4 The need for a single set of national
eligibility criteria
54. The criteria for determining eligibility for
NHS continuing care, which were issued in 1995, are broad and
vague, and include one or more of the following:
Where the complexity or intensity of their medical,
nursing care or other clinical 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.
In addition patients who have finished acute
treatment or inpatient palliative care in a hospital or hospice,
but whose prognosis is that they are likely to die in the very
near future should be able to choose to remain in NHS funded accommodation,
or where practicable and after an appropriate and sensitive assessment
of their needs, to return home with appropriate support.[44]
55. Health Authorities were required to develop their
own, more detailed operational policies and eligibility criteria,
based on this broad framework. While this approach had the advantage
of allowing Health Authorities flexibility of interpretation to
meet the specific needs of their local populations, it also meant
that eligibility criteria could vary substantially from area to
area, a point made by a predecessor Health Committee in 1995:
We share the concerns of those of our witnesses
who argued that local eligibility criteria might create unacceptably
wide variations in the provisions of NHS services … on the
grounds of equity, we believe that the nationally set framework
should include the eligibility criteria for long term care to
define what the NHS, as a national service, will always
provide[45]
56. Successive Governments did issue guidance to
Health Authorities on continuing care criteria in order to promote
some degree of coherence across the NHS. The 1995 guidance was
followed by further guidance in 1999 and again in 2001.[46]
However, this was clearly not sufficient to ensure correct and
consistent interpretation of continuing care eligibility criteria
as, in February 2003, the Ombudsman published a highly critical
report emphasising the fact that criteria for continuing care
had clearly been interpreted and applied differently by different
Health Authorities, leading to inequities in access to funding
for continuing care. The Ombudsman concluded that:
There is evidence that the Department of Health's
guidance has been misinterpreted and misapplied by some Health
Authorities and Trusts, leading to hardship and injustice for
some individuals. But there are also more fundamental problems
with the system. The Department of Health's guidance and support
has not provided the secure foundation needed to enable a fair
and transparent system of eligibility for funding to be operated
across the country.[47]
57. The Ombudsman made three key recommendations:
PCTs and Strategic Health Authorities (SHAs)
should trace those people who might be affected, review their
circumstances and where justified make restitution, and that the
Department of Health should guide and support them in that work.
SHAs should review the criteria used in their
areas since 1996 (when written criteria were first required) for
compliance with the law as it stands and with national guidance,
and that
The Department of Health should review its own
guidance, making it much clearer who was eligible for funding
58. Responding to the Ombudsman's report, the Government
accepted the need for retrospective reviews. However, rather than
the Department of Health itself reviewing guidance and criteria,
as the Ombudsman had recommended, the Department instead issued
instructions that the 28 new SHAs, which had recently superseded
the 95 previous Health Authorities, should each develop one set
of criteria, effectively assimilating 95 sets of criteria into
28.
59. While reducing 95 sets of criteria into 28 is
clearly a step towards greater consistency, according to our witnesses
there is still considerable scope for local variation. Many submissions
referred to the "post-code lottery" evident from a comparison
of SHA policies and guidance. Anne Williams of Citizens' Advice,
for example, told us that "continuing care is the biggest
postcode lottery of them all. You will be aware on this Committee
of the problems with cancer care and all the rest of it, but it
is nothing to continuing care - it is so different."[48]
60. We took evidence from two SHAs, and we asked
them whether they took account of the criteria of neighbouring
SHAs when preparing their own, in order to ensure consistency.
We were told by Michael Young of North West London SHA that other
SHAs had looked at their criteria to see "what was good and
what was relevant to them", and Denise Gilley of County Durham
and Tees Valley SHA told us that they had had "detailed discussions"
with one neighbouring SHA, and "some discussions" with
others. [49]
While it is commendable that SHAs are working together to share
good practice, this sort of informal joint working is clearly
not sufficient to ensure consistent criteria across the country.
61. The Minister accepted that reducing 95 different
sets of criteria to 28 would not have eliminated all inconsistency,
but argued that these 28 criteria were, in fact, more consistent
than their predecessors:
You are right that on the face of it we only
reduced it from 95 to 28, and therefore there were 28 different
postcode lotteries; but actually those 28 were based on the national
guidelines, so there should have been far more consistency between
those 28 than ever there was between the 95 they replaced.[50]
62. However, Mr Young's evidence illustrated that
some real problems have persisted as a result of SHAs having different
criteria:
If people move out of area, and particularly
in terms of wanting annual reviews (and it is very hard in London
to do the annual reviews as we do send a lot of people out of
area) someone who understands our criteria and our assessment
tools would need to be able to assess them.[51]
63. According to Elaine McHale of the ADSS, the introduction
of Payment by Results is going to compound these problems, as
staff will be expected to use different interpretations of continuing
care criteria to assess patients coming in from a far wider range
of different locations than is currently the case.[52]
64. There is also evidence of considerable variation
within SHAs, with PCTs, NHS Trusts and Local Authorities (Las)
applying criteria differently. The issue of implementing criteria
is discussed in detail further on in our report.
65. The Minister agreed that consistency in determining
eