Home > Publications > Selected Cases > Selected Investigations Completed December 2002March 2003 > Case no. E.2339/01-02
Complaint against Suffolk Health Authority (abolished on 1 April 2002). Complaint treated as being against Norfolk, Suffolk and Cambridgeshire Strategic Health Authority
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Full NHS funding dependent upon patient going to a particular care home
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Eligibility criteria not applied consistently across the Health Authority’s area.
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Ambiguous legal advice as to whether eligibility criteria lawful.
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New (March 2002) eligibility criteria likely to be too restrictive.
Summary of Case
Mrs M, who suffered from Alzheimer’s disease, was admitted to West Suffolk Hospital for respite care on a regular basis. In January 1998, shortly after one of these admissions, Mrs M fell and broke her hip. According to the complainant, before her fall Mrs M was mobile, could feed herself and was continent but needed help with her personal care. She recognised her husband but no one else. She understood simple instructions but could not instigate a conversation. Following the fall Mrs M went into a semi-comatose state for three days and was sustained on a drip. Upon regaining consciousness, Mrs M was doubly incontinent, immobile, unable to feed herself or make her needs known. She lost all means of communication and at times became distressed and developed challenging and aggressive behaviour. Mrs M was assessed as being eligible for full NHS funded continuing care, in March 1998, by a consultant in west Suffolk who had known her for several years. She was therefore offered a NHS funded place in west Suffolk. Mrs M’s family then suggested that she move to a nursing home in east Suffolk, nearer to them. The Authority’s east Suffolk team decided that she was not eligible for NHS funded continuing care. Thus, in May 1998, Mrs M was admitted to a nursing home nearer to her family, at their expense.
Following a deterioration in Mrs M’s condition, a further assessment was carried out in June 1999, and it was suggested that she should be moved to another part of the home. The family were told by a consultant that she would now meet the criteria for NHS funding. However, Mrs M’s family had misgivings about the transfer. They therefore requested that she remain where she was, with appropriate support. The Authority then took the view that she was not eligible for full funding. The required continuing care assessment form was not completed.
Mrs M’s daughter, Ms M complained to the Authority. A reassessment was arranged but a consultant based her decision in April 2001 (that Mrs M did not meet the eligibility criteria for continuing care) on the fact that she did not require weekly psychiatric review. Shortly after, the Authority accepted that its assessment procedures had not been followed and an ex-gratia payment of £20,000 was offered as a full and final settlement, but not an admission of liability. This sum represented one year’s fees for Mrs M as a private patient at the nursing home near her family.
During the investigation is was noted that the Health Authority’s Joint Investment Plan Continuing Care Task Group recorded on 30 September 1999 :
Feedback on the Coughlan Judgment – Regional Guidance
‘… 3.2 Information given was:
i) Guidance [from the Department of Health] regarding the review of NHS Continuing Care is still expected December 1999.
ii) The review is likely to centre around the definition of specialist nursing and the interface between health and social services criteria.
3.3 It is therefore unlikely the review or any subsequent guidance would shift the context or application of the NHS Continuing Care criteria.
‘3.4 The group agreed the present group should consider future provision based on the current eligibility criteria …’
It was recorded in the minutes of the Community Care Leads Meeting at the Regional Office of the Department of Health on 10 January 2000:
Review of Continuing Care, Coughlan and The Royal Commission on Long Term Care
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Review delayed until late summer, will be issued with a White Paper on the Future of Long Term Care …
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Advice re: Coughlan is to ‘duck and dive’ until guidance is issued …’
The Authority consulted their solicitor who, in a letter dated 9 March 2000, advised that following the Coughlan judgment the national guidance implied that eligibility criteria should reflect not the need for specialism but the intensity of input and that criteria would need to be redrawn to reflect that. He advised against using the word specialist in describing medical or nursing intervention and also against describing needs as complex. He concluded by saying that he did not think the Authority’s criteria would survive critical analysis by a judge. In a further letter to the Authority dated 9 April 2000 the solicitor wrote:
‘… It is certainly the case that individual cases are going to need to be looked at and your criteria … redrawn … we have the interim guidance from the Department of Health … HSC 1999/180. That promised definitive advice which we now know is not going to be forthcoming … in the meantime … it is each Health Authority’s problem as and when these cases are brought to their attention. I am not recommending to my Health Authority clients generally that they re-write their criteria, but rather that they read and apply their existing criteria in the light of the Coughlan decision.
‘… the Courts … have … given insufficient detailed guidance as to how any Health Authority’s eligibility criteria should be re-drawn. Accordingly, I would have to say that … it is uncertain as to whether [your own criteria] … would be held to be lawful …’
The Authority published revised guidance in March 2002 in the light of national guidance, in particular, HSC 2001/015. The following changes were made in section 4.3 ‘Eligibility criteria for NHS funded continuing care for people with dementia’ which included:
‘…‘Medium stay’ or ‘Long-term’ in-patient care which is not permanent or a ‘bed for life’
‘Other people because of the severity of their illness will require NHS funded inpatient care in a NHS Hospital or NHS funded Nursing Home. These complex needs require intensive care which could not be provided in patients’ own home, Residential Home or non-NHS funded Nursing Home. However, where the complexity of their care needs reduces or changes to such that a multi-disciplinary team assessment determines that a person no longer requires intensive EMI [elderly mentally infirm] care then that person may be discharged from inpatient EMI care to an appropriate Residential or Nursing Home.
