Annex C
Jump to
Case no. E.420/00-01
Inappropriate application of policy for the funding of continuing care and failure to properly assess a woman's eligibility for NHS-funded continuing in-patient care
Complaint against:
The former Wigan and Bolton Health Authority (the Health Authority) and Bolton Hospitals NHS Trust (the Trust)
Complaint as put by Father N:
1. The account of the complaint provided by Father N was that his mother, Mrs N, had suffered several strokes, as a result of which she had no speech or comprehension and was unable to swallow, requiring feeding by PEG tube (a tube which allows feeding directly into the stomach). Mrs N was being treated as an in-patient in the Trust's stroke unit and was discharged to a nursing home in Kent on 24 May 2000, so as to be near her son. She was assessed by Trust staff before her discharge as being ineligible for funding of continuing in-patient care. Father N raised concerns with Trust staff about their assessment but was not advised how to make a formal complaint about that. Mrs N's nursing home care in Kent was privately funded. Father N considered that the Health Authority's decision not to fund his mother's continuing care was inequitable, as an assessment by the health authority in whose area she was then living (the second health authority) said that, if they were responsible for her care, she would have been eligible for continuing care funding. Father N complained to the Health Authority, who remained responsible for Mrs N's care, on 23 May 2000, and requested a review of his mother's assessment, which was refused on 2 June. He requested a further review on 31 July, and was again refused on 28 August. Father N remained dissatisfied. (Sadly, Mrs N died on 1 September 2001, during the course of the investigation of the complaint.)
2. The matters investigated were that:
- the Health Authority's policy for the funding of continuing care was not applied appropriately in Mrs N's case; and
- the Trust failed to assess properly Mrs N's eligibility for NHS-funded continuing in-patient care.
Investigation
3. The statement of complaint for the investigation was issued on 26 April 2001. Comments were obtained from the Health Authority and the Trust; and relevant documents, including clinical records, were examined. My investigating officer took evidence from Father N, and from Trust and Health Authority staff. Evidence was also obtained from the second health authority. Two of my professional advisers, a hospital consultant and a senior nurse, provided advice on the clinical issues. Their advice is incorporated into this report at paragraph 28. I have not included in this report every detail investigated, but I am satisfied that no matter of significance has been overlooked.
Background
4. The statutory framework for the provision of health services is outlined in paragraph 5; paragraphs 6-10 summarise relevant national guidance; and relevant health authority policies and criteria are summarised in paragraphs 11-12. Over the years Health Service Ombudsmen have considered a number of complaints about continuing care. In January 1994 the then Ombudsman made a special report (HC 197) on a complaint about the failure by Leeds Health Authority to provide long-term NHS care for a brain-damaged patient. Leeds Health Authority's policy was to make no provision for continuing in-patient care at NHS expense either in hospital or in private nursing homes. My predecessor found that that was unreasonable and constituted a failure in the service provided by the Health Authority.
Statutory framework
5. The provision of health services in England and Wales is governed by the National Health Service Act 1977, which states in section 3(1) that it is the Secretary of State's duty to provide services 'to such extent as he considers necessary to meet all reasonable requirements ….', including 'such facilities for .... the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service; ....'. The National Health Service and Community Care Act 1990 (the 1990 Act), the relevant parts of which were implemented in April 1993, significantly increased the responsibilities of local authorities so as to include provision of accommodation for people who need it by reason of illness. Section 47 of the 1990 Act requires local authorities to carry out an assessment of a patient's needs before deciding whether or to what extent they were required to provide services to meet those needs.
National guidance
6. 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 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 says that 'health authorities …. will need to set priorities for continuing health care within the total resources available to them. While the balance, type and precise level of services may vary between different parts of the country in the light of local circumstances and needs, there are a number of key conditions which all health authorities …. must be able to cover in their local arrangements. These are set out in Annex A. ….'. Annex A includes the following passages:
'E Continuing in patient care
All health authorities …. should arrange and fund an adequate level of service to meet the needs of people who because of the nature, complexity or intensity of their health care needs will require continuing in-patient care arranged and funded by the NHS in hospital or in a nursing home. …. The NHS is responsible 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 clinical 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;
- have a rapidly degenerating or unstable condition which means that they will require specialist medical or nursing supervision.'
'….
