Annex D
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Case no. E.814/00-01
Refusal to provide continuing care fundingComplaint against:
The former Berkshire Health Authority (the Authority)
Complaint as put by Mr Z
1. The account of the complaint provided by Mr Z was that on 23 May 1998 his 90-year-old mother, Mrs Z, was admitted to a hospital in Wallingford (the Hospital), suffering with vascular dementia. On 17 August Mr Z wrote to the Authority saying that should his mother be discharged to a residential home the Authority should fund her continuing care. On 24 August Mrs Z was discharged to a nursing home (the nursing home). On 28 August the Authority’s Locality Commissioner wrote to Mr Z saying that the Authority was not responsible for the full costs of his mother’s continuing care needs. She told Mr Z that if he remained dissatisfied it was open to him to pursue his concerns through a ‘Review Process’, details of which were enclosed with her letter. On 10 September Mr Z wrote to the Authority stating that his mother’s care should be funded totally by the NHS. In November Mrs Z was admitted to the another hospital (the second Hospital) where she underwent hip surgery. Following a further exchange of correspondence the Authority wrote to Mr Z, on 18 November, saying that his mother did not satisfy the Authority’s criteria for 100% funding. On 16 January 2000 Mr Z wrote to the Authority requesting an independent review (IR) of his complaints. On 22 June the Authority’s convener wrote to Mr Z refusing that request. Mrs Z died on 26 November 2000.
2. The matters investigated were that:
(i) the Authority acted unreasonably in refusing to fund Mrs Z’s continuing care; and
(ii) the Authority failed to arrange for Mrs Z’s needs to be re-assessed following her second hospital admission, in November 1998.
Investigation
3. The statement of complaint for the investigation was issued on 7 December 2000. The Authority’s comments were obtained and relevant documents were examined. The Ombudsman’s Investigating Officer took evidence from Mr Z and a number of the Authority staff. He also made enquiries of the Department of Health and consulted with the Office of the Local Government Ombudsman (LGO), about a related complaint against a Borough Council (the Borough Council) made by Mr Z which that office investigated. I have also noted documents relating to a separate complaint by Mr Z against another trust. Professional advice was provided by the Ombudsman’s Advisers on psychiatry and mental health, whose views are given in paragraphs 29 to 31 of this report. The Authority’s policy for Continuing Care Group 1 (that provided with 100% NHS funding) and Group 2 is at Annex A.
Relevant Legislation and Code of Conduct
National guidance
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 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 1995 the Department of Health also issued guidance HSG (95)39 to health authorities, NHS trusts and other bodies. The circular included guidance on arrangements for reviewing decisions on eligibility for NHS continuing in-patient care. Relevant extracts from that guidance are set out below:
‘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 Authority’s 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.
‘The review procedure applies to all patients who have been receiving NHS in-patient care, whether in a hospital, or arranged and funded by the NHS in a hospice, nursing home or elsewhere, and to all client groups covered in local eligibility criteria.’
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 judgment). 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. On 7 September 1999 a Regional Office of the NHS Executive (the Regional Office) sent to all health authorities in their region (including Berkshire Health Authority) a letter about the Coughlan judgment. It included:
‘The judgment … does not comment on all aspects of continuing care policy – just those elements which impact on nursing care in nursing homes. There is no need to reconsider other aspects of local policies. There is a review of policy and guidance on continuing care which is due to report towards the end of this year, so it would be premature for [Authorities] to carry out a major review of local policy at this point. Health Authorities may wish to bear this in mind when considering their approach.’
Authorities were asked to report to the Regional Office on what action they had taken in response to HSC 1999/180.
8. No further national guidance on continuing care eligibility criteria was issued until June 2001 (ie after Mrs Z had died).
The Authority’s policy in respect of the funding of continuing health care needs
9. The Authority’s policy was contained in a booklet entitled ‘NHS RESPONSIBILITY FOR MEETING CONTINUING HEALTH CARE NEEDS IN BERKSHIRE’. It included the following statements of principle:
‘Everyone who requires the primary and specialist health care services should be eligible to receive those services funded by the NHS. They should be eligible to receive them wherever they live, whether it is at home, in a residential or nursing home, in a hospital or any other setting.’
and
‘Anyone who requires continuing and regular medical treatment, nursing care or rehabilitation therapy at a level of intensity or degree of specialisation which cannot be sustained at home or in a residential or nursing home setting (even when access to the primary and specialist health care services is available), should be eligible for continuing NHS care in an appropriate setting.’
and
‘Some patients discharged to a nursing home will need an intensive and complex personal care package which is beyond the customary level of care offered by the home. Such patients may also be eligible for NHS funding of those aspects of health care which are beyond the general nursing care routinely expected in a registered nursing home.’
10. The policy specified broad groups of people and the degree to which each group qualified for NHS funding. Group 1 comprised ‘people who would normally need to live in a hospital setting, a specialised nursing home or hospice because the specialised nature of continuing health care they require could not be provided in any other setting’. All persons categorised as belonging to Group 1 qualified for 100% NHS funding. Group 2 comprised ‘people who are discharged from hospital to a nursing home or admitted to a nursing home from the community, whose needs are such that they require an intensive and complex personal care package beyond the customary level of care offered by the home’. People in Group 2 did not qualify for 100% funding, they qualified for NHS funding of the extra nursing care required over and above the general nursing care included in the standard nursing home price. In the case of patients who were terminally ill and needed specialist palliative care, responsibility for placement and funding rested entirely with the Authority. The level of NHS funding was to be determined after a full assessment of needs by health and social services staff and agreement between the Authority and the relevant social services authority that the extra cost charged by the nursing home was justified.
11. The policy gave examples of the types of need that might qualify a person for inclusion in each of the groups. (The Authority’s policy for Group 1 and Group 2 is at Annex A.) Under Group 2 the examples given included people with multiple and complex nursing and medical problems; people needing regular therapeutic support deemed essential by a consultant and of a kind which could only be delivered by a professionally qualified person; and patients with dementia whose confusion and challenging behaviour cannot be managed in the community and who require care in a specialised nursing home.