‘The people will require Specialist medical assessment and/or intervention on a weekly basis and specialist nursing management on a twenty four hour basis, seven day a week basis …’
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Findings
It was for health authorities to decide, within the law and national guidelines, what level of services they provided for the residents in their area. This meant that the same person might be eligible for NHS funding in one authority but not if they moved to another. However one would not normally expect to find such differences between different parts of the same authority’s area: and the Authority in this case have never suggested that they intended eligibility for continuing care to vary between east and west Suffolk. However it appeared that in practice it did in 1998 when Mrs M was first assessed. While it was accepted that the Authority did not have direct control over staff carrying out the assessments and that developing reliable assessment processes was (and remains) not easy, the Authority did not do enough to ensure that their Authority-wide criteria were applied consistently across their area. The Authority accepted that procedures were not correctly followed. The Authority were criticised for their lack of care and failure to ensure that the criteria were being applied consistently across the area.
With regard to the Authority’s criteria itself, the national guidance, HSG (95)8, stated that health authorities should fund the costs of continuing care for those patients whose health care needs were so complex or intense as to require the regular supervision/intervention of specialist NHS staff. The Authority’s criteria specified a need for weekly input from a medical specialist and daily specialist nursing management. The national guidance did not specify that the specialised nursing management must be on a daily basis. It was debatable then whether the criteria were over restrictive in the light of HSG(95)8. Further guidance (EL(96) clarified that some patients who no longer needed frequent specialist medical supervision should be eligible for continuing care. But the Authority did not amend its criteria and it seemed that a consultant based her decision in April 2001 (that Mrs M did not meet the eligibility criteria for continuing care) on the fact that she did not require weekly psychiatric review. That that in itself did not mean Mrs M did not qualify for NHS funded care should have been picked up by the Authority, but was not
However, before then, the Coughlan judgment should have provided a further impetus to the Authority to amend their criteria. In August 1999, following the judgment, authorities were asked by the Department of Health 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. Initially the Authority seems to have expected that further guidance would be available in December 1999. But then in January 2000, at a meeting at the Regional Office of the Department of Health, staff were told that that further guidance was delayed until the late summer (in fact it did not come out until June 2001), and that they should ‘duck and dive’ on the implications of the Coughlan judgment until then.
Eventually in March and April 2000, the Authority obtained legal advice on the eligibility criteria. This was rather ambiguous. On the one hand it was uncertain whether the criteria would be held to be lawful while on the other they said that the criteria would not survive critical scrutiny by a judge. The advice recognised that the criteria would eventually need to be re-drawn (when further guidance was available) and individual cases would need to be looked at. But it recognised that the further guidance from the Department was not ‘forthcoming’, and suggested that until then the Authority should simply apply the existing criteria ‘in the light of the Coughlan judgment’ and deal with individual cases as they came to its attention. The Authority did not revise its criteria until March 2002.
The Coughlan judgment, and the 1999 guidance, made it clear that health authorities could not expect social services to fund nursing services unless the services were merely incidental or ancillary to the provision of accommodation and of a nature which a social services authority could be expected to provide. The Authority’s criteria were not amended until 2002 even though they do not appear to reflect that position. The report concluded that there would certainly be a group of people who did not need specialist medical assessment and/or intervention on at least a weekly basis, and continual specialist nursing care on daily basis, but whose needs for nursing care were greater than could be regarded as merely incidental or ancillary to the provision of accommodation. Therefore, in the light of the Coughlan judgment, the criteria were over restrictive. The judgment did not change the law, but clarified what the law had already been. The criteria had therefore been over restrictive since 1996. However I have some sympathy with the Authority’s situation in 1999 to 2000. While the Department of Health had issued written guidance in 1999 that criteria should be reviewed, oral advice from the Regional Office seemed to have encouraged delay until further guidance was issued.
That eventually happened in June 2001 when circular HSC 2001/015 was issued. The criteria were finally amended in March 2002. However there were some concerns about the Authority’s revised criteria. The criteria stated that specialist medical assessment and/or intervention would be necessary on a weekly basis and specialist nursing management necessary on a 24 hour basis, seven days a week. They seemed just as restrictive as the 1997 criteria and contrary to the 2001 guidance in linking the availability of funding to the site of the care. The report said that there would certainly be a group of people who do not satisfy those criteria, but whose primary need is for health care and who should therefore be receiving fully funded NHS continuing care in the light of HSC 2001/17.
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Remedy
The new Strategic Health Authority agreed to review their eligibility criteria for funding continuing care, with the relevant Primary Care Trust and local authority, to ensure that they were in line with the Coughlan judgment. The Authority also agreed to determine whether there were any patients, including Mrs M, who had been wrongly refused funding for continuing care, and to make the necessary arrangements for reimbursing any costs unnecessarily incurred. (Without a retrospective assessment it was unclear whether Mrs M should have been eligible for funding for her continuing care.) The Authority agreed that any payment made to Mrs M would not be less than that previously offered by the Authority.
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