'G Access to specialist or intensive medical and nursing support for people placed in nursing homes, residential homes or in the community
Some people who will be appropriately placed by social services in nursing homes, as their permanent home, may still require some regular access to specialist medical, nursing or other community health services. This will also apply to people who have arranged and are funding their own care. This may include occasional continuing specialist medical advice or treatment, specialist palliative care, specialist nursing care …. . It should also include specialist medical or nursing equipment (for instance specialist feeding equipment) not available on prescription and normally only available through hospitals. ….'
7. Also in 1995, detailed guidance was issued on how health authorities and trusts should deal with applications for review of decisions about continuing care – HSG(95)39 'Arrangements for Reviewing Decisions on Eligibility for NHS Continuing In-patient Care'. The scope of the procedure was described as being to check that proper procedures had been followed, and to ensure that the health authority's eligibility criteria had been properly and consistently followed. It included, as an appendix, a checklist of issues to be considered before referring a case to a panel. It also included:
'4. The review procedure is intended as an additional safeguard for patients assessed as ready for discharge from NHS in-patient care who require ongoing continuing support from health and/or social services, and who consider that the health authority's eligibility criteria for NHS continuing in-patient care (whether in a hospital or in some other setting such as a nursing home) have not been correctly applied in their case.
'….
'19. The health authority does have the right to decide in any individual case not to convene a panel. It is expected that such decisions will be confined to those cases where the patient falls well outside the eligibility criteria, or where the case is very clearly not appropriate for the panel to consider …. . Before taking a decision the authority should seek the advice of the chairman of the panel. In all cases where a decision not to convene a panel is made, the health authority should give the patient, his or her family or carer a full written explanation of the basis of its decision, together with a reminder of their rights under the NHS complaints procedure.'
8. In respect of NHS trusts, the guidance indicated the need for them to:
- '- review arrangements for discharge of patients with continuing health or social care needs ….
- '- review procedures for supplying appropriate information to patients and their families and any carers ….
- '- ensure appropriate front line staff are fully conversant with the review procedure as outlined in this guidance, and with eligibility criteria.'
9. 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.'
10. 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). Miss Coughlan was described in the judgment as tetraplegic, doubly incontinent, requiring regular catheterisation, and with difficulty in breathing. The 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. ….'
11. 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:
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
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.'
12. 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. If they revised their criteria they should consider what action they needed to take to re-assess service users against the revised criteria.
13. In June 2001 the Department of Health issued guidance in a circular HSC 2001/015, on the new arrangements for continuing health care embodied in the Health and Social Care Act 2001. This required health authorities to comply with the guidance by October 2001 and, working in conjunction with primary care trusts (PCTs), agree joint eligibility criteria and set out their respective responsibilities for meeting continuing health and social care needs by 1 March 2002. A further circular – HSC 2002/001, was issued in January 2002 (after the events complained about) which provided guidance on the implementation of the single assessment process for older people, as part of the National Service Framework for Older People.
Health Authority policy and criteria
14. The Health Authority's 'Policy for Meeting Continuing Health Care Needs', (the policy) revised in July 1997, defined continuing in-patient care as: '…. health care which is provided on a long-term basis or on a short-term basis under the direction of a consultant'. The policy said that such care would, in most cases, be provided in a hospital setting, but '…. may in a small number of cases be provided within a nursing home environment where the equivalent level of specialist health care will be given'. The policy listed four groups of people who were eligible for continuing in-patient care, including:
- 'Patients for whom the complexity or intensity of their medical, nursing care or other clinical care …. requires the regular …. supervision of a consultant, specialist nurse or other NHS member of the multidisciplinary team.
- 'Patients who require routinely the use of specialist health care equipment or treatments which require the supervision of specialist NHS staff.
- 'Patients who have a rapidly degenerating or unstable condition which means that they will require specialist medical or nursing supervision.'
15. On 15 February 2001 (after Mrs N's case had been reviewed) the Health Authority's Assistant Director of Service Strategy (the Assistant Director) wrote to staff in various trusts, including the Trust's Director of Service Development (the Director). The letter set out a broader framework for establishing that consideration of continuing care was fully addressed. It included detailed advice on the type of criteria to be applied in respect of the patient's physical and mental condition. The letter referred to the Coughlan case (paragraph 10) and included:
'In summary, the Court of Appeal stated that a Health Authority is obliged to provide health care services unless (a) they can legitimately be regarded as incidental to or ancillary to accommodation services; or (b) they are of a nature which one can expect Social Services to provide. The overriding test is whether the need is primarily a health care need.'