Chronology of key events and evidence
12. I now summarise the key correspondence between Mr Z, the Authority and others involved:
27 November 1997– Mrs Z visited by a Consultant in old age psychiatry (the Consultant). The diagnosis was that Mrs Z might be suffering from moderate chronic organic brain syndrome.
1 December – The Consultant wrote to Mrs Z’s General Practitioner (GP) concluding that he would consider ‘… admission to the … [the Hospital] informally or formally, should the situation get into crisis. In the longer term she is likely to require long-term residential care, in view of the progressive nature of her illness’.
30 April 1998 – An Approved Social Worker (ASW), a Care Manager, and the Consultant visited Mrs Z at her home following an incident when she was found wandering outside.
6 May - The Consultant wrote to GP about the visit to Mrs Z’s home on 30 April. The Consultant described his assessment of Mrs Z at that visit. Concluding his letter, the Consultant wrote:
‘... The question of formal admission to [the] Hospital on Section 3 [of the Mental Health Act 1983 – (the Act)] was considered, but on balance, it was agreed by us to waive formal admission presently, if [Mrs Z] can be persuaded to accept more intensive domiciliary care and perhaps day care. It was left to [the] ASW ... and [a social services care manager] to negotiate such arrangements with [Mrs Z] and her sister. I would consider admission to [the Hospital], formally if need be, if the situation reaches crisis point ...’
23 May – Mrs Z was admitted to the Hospital (where she stayed until she was discharged on 24 August), diagnosed with vascular dementia. (Note: Mr Z said that he had to physically coerce her to leave her home and enter the ambulance.)
5 July – Mrs Z suffered a fall at the Hospital.
8 July - Mr Z complained to the General Manager of the Hospital (which at that time was managed by another trust) about the fall that Mrs Z had had.
21 July- An application was made for Mrs Z to be given a joint funded placement in a nursing home for elderly mentally infirm (EMI) people. The application included a detailed nursing assessment. She was said to need ‘all help with daily living, except feeding’. Compulsory admission, under Section 3 of the Act, was said to have been considered but not implemented. Mrs Z was described as resistant to help and needing supervision if she was to take the medication she needed.
24 July - Mr Z told the Authority’s Complaints Manager that as a result of the fall his mother was no longer fit enough to be transferred to a residential home, as previously planned.
17 August – Mr Z wrote to the Chief Executive of the Trust saying that he was unhappy with the reply to his complaint. In the course of that letter Mr Z stated that he had visited the nursing home on 17 July to discuss his mother’s placement there. A member of Social Services staff had been in contact with the Authority and funding had been approved, but a place at the nursing home was not presently available. The letter continued ‘It is my understanding that the Authority is responsible for such funding as is necessary ... However, it appears that [the Borough Council] will be funding the major portion of the care my mother will receive in [the nursing home]. It is my considered opinion that it is [the Authority] which should be paying in toto. … since she now needs constant supervision to prevent injury to herself, I see no reason why … Social Services should take responsibility for her care when, in fact, this present situation is caused directly by her stay in an NHS facility’.
Mr Z copied his letter to the Authority’s Locality Commissioner, saying that as the circumstances had changed and Mrs Z now needed nursing home care he expected the NHS to pay for it.
21 August – Joint funding was approved for Mrs Z to go to the nursing home: £366 from Social Services and £84 from the Authority.
24 August - Mrs Z moved to the nursing home.
28 August - The Locality Commissioner sent Mr Z a copy of the Authority’s policy (see paragraph 9) and wrote:
‘You will see from [the policy] that the responsibilities for health funding are determined by an assessment process which looks at the health needs of an individual. In this sense it is the presenting condition which determines needs and responsibility not the means by which these arose. Your correspondence with [the Trust] will no doubt continue to consider causation. For this reason I am unable to support your view that the Health Authority is responsible for meeting the full [nursing home] costs. I believe the Health Authority have responded in an identical way as they would to any individual patient who presented with this mixture of need. Specialist nursing home care fits clearly into the Group 2 criteria, which are for joint funding arrangements.
‘If you have concerns with how we have applied the criteria in your mother’s case, you may find it helpful to follow the Review Process. I enclose a leaflet which explains how this works. I should stress however, that the Review Process is only open to you while your mother remains an in-patient …’.
The leaflet that was enclosed described the procedure for reviewing decisions on eligibility for NHS continuing in-patient care (paragraph 5).
10 September - Mr Z wrote back to the Locality Commissioner pointing out that the information about the review procedure arrived too late for him to pursue an appeal as his mother had already been transferred to the nursing home by the time he received the leaflet. He also commented that prior to receiving the Locality Commissioner’s letter he had been given no written information whatever with regard to his mother’s care, its funding, or other related matters. Having read the Authority’s policy he was more convinced than ever that Mrs Z’s care should be fully funded by the Authority and he enclosed a detailed statement of his reasons. In essence, Mr Z contended that at an assessment on 30 April 1998 the Consultant had been willing to admit Mrs Z to hospital compulsorily under the Mental Health Act; that Mrs Z’s present condition was such that she needed one to one attention throughout the day; that as her physical and mental condition would not improve she was terminally ill; and that she needed palliative care. He maintained that on each of those grounds the Authority’s policy stipulated that Mrs Z’s nursing home care should be 100% NHS-funded.
27 September - Mr Z drew the Locality Commissioner’s attention to Section 117 of the Act, which he said placed a duty on health authorities and social services authorities to provide after-care services for patients who have been detained in hospital under the Act. He said that Mrs Z had entered hospital under the same circumstances as if she had been compulsorily detained. He enclosed an invoice received from Social Services for Mrs Z’s accommodation in the nursing home.
7 October - The Authority said that following Mrs Z’s discharge from the Consultant’s care, it was now for Mr Z to settle the invoice from Social Services for his contribution to Mrs Z’s care in the nursing home.
