's most recent assessment of Mr X senior had been that NHS care was not appropriate. He said again that the Authority expected any Dorset resident who met the criteria for continuing care to be admitted as an in-patient to an NHS facility, and that the Authority would not expect to meet the costs of a nursing home placement, as those were funded by Social Services.
23 February 1998
Mr X wrote to the Authority's chief executive, expressing dissatisfaction with the contracts manager's decision that Mr X senior's care was ultimately the responsibility of Social Services. He reiterated his view that as his father was clinically ill, his nursing care and treatment was the responsibility of the NHS and should be provided free of charge.
27 February 1998
The Authority's chief executive explained to Mr X that:
- It was the Authority's policy to fund placements in nursing homes only if there were no suitable hospital or other in-patient facility, because there were sufficient beds in the Authority's area to meet the needs of all those patients requiring NHS continuing in-patient care;
- Mr X senior was placed in a nursing home after the consultant assessed him as not requiring NHS in-patient care;
- If Mr X senior's health needs changed in the future and, following admission to hospital, he was re-assessed as meeting the criteria for in-patient care, the Authority would expect him to remain in hospital;
- The NHS Community Care Act 1990 gave local authority and Social Services departments responsibility for funding nursing home placements, taking into account the financial means of the individual.
5 March 1998
Mr X replied contending that the Authority's policy was in breach of their own published criteria and NHS guidelines. He pointed out that authorities could pay for nursing home places.
22 April 1998
After exchanging further correspondence with the Authority's chief executive Mr X wrote to the Authority's convener (the convener), requesting an IR and explaining his chief concerns:
1. The Authority's criteria for continuing in-patient care were not applied correctly in his father's case. He had not seen a report of his father's initial assessment by the consultant and did not, therefore, know how it had been carried out or on what basis his father was assessed as not meeting the criteria;
2. The Authority's criteria were more restrictive than allowed for in the NHS national guidance. He said that neither of the first two bulletted points of 2.2 in the Authority's criteria (paragraph 11) made it clear that supervision required was for weekly or more regular interventions and that supervision covered specialist equipment as well as treatments: nor did that section reflect the national guidance about people with rapidly degenerating conditions. On sections 5.1 to 5.4, he pointed out that limiting the reference to supervision to that by consultants was more restrictive than the national guidance and referred to EL(96)8 (paragraph 5). He expressed concern about references in paragraph 5.2 to the person being at risk 'in any other residential setting'. That seemed to imply that people could only meet the criteria if admitted to an NHS facility. He said that if, as that and the contracts manager's letter suggested, the Authority's intention was to never fund placements in nursing homes then that was out of line with the Authority's policy and with national guidance.
22 May 1998
The Authority's assistant patient services manager replied to Mr X that the first of the above concerns should be put to the Trust's chief executive, as the consultant who assessed Mr X senior was employed by the Trust. She advised Mr X to pursue his broader concerns with the Trust and Southampton and South West Hampshire Health Authority, because Mr X senior had become a Hampshire resident once his placement in the Nursing Home became permanent and he registered with a Hampshire GP. The assistant added that the Authority could consider Mr X's request for an IR of his concern that their criteria for continuing in-patient care were more restrictive than allowed for in national guidance.
1 July 1998
Mr X senior was discharged from the Trust's Old Age Psychiatry Service, as he no longer needed psychiatric input.
Further correspondence with Mr X ensued.
1 September 1998
The convener informed Mr X of his proposal to consider his request for an IR on the basis of Mr X's concern that the Authority's eligibility criteria for continuing in-patient care were more restrictive than allowed for in national guidance. He sought Mr X's confirmation that he was happy with that proposal and requested evidence that his father consented to him pursuing the complaint. (He did not receive a reply from Mr X.)
9 October 1998
The convener informed Mr X that, as matters stood, he could not proceed further with his request for an IR, as Mr X had failed to provide either agreement as to which matters fell within the Authority's remit or evidence that his father supported the complaint.
11 October 1998
Mr X informed the convener that he had replied to the convener's letter of 1 September, but he had addressed the letter incorrectly. He confirmed that he wished to proceed with his complaint against the Authority, he consented to contact with the Trust and said that he had power of attorney to act for his father.
20 October 1998
The assistant patient services manager informed Mr X that a copy of his original letter of complaint (dated 22 April) had been sent to the Trust's chief executive, and that the convener was considering Mr X's request for an IR.