Sequence of events
16. I set out now, in greater detail, the sequence of events in which the Trust and the Health Authority were involved with Mrs N's care, and her son's subsequent complaint about the funding of her care:
4 April 2000 - Mrs N collapsed at home, and was taken by ambulance to a hospital, which is managed by the Trust. She was assessed later that evening as having suffered a dense, right-sided stroke, and was admitted to a ward.
Mrs N remained in hospital until she was well enough to have a PEG feeding tube inserted (a naso-gastric tube was used in the interim). The PEG insertion appears to have taken place some time between 27 April and 3 May.
14 May - A Social Services assessment was carried out which concluded that Mrs N needed 24-hour supervised care in a nursing home.
17 May - A checklist for eligibility for NHS continuing care was completed by the Consultant Physician, which recorded that Mrs N did not meet any of the eligibility criteria.
23 May - Father N wrote to the Health Authority requesting a review of the multi-disciplinary assessment.
2 June - The Assistant Director wrote to Father N telling him that the chairman of the review panel (the Chairman) had decided that the decision not to fund Mrs N's continuing care was appropriate. On the same day the Assistant Director wrote to the Trust, with copies to Father N and Social Services, drawing their attention to aspects of the case which it was considered could have been handled with greater sensitivity. The letter included:
'There appears to have been collusion by staff in processing [Mrs N's] discharge to Kent in line with [Father N's] wishes. It might have been better if, at an earlier stage, a clearly defined multi-disciplinary meeting had been called with consideration given to future care, including NHS In-patient care. The outcome of such a meeting including completion of the check list could have been recorded before moving on to the next stage of discharge.'
12 June - Mrs N was discharged to a nursing home in Kent.
28 June - Father N complained to the Chief Executive of the Health Authority about the decision by Trust staff that his mother was not eligible for funding for continuing care, on the basis that she would have been funded by the second health authority.
26 July - The Health Authority Deputy Chief Executive replied. He clarified the earlier letter of 2 June. He told Father N that the Chairman had decided not to convene a continuing care review panel because he had decided that the correct procedures had been followed: they had confirmed that Mrs N did not require continuing NHS in-patient care.
27 July - Mrs N was assessed by a consultant physician in Kent (the second Consultant), who wrote a letter to Mrs N's new GP which included the following:
'… on arrival from [the hospital] with a PEG tube in situ she had sacral pressure sores and an ankle pressure sore which has healed with the good care provided. She is currently being nursed on a pressure-relieving mattress and with a Waterlow score of 20 [indicating a high propensity for pressure sores] this should continue.
'The lady is doubly incontinent and need hoisting to transfer. She has contractures on her right side, which was affected by the hemiplegia [paralysis of one side of the body]. Tone on the left side was remarkably normal and I am not convinced that the previous diagnosis of Parkinsonism [a progressive disease affecting the brain] actually was not pseudo-Parkinsonism due to multiple cerebral infarct pathology [strokes]. She is being fed by a PEG tube and this will need to continue. All the pressure areas were intact. She is deaf … . She is also partially sighted. She is dysphasic [unable to communicate in speech and/or writing] and could not meaningfully communicate with me. It is doubtful that a hearing aid will actually improve communication in practice. There is no potential for rehabilitation and no point in further physiotherapy or other assessment.
'She will need to have review by our dietician and in approximately four months time will need replacement of the PEG tube, which should be arranged through our endoscopy unit. … With regard to her level of orientation it is important that she does recognise her son who visits most days. Also during our examination she was able to cover herself with bedclothes moving her left arm.
'Apart from this lady's current need for enteral feeding which will continue in the long term, her care needs can be met by general nursing care. However, on local criteria PEG feeding is interpreted by myself and the review process as qualifying her for NHS continuing care … .'
31 July - Father N wrote to the Deputy Chief Executive, rejecting the Health Authority response on the grounds that it was unjust, and seeking a further review.
9 August - The Health Authority asked the Chairman to reconsider the request for a continuing care review panel.
29 August - The Chief Executive wrote to Father N confirming that the Chairman had reviewed the case again, but still declined to set up a continuing care review panel. The Chief Executive's letter said that a comparison of the Health Authority criteria with those of the second health authority showed little difference. The Chairman had given his opinion that Mrs N fell well outside the eligibility criteria and was not a marginal case.
Father N's evidence
17. In his letter of complaint to the Health Authority dated 23 May 2000, Father N wrote:
'… Asking [the Consultant Physician] on what printed criteria he based his decision to reject her eligibility for Continuing In-patient Nursing Care, he replied that it was based on his opinion that she no longer required the care of a Consultant. When I replied that the criteria were wider and included the four areas of eligibility outlined on page 14 of [the Health Authority's] Policy for Meeting Continuing Health Care Needs April 1997, revised July 1997, he did not seem to be aware even of these broad areas, which include more than the need for a Consultant. ….
'….
'I conclude that there has been a total lack of transparency vis a vis staff, patients, main carers and relatives on the part of [the Trust] and [the Health Authority] with regard to the criteria for Continuing Care, for which the NHS is responsible. I have only been made aware of this by the excellent practice of [the second health authority], who are implementing the criteria for Continuing Care and spending the funds set aside for this purpose. ….'
18. In putting his complaint to me, Father N wrote:
'We must pay for care in Bolton. In Kent, my mother's condition would make her eligible for continuing care. …. [The Health Authority] have confined themselves to the issue of whether the correct discharge procedure has been carried out. My complaint centres on the injustice of not providing a service that another Health Authority does provide. This is making a mockery of the principle of a National Health Service.'
19. In a later letter he also wrote: 'I wish also to repeat that the heart of my complaint is the fact of varying criteria for continuing care between health authorities, operating within a National Health Service, which of necessity should give equal service across the country. I should also want to maintain that the criteria for continuing care in the Wigan and Bolton Health Authority are not applied in the same way as in Kent. ….'.
Trust evidence
20. At the start of the investigation the Trust's Chief Executive provided a written response to the complaint. I set out below most of that letter:
'In response to your request for our comments relating to the Trust's assessment for eligibility for NHS continuing care, I feel a brief summary of [Mrs N's] care may be helpful.
'[Mrs N] was admitted to [a hospital which is managed by the Trust] on 5th April 2000 after collapsing at home. Prior to her admission [Mrs N] had been well and was the main carer for her husband who suffered from Parkinson's disease. The medical assessment at this time indicated that [Mrs N] had suffered a dense stroke with marked right-sided weakness and that she was aphasic [suffering a disorder of the language function] and therefore unable to communicate. She was incontinent of urine and was catheterised. The plan was to transfer [Mrs N] to the ward for further monitoring of her condition. A request was sent to the stroke team for assessment and a CT brain scan [computerised scan of the brain] ordered.
'[Mrs N] was assessed for admission to the stroke ward on 12th April and was transferred to the ward later that day. This ward is dedicated to the rehabilitation of stroke patients and the team consists of medical and nursing staff, physiotherapists, occupational therapists and language therapists. Other professionals such as dieticians, and social workers provide input to the planned care for patients on this ward.
'[Mrs N's] needs [were] assessed by the team and are summarised in Appendix I [attached as an annex to this report]. It is our practice to begin patient discharge planning soon after admission to allow the required time for the ongoing assessment of the patient and to ensure that all relevant parties are involved in discussions surrounding patient care needs.
'On reviewing [Mrs N's] records and through discussions with staff, there is clear documented evidence that multidisciplinary and multiagency communication took place throughout her admission.
'Weekly multidisciplinary team meetings (MDT) take place on the unit in order to review patients' ongoing care and to discuss future care arrangements. These are working meetings where a number of patients are discussed. It is not our usual practice to invite carers to these meetings. [Father N] was in regular contact with the ward and the staff thought that discharge communications were good and he was kept well informed of his mother's progress. We recognise that it may have been helpful to include [Father N] in these decision making processes.
'In [Mrs N's] case consideration was given to her husband's ongoing needs and those of her son [Father N], who was anxious that his parents should be moved to Margate to live near him.
'These MDT's are well established on the wards and are attended by all disciplines involved in the patient's care and are summarised in the nursing communication records.