8 November – Mr Z told the Locality Commissioner that his mother had been admitted to the second Hospital as a result of a fall she had had at the nursing home. As he did not expect her to be able to walk again he considered that the case for full funding by the Authority was even stronger.
11 November - The Authority’s legal advisers indicated their agreement with the line being taken by the Authority in respect of Mrs Z.
18 November -The Locality Commissioner told Mr Z that a full reassessment of his mother’s needs would be carried out before she was discharged from the second Hospital. She reasserted the view that Mrs Z’s needs on discharge from the Hospital were not such as to qualify her for full NHS funding. Mrs Z did not need 24-hour on-site medical cover. The Authority’s public health adviser considered primary care services of the kind provided by her GP to be sufficient. Neither had Mrs Z needed palliative care of the kind envisaged in the Authority’s Group 1 criteria, which applied to patients with very intensive needs during the final stages of life.
21 November - Mr Z told the Authority that after having hip surgery his mother had returned to the nursing home but had lost all mobility.
22 November - Mr Z wrote to the Locality Commissioner reiterating the view that, as the Consultant considered Mrs Z ill enough to be admitted compulsorily to hospital, the Authority’s own policy placed it under an obligation to classify her as Group 1, thereby entitling her to full NHS funding. He also contended that as Mrs Z’s ‘nearest relative’ those responsible for her admission were under a statutory duty to inform him, before Mrs Z was admitted to the Hospital, that he had the legal right to require that she be admitted compulsorily. He considered that the failure so to advise him may have been deliberate.
8 December – Mr Z wrote once more to the Locality Commissioner asking that his mother’s needs be reassessed. He told her that he was suggesting to Social Services that Mrs Z might return to her own home if all the care she needed could be provided in that setting. If at any time in the future the situation became untenable he might apply for Mrs Z to be compulsorily admitted under the Mental Health Act, which would have the effect of forcing the Authority to pay for any after-care.
14 December – Mr Z sent a further statement to the Locality Commissioner in which he wrote that he had received a letter from the Consultant stating that Mrs Z had had a chronic mental disorder when he visited her on 30 April 1998. Mr Z repeated his contention that Mrs Z had qualified for compulsory admission to Hospital and that the full costs of her care and treatment in the nursing home should be funded by the Authority.
4 February 1999 – The Locality Commissioner wrote to Mr Z saying that a colleague of hers had contacted the second Hospital while Mrs Z was a patient there and had been told that her needs had been reassessed and the decision made that she should be discharged back to the nursing home. Any decisions about compulsory admission under the Mental Health Act would be ‘under the direction and discretion of the mental health team’. The Authority’s Group 1 criteria applied only to patients whose detention under the Mental Health Act continued in a nursing home or other long term setting. The mental health team had not indicated any need for Mrs Z to be so detained.
7 March - Mr Z replied that at no time before Mrs Z was moved to the nursing home in August 1998 had anyone told him or any other member of his family how Mrs Z’s care and treatment in the home would be paid for.
12, 19 and 25 July –Mr Z wrote further letters to the Authority. He referred in some to the Coughlan judgment (paragraph 6), which he said supported his case. He complained that there had been a failure to inform him, as Mrs Z’s nearest relative, of his right to apply for her to be admitted compulsorily. As a result, on 23 May 1998, he had been obliged ‘to forcibly move [Mrs Z] from her home and thence to enter an ambulance which had been ordered’. Her admission to the Hospital had therefore been involuntary.
5 August – The Authority’s Director of Strategy and Development (the Director) acknowledged Mr Z’s letters and said that he was obtaining legal advice about the effect of the Coughlan judgment. He advised Mr Z to pursue his concerns about the manner of Mrs Z’s admission to the Hospital with the NHS Trust responsible. He added, however, that the Authority preferred that patients be admitted voluntarily where possible, so as not unnecessarily to deprive them of their liberty.
13 August - The Director told Mr Z that the Authority had received legal advice on the Coughlan judgment and did not consider that it had a bearing on the funding of Mrs Z’s care.
25 August – Mr Z asked the Director to explain why the judgment was not considered relevant in his mother’s case.
26 August – The Authority received a letter from its solicitors with several pages of notes by the solicitors on the Authority’s criteria document in the light of the Coughlan judgment. Those include a comment that one section of the document does ‘not seem to be entirely in line with Coughlan’ and in another that the paragraph is ‘contrary …. to the decision in Coughlan’. It raises various questions about the criteria and arrangements for patients considered to be in Group 2 (as Mrs Z was).
25 November – After obtaining further legal advice on Mrs Z’s circumstances the Director wrote to Mr Z reaffirming and ‘… bringing to a conclusion the debate about …’ the Authority’s position that his mother was correctly assessed as meeting the Authority’s criteria for Group 2 of its policy in respect of continuing health care needs at the time of Mrs Z’s admission to the nursing home. The Authority had obtained specific legal advice on Mrs Z’s case in October 1999. That ended:
‘You mention that [Mrs Z] meets Group 2 …. of the [Authority’s] criteria. It refers to patients whose confusion and challenging behaviour cannot be managed in the community and requires care in a specialised nursing home. This wording seems at odds with [Mrs Z’s] position – and I am not sure I follow the distinction between specialised and specialist. …
‘[Mrs Z] is clearly very dependent in terms of the daily activities of life, but I imagine that if she would be classified as 100% NHS many others would be as well. She is clearly far less dependent on specialised health input than Miss Coughlan. I imagine her need for nursing attention is not “continuous and intense” (to use the court’s phrase) and that her general requirement is for normal nursing home provision.
‘[Mrs Z’s] case is an interesting one to bear in mind when considering the [Coughlan judgment]. Presumably someone in her condition may reach a stage of such continuous need as to entitle her to 100% NHS-funded treatment. If so, do the criteria make this happen?’