25 October 1998
Mr X wrote to the Trust's chief executive, saying that his complaint was not primarily that the Trust had incorrectly applied the Authority's eligibility criteria for the provision of continuing health care, but that the criteria were unsound and fundamentally flawed.
The Authority sought confirmation from the South and West Regional Office of the NHS Executive (Regional Office) that its current policy and eligibility criteria for continuing in-patient care were in accordance with national guidance.
9 November 1998
Regional Office told the Authority that in early 1996, it had assessed the Authority's original policy and eligibility criteria and found it to conform to the national guidance (to which I have referred in paragraph 4). Having examined the revised version, Regional Office staff had concluded that it did not unduly restrict access to services.
20 November 1998
The Trust's chief executive explained to Mr X that a multi-disciplinary team, led by the consultant, assessed Mr X senior at the Nursing Home on 10 February 1998 and decided that he did not meet the criteria for NHS funding for care for older people suffering from mental illness or dementia. He also listed the criteria which would normally result in an individual being provided with NHS continuing in-patient care. He explained that in-patient care would have been arranged for Mr X senior if the team had felt that any of those criteria applied to him. However, the team felt that Mr X senior no longer needed specialist psychiatric input and his psychiatric medication had been stopped.
2 December 1998
Having taken clinical advice, the convener advised Mr X of his decision not to grant an IR at that stage. He referred the complaint for further local resolution so the Authority could give a fuller explanation of the background relating to continuing care arrangements.
1999
17 February 1999
The Authority's chief executive provided Mr X with a fuller explanation of the background to the NHS and Community Care Act of 1990 in relation to continuing care arrangements.
23 February 1999
Mr X wrote to the convener, copying the letter to the chief executives of the Authority and the Trust. He referred to the initial judgment in the Coughlan case. He said that that clearly and categorically placed responsibility for all nursing care upon the responsible health authority. He also expressed his intention to seek professional advice concerning the legality of the continued means-tested funding of his father's care by Dorset Social Services.
6 March 1999
Mr X made another request to the Authority for an IR. By that time he summarised his complaint as, 'In refusing to fund my father's continuing healthcare needs [the Authority] are in breach of their legal obligations under current NHS statute'. He referred again to the initial judgment in the Coughlan case.
15 March 1999
The Authority's convener asked Mr X to clarify his outstanding concerns in the light of the chief executive's detailed reply to Mr X of 17 February. He said that a further request for IR could only be considered in relation to the original complaint.
22 April 1999
Having heard nothing further from Mr X, the Authority closed its file.
27 April 1999
Mr X complained to the Ombudsman about the actions of the Authority, the Authority's convener and the Trust.
17 May 1999
One of the Ombudsman's staff asked Mr X to provide further information. Mr X did not reply to that letter until 14 February 2000.
2000
6 January 2000
The owners of the Nursing Home informed Mr X of its imminent closure. They said that they would liaise with Mr X, the Authority and Social Services to ensure that Mr X senior was found a suitable home with the minimum amount of disruption.
7 January 2000
Mr X asked the Authority's chief executive if Mr X senior could be reassessed against the NHS continuing care criteria. That letter included:
'In view of the ruling by the Court of Appeal in the Coughlan case, it appears that Alzheimer's patients in particular are entitled to receive NHS care free of charge as there is a primary need for constant health care, thus the whole of that care must, according to Government Guidance, be borne by the NHS.
'I would therefore be grateful if you would take the necessary action to ensure that my father receives the level of care to which he is entitled …. funded by the NHS in accordance with current law.'
18 January 2000
The chief executive of The New Forest Primary Care Group wrote to Southampton and South West Hampshire Health Authority's commissioning manager. That letter included:
'I have asked [Mr X senior's GP] if he would liaise with District Nursing and Dorset Social Services so that a joint assessment [of Mr X senior] can be carried out as soon as possible.
'My understanding is that although Dorset Social Services retain responsibility for [Mr X senior's] social care needs, the Southampton and South West Hampshire Health Authority and New Forest Primary Care Group have responsibility for meeting health needs if they are in line with the continuing care criteria ....'
2 February 2000
Mr X senior moved to a nursing home in Devon.
14 February 2000
Mr X wrote to the Ombudsman with further information and explained his outstanding concerns.