'At the meeting held on the 17th May the following staff were present [the Consultant Physician, a Staff Nurse, a Physiotherapist, an Occupational Therapist, a Social Worker, and a Speech Therapist]. …. The team discussed [Mrs N's] eligibility for NHS continuing care in line with Wigan and Bolton Health Authority policy and eligibility criteria. The checklist form was completed by [the Consultant Physician] in collaboration with the other team members [copy provided].
'It was agreed by all disciplines that [Mrs N] did not require continuing in-patient care and would be best placed in a nursing home. This was based on the fact that she did not require constant supervision of the consultant and her nursing needs did not require specialist nursing/clinical intervention and could be provided by staff in a nursing home setting.
'[Mrs N's] daily living needs were assessed by the multidisciplinary team and were documented by [the] Social Worker in the Social Service Assessment Sheet, [copy provided].
'From the feedback provided at the MDT and entries made in the medical notes, it was evident that [Mrs N] had made very little or no improvement throughout her stay on the ward. This fact is further supported by the entry made in the nursing records on 3rd May where it states that [Mrs N] was not very responsive to therapy.
'A discussion between [the lead Consultant – Stroke (the lead Consultant)] and [Father N] took place where he asked her about the possibility of moving his mother to a stroke unit in [a hospital in Kent]. It is noted that [the lead Consultant] suggested it would not be in his mother's best interest to transfer to another stroke unit in view of her limited potential for future rehabilitation.
'As [Father N] was returning home the following day [the lead Consultant] suggested it would be more appropriate to look at nursing homes in the Kent area as this would be more suited to her needs, he agreed to do this. On the 8th May [Father N] contacted the ward to inform them he had found a placement to suit his parents. The records on this date show that [Father N] agreed to discuss the placement with his parents' Social Workers, …. .
'It is clear that from the entries in the nursing notes dated 10th May up to her discharge and from the Social Worker's information document that [Father N] wished to secure funding for his mother's continuing care.
'The nursing staff explained that funding for NHS continuing care was not allocated by the nursing team and suggested that [Father N] discuss the issue of funding with the Social Worker. The nursing staff made every effort to assist [Father N] and liaise with the Social Worker leaving a message on her answer phone on 10th May 2000. [The Social Worker] contacted the ward later that day and it is noted that she informed the staff that although she was [Mr N's] Social Worker, funding had been discussed with [Father N] for his parents and that they were self-funding. Please see the written entries in the case information sheet within the Bolton Social Services assessment document to support this statement, [note: a copy was provided].
'I understand that [Father N] thought that his mother should be funded because he had been informed that [the second health authority] funded patients for nursing home care who have had dense strokes and [are] on a PEG feeding regime. The explanation given to [Father N] from Social Services is summarised by [Mrs N's social worker].
'….
'In summary, it is clear that [Mrs N] had complex care needs. However those care needs did not meet the Wigan & Bolton Health Authority Eligibility Criteria for Continuing Care. [Mrs N] was initially under the care of [the Consultant Physician], however, she was transferred to the care of [the lead Consultant] on her transfer to the stroke ward. [The Consultant Physician] provided cover for [the lead Consultant's] leave (which was at the time of [Mrs N's] assessment against the eligibility for continuing care criteria) continuity of care was therefore maintained. It is important to note that [the lead Consultant] was also in agreement that [Mrs N] did not fulfil the eligibility criteria for continuing care. The clinical team made every effort to meet the needs of [Mrs N] and her son. '
21. The Consultant Physician confirmed that an entry dated 17 May 2000 in the medical records was his record of the multi-disciplinary team meeting. It was his normal practice to record such meetings in the medical notes. The notes showed that he was aware at that time that the second health authority would have funded Mrs N's care. The notes also showed that the Physiotherapist and the Occupational Therapist were present at the meeting. There would also have been a nurse present; but the Consultant Physician thought the Social Worker had not been available that day. Although the Trust's formal response and the checklist indicated that the Social Worker and others were present, the Consultant Physician explained that his understanding was that the tick boxes on the form were to show who was involved in the patient's care and overall assessment, not just who was present on the day of the multi-disciplinary meeting.
