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Selected Investigations Completed April - September 1997 > Part II, Case no. E.0002/96-97

Part II - Full Texts of Selected Investigations

Case No. E.0002/96-97 - Consideration of request to fund extra-contractual referral (ECR)

Matters considered: Refusal to fund ECR for accommodation costs - failure to take appropriate advice

Complaint against: Northamptonshire Health Authority

Complaint as put by the complainant

1. The account of the complaint provided by the complainant was that after undergoing surgery to her back, she was referred by a consultant in orthopaedics (the consultant) for a course of specialised physiotherapy at the Cedars Rehabilitation Unit (the unit) in Nottingham. The treatment, which began on 24 April 1995, was funded by Northamptonshire Health Authority (the Health Authority) as an extra-contractual referral (ECR) on an outpatient basis. Because of her condition the complainant felt unable to cope with a return journey of 150 miles per session, and on 22 March an application was made to the Health Authority to fund as an ECR her accommodation costs at the Patient Hotel, Nottingham City Hospital (the patient hotel) and taxi fares between there and the unit. On 10 April the Health Authority refused the application on the grounds that the costs were not directly and clinically necessitated by the complainant's treatment.

2. The complaint investigated was that the Health Authority's decision to refuse payment of accommodation costs was taken maladministratively as they did not seek appropriate advice to establish whether or not the costs were on clinical grounds directly attributable to the complainant's treatment. The complainant sought redress.

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Investigation

3. It was explained to the complainant that, at the time of the events complained of, actions taken solely in the exercise of clinical judgment were outside the Commissioner's statutory jurisdiction. The Commissioner obtained comments from the Health Authority. His staff took evidence from the complainant, her general practitioner (the GP), the consultant, unit staff and Health Authority staff involved. The actions of the unit staff, the consultant and GP were not the subject of the complaint.

The complainant's evidence

4. In a letter to the Commissioner's office dated 15 May 1996 the complainant wrote:

'.... The decision by the Health Authority not to reimburse my accommodation and care costs were [sic] linked to a clinical judgement made on my ability (should have been my inability ....) to travel daily for treatment in Nottingham by [the director of public health (DOPH)] .... I do not understand how [the DOPH] could have made this 'clinical decision' because she does not know me or how my condition affects me, she did not even contact me or my [GP] to ascertain this information.

'If you refer to my [GP] .... he will confirm that there was no way that I could have travelled to Nottingham every day, having to lie down on the back seat, as I am unable to sit for very long, and that I would have been in excruciating agony, have parasthesia and nausea and vomiting (due to the pain) ....'.

5. The complainant told the Commissioner's staff that in October 1994 the consultant proposed that she attend the unit for a specialised programme with hydrotherapy because the alternative therapy available locally was not appropriate. She asked the consultant if she could be treated as an inpatient to avoid travelling problems, but he said that he did not think that would be possible. Due to an administrative delay it was not until 20 March 1995 that she attended her assessment at the unit. There she was told that funding for treatment only had been applied for and granted. The complainant explained to the staff that she had expected funding to be allowed for treatment and accommodation, as her friend had insufficient room to accommodate her and her husband for the duration of the six weeks' treatment (see paragraph 13). The staff at the unit had obtained details of charges at the patient hotel and told her that they would apply to the Health Authority for funding.

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6. She was later told by the GP that the Health Authority had refused the application to fund the ECR for accommodation and transport costs as they were not directly and clinically needed in relation to the outpatient treatment. The complainant was adamant that she was not told of any appeal procedure or whom she could contact if she needed help. In order not to lose her place on the programme she had stayed at the patient hotel; her husband, when available, acted as carer; and she paid her own costs. When her husband was not available, she could call on staff at the hotel to assist her to dress, eat or drink.

National and local guidance

7. In 1993 the NHS Management Executive issued a circular FDL(93)07 to health authorities and trusts which consolidated guidance on ECRs. It included:

'The term 'extra contractual referral' relates to a referral to a provider unit for which there is no existing contract with the patient's district of residence ....

'General principles

'6. ....

'i) the procedures for handling ECRs should be simple, quick and non-bureaucratic, and designed in discussion with local GPs and other clinicians;

....

'49. The grounds on which an ECR can be refused are very limited

'50. Purchasers should respect the clinical judgement of GPs and other clinicians who decide on individual referrals. Occasions on which a clinician's choice of provider can be judged to be unwarranted are likely to be very rare. The only grounds that refusal may be acceptable are as follows:

....