February 2001
Mr X senior died.
Complaint (a) The Authority's eligibility criteria are unreasonably restrictive and do not reflect the principles laid down in the relevant NHS guidance
The Authority's comments
A letter dated 29 November 2000 from the Authority's chief executive to the Ombudsman included:
'…. I …. would wish to emphasise at an early stage that, while [Mr X senior] was resident in Dorset when he entered respite care in …. [the] Nursing Home, on 14 January 1998 he registered with [a GP] in Hampshire, as the placement had become permanent. From 1 April 1999, as part of the changed arrangements for establishing Primary Care Groups, he became the responsibility of …. Southampton and South West Hampshire Health Authority. Our files indicate that [Mr X] did not contact [the Authority] about his father's care until 22 January 1998 when he spoke to [the contracts manager]. It appears that he was in contact with Dorset Social services prior to that date.
'….
'I consider that [the Authority's] eligibility criteria for funding long-term NHS in-patient continuing health care are not unreasonably restrictive and reflect the principles laid down in the relevant NHS guidance. Extensive consultation took place before drawing up the policy, as explained in my letter of 17 February 1999 to [Mr X], and has taken place since. As a result of [Mr X's] concerns [the Authority] contacted [Regional Office] for their view on the policy and criteria and received confirmation that it conformed to national guidance and did not unduly restrict access to services. The letter from [Regional Office's director of policy], dated 9 November 1998 confirms this.
'….
'…. As the convener requested, [Mr X] was sent a further letter by me explaining the background to the NHS and Community Care Act 1990 in relation to continuing care arrangements. This is my letter of 17 February 1999.
'By this time the judgment in the case of R v North and East Devon Health Authority, ex parte Coughlan, had been published and [Mr X] wrote to [the Authority] (and others) to inform us that he was taking legal advice as a result of that judgment. He also made a further request for an [IR] ….
'As a result of the Coughlan judgment and the contents of [HSC(99)180] [the Authority] asked its legal advisers …. to examine the April 1997 Policy and Eligibility Criteria for the Provision of Continuing Health Care and received confirmation in a letter dated 3 November 1999 that it was in accord with the spirit of the Coughlan judgment.
'Based on the recommendation made by [the Authority's legal advisers] the Authority has, since November 1999, applied the eligibility criteria in accordance with the Court of Appeal judgment as distinct from the precise wording of the policy document ….'
16. The chief executive of the new Dorset and Somerset Health Authority (who had been the chief executive of the Authority until its abolition at the end of March 2002) provided further comments in October 2002. In those he said that:
'It was only in November 1999 that the former Dorset Health Authority was advised that there might be a difficulty arising from the interpretation of the policy and eligibility criteria in the light of [the Coughlan judgment]. In a letter of advice [from its solicitors] the former Dorset Health Authority was advised not to implement any amendments until further guidance from the Department of Health was issued. Further legal advice received in February 2000 confirmed that any difficulties might lie in the interpretation of the policy rather than the precise wording of the policy itself. ….
'The above legal advice was received some time after the assessment of the eligibility of [Mr X senior] for continuing care was undertaken but it was taken into account when the revised policy and eligibility criteria were produced in 2001.'
Those comments also included:
'The former Dorset Health Authority undertook an in-depth review of its policy and eligibility criteria for continuing health care and published a revised document in December 2001. This review took into consideration the judgment of the Court of Appeal ex parte Coughlan and the ensuing guidance from the Department of Health published in June 2001 …. The updated criteria were examined and modified by the legal advisors to the former Dorset Health Authority before the final version was agreed.
'The review in 2001 acknowledged that the original criteria could give rise to an interpretation that was restrictive. The former Dorset Health Authority satisfied itself that the updated criteria agreed in 2001 could not be applied in such a restrictive way.'
17. The legal advice received by the Authority in November 1999 included:
'…. There is a danger in eligibility criteria defining "specialist" in extremely narrow terms. "Specialist" should not be assessed by looking at the level of qualification required for a particular task. Rather, it is necessary to look at the intensity, quantity, continuity and range of the nursing services required. ….
'…. Although the judgment is not retrospective, it is one which is deemed to clarify the law and therefore to say what the law has always been. It follows that if anyone has paid for nursing care that ought to have been provided on the NHS then they may be entitled to reclaim the monies spent.