22. The Consultant Physician said that, since the receipt of Father N's complaint, he had given considerable thought to the interpretation of the Health Authority's eligibility criteria. Until Father N had told him that the second health authority would fund NHS continuing care for his mother he was not aware that different areas applied the eligibility criteria differently. He was very concerned about that. He had sympathy for Father N's concerns, and was concerned about how many other Wigan and Bolton patients might also be disadvantaged in a similar fashion. He was unable to recall when or why PEG feeding had been excluded as criteria for NHS continued care funding in Wigan and Bolton. He said there was no detailed guidance available on how to interpret 'specialist nursing needs', or 'specialist equipment'. Therefore, clinicians tended to make a decision on the basis of whether or not regular consultant input was required by a patient. He had asked the Trust authorities to review the application of the eligibility criteria, but was not aware that anything was being done about that.
23. The Director said she was not aware of the Consultant Physician writing to her or to any other hospital manager about his concerns about interpretation of the continuing care eligibility criteria. In any case, such matters were not for the Trust to decide but would require negotiation with the Health Authority. In respect of the use of PEG feeding tubes the Director said her recollection was that the use of such devices fell outside the eligibility criteria, based on a precedent set in another case some years prior to Mrs N's case. She could not recall the details of that but there had been consultation with the Health Authority and it would have been the Assistant Director who provided advice on that. The Director said that the Trust had a responsibility to ensure they applied the criteria consistently within the Trust; but that the Health Authority was responsible for ensuring consistency of application across all trusts in their area.
Health Authority evidence
24. At the start of the investigation the Chief Executive provided a written response to the complaint which included:
'On commenting on the statement of complaint, although this is a complex matter, I consider that the Authority's policy for the funding of NHS continuing care was not applied inappropriately. A multi-disciplinary team assessment was made in [Mrs N's] case and the decision reached was that she did not require NHS continuing care. A placement in a nursing home was felt most appropriate. I should also like to clarify that the Health Authority's eligibility criteria relates to the need for a service and not the amount of funding. This means that the Trust would assess the need for NHS continuing care and not the funding of a nursing home place.'
25. The Chairman told the investigator that he had no record of his first review of Mrs N's case, but would have reviewed the case against the NHS guidance, including the checklist, and the Health Authority criteria for continuing care. He had seen Mrs N's medical records and reviewed those in detail. He was aware she had a PEG feeding tube. He was not medically qualified, but could interpret the notes sufficiently well to make an assessment. He did not normally seek clinical advice when deciding whether to convene a panel and did not consider it necessary to do so in this case. Such advice would be provided if a panel was set up. He had decided that the procedures had been followed appropriately. The form completed by the Trust showed that a multi-agency meeting had been held and who had attended that. It also confirmed that the staff were unanimous in deciding that Mrs N did not meet the criteria for NHS continuing care; and he had to accept their professional opinion on that. On that basis, he decided that Mrs N fell well outside the eligibility criteria, and was not a marginal case and, therefore, a continuing care review panel was not required.
26. When he was asked to review the case again in August 2000, the Chairman was aware that Father N had been told that his mother would qualify for funding in Kent, although he did not recall having seen written evidence of that. The notes he made at the time showed that he wondered whether it might be relevant to compare the Health Authority's criteria with those of the second health authority. He decided that was not appropriate, as he was merely required to check that the procedures had been properly applied, and that an assessment had been correctly carried out against the Health Authority criteria. The Chairman had since reviewed the papers again, and still felt that his initial decision had been appropriate and that Mrs N's case had been dealt with appropriately.
27. The Assistant Director said that she was the Health Authority's nominated officer responsible for continuing care. There had been no policy decision on whether the use of PEG tubes should make a patient eligible for continuing care. Each case was dealt with on its merits, and the decision should be based on the level of dependency of the individual patient. For example, some patients, especially those with dementia, were less able to cope with PEG tubes and might have a tendency to pull them out if not constantly supervised by nurses. Such patients would be more likely to be eligible for NHS funding. The Assistant Director said that letters had been sent to all trusts, in February 2001, emphasising that a holistic view should be taken on each individual case. Trust staff were also provided with training and support about the eligibility criteria.