7 December – Mr Z wrote again to the Director, stating that in his opinion the Coughlan judgment was relevant as his mother’s need for accommodation and support was primarily to enable her health needs to be met. The judgment required that care, accommodation and support should all be provided free in those circumstances. Mr Z argued that there was no obligation on his part as next of kin to move her from the Hospital and that as she would be receiving free NHS round the clock nursing care in hospital, Social Services should not be involved in Mrs Z’s care.
22 December – The Director told Mr Z how he could pursue his complaint by asking for an IR under the NHS complaints procedure.
16 January 2000 – Mr Z sent a full and detailed statement of his complaint to the Authority’s Complaints Manager. He alleged that the Authority, in concert with Social Services, made a calculated attempt to evade payment for long term care which it was under a duty to provide. In May the Borough Council wrote to Mr Z to say that, having liaised with the Authority, they had been informed that the Authority had reviewed Mrs Z’s case and concluded that she continued not to meet the criteria for 100% funding.
22 June – After seeking professional advice and consulting a Lay Chair the Convener wrote to Mr Z saying that he had decided not to convene an IR panel. He considered that the Authority had clearly demonstrated compliance with its policy for continuing care and that establishing a panel would not resolve the complaint.
25 July – Mr Z complained to the Ombudsman.
25 October – Mr Z wrote to the Authority’s Chief Executive saying that Mrs Z was unlikely to live beyond Christmas 2000 and asking him to arrange a further appraisal of his mother’s needs, which he regarded as purely palliative and thereby rendering her eligible for full funding.
21 November - The Chief Executive confirmed that a review of Mrs Z’s needs would be carried out. The letter stated:
‘… I can confirm that at no time has the Health Authority refused to allow a re-assessment to be carried out, the timing of assessments is carried out by those professional, clinical and operational staff closest to the care of the client involved. The Health Authority will respond to any re-assessment when carried out.’
26 November - Mrs Z died.
Legislation on Compulsory Admission under the Mental Health Act
13. The Act provides that applications under Section 2 (admission for assessment) and Section 3 (admission for treatment) may be made by either an ASW or a patient’s nearest relative. In either case the application must be founded on written recommendations by two registered medical practitioners.
14. Section 118 of the Act made it a function of the Secretary of State to prepare a code of practice (the Code) for the guidance of medical practitioners and others responsible for the admission and treatment of patients under the Act. The Code states that compulsory admission powers should only be used in the last resort. Section 3 of the Act should only be used if treatment cannot be provided unless the patient is detained. Treatment or care should be provided in the least controlled and segregated facilities compatible with the patient’s own health or safety, or the safety of other people. In judging whether compulsory admission is appropriate, account should be taken of other forms of care or treatment, including, where relevant, consideration of whether the patient would be willing to accept medical treatment in hospital informally.
15. An ASW has responsibility for co-ordinating the process of assessment. The ASW must attempt to identify the patient’s nearest relative and ascertain his or her views. Where possible the ASW should inform the nearest relative of the reasons for considering an application for admission for treatment under the Act and of the effects of making such an application. Although the ASW is usually the right person to make an application, the ASW should advise the nearest relative of his or her right to make the application. The ASW must discuss with the patient’s nearest relative the reasons for a decision not to make an application for admission to hospital, if requested to consider such an admission by that relative. (Note: The LGO concluded that there was no maladministration by the ASW in this case in regard to Mr Z’s complaint about her actions in April and May 1998.)
16. Mrs Z was admitted to the Hospital after the Court of Appeal decision in R v Bournewood NHS Trust ex parte L (2 December 1997), but before the House of Lords decision on that case on 25 June 1998. The Court of Appeal’s view had been that patients who lacked capacity to consent to hospital admission could not receive treatment for mental disorder informally even though they had not expressed dissent. The House of Lords overturned that judgment. As the current version of the code makes clear, if at the time of admission the patient is mentally incapable of consent, but does not object to entering hospital and receiving care or treatment, admission should be informal. If a patient lacks capacity at the time of an assessment or review, it is particularly important that both clinical and social care requirements are considered. Account must be taken of the patient’s ascertainable wishes and also of the views of immediate relatives on what would be in the patient’s best interests.
17. Section 117 of the Act requires health authorities and social services authorities to provide after-care services for any person normally resident in their area who is detained under Section 3, until such time as the authorities are satisfied that the person concerned is no longer in need of such services. In February 2000 the Department of Health issued guidance HSC 2000/003 on Section 117 aftercare following a High Court judgment in R v Richmond LBC ex parte Watson, 28 July 1999. That said that authorities might not charge for residential accommodation provided as a part of after-care service under Section 117.
Mr Z’s evidence
18. Mr Z told the Investigating Officer that he had been much relieved when Mrs Z was being admitted to the Hospital, but he had not then realised that if she had been admitted compulsorily, instead of informally, she would have qualified to have her continuing care fully funded by the NHS as part of a programme of after-care for a patient entitled to that care in accordance with Section 117 of the Act. He believed that the Consultant had been willing to recommend compulsory admission but had been persuaded not to do so in order to safeguard the Authority and Social Services from any financial liability for her continuing care. No one had told him that, as Mrs Z’s nearest relative, the Act gave him the right to make an application for admission.
19. Mr Z considered that he had been left no alternative but to force his mother to enter hospital. No alternative care had been offered. Mrs Z had been very resistant to leaving her house and had said ‘I’m not going’ three times. She would not have gone if he had not forced her out of her chair and taken her to the ambulance. The ambulance crew had noted Mrs Z’s reluctance in their records (Note: The Ambulance Service records stated ‘[Mrs Z] refusing to travel and is very confused’.) He understood that a person could not lawfully be admitted as an informal patient without that person’s consent. In support of that view he referred to the Court of Appeal judgment of December 1997 (paragraph 16).
20. At no time while Mrs Z was a patient in the Hospital had anyone provided written information about her future care or about the financial implications of her having to go into a nursing home. Neither was he given any information about the Authority’s review procedure for decisions about funding. There had been mention of a ‘funding package’ but nothing had been said about Mrs Z having to pay anything towards that. At the date of Mrs Z’s discharge to the nursing home Mr Z still expected all her care to be funded by the authorities concerned.
