PAPER B
Policy
Commission for Care, Health and Housing
28 March 2007
Briefing on
Continuing Health Care
1.1
The rulings made by the Health Ombudsman and at judicial review over the
past few years regarding continuing care now make it essential for the local
authority to take both a strategic and operational position on the issue.
Additionally, the emergence of the National Framework for NHS Continuing
Healthcare (anticipated from October 2007) will shape and guide practice for
both Primary Care Trusts (PCTs) and Local Authorities (LAs).
1.2 Continuing
care refers to the care that people need over an extended period of time as a
result of disability, accident or illness to meet their physical and/ or mental
health needs. The discussion around the question of what is health care (and
therefore an NHS responsibility) and what is social care (and therefore a local
authority responsibility) has been ongoing since the inception of the NHS in
1948. More recently, the issue has had a great deal of publicity as we have
seen rulings emerge in cases from Coughlan (1999) through to Pointon (2004) and
Grogan (2006).
2.1 The
question of entitlement to NHS funded continuing care is now a key part of the
social worker/care management role on the Isle of Wight as not only does social
work/ care management concern obtaining best outcomes for clients but the Local
Authority needs to be certain that all of the work it undertakes is carried out
within a legal framework.
2.2 It
is important to the client that his/her needs are properly identified in that
clients are charged (where appropriate) for services provided by Adult Services
whereas services provided by the NHS are free at the point of delivery. Many
people sell their houses or use their life savings to fund nursing care. If this care should have been provided free
of charge, then an individual may have sold their home and incurred significant
financial cost for something which they should have been entitled to without
having to have made a financial contribution.
Similarly, clients make a financial
contribution to their Adult Services funded packages of care at home, and if
the clients have NHS Continuing Care needs, they should not be charged for
their care.
It is perfectly possible
that an individual (or family member), who has been unlawfully charged for
their care seeks reimbursement from the Local Authority if it is proved that
they should have been fully funded by the NHS.
2.3 We must address three
essential areas of concern:
I.
That we achieve the best outcomes for our clients. The rights based,
person centred, nature of Social Work is concerned with ensuring that we
deliver the best outcomes for clients, act as advocates in pursuing their best
interests and ensure that clients are aware of their rights regarding all
aspects of their lives.
II.
That our resources are targeted at those people for whom Adult Services
has a responsibility for providing a service.
If we are funding the type of clients whom the Government and the Court
have identified as, in fact, being eligible for free care provided by the NHS,
not only is the client paying in many cases, but Adult Services are diverting
resources from clients with genuine social care needs to those whose needs are
primary health needs (and therefore should be funded by the NHS).
III.
The third
essential concern for Isle of Wight Council is that we act within the powers
that are given to us by statute. The Courts have confirmed that a Local Authority
only has the power to provide services on a certain level. If we provide them (i.e. arrange and fund
etc) above this level then we are acting ultra
vires and therefore unlawfully.
3.1 In
1999, the Court of Appeal delivered a Judgment in the case of R – v – North and East Devon Health
Authority ex parte Coughlan. This
is an important case because of the general principles which it established,
and also because the Court’s findings in relation to Miss Coughlan give us a
practical example of when care should be provided by the NHS. The case also looked at the responsibilities
of NHS bodies under the National Health Service Act 1977 and the
responsibilities of Social Services Authorities under Section 21 of the
National Assistance Act (NAA) 1948 which is important when we consider what can
be provided by the different authorities.
Because the case was only considering s21 NAA, it does not apply to children or
to services, which are not provided along with accommodation. Having said that,
there has been an Ombudsman’s decision relating to someone being cared for at
home and guidance and the eligibility criteria also make it clear that
continuing care can be provided at home.
The key practical point from the
Court was that whilst nursing services can
be provided by Social Services as part of a social care package, those nursing
services are limited to those which can be regarded as being provided in
connection with the accommodation which has been provided to the client under
Section 21 of the NAA. This can only be
provided within certain limits, both in terms of the scale and type.
3.2 The Court made it clear that there is no
precise legal line to be drawn but as a general indication, nursing services
can be provided under Section 21 where
·
They are
merely incidental or ancillary to the provision of
accommodation which the Local Authority is under a duty to provide; and
·
They are of a nature, which it can be expected that
an Authority whose primary responsibility is to provide Social Services can be
expected to provide.
This is generally regarded as the ‘quantity
and quality’ test. The first point
focuses on the overall quantity of the services (for example a large amount of
general care). Whereas the second point
focuses on the quality of the services provided (e.g. specialist care).
3.3 The Court also made the
following observations.
· Whether the services can be provided by a Local Authority has to be determined by an assessment of the individual.
·
Where a person’s primary
need is a health need the responsibility is that of the NHS even when the Local
Authority has placed the individual in the home.
·
Eligibility criteria should be careful about relying too heavily on the
distinction between general and specialist services. Such a distinction may provide some guidance but cannot be an
exhaustive test. It does not cater for
the situation where the demands for nursing attention are continuous and
intense. This means that where a
person’s health needs mean that they need large amounts of general care, the
client may qualify for continuing
care status albeit that they do not need specialist input.
·
Miss Coughlan’s health needs were clearly the responsibility of the NHS.
3.4 Adult services can be expected to provide general (not registered) nursing services where they largely involve the provision of personal care or the straightforward supervision or monitoring of a persons condition. Adult Services can be responsible for basic care tasks such as helping with washing, dressing and feeding. The more intense the persons needs, or the more dependent they are, or the greater the degree of skill or training or expertise or experience required to meet the client’s needs, the more likely it is that they should be predominantly health needs and the sole responsibility of the NHS.