'c) the referral is not justified on clinical grounds. In making such judgements the DHA would be expected to ensure that it takes appropriate clinical advice ....

....

'51. It is not acceptable for a purchaser to refuse authorisation solely on the grounds of the proposed cost of the treatment in relation to contracted services.

'52. Where funding for a particular ECR is refused, it is the responsibility of the purchaser to inform the patient, as well as the provider, of their decision. Reasons for the refusal should be made clear ....'.

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8. In response to enquiries from the Commissioner's office, an officer of the NHS Executive in the Department of Health wrote on 24 January 1997 that they advised trusts and health authorities 'to establish protocols to handle this type of situation and possibly include them in the contracting process'. The Executive's guidance did not preclude ECRs including costs such as accommodation or travel.

9. The Health Authority's ECR policy included:

'.... A full description of the grounds on which refusal of an ECR may be acceptable is given in [FDL(93)07], but the main reasons are:

....

'referral not justified on clinical grounds;

'equally efficacious treatment can be provided under an alternative referral.

'.... refusal on these grounds can only be made through the ECR Challenge procedure and with the agreement of the patient's GP'.

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Evidence of the Health Authority

10. In the Health Authority's formal reply to the Commissioner the chief executive wrote:

'.... There was no existing guidance to suggest that the Authority was obliged to accommodate patients attending out-patient services or to fund transport costs to out-patient services unless medically necessary ....

'.... There is no doubt that [the complainant] was clinically suitable for out-patient care because she was being treated in the [unit] which only has out-patient services. This appeared to us to be prima-facie evidence that in-patient treatment was not required ....

'.... we did not take formal steps to establish whether the costs of hospital hotel accommodation were necessarily on clinical grounds ....'.

12. The former ECR manager explained that when a decision was made to refuse an ECR a letter was sent to the provider with a copy to the patient's general practitioner. General practitioners were asked to advise the patient of the decision. There was no formal appeals procedure but if patients were unhappy about the decision they could contact the Health Authority. However, she could not explain how a patient would know whom to complain to when general practitioners were the point of contact when ECRs were refused. The former assistant ECR manager, now the ECR manager, gave similar evidence.

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13. The DOPH said that she allowed the ECR for the complainant's outpatient treatment, although similar treatment was available locally, because the complainant had already received care in Nottingham and wanted that to continue. The DOPH was concerned about the travelling from Northampton to Nottingham, but understood from the GP that the complainant would stay with a friend in Nottingham. When the ECR for accommodation and transport costs was received she had discussed it with the chief executive. They and the ECR section were not aware of any authority to make such payments; and, not wishing to set a precedent, they decided to refuse the application. She assumed the ECR section would have contacted the Department of Health for advice. She had telephoned the unit and learned that they had no inpatient facilities. If the ECR request had been for inpatient treatment, and it had been available, the Health Authority would probably have agreed it. The DOPH said that the second ECR application for the complainant had not, in her view, been a clinical issue; rather it was a case of the complainant's private accommodation arrangements falling through and the Health Authority being asked to pay for alternative accommodation.

14. The chief executive said the ECR application for accommodation and transport costs had been refused because it was not clinically merited. The complainant had not needed nursing care otherwise the referral would have been for inpatient treatment. She was unaware that staff at the patient hotel had given any assistance to the complainant during her stay (see paragraph 6). She emphasised that her budgets had to be spent on treatment, not hotel accommodation, although the amount involved in this case would not have had a significant effect.

15. The complaints manager told the Commissioner's staff that there was no ECR appeals mechanism at the time of these events, nor was there a standard letter to general practitioners stating that they should inform their patient of the Health Authority's decision and what action they could take if they were unhappy. She said that she was compiling an ECR appeals policy.

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Evidence of the unit staff

16. The contracts administrator (the administrator) said that she applied to other authorities for ECRs if the patient attending lived outside the Nottingham area. She recalled the administration secretary asking on 20 March 1995 about funding accommodation for the complainant. She contacted the patient hotel about their charges and prepared a request for an ECR using her own wording. This was the only occasion that she had had to request an ECR for the accommodation costs of a patient attending the unit.

17. The clinical director of the unit (the clinical director) remembered telling the DOPH (paragraph 13) that she could not change the ECR to a request for funding inpatient treatment but that she would speak to the consultant to see if they could offer any other options. The consultant had told her he would speak to the complainant at the clinic. In the clinical director's view the patient hotel was not providing a clinical service to the complainant although it was a better environment for her than a 'bed and breakfast' establishment in which, although in a wheelchair, she could have coped.