21. After his mother was admitted to the second Hospital Mr Z asked repeatedly for her needs and funding to be reassessed but to the best of his knowledge that was never done. (Note: The Authority provided evidence that it did request a reassessment of Mrs Z while she was in the second Hospital between 4 November and 18 November 1998, and that it was told that she was able to return to the nursing home.) He considered that his mother’s circumstances were identical in all material respects to Miss Coughlan’s (paragraph 6).
The Authority’s response to the Statement of Complaint
22. In its formal response to the complaint to the Ombudsman the Authority wrote:
‘[Mrs Z] was admitted to [the] Hospital on [23 May 1998]. [Mrs Z] was diagnosed as suffering from Moderate Vascular Dementia. It was planned that [Mrs Z] would enter [a residential home for the elderly mentally ill (EMI)] (the residential home) on [17 July 1998]. However, following a fall at [the] Hospital, [Mrs Z] was re-assessed and it was determined that her physical condition was such that she required care in a Nursing Home with EMI facilities.
‘Arrangements were subsequently made for [Mrs Z] to be placed in [the nursing home], which is a registered EMI Nursing Home, once a bed became available. An application for Joint Funded Placement was made on behalf of [Mrs Z] on [21 July 1998]. It was agreed that … Social Services would pay £366 per week and [the Authority] £84 per week. As [Mrs Z] had a property to sell, [the] Borough Council would require a contribution from her towards the costs of her care.
‘[Mr Z] has contended that [Mrs Z] should have qualified for 100% Authority funding and that … Social Services should not have had to bear any responsibility for the cost of her care. The Authority have engaged in considerable correspondence since August 1998 with [Mr Z], in order to explain why it is considered that [Mrs Z] only qualified for a joint funded placement, and not a fully NHS-funded placement.
‘On [24 August] [Mrs Z] was allocated a place at [the nursing home] and arrangements were made by [the] Borough Council to place a charge on [Mrs Z’s] property, until her property could be sold.
‘[Mr Z] has argued that it was out of medical necessity, following a number of falls at [the] Hospital, that [Mrs Z] had to enter [the nursing home], rather than [the residential EMI home] where he had intended to place [Mrs Z] following her discharge from [the] Hospital. It has been [Mr Z’s] belief that his mother should have been assessed under Group 1 of the … Authority’s published criteria [see paragraphs 15 to 18 above] … He has also stated that he felt that [Mrs Z] required on-site medical expertise 24 hours a day.
‘However, the Authority has explained on several occasions to [Mr Z], that his mother was assessed as meeting the criteria for Group 2 of the Authority’s Continuing Care Needs and as such her funding was to be shared by the Authority and [the] Borough Council. This arrangement was agreed by the Joint Funded Panel, which met on [21 August 1998].
‘In November 1998, [Mrs Z] suffered a serious fall at [the nursing home], and [Mr Z] once again attested that his mother should qualify for 100% funding of her care.
‘At this stage the Authority sought legal advice, and further advice from the Authority’s medical adviser. It was explained to [Mr Z] that the assessment of his mother’s requirements was made by [the Consultant] … who was aware of the criteria for continuing care, which was why an application for joint-funding was made. It was also pointed out to [Mr Z], that the medical care provided to [Mrs Z] was not 24-hour care. Rather it was care appropriately provided through Primary Care, by [general practitioners] on a visiting basis only.
‘[Mr Z] subsequently advised the Authority that [Mrs Z] had been discharged from the [second] Hospital back to [the nursing home]. Following [Mrs Z’s] return to [the nursing home], [Mr Z] engaged in considerable correspondence with the Authority regarding who should bear responsibility for paying for [Mrs Z’s] care. The Authority continued to maintain that [Mrs Z] did not qualify for 100% care, and this has remained the Authority’s position throughout this case.
‘In correspondence entered into in July/August 1999, [Mr Z] raised the issue of the [Coughlan judgment] …. [The Authority] sought several legal opinions about the judgment, but was advised that [it] did not have a bearing on [Mr Z’s] mother’s case. [Mr Z] was advised of this opinion in several letters from the Authority.
‘On [16 January 2000], the Authority received a formal request from [Mr Z] for an [IR] of his complaint that the Authority would not fund 100% of [Mrs Z’s] care.
‘After taking professional advice and consulting with an Independent Lay Panel Chairperson, the Authority’s Convener advised [Mr Z] that a Panel would not be convened. The Convener and the Chairperson were satisfied that the Authority had made its decision regarding funding in accordance with the Continuing Healthcare Criteria. [Mr Z] was advised that if he was unhappy with the convener’s decision he could approach the Health Service Ombudsman.
‘On [25 November 2000], [Mr Z] contacted the Authority again, to advise that he had approached the Ombudsman. [Mr Z] also requested a reassessment of his mother’s needs, as her condition was deteriorating very rapidly. The Authority advised [Mr Z] that [Mrs Z’s] needs would be reviewed by … Social Services, and that the Authority would respond to any reassessment. Unfortunately, Mrs Z sadly passed away on [26 November 2000].’
23. The Authority also commented as follows:
‘The Authority does not feel that this complaint is justified, and does not feel that it has acted unreasonably in refusing to fund 100% of [Mrs Z’s] continuing care.
‘…. In relation to [Mrs Z’s] admission to an orthopaedic ward at the [second] Hospital in November 1998, the Authority is satisfied that it was appropriate for [Mrs Z] to return to [the nursing home]. [Mrs Z’s] admission to the [second] Hospital was as a result of a fall at [the nursing home], and was not related to the deterioration in her mental health. During her stay at the [second] Hospital, the Authority contacted the hospital to confirm that assessments were taking place. The Authority was anxious to ensure that any discharge took account of [Mrs Z’s] condition. The Authority was assured that the discharge back to [the nursing home] was the most suitable and appropriate destination. Therefore, the Authority feels that it was not necessary to arrange re-assessment of [Mrs Z’s] needs following her second hospital admission in 1998, as that admission concerned her physical rather than her mental well-being. It was felt that return to [the nursing home] was in [Mrs Z’s] best interests and was the proper course of action under the circumstances.’