4.1 An Ombudsman’s case (the Pointon Case)
involved a man who was severely disabled with dementia and unable to look after
himself. His wife cares for him at
home. She took a break one week in five
but had to pay more than £400 for the substitute care assistant. The NHS would not pay because Mrs Pointon
was not a qualified nurse (and could not therefore be offering nursing
care). The Ombudsman found that the
fact that Mr Pointon was receiving (what was in effect) nursing care from his
wife and a Local Authority carer, did not mean that he could not qualify for
continuing health care, that the health bodies had failed to take into account
his severe psychological problems and the specialist skills it takes to nurse
someone with dementia and the fact that Mr Pointon needed care at home (he
improved significantly psychologically upon his return home) rather than in a
nursing care home was not material to the question of continuing health care
responsibility.
This is a very common practice but, in fact,
the time limits are only given in the guidance as an example of when someone
may be regarded as being in the final stages of a terminal illness and “likely to die in the near future”.
There is scope on the Isle of Wight for taking the line that a determination
ought to be made by the consultant on an individual case by case basis rather
than the use of a time specific general formula. “Likely to die in the near
future” is a term that should not be applied prescriptively by PCTs. The
National Framework is indicating that a general time frame of 12 weeks be used
in order to assist clinicians with their prognoses.
6.1 The production of the National Framework arose out of a promise by the Dept of Health to the House of Commons Health Select Committee in Jan 2005 to end the “postcode lottery” of continuing care entitlement by introducing a national set of eligibility criteria, with national assessment & decision making tools. The DH promise was to ensure that the outcome following a continuing care assessment would be the same irrespective of where you are in the country.
6.2 The
Dept of Health has taken an approach of constructively involving local
authorities in the production of the Framework. It asked the Local Government Association and Association of
Directors of Social Services to be part of the ongoing discussions to formulate the content of the Framework. The ADSS/LGA set up a national reference
group of six local authorities including Bradford, Essex, Durham, Hampshire,
London Borough of Richmond and Surrey.
Dorset has now replaced Hampshire on the national group.
The process involved a series of meetings
and e-mail correspondence both within the reference group and with the DH over
the last year. This involved a process
of drafts being issued, refined, reissued etc until the final version was
issued. The consultation period ended
on 22 September 2006 and Local Authorities made a collective submission via the
ADSS/LGA who collated all LA responses in England before compiling a final
joint response which represents LAs nationally.
The reference group will continue to
engage with the DH post consultation and will seek to work very closely with
the DH on the National Decision Support Tool which is currently set at too high
a threshold and would certainly exclude Coughlan and Pointon from meeting the
Eligibility Criteria for NHS Continuing Care.
6.3 Key
themes arising out of the Framework
The following key
themes will shape and influence future practice:
·
The abolition of the RNCC banding system. It will be replaced with a single RNCC payment of £97pw. The
financial impact of this for the Local Authority will need to be assessed.
·
LA’s are reminded of their duties to act within the law and to only
provide nursing services that are incidental or ancillary to the accommodation
or that are of a nature that an LA, whose prime responsibility is to provide
social services, can be expected to provide.
·
It is stated that commissioning of Continuing Care is a PCT
responsibility.
·
Ongoing case management of NHS continuing care patients is an NHS
responsibility.
·
There is a domain based decision support tool to ensure consistent
assessment across the country
6.4 There
are significant financial and other implications arising from the new framework
for the council to take on board and action.
The DH estimates that Primary Care Trusts will incur on average an
additional cost of £1.5m in the first year from the transfer to them of
patients who are currently funded by the local authority. The financial
implications for the Council should be favourable, with the release of funds
from existing expenditure and the prevention of future expenditure on patients
with similar needs.
6.5 The
guidance that will be issued to accompany the National Framework will influence
processes, behaviours and decision-making for both NHS and Local Authority
staff from the point of implementation.
7.1 It
is important for the Council that it reviews current practice and processes for
continuing care with the PCT. In the
crucial High Court ruling in the case of Mrs M Grogan in January 2006 the judge
noted a much clearer role for local authorities than had previously been
thought, underlining that local authorities do not possess a ‘mop-up’ duty to
fund anyone that the NHS decides not to fund, providing they have had a
financial assessment. The local authority has to make a clear judgement about
the legality of funding individuals under the powers given to them by Section
21 of the National Assistance Act 1948 which only allows it to fund residential
care for a person aged 18 or more ‘who by reasons of age, disability or any
other circumstances is in need of care and attention which is not otherwise
available to them’. The Act goes on to say that local authorities are not
authorised to take on the responsibilities of the NHS. A review of those joint
funding arrangements in particular whereby the costs of care have been split
between health and social care as a means of ‘sharing the burden’ is needed and
will affect many historical arrangements for people with learning disabilities
and enduring mental illness in particular.
7.2 In
terms of direction of travel for the Local Authority, there are a number of
actions required to prepare for the pending changes.
They include:
·
To consider the preparation of a business case for dedicating specific
resources to Continuing Care in the form of dedicated operational and legal
time, to ensure that we are acting within the law and to support operational
staff with their practice issues - including making applications and dispute
resolution practice;
·
To devise and issue to staff Continuing Care Guidance Packs to assist
them in their practice and set up briefing sessions for all staff involved in
commissioning services for adults;
·
To proactively work with our NHS colleagues to ensure that correct
processes are in place regarding continuing care entitlement and to assist the
understanding of NHS staff where possible;
·
To attend and actively influence the newly created ADSS Southern Central
Continuing Care Reference Group
Ongoing.