'Recommendations
'…. Even though I have identified parts of the policy document that might be suitable for amendment, I do not recommend any immediate steps are taken to implement those recommendations. This is particularly so given that further guidance is expected to be issued by the Department of Health in the near future.
'….
'I also recommend that a "risk management" exercise is undertaken. The Health Authority may wish to identify cases in which NHS funding has been refused because a particular patient was not regarded as requiring "specialist" nursing care. It would be prudent to identify all cases where patients are regarded as receiving "general" nursing services but those services are of an "intensity, quantity, continuity and range" that might be considered beyond the responsibility of a Local Authority. This exercise will identify those cases for which the Health Authority might have future responsibility and cases for which there is potential "retrospective" financial responsibility.
'Apart from planned amendments to the document, the Health Authority should consider the manner in which the eligibility criteria is applied at the present time. The Health Authority should ensure that its policy is applied in accordance with the Court of Appeal judgment as distinct from the precise wording of the document. This is important. ….'
The further legal advice received by the Authority in February 2000 included:
'The Opinion from Counsel also identifies a problem with paragraph 2.19. As currently drafted paragraph 2.19 states that the Health Authority will only be prepared to fund where no suitable hospital or other in-patient facility exists. This is the point I mentioned in my earlier letter of advice. I do not think that this requirement cannot [sic] be sustained in the light of the Court of Appeal's Judgment in Coughlan.
'Counsel's opinion is that the requirement for active regular supervision by a consultant – as a pre-condition for continuing in-patient care – cannot be sustained. This is not a point that I covered in my previous letter of advice. However, I think that Counsel's opinion is probably right. '….
'I remain of the view that specific risks to the Health Authority in the short term lie in the manner in which the eligibility criteria are applied as distinct from the precise wording of the criteria.'
Findings (a)
18. Mr X has been arguing since January 1998 that the NHS should pay the full cost of his father's nursing home care. During the period since then he has put forward various reasons why he believes that to be so, mainly that the Authority's eligibility criteria were over-restrictive. Before I consider the arguments about that I need first to resolve the question, which otherwise causes confusion in this case, of which HA (if any) might have been responsible for Mr X senior's care at what point.
19. In 1998 responsibility for NHS funding rested with the HA where the patient was usually resident (paragraph 8). Mr X senior lived in Dorset and first moved to the nursing home in Hampshire only for respite care. It was at that point that his son requested NHS funding for Mr X senior's long-term care: and since his permanent home at that point was still in Dorset, it was quite correct that he was then assessed under the Authority's criteria with a view to them funding his care. If he was, properly, not eligible for NHS funding by that Authority at that point then, once he became permanently resident at the home in Hampshire, the HA there (not that in Dorset) became responsible for any NHS care he needed. Mr X could have asked for his father to be assessed under the Hampshire criteria in 1998. On the other hand if Mr X should in fact have been judged eligible for funding by the Authority for his long-term care in January/February 1998, under the terms of the 1993 District of Residence guidance (paragraph 8) then they would have retained that responsibility (while he still met their eligibility criteria) even though the home was in the area of Southampton and South West Hampshire Health Authority. The subsequent guidance on funding of HAs, PCGs and PCTs suggests that that situation changed in April 1999, when the Southampton and South West Hampshire Health Authority would have become the responsible body for any funding.
20. So the key issue in this case is whether Mr X senior should have been considered eligible for funding by the Authority from early 1998 to March 1999. His son argues that he should have been. He says that the Authority's criteria were unnecessarily restrictive, and that his father was entitled to funding for his care because he needed the care as a result of a disease. He has quoted from the judgment by the Appeal Court in the Coughlan case in support of his view.
21. I found that the Authority was responsible, in February 1998, for determining whether Mr X senior's condition meant that he fulfilled the criteria for NHS funding for his care. I shall deal first with the Authority's criteria in relation to the national guidance in 1998 (ie before the Coughlan decision). Mr X explained his chief concerns about that to the Authority's convener on 22 April 1998 (paragraph 14). He questioned first section 2.2 of the document setting out the Authority's policy on funding continuing health care. However that section did not attempt to define fully the Authority's criteria, as section 2.3 made clear but, it seems to me, was a summary. I do not therefore think it unreasonable that it does not cover all the points in the national guidance. I think Mr X's concerns about sections 5.1 to 5.4 are more valid. While I recognise that the Regional Office apparently accepted that the criteria were not over-restrictive, it seems to me that the criteria, 5.3 in particular, do imply that only those patients requiring clinical management by a consultant will be eligible: whereas EL(96)8 emphasises that that should not be the case. I am also uneasy at the way the criteria appear to link eligibility to needing care in an NHS unit. One would expect any HA to have a number of people entitled to NHS continuing care, and some HAs might have enough provision in NHS facilities to meet all those needs whereas others might not. So a reluctance to fund care outside the NHS does not necessarily indicate a failure to make sufficient provision: though if all the long-term care was provided in large institutional hospital settings it would raise questions about the quality of life offered to such patients. However the crucial issue in this case is how the Authority's criteria were likely to be applied in practice. Whereas the criteria do indicate (at 2.19) the possibility of exceptions being made, given the general wording that was likely to be missed by those trying to interpret the policy. Indeed that seems to have happened in Mr X's case: the contracts manager's early correspondence with Mr X seemed to take the line that, because Mr X senior could be cared for in a nursing home rather than in an NHS facility, that necessarily meant he did not qualify for funding. So I do conclude that, in practice, the criteria were rather too restrictive in comparison to the relevant NHS guidance at the time. I am not at this stage expressing any view as to whether that led to any practical injustice to Mr X senior, ie whether or not that meant he did not receive NHS-funded care to which he was entitled. I shall return to that point.
22. Before that however I shall deal with Mr X's other initial argument (not linked to the national guidance), that his father was necessarily entitled to NHS funding for his care because it was precipitated by his illness. I am not aware of any legislation which says that whenever any type of care is needed because of an illness, that should be provided by the NHS. It is well established in law that the NHS does not have to provide even all health care which a person might need, and the guidance following the Coughlan judgment picked up that point saying that the NHS may have regard to its resources when deciding on resource provision. That guidance also made it clear that the judgment did not call into question that local authorities may make provision for nursing care, as well as more general personal care. So I do not see that the fact that Mr X senior needed care because of a disease meant that all that care necessarily had to be provided by the NHS.
23. That brings me to Mr X's final argument that his father's fundamental entitlement to NHS funding for his care was established by the Coughlan judgment. He quotes the part of the judgment which says that it is generally unlawful for authorities to transfer responsibility for nursing care to local authorities unless the care is incidental or ancillary to the local authority services. He says that the nursing services his father received (in 2000) were very similar to Miss Coughlan's. While Mr X does not appear to have had a direct response from the Authority on this point, despite his letter of 7 January 2000, they told me that they had received legal advice that their criteria were 'in accord with the spirit' of the Coughlan judgment and that since November 1999 they had applied the eligibility criteria in accordance with the judgment rather than the precise wording of the policy document.
24. I have to say that I find that unconvincing. I have explained earlier why I concluded that, in practice, Dorset's criteria were rather more restrictive than envisaged by HSG(95)8. But in the light of the Coughlan judgment, and the subsequent guidance, they were far too restrictive. Many patients who required significant amounts of nursing care, which could not be regarded as merely incidental or ancillary to the provision of accommodation by a local authority, would not satisfy the Dorset criteria. The fact that since November 1999 they felt the need to apply the criteria in a different way, and not in accord with the precise wording of their policy document, suggests that they were aware of a discrepancy. The legal advice which they received (paragraph 17) identified various concerns with the policy but did not recommend immediate changes to it, partly because further guidance was expected from the Department of Health. I can see that that expectation might have influenced HAs to take less immediate action than they might otherwise have done. However I cannot see how the Authority could expect the criteria to be applied in a way consistent with the judgment without changing them and/or guidance accompanying them: especially when clinical assessments under the criteria might be done by various different staff, often those employed by local NHS trusts rather than the Authority itself. Nor can I see that that approach provides adequate transparency for the public about the eligibility criteria.
25. I note the legal adviser's suggestion that the Authority should conduct a 'risk management' exercise to identify cases where, in the light of aspects of the Coughlan judgment, the Authority might have a 'retrospective financial responsibility'. I have not seen any evidence to suggest that the eligibility of patients (and Mr X senior in particular) was properly reviewed following the judgment. Although, by the time of the judgment, events had moved on since it seems that responsibility for any appropriate funding for his care had passed to Southampton and South West Hampshire in April 1999, the Authority should have checked that the initial judgment about his eligibility (back in 1998) was reasonable in the light of the judgment and subsequent guidance. I uphold the complaint.