The Authority Director’s oral evidence
24. The Director told the Ombudsman’s Investigating Officer the decision that Mrs Z qualified for only part funding by the Authority stemmed from the Consultant’s clinical assessment of her condition. The Consultant was firmly of the view that Mrs Z’s condition had not necessitated formal admission under the Act. She had no previous history of mental illness and her problems were largely age-related. On the basis of the Consultant’s assessment Mrs Z seemed to fall clearly into the category of patients with senile dementia whose confusion and challenging behaviour could not be managed in the community and who needed nursing care in a specialised nursing home at a level over and above that which a general nursing home might provide. It was in recognition of that extra element of nursing care that the Authority contributed towards the costs of Mrs Z’s care.
25. The Director acknowledged that if Mrs Z had been admitted under Section 3 of the Act she would have been entitled to have her nursing home care fully funded.
26. Mrs Z’s needs would have been kept under constant review and a formal reassessment could have been instigated at any time by Social Services staff, her GP or the nursing home. In addition to that she would have been subject to routine annual reassessments. The primary function of any reassessment was to ascertain whether there was a need to amend the care she was receiving. Secondary to that there was the issue of funding. In any case where the care was changed, those responsible would notify the Authority if it was considered that the funding arrangements might no longer be appropriate. Mrs Z’s care needs had been reassessed while she was in the second Hospital. There had been no significant change in her mental condition at that time.
The oral evidence of the Authority’s Continuing Care Manager
27. The Authority’s Continuing Care Manager told the Ombudsman’s Investigating Officer that the leaflet describing the Authority’s continuing care review procedure had been widely available on all hospital wards where it was likely to be needed. The admission to the second Hospital in late 1998 was for a purely orthopaedic condition and did not have any effect on Mrs Z’s mental health needs.
Investigation by the LGO concerning information given to Mr Z about the financial implications of Mrs Z’s admission to a care home
28. The LGO found that Mr Z had a meeting with the Social Services Care Manager on 22 May 1998 and he was given a copy of the publication ‘Care Services and Homes’ (Berkshire – 1996/7) and a copy of the Department of Health booklet ‘Moving Into a care Home – Things You Need to Know’. The LGO was satisfied that the publications provided sufficient information and concluded that there was ‘ample evidence that Mr [Z] was made aware of the financial implications and the possibility of a legal charge for residential accommodation ...’.
Advice of the Ombudsman’s Adviser on psychiatry
29. The Ombudsman’s Psychiatric Adviser commented that the whole tenor of the Mental Health Act is to encourage voluntary, as distinct from compulsory, admission. Until medical recommendations have been made no one can apply for compulsory admission because any application must be founded on signed medical recommendations in the correct form. In Mrs Z’s case no recommendations were made and therefore the question of advising the nearest relative of the right to make an application did not arise. If doctors decide against making a recommendation neither the ASW nor the nearest relative can compel them to do so. In terms of clinical practice he was satisfied that the doctors acted correctly.
Advice of the Ombudsman’s Adviser on mental health nursing
30. The Ombudsman’s Adviser on mental health nursing matters commented that when Mrs Z was admitted to the Hospital on 23 May 1998, she was admitted as an ‘informal’ patient. Mrs Z met the criteria for Group 2 because she was immobile, suffered with dementia and displayed challenging behaviour that required nursing/residential accommodation and she needed therapeutic support from appropriately qualified staff. Mrs Z did not require 24-hour patient care in a hospital environment. In the view of the adviser, Mrs Z fell into Group 2 of the Authority’s criteria.
31. Turning to the question of why the Authority did not require or arrange for another formal assessment of Mrs Z’s needs before discharge from the second Hospital. She was admitted to that hospital in November 1998 because she required surgery on her hip. Mrs Z was immobile and her mental state was stable. The advisor said that there was no reason for her not to return to her placement in the nursing home.
Findings (i)
32. Mr Z has put forward a number of arguments to support his contention that the Authority should have funded his mother’s nursing home care in its entirety. His main arguments are:
i) That Mrs Z’s condition at the time of the initial assessment, and at all times after, was such that she should have been admitted compulsorily under the Mental Health Act to the Hospital, in which case she would have been entitled, as of right, to have had her after-care fully funded (paragraph 17). The rights of the nearest relative should have been explained to Mr Z and a failure to do so denied him the opportunity to apply for Mrs Z to be admitted under Section 3 of the Act, which, if successful would have resulted in 100% NHS funding. That the manner of Mrs Z’s admission to the Hospital, and the fact that she was in a locked ward, amounted to compulsory detention and negated the proposition that she was an informal patient; consequently she was entitled to 100% NHS funding.
ii) Her needs were such that she qualified for 100% NHS funding; and various Court judgments – particularly the Coughlan judgment – support his case.
iii) That the NHS had an obligation to fund Mrs Z’s nursing home care because, were it not for the falls she sustained in the Hospital, she would not have needed to go to the nursing home.
iv) That essential information about the financial consequences of Mrs Z’s admission to the nursing home were not provided to Mr Z before Mrs Z’s discharge from the Hospital. Also he was not made aware of the continuing care review procedure until after Mrs Z had been discharged from hospital when it was too late for him to request a review.
v) The funding arrangements were not reviewed when her needs changed after her fall at the home, and re-admission to hospital.
