Home > Publications > Selected Cases > Selected Investigations Completed December 2002March 2003 > Introduction
In my foreword to the report on NHS funding for long term care (HC399, February 2003), I said that there were investigations in progress which were similar to those appearing in that report. Three of those investigations have now been completed and I set out below a summary of each of them which includes action taken by the bodies complained against (or their successor bodies) as a result.
The detail of the relevant legal framework and Department of Health national guidance pertaining to continuing care cases, along with my comments on these, can be found in my earlier report, and I have not reproduced them in full here. However, I have set out here a summary of the relevant key guidance.
The Department of Health’s 1995 guidance (HSG (95) 8) said that the NHS was responsible for arranging and funding in-patient continuing 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 provided in a hospital or in a nursing home.
The Department issued further guidance (EL(96)8), in February 1996. That referred to the danger of eligibility criteria being over-restrictive and mentioned the risk of an over-reliance on the needs of a patient for specialist medical opinion when determining eligibility for continuing care. It said that there would be a limited number of cases where the complexity or intensity of nursing or other clinical needs might mean that a patient was eligible for continuing care even though they no longer required medical supervision.
In July 1999, the Court of Appeal had gave a crucial judgment (R v. North and East Devon Health Authority ex parte Coughlan) relating to funding for continuing care. This considered the issue of whether nursing care for a chronically ill patient might lawfully be provided by a local authority as a social service (in which case the patient paid according to their means) or whether it was required by law to be provided free of charge as part of the NHS. The judgment said that whether it was unlawful to transfer responsibility for the patient’s general nursing care to the local authority depended, generally, on whether the nursing services were:
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 could be expected that an authority whose primary responsibility is to provide social services could be expected to provide.
In August 1999, the Department of Health issued guidance (HSC 1999/180) on action required in response to the judgment. It said that health authorities should satisfy themselves that their continuing and community care policies and eligibility criteria and other relevant procedures were in line with the judgment and existing guidance. Where health authorities revised their criteria, having involved and discussed the outcome with Primary Care Groups, they should consider what action they needed to take to re-assess the eligibility of current service users against the revised criteria. The guidance said that the Government would be reviewing continuing care policy and guidance, with a view to issuing revised guidance later that same year.
In March 2001 the Department of Health issued a National Service Framework for Older People. That referred to the provision of free nursing care in nursing homes, but did not include any guidance on NHS funding for the full costs of continuing care for older people.
New guidance on continuing care was not issued until June 2001 (HSC 2001/015). It replaced the previous guidance. It referred to the Coughlan judgment, saying that eligibility criteria for NHS arranged and funded nursing services in nursing homes should cover the following situations:
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Where all the nursing service is the NHS’s responsibility because someone’s primary need is for health care rather than accommodation;
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Where responsibility can be shared between the NHS and the council because nursing needs in general can be the responsibility of the council but the NHS is responsible for meeting other health care requirements;
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Where the totality of the nursing service can be the responsibility of the local council.
The Department’s guidance listed issues which health authorities had to consider when establishing eligibility criteria for what it called continuing NHS health care, i.e. ‘a package of care arranged and funded solely by the NHS’. However, it included very little guidance on how exactly the listed issues should affect eligibility.
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