26. I turn now to the question of remedial action. In 2001 the Authority finally did review its policy and eligibility criteria and adopted a new version in December of that year. The organisation of the NHS has also changed since these events. The Authority no longer exists. Responsibility for setting eligibility criteria now lies with a new Dorset and Somerset Health Authority (the new Authority), and the relevant budget for funding such care will be held by a PCT. While I recognise that the new Authority played no part in these events, I must regard them as responsible for taking remedial action. I recommend that the new Authority should, with its associated PCT and local authority colleagues, review the eligibility criteria for funding continuing care that have been in operation since April 1996 to ensure that they were (and are) in line with the Coughlan judgment and other relevant guidance. I further recommend that the new Authority should, with colleague organisations, then determine whether there were any patients (including Mr X senior) who were wrongly refused funding for continuing care, and make the necessary arrangements for reimbursing the costs they incurred unnecessarily. While Mr X has compared his father's needs in 2000 with those of Miss Coughlan, as I have explained earlier, it seems that the Authority were not responsible for providing his father's health care by then. Furthermore Mr X senior suffered a degenerative condition, so he was more likely to be eligible for funding as time went by. The appropriate way forward seemed to me to be for his eligibility in 1998-9 to be reconsidered in the light of available information about his condition then, once appropriate criteria for that period had been developed.
Complaint (b) The Trust failed properly to assess Mr X senior's eligibility for NHS-funded continuing in-patient care
27. In correspondence to the Trust in October 1998 Mr X referred to his complaints about them being as follows:
'.… I have not been provided with a copy of [my father's] original health care assessment. I have received a copy of a letter (12.3.98) from [my father's consultant], addressed to [the Authority's contracts manager, simply stating that [my father] "does not meet the criteria for continuing care" ….
'Neither the precise way in which my father fails to "meet the criteria" nor the tests (if any) which were carried out in order to arrive at this conclusion are specified in this letter. I can thus only conclude that my father "fails to meet the criteria" simply because [the consultant] says so. Clearly this is unacceptable and open to challenge.
'In the absence of a detailed clinical report a definitive correlation between the Health Authority's published criteria and my father's condition cannot be made. ….'
Trust's comments
28. A letter dated 28 November 2000 from the Trust's chief executive to the Ombudsman included:
'[Mr X] initially contacted [the Authority's chief executive] in early 1998 and [the Authority's chief executive] subsequently passed [Mr X's] complaint to me in October 1998 to respond to the issues regarding the health assessment of his father.
'I replied to [Mr X] in November 1998 advising that following the assessment of his father the clinical opinion was that he did not meet the criteria set by [the Authority]. In March 1999 [Mr X] kindly sent me a copy of a letter he had sent to [the Authority] and I acknowledged this the day after receipt.
'….
'[HSC(99)180] was brought to the attention of all Consultants and General Managers within the Trust. However the Trust complies with implementing the criteria set by [the Authority] for continuing care eligibility and I understand that [the Authority] sought legal advice about this. I believe they were advised there was no need to change the criteria they had set ….
'….
'In response to the issue under investigation by your office …. 'the Trust failed to properly assess [Mr X senior's] eligibility for NHS-funded in-patient care' I would like to make the following points.
'In my letter to [Mr X] dated 20 November 1998 …. I have given the background for the assessment and the reasons why Trust staff felt [Mr X] senior did not meet [the Authority's] eligibility criteria for continuing care. I also offered the opportunity for [Mr X] to access his father's notes if he wished to see the original health care assessment.
'…. These criteria are included in the 'Policy and eligibility criteria for the provision of continuing health care' produced by [the Authority] in April 1997 ….
'[The consultant] and his team, who carried out the review, were of the opinion that [Mr X senior] did not meet [the] criteria for in-patient continuing care and as [Mr X senior's] needs were being met by the …. Nursing Home he was discharged on 1 July 1998 from the Trust's elderly mental health service.
'Having had the opportunity of reviewing the complaint again; and following further discussion with [the consultant] and [the Trust's manager for elderly mental health], I cannot disagree with [the consultant's] clinical opinion and the decision taken at the time appears appropriate, given [the Authority's] eligibility criteria.'