Professional advisers' opinion
28. The Ombudsman's professional advisers (the first and second assessor) reviewed Mrs N's medical records and were satisfied that Trust staff had carried out an appropriate assessment of Mrs N's needs according to the policy and guidelines provided to them at that time by the Health Authority. Although it appeared that not all the multi-disciplinary team had been present when the Consultant Physician had completed the tick box assessment form for Mrs N, the advisers said that this was normal practice in many hospitals. In the advisers' view, patients with a PEG tube require routinely the use of specialist healthcare equipment and monitoring by a trained nurse.
Findings
a) The Health Authority's policy for the funding of continuing care was not applied appropriately
29. Father N saw the fact that the Health Authority would not fund his mother's care, when the second health authority said they would have done, as evidence of injustice. I can understand why he took that view. However, NHS policy does allow for different eligibility criteria in different parts of the country; and the law does not allow me to question the merits of a discretionary decision properly taken. It was for the Health Authority to decide, within the law and national guidelines, what level of services they provided for the residents in their area, although they had to be prepared to justify the balance and level of the services they proposed to arrange and fund. So the fact that different judgments were made about Mrs N's eligibility by two different health authorities does not necessarily mean that either was acting maladministratively or failing to provide a service which it was its function to provide.
30. The Health Authority's criteria reflected the national criteria in most respects. However, the emphasis in the Health Authority's criteria was on the need for care to be provided under the direction of a consultant and normally in a hospital setting. It is apparent from the Consultant Physician's evidence that in practice the need for consultant input was used as the sole criterion when he was involved in assessing patients. That is not surprising, given the wording of the Health Authority's policy and the lack of detailed guidance on its interpretation. However, it is disappointing that more account had not been taken of the reminder on this point in EL(96)8 (paragraph 9).
31. Of even more concern is the lack of any evidence that, in developing and applying their policy, the Health Authority had adequately taken into account the implications of the Coughlan judgment and the new national guidance in 1999 which followed it. They had had ample opportunity to do so before Mrs N was assessed in 2000, but do not seem to have taken any positive action in that direction until February 2001, when the Assistant Director wrote to trusts on the subject. Even then, the Health Authority do not seem to have reviewed the policy thoroughly or to have reconsidered Mrs N's case in the light of the judgment. I criticise them for that. (Note: Further guidance on continuing care was issued in 2001 and guidance on the single assessment process was issued in 2002 (paragraph 13). NHS bodies should be following that guidance.)
32. The NHS guidance on dealing with applications for review of decisions about continuing care gives health authorities the right not to convene a panel, if the patient falls well outside the eligibility criteria. It also provides a checklist of issues to be considered before referring a case to a panel. It is not the role of review panel members to consider the eligibility criteria themselves, only their application. In this case, the Chairman (paragraph 25) did not make any notes of his first review of Father N's request for a panel. That was remiss of him. The second time he reviewed the case he voiced his opinion that Mrs N fell well outside the eligibility criteria. I find that conclusion surprising in the light of the information about Mrs N's disability that was documented in her medical records, and as he was by then aware of Father N's concern that the second health authority had a different view. It would have been wiser in all the circumstances to put the matter before a review panel, where independent clinical advice could be obtained.
33. It is clear from the information I have seen about Mrs N's condition that she was extremely dependent and required a high level of physical care: like Miss Coughlan, she was almost completely immobile; and she was doubly incontinent. I have seen no evidence that she had breathing difficulties as Miss Coughlan had; but she required PEG feeding, which Miss Coughlan did not. She was unable to communicate verbally. I cannot see that any authority could reasonably conclude that her need for nursing care was merely incidental or ancillary to the provision of accommodation or of a nature one could expect Social Services to provide (paragraph 15). It seems clear to me that she, like Miss Coughlan, needed services of a wholly different kind. If the Health Authority had had a reasonable policy, and applied it appropriately, they would have provided NHS care for Mrs N. They failed to provide a service which it was their function to provide. I uphold the complaint.
