BACKGROUND TO NHS CONTINUING CARE
5. The last two decades have witnessed significant
changes in the way in which long term care is provided. The closure
over a number of years of NHS long-stay wards and community hospitals
which had previously cared for people who did not need the high
level of care provided by an acute hospital, but who were unable
to care for themselves in their own homes, has meant that a growing
number of older people are being cared for either in residential
or nursing homes, or in their own homes.
6. NHS continuing care eligibility criteria were
designed to identify and provide free care only to those who had
a high level of need for ongoing health care, as distinct
from supportive help with the daily activities of personal care,
such as washing, dressing and eating. Thus, the majority of elderly
people being cared for on a long term basis in residential or
nursing homes, or by carers in their own homes, were not eligible
for continuing care funding. Instead, as their care was deemed
to be 'social', means-tested funding was provided by local authorities,
with the better off service users paying the full costs of their
care.
7. However, in practice the distinction between health
and social care is very blurred. The Care Standards Act 2000
arguably added to the blurring of boundaries by abolishing the
statutory distinction between nursing homes and residential homes;
retaining some requirements for care homes providing nursing;
and bringing them within a social care regulatory regime.[5]
8. Significant public concern about whether it was
fair for such people to have to fund all or part of their care
in residential or nursing homes - when ten years previously they
might have received it free in an NHS long-stay hospital - resulted
in the establishment of the Royal Commission on Long Term Care
for the Elderly. The Royal Commission recommended that the costs
of long term care should distinguish between living costs, housing
costs and personal care costs, and argued that all nursing care,
and all 'personal care', defined as care which involves touching
the patient, such as help with washing and dressing, should be
provided free and from general taxation. People would remain responsible
for the living and housing cost components, and means-testing
would apply.[6]
9. In its response to the Royal Commission on Long
Term Care for the Elderly, the Government rejected its central
call for personal care to be provided free of charge. However,
it did decide to address anomalies in the system whereby some
people in nursing homes were paying for the costs of their nursing
care as part of their fees, which they would have got free in
hospital or in the community.[7]
The Registered Nursing Care Contribution (RNCC) system was introduced
in October 2001[8].
10. Ever since the introduction of eligibility criteria
for NHS continuing health care there have been problems. These
difficulties have arisen around the interpretation and application
of criteria, and whether those criteria have been too restrictive
in practice. Individual challenges have raised general principles
and questions, and this has been increasingly evident in the involvement
of the NHS Ombudsman, and of judicial review. A key development
in continuing care funding was the 1999 Court of Appeal Coughlan
judgement, in which Pamela Coughlan, who had significant ongoing
health care needs sustained in a road traffic accident but had
been denied NHS continuing care funding, successfully sued her
local Health Authority. The judgement established that "if
the needs of the patient were primarily health needs, the Health
Authority was as a matter of law responsible", and the NHS should
pay for the whole package of care. Following on from this the
Government told all Health Authorities to ensure their continuing
care policies and eligibility criteria were 'Coughlan compliant'.
11. Despite this, patients and carers continued to
report problems in attaining appropriate funding for their ongoing
care, and in February 2003, the Health Services Ombudsman presented
a special report to Parliament concluding that Health Authorities
were using over-restrictive local criteria which were not properly
in line with Department of Health guidance nor with the Coughlan
judgment, and that as a result people had been unjustly denied
continuing care funding.[9]
Concerned that the problem was widespread and not only confined
to the 16 complaints she had received, the Ombudsman recommended
that a retrospective review should be carried out to trace and
compensate all those who had been affected, and that further guidance
should be issued making it much clearer who was eligible for funding.[10]
The Department of Health subsequently required Strategic Health
Authorities to establish a single set of eligibility criteria
for continuing care to be used by their respective Primary Care
Trusts (PCTs) and NHS Trusts, to make arrangements to investigate
cases where people may have been wrongly denied NHS continuing
care, and to make appropriate restitution where this was found
to be the case.