33. This investigation is not about the actions of the Trust or Social Services: but about the Authority. However I will deal in turn with whether each of these points indicates that the Authority acted unreasonably in refusing to fund Mrs Z’s continuing care. First I shall deal with the point about compulsory admission. Mr Z is correct that had his mother been admitted compulsorily she would have been entitled to NHS funding under the Authority’s policy - but that would have been only while she continued to require compulsory detention. The Appeal Court decision on the Bournewood case meant that for a period, at around the point when Mrs Z was admitted to hospital in May 1998, the law was understood to mean that patients, who lacked capacity to consent to in-patient psychiatric treatment, could not receive it informally and the possibility of compulsory admission would need to be considered. However by the time Mrs Z moved to the nursing home in August 1998 the House of Lords had overturned the Appeal Court ruling. The Ombudsman’s Psychiatric Adviser points out that the whole tenor of the Mental Health Act is to encourage voluntary, rather than compulsory admission, where possible. I see no reason to believe that, even if Mr Z had attempted to make an application for compulsory admission under the Act, during the period his mother was in the home, the necessary medical recommendations would have been obtained, or that the Authority should have treated Mrs Z as if she was or had been under compulsory detention.
34. Mr Z has also argued that because, in his view, his mother should have been admitted compulsorily under Section 3 of the Act initially, her subsequent care in the nursing home amounted to after-care under Section 117 of the Mental Health Act and should therefore have been NHS-funded. However, even if Mrs Z had been admitted compulsorily in April/May 1998, that would not have meant that all her subsequent care had to be NHS-funded, but only that which could properly be regarded as aftercare and only for as long as aftercare was needed. Furthermore I have noted the findings of the LGO about the actions of the ASW in April (paragraph 15). Even though the Court of Appeal judgment in the Bournewood case would have made it more likely that someone such as Mrs Z was admitted compulsorily while it was regarded as providing legal precedent, the fact that it was later overturned means that the law never prevented informal admission in the circumstances concerned. I cannot see then that the Authority can be criticised for not accepting that Mrs Z should have been compulsorily admitted to hospital under Section 3 and that her nursing home care amounted to aftercare.
35. I turn now to the Authority’s criteria and the implications of the Coughlan judgment. That was given in July 1999 ie after Mrs Z had first been assessed and admitted to the nursing home in August 1998. I cannot therefore expect the Authority to have taken account of it when Mrs Z was first assessed. I can however expect it to have taken account of previous Department of Health guidance, especially HSG 95(8) – paragraph 4. I was concerned that whilst the first two of the Authority’s criteria for full NHS funding (ie for Group 1) state that the possible site of care includes a specialised nursing home, they are defined in such a way as to mean that care could only be provided in hospital ie patients must require constant availability of on-site specialist medical expertise 24 hours a day or highly complex or specialist equipment to maintain life (which could not be provided outside hospital). The third criterion does seem to leave some scope for patients who do not require hospital care, depending on how the term ‘specialist’ is interpreted. However even in its comments to this Office, the Authority seems to suggest that the fact that Mrs Z did not require on site medical provision is particularly significant in suggesting that she did not qualify for full NHS funding: however, some patients who do not require that level of care could still be eligible under HSG 95(8). It therefore seems to me that the criteria and the way they were applied were not consistent with national guidance.
36. Following the Coughlan judgment authorities were asked to satisfy themselves that their criteria were in line with the judgment and, where they were revised, to consider what action was needed to re-assess patients against the new criteria. Here was an opportunity for the Authority to review its criteria. Although the Authority told me that the legal advice it received was that the Coughlan judgment did not have a bearing on Mrs Z’s case: when I saw the advice itself, it was not as clear cut as that. Furthermore I find it impossible to see that the Authority’s criteria, which were not changed in the light of the Coughlan judgment, are compatible with it. Patients such as Mrs Z judged to be in Group 2, had been assessed by the Authority as having ‘multiple and complex nursing and medical problems’ and were described as requiring ‘an intensive and complex personal care package beyond the customary level of care offered by [a nursing home].’ I cannot see how the total amount of nursing care such a patient would need would be likely to be merely incidental or ancillary to the provision of accommodation, or of a nature which a local authority could be expected to provide. Yet under the Authority’s criteria, the NHS would only fund the additional healthcare costs, above those for general nursing care in a nursing home. The Local Authority would be expected to fund all the other nursing costs: that seems to me to be out of line with the Coughlan judgment. I criticise the Authority for not amending its criteria, and for not reconsidering the eligibility of patients adequately in the light of the judgment. As the judgment did not change the law, only clarify it, that reconsideration needed to be retrospective as well as prospective. However I have taken note of the letter sent to the Authority by the Regional Office of the Department of Health (paragraph 7) immediately after the 1999 guidance. That does seem to me to have been likely to encourage authorities to believe that it would be acceptable to make minimal, if any, changes to their policies, and I mitigate my criticism of the Authority accordingly.
37. Mr Z has suggested that the NHS had an obligation to fund Mrs Z’s nursing home care because, he suggests, she would have required such care but for the falls that she suffered in hospital. This investigation has not looked into whether Mrs Z’s falls should have been prevented. That is not a matter between Mr Z and the Authority but between him and the Trust, and I would not have expected the Authority to take that allegation into account in deciding on Mrs Z’s eligibility but to leave him to resolve that with the Trust.
38. Mr Z also complains about lack of timely information either about the financial implications of the discharge to a nursing home or about the continuing care review procedure. The question of advice on financial implications is largely one for social services, though trust staff might be expected to provide some basic information. I note that the LGO investigation found that Mr Z was made aware of the financial implications of his mother’s move to a care home and the possibility of a legal charge for residential accommodation. I see no reason to disagree with this finding. However I have seen no evidence that the Authority informed Mr Z about the review procedure until after Mrs Z left hospital, even though it was aware of his dissatisfaction with the plans for his mother’s care at least some time before her discharge from the hospital. Although I recognise that the Authority may not have been told of her discharge from hospital, I can see that it was very unhelpful that Mr Z was told about the procedure by the Authority when (under the guidance at that time) it was too late to ask for a review as Mrs Z had already left hospital.