Documentary evidence
29. The Authority's contracts manager wrote to a senior manager at the Trust on 26 January 1998. That letter included:
'[Mr X] telephoned me on 22 January to discuss the situation and I explained to him that continuing care in a nursing home was the financial responsibility of the Local Authority. If a patient was considered sufficiently unwell to meet our criteria for continuing care then we would expect that an admission would be made to a local hospital.
'We also discussed the assessment which had been carried out by [the consultant] and I explained that [the consultant] did not consider that an admission to hospital was appropriate, thereby confirming that [Mr X senior] was a Local Authority responsibility. ….
'I would be grateful if you could let me know when [Mr X senior] was last assessed and whether or not you feel that a reassessment could reasonably be requested by his son.'
30. The Trust were asked to provide the Ombudsman with relevant documentation from Mr X senior's medical records relating to assessments carried out by Trust staff in relation to the Authority's eligibility criteria. The papers they provided did not include any detailed assessment against each of the Authority's criteria. Most detail about the assessment was provided in a letter from Mr X senior's consultant to his GP on 12 February 1998. That said:
'I reviewed [Mr X senior] today with [a community psychiatric nurse] CPN … We had the opportunity of meeting two trained nurses who knew [Mr X senior] well. ….
'After an initial period when [Mr X senior] was similar to his presentation [at the Trust's own unit] namely agitated, pre-occupied with one of his former jobs (in a slaughter house), restless and sleeping poorly, there has been a change after three weeks. He appeared to be more confused and disoriented but there was an improvement in his behaviour. He is now much more tolerant of other people, more accepting of personal care so much that the female staff can manage him. He no longer wanders, he is not irritable and there is much less pre-occupation with slaughtering animals. He can be quite friendly with other residents. He needs a good deal of assistance with his personal care. He has not tried to abscond.
'[Mr X senior] himself responded in a friendly manner to our interview. I don't think he really remembered me but was able to say that he liked staying where he appeared to be disoriented [sic]. He thought the staff were good. There was a marked change in his demeanour from when I remember him before. He was quite happy to sit in the chair and there was no sign of the agitation previously. He talked of killing just once.
'He is tolerating the medication without any problems and does not appear sedated.
'Whilst the cognitive aspects of his dementia may have deteriorated lightly there have been marked changes in other respects for the better. He does not meet the Health Authority's continuing care criteria and indeed has settled very well in [the] Nursing home. The staff are happy he stays ….'
31. The consultant wrote to the Authority on 12 March 1998:
'I am writing to update you on the situation regarding [Mr X senior]. I formally reviewed him on 10th February 1998 with the CPN …. who has been providing regular follow-up. He does not meet the criteria for continuing care and appears well settled in the nursing home. He himself wishes to remain there and the staff reported that they were quite happy he should do so.'
Findings (b)
32. Mr X complained that the Trust failed properly to assess Mr X senior's eligibility for continuing in-patient care. He complains that the Trust had been unable to provide him with any detailed clinical assessment showing why his father did not meet the criteria. Following correspondence from the Authority to the Trust, Mr X senior's consultant psychiatrist visited him in February 1998 and assessed him. The most detailed record of that assessment seems to be in his letter to Mr X senior's GP. Like Mr X, I would really have expected to see a record of a more formal assessment against each of the criteria. However, I do not think it is appropriate to criticise the Trust because that was lacking in this case. The Authority's contracts manager's letter to the Trust (paragraph 29) would reasonably lead them to believe that the crucial factor in deciding on eligibility for NHS-funded care was whether or not Mr X senior required hospital admission. The consultant felt that he did not (and I have seen no evidence which would cause me to question that). I can understand therefore why the consultant did not go on to record a more detailed assessment in terms of the Authority's published criteria. I recommend that in future assessments of eligibility for NHS continuing care by the Trust should include recording why the patient is considered to meet, or not to meet, each of the criteria. However, I do not see that the Trust deserve criticism in this case. I do not uphold the complaint against them.
Conclusions
33. I have set out my findings in paragraphs 18-26 and 32. The Trust has agreed to implement my recommendation in paragraph 32. The new Authority has agreed to implement my recommendations in paragraph 26. They say they are prepared to consider re-imbursement to Mr X on receipt of the necessary details of expenditure incurred. They have asked me to convey through my report - as I do - their apologies to Mr X for the shortcomings I have identified.