b) The Trust failed to assess properly Mrs N's eligibility for NHS-funded continuing in-patient care
34. I do not hold the Trust responsible for the actions of the Health Authority in determining the criteria. Although they would have been sent the guidance following the Coughlan case for information, and might helpfully have questioned what action the Health Authority had taken in response, I hold the Trust responsible only for their assessment against the criteria they were given. In her letter to the Trust of 2 June 2000 (paragraph 16), the Assistant Director criticised the Trust's documentation and conduct of the multi-disciplinary review. It is clear that the assessment provided by the second Consultant (paragraph 16, 27 July) was much more detailed. The Trust's Chief Executive (paragraph 20) and the Chairman (paragraph 25) were under the impression that the assessment checklist indicated who had attended a multi-disciplinary review meeting. The Consultant Physician (paragraph 21) has said that that was not the case. Even if the relevant disciplines had all been involved in the assessment, that does not mean that all Mrs N's needs were assessed. For example, there was a misunderstanding at the time between the Trust and the Health Authority about the significance of PEG feeding. The Assistant Director (paragraph 27) said that each case should be dealt with on its merits, and the decision based on the level of dependency of the individual patient. She wrote to Trusts in February 2001 emphasising the need for a holistic view to be taken on each individual case, although that was too late in Mrs N's case.
35. My professional advisers have advised that the Trust staff carried out an appropriate assessment of Mrs N's needs, based on the policy and guidelines provided to them at that time by the Health Authority. I accept that advice. I recommend that the Trust should remind staff responsible for carrying out such assessments to record the basis of their decisions clearly in the medical records; and to clarify who is party to the decision whether a patient is eligible for funding. (The Trust subsequently advised me that they were currently piloting a scheme for producing collaborative documentation, which will provide details of each patient episode, including diagnosis, treatment, medications and continuing care assessments.) I uphold this complaint only to the extent that Trust staff should have sought appropriate advice if they were unsure about how to interpret the guidance provided by the Health Authority.
Conclusions
36. I have set out my findings in paragraphs 29-35. I have concluded that the Health Authority wrongly failed to provide care for Mrs N. I turn now to the question of remedial action. The organisation of the NHS has changed since these events. Wigan and Bolton Health Authority no longer exists. Responsibility for setting eligibility criteria now lies with a new Greater Manchester Health Authority (the new Authority), though the relevant budget for funding such care will be held by the Bolton 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, in consultation with Bolton PCT, should ensure that Mrs N's estate is left no worse off than it would have been had the NHS funded her nursing home care. The new Authority and the Trust have agreed to implement this recommendation and have asked me to convey to Father N – as I do through my report – their apologies for the shortcomings I have identified. They will contact Father N directly to let him know what is being done to put matters right.
37. I also 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. The new Authority has agreed to implement this recommendation and I welcome action taken in recent weeks on this matter.
38. I further recommend that the new Authority should, with its associated PCT and local authority colleagues, determine whether there were any other patients who were wrongly refused funding for continuing care, identify them and make the necessary arrangements for reimbursing the costs they incurred. The new Authority has agreed, in principle, to implement this recommendation. I welcome action taken in recent weeks to establish the feasibility of so doing. I have asked the Health Authority to report back to me by 1 October on this matter.
39. I recognise that the conclusions I reached in this case may have the same implications for many other health authorities and trusts as they do for the new Authority and these PCTs. I have, therefore, written to the NHS Chief Executive and Permanent Secretary inviting him to draw this case and my recommendations to the attention of NHS organisations; and to determine how best they might be supported in undertaking this important and urgent work.
Annex to E.420/00-01
Mrs N - ASSESSMENT OF CARE NEEDS
Mobility
Prior to admission, Mrs N was previously mobile in the house. She had poor sitting balance and was nursed mainly in bed, however she was able to sit in the chair for about three hours each day supported by pillows at her side. A goluo-lifting hoist was used to transfer her from bed to chair, as she was unable to weight bear.
Continence
Mrs N was incontinent of urine and had a urethra catheter in place. She was unable to make her needs known and required assistance with her bowels every three to four days.
Skin
A small grade 2-3 break was noted on Mrs N's left buttock and she required her position to be changed every two or three hours.
Personal hygiene
Mrs N required assistance with all care. Although she could move her hand and left arm, she was unable to participate in washing. Mrs N needed help with oral care as she was taking nil by mouth.
Communication
Mrs N was unable to speak at all and would smile in response to someone smiling at her. She had difficulties with her hearing and required the use of a hearing aid in her right ear.
Dietary needs
Mrs N was unable to swallow and required a PEG-feeding regime. It was noted that she tolerated the feeding regime well and that the PEG site presented no problems during her stay.
Social interaction
Generally, Mrs N was very pleasant and often smiling. She was unable to communicate verbally and did not appear to have any insight or recognise people around her.