39. In conclusion, I do not see any force in some of Mr Z’s arguments including those relating to the Mental Health Act, but I do have other significant concerns about how the Authority set its eligibility criteria and applied them to Mrs Z, particularly in the light of the Coughlan judgment. That calls into question whether in fact Mrs Z should have been deemed eligible for NHS funding. It is certainly very possible (but not entirely certain) that, if appropriate criteria had been applied, Mrs Z would have qualified for fully funded care at some point. I uphold the complaint.
40. I turn now to the question of remedial action. The organisation of the NHS has changed since these events. Berkshire Health Authority no longer exists. Responsibility for setting eligibility criteria now lies with a new Thames Valley Health Authority (the new Authority), and the relevant budget for funding such care will be held by a Primary Care Trust (the PCT). While I recognise that the new Authority played no part in these events, I must regard it as responsible for taking remedial action. I recommend that as a matter of urgency the new Authority should review the eligibility criteria across its area from April 1996 to date to ensure that it was (and is) in line with the Coughlan judgment and other relevant guidance. It should then promulgate any revised criteria, with any necessary detailed guidance and training on implementation, to relevant trusts in its area. The new Authority, in consultation with the PCT, should then arrange for Mrs Z’s eligibility to be reconsidered against the amended criteria, using information available about her condition and needs while in the nursing home. It should write to explain to Mr Z and to me the reasons for its new decision: if it is that she should have been deemed eligible for care for all or part of the time she was in the nursing home it should pay to her estate a sum sufficient to ensure that it is no worse off than it would have been if the NHS had funded her nursing home care for the appropriate period. The new Authority should also devise a scheme to identify any patients who may have been wrongly refused NHS funding for in-patient continuing care in its area, and liaise with other NHS bodies to ensure that appropriate recompense is made.
Findings (ii)
41. Were funding arrangements reviewed after Mrs Z’s fall and re-admission to hospital in late 1998? It appears that her mobility was significantly reduced following her hip fracture. The Authority would not itself assess Mrs Z’s clinical condition and needs, but rely on the Trust and Social Services to do that. It would need to make sure that her eligibility for NHS funding was reconsidered in the light of that. The Authority says that it did ask the Trust to re-assess Mrs Z in November 1998. However it appears from what it did at the time (paragraph 21) and its comments in paragraph 23, that the Authority has misunderstood the crucial point: it was not about whether Mrs Z should still have been in the nursing home but whether her eligibility for funding there had changed. If, as appears to be the case, its review was simply of the appropriateness of the placement, then it was inadequate. It might have been that the home remained the appropriate placement but that Mrs Z’s needs had increased to the point where, even using the Authority’s defective criteria, she fell into Group 1 and was entitled to funding. I have not seen evidence that that possibility was considered. I uphold the complaint.
Conclusion
42. I have set out my findings in paragraphs 32-41. I have upheld the complaints for the reasons given above. The new Authority has asked me to convey to Mr Z - as I do through this report - its apologies for those shortcomings and has agreed to act on my recommendation in paragraph 40.
Annex A
PEOPLE WHOSE NEEDS MAKE THEM ELIGIBLE FOR CONTINUING HEALTH CARE AS AN IN-PATIENT
These are people who would normally need to live in a hospital setting, a specialised nursing home or hospice because the specialised nature of continuing health care they require could not be provided in any other setting.
| Patient needs | Site of care | NHS funding |
| 1. Patients who require constant attention of a qualified nurse and constant availability of on-site specialist medical expertise 24 hours a day. | Hospital (NHS or independent) Hospice Specialised nursing home | 100% |
| 2. Patients who require highly complex or specialist equipment to maintain life (which could not be provided outside hospital) and staff trained to maintain the equipment and provide emergency care in the event of equipment failure. | Hospital (NHS or independent) Specialised nursing home | 100% |
| 3. Patients with a high degree of dependence on nursing care, who also have a condition which fluctuates unpredictably and which without frequent and prompt intervention by an on-site specialist team might lead to death, deterioration or severe distress. Examples of such conditions include brittle diabetes; frequent, prolonged convulsions; terminal illness with severe problems of symptom control. | Hospital (NHS or independent) Hospice Specialised nursing home | 100% |
| 4. Patients in coma or in a persistent vegetative state. | Hospital (NHS or independent) Specialised nursing home | 100% |
| 5. Patients admitted compulsorily under the terms of the Act; or patients who would meet the requirements of the act for compulsory admission but are willing to be admitted voluntarily. | Hospital (NHS or independent) | 100% |
PEOPLE WHOSE NEEDS ARE SUCH THAT THEY CAN LIVE IN A NURSING HOME BUT REQUIRE A DEGREE OF CONTINUING HEALTH CARE BEYOND THAT WHICH IS ROUTINELY OFFERED IN A REGISTERED NURSING HOME
These are people who are discharged from hospital to a nursing home or admitted to a nursing home from the community, whose needs are such that they require an intensive and complex personal care package beyond the customary level of care offered by the home. They will be eligible for NHS-funding of the extra nursing care they require over and above the general nursing care included in the standard nursing home price. They represent the kind of people whose placement in a nursing home is supported by the Section 28A Grant, which is a sum of money passed by the Authority to Social Services for this purpose.
| Patient needs | NHS funding |
1. Patients with multiple and complex nursing and medical problems, i.e. three or more of the following:*
| These patients will be eligible for NHS-funding of the health care costs, that is within the range for that client group and is over and above the general nursing care. This arrangement will be subject to a full assessment of needs by health and social service staff and agreement between the two agencies that the extra cost charged by the nursing home is justified. Patients are also eligible for NHS-funding of items of medical and nursing equipment, which can only be provided through a hospital. Patients remain eligible for NHS-funded GP and specialist health care services while in a nursing home. |
| 2. Patients with dementia whose confusion and challenging behaviour cannot be managed in the community and requires care in a specialised nursing home. | As above |
| 3. Regular therapeutic support where deemed essential by a consultant to be delivered by professionally qualified staff. | As above |