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Evidence of the patient hotel manager

18. The patient hotel manager explained that the hotel was to accommodate patients attending Nottingham City hospital who had difficulties with travelling, but who did not require 24-hour nursing care. Patients felt safer near the hospital. Patients were accepted from other areas and the patient hotel cross-charged the specialty concerned, who then raised an ECR to cover the cost of treatment and accommodation. The complainant's room was rearranged to make it more suitable for her. An extra mattress was put on the bed and the telephone was repositioned so that it was within reach. She had remained on her bed for most of her stay. The receptionists, who were trained nurses, took meals to her room (the complainant could not walk to the dining room), made her comfortable and gave support when her husband was not available.

Evidence of the GP

19. The GP remembered discussing with the DOPH the delay in the complainant's referral to the unit but had little recollection as to when or by whom the question of accommodation was raised. His impression was that the DOPH had been told by other executives in the Health Authority that they were not legally able to pay the accommodation costs. He would have supported an application for funding inpatient care as in his opinion the complainant was unable to travel—the daily return journey of 150 miles would have been impossible—and the alternative treatment available in Northampton was not suitable.

Evidence of the consultant

20. The consultant said that when he saw the complainant at an outpatient appointment on 11 October 1994 he had suggested she might benefit from a progressive rehabilitation programme at the unit rather than attending a physiotherapy department three times a week. The complainant had asked if she could be admitted as an inpatient to the Queens Medical Centre while attending the unit. He told her that was not possible as she had not required 24-hour nursing care and he could not justify the use of one of his acute beds nor the cost involved. He also told her that it was the patient's responsibility to pay for and arrange accommodation when attending outpatient treatment; he had suggested she find out about 'bed and breakfast' establishments or hotels near the unit. The consultant could not recall speaking to the clinical director about accommodation for the complainant or saying that he would speak to her at the clinic (paragraph 17). His next appointment with the complainant had been in July 1995 when she had not raised the subject of accommodation. He had not spoken to the DOPH after the ECR had been refused; he would have expected the DOPH to have sought his advice if there had been a problem with the ECR for accommodation. While it remained his view that accommodation costs were the patient's responsibility he would have supported an application for funding in this case as the complainant was not able to travel because of her physical condition.

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Findings

21. The evidence of the GP and the consultant leaves me in no doubt that the complainant could not reasonably be expected to undertake a return journey of 150 miles regularly for several weeks. The Health Authority were aware that the ECR for treatment was unusual because of the distance the complainant would have to travel, and the matter was referred to the DOPH who has said that she was concerned about the travelling involved but was given to understand—mistakenly as it turned out—that the complainant would stay with a friend in Nottingham.

22. When the complainant discovered on her assessment visit to the unit on 20 March 1995 that funding had been applied for and granted for treatment only, she, not unreasonably, decided to go ahead with the treatment because she was under the impression that the treatment in Nottingham was clinically necessary, and a belated application for accommodation costs was then submitted. The Health Authority were unsure how to proceed with this fresh ECR, and were concerned about setting a precedent, but apparently they did not seek legal advice or advice from the Department of Health on whether they had the power to pay. They rejected the ECR on clinical grounds, without seeking clinical advice, apparently on the untested assumption that if the complainant had had a clinical need for accommodation she would not have been referred for outpatient treatment.

23. Patients do not have an automatic entitlement to have accommodation and travelling costs paid simply because they have to travel a long way for outpatient treatment. However, when health authorities consider an ECR, they should take account of all the foreseeable consequences, take appropriate advice, and, if they are unwilling to authorise the ECR, explain the full position and its consequences to the patient. With regard to communication with the patient, I note with approval that the Health Authority are drawing up an ECR appeals policy and I hope it will ensure that patients are told what action they can take if they wish to take the matter further. For the reasons set out in paragraph 22, I uphold the complaint that the Health Authority's handling of the complainant's case was maladministrative. I recommend that they reimburse the complainant for the expenses she incurred as a result.

Conclusion

24. I have set out my findings in paragraphs 21 to 23. The Health Authority have asked me to convey to the complainant—as I do—their apologies for the shortcomings I have identified and agreed to implement my recommendation in paragraph 23.

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Last updated: 7 February 2006