RECENT DEVELOPMENTS
12. Although the review process has been beset with
delays, over 12,000 cases were reviewed, and in 20% of cases financial
repayment has been made. The Department of Health estimates that
some £180 million will be spent on repayment in total.[11]
13. The administrative cost of the confusion, inconsistency
and opacity surrounding the system for funding NHS continuing
care has been very high. It is easy to forget that behind each
case reopened is an individual or a family who may have been wrongly
denied continuing care funding, and that the human costs of the
ongoing lack of clarity in this area have been even higher. As
the Ombudsman described:
The people who have complained to me are not
only concerned about what they see as the unfairness of the system
for funding care, but about substantial financial injustice when
it was applied to them. This arises because, if the NHS fully
funds continuing care in a care home, the patient does not have
to make any contribution to the cost of that care. If not, the
patient funds much of the care him or herself; or it is funded
by local authority social services departments, with patients
being expected to contribute according to their means. That can
mean some patients having to use virtually all their accumulated
life savings and capital from the sale of their home, to pay for
care: whereas other patients who are judged eligible for full
NHS funding for care in a care home make no financial contribution
at all, regardless of their means. It is not surprising therefore
that the decisions made by NHS organisations about eligibility
for NHS funding arouse strong feelings.[12]
14. In December 2004, the Ombudsman published a further
report, expressing concerns about the retrospective review process.[13]
At the same time, an independent review of the retrospective review
process commissioned by the Department of Health raised similar
concerns.[14] On 9 December
2004, Dr Stephen Ladyman, the Parliamentary Under-Secretary of
State for Community Care, announced the commissioning of "a
national consistent approach to assessment for fully funded national
health service continuing care".[15]
We decided to undertake a brief inquiry into this area, and announced
our inquiry on 21st January 2005, with the following
terms of reference:
The Health Committee will undertake an inquiry
into NHS continuing care. The inquiry will have the following
terms of reference: to consider whether the announcement of the
development of a national framework for NHS continuing care will
resolve the long-standing problems of inconsistency and inequity,
and make the Government's policy more intelligible and fairer.
The Committee will examine:
The written Ministerial Statement on NHS continuing
care issued by Dr Stephen Ladyman on 9th December 2004.
How the changes will build on the work already
undertaken by Strategic Health Authorities in reviewing criteria
for NHS continuing care and developing policies.
Whether the review of past funding decisions
has succeeded in addressing the needs of patients wrongly denied
NHS funding for their long term care.
What further developments are required to
support the implementation of a national framework.
15. We took oral evidence from Dr Stephen Ladyman
MP, Minister of State for Community Care, and officials from the
Department of Health; from the Association of Directors of Social
Services, Hounslow Primary Care Trust, Oxfordshire Learning Disability
NHS Trust, County Durham and Tees Valley Strategic Health Authority
and North West London Strategic Health Authority; from Age Concern,
Citizens' Advice, the Alzheimer's Association, and Barbara Pointon,
a carer; from the Royal College of Nursing, the English Community
Care Association, the British Geriatrics Society, and from University
Hospital Lewisham NHS Trust; and from Trish Longdon, the Deputy
Ombudsman, and Colin Houghton, an official from the Ombudsman's
office.
16. We also received almost forty written submissions
from patient organisations, individuals, Royal Colleges and legal
firms. These were well considered and highly informative, and
we are very grateful to all those who submitted evidence.
17. Since we finished taking evidence, a further
development in this area has been the publication of the Government's
Green Paper on Adult Social Care.[16]
Unfortunately we have not had time to consider these proposals
in detail. However, although we welcome the Green Paper's aim
to increase independence, choice and control, we do not believe
its proposals materially alter the conclusions we have come to
in this report.
18. We are indebted to our special advisers Melanie
Henwood, an independent health and social care analyst, and Chris
Vellenoweth, an independent health policy adviser.
1 Royal Commission on Long Term Care, With Respect
to Old Age: Long Term Care - Rights and Responsibilities -
Research Volume I, March 1999, Chapter 1 para 28 Back
2
HC Deb, 4 December 1997, cols 489-499 Back
3
Department of Health, The NHS Plan - the Government Response
to the Royal Commission on Long Term Care, Cm 4818, para 1.4,
July 2000 Back
4
Department of Health, NHS Responsibilities for meeting continuing
health care needs, HSG(95)8, 1995 Back
5
For the purposes of clarity we use the terms nursing and residential
homes to make a distinction between those registered to provide
nursing and those registered to provide personal care only. Back
6
Royal Commission on Long Term Care, With Respect to Old Age:
Long Term Care - Rights and Responsibilities, Cm 4191 - I,
March 1999 Back
7
Department of Health, The NHS Plan, Cm 4818 - I, July 2000, para
15.18 - 15.20 Back
8
The RNCC was introduced from 2001 for self-funders, and from April
2003 for existing and future (nursing) care home residents who
receive council support. Back
9
The Health Service Ombudsman for England, NHS Funding for Long
Term Care, HC 399, February 2003 Back
10
The Health Service Ombudsman for England, NHS Funding for Long
Term Care, HC 399, February 2003 Back
11
HC Deb, 16 September 2004, cols 175-176WS Back
12
The Health Service Ombudsman for England, NHS Funding for Long
Term Care, HC 399, February 2003, para 2 Back
13
The Health Service Ombudsman for England, NHS Funding for Long
Term Care - Follow up report, HC 144, December 2004 Back
14
Department of Health (Henwood M), Continuing Health Care: Review,
revision and restitution, December 2004. Back
15
HC Deb, 9 December 2004, col 108 WS Back
16
Department of Health, Independence, Wellbeing and Choice,
Cm 6499, March 2005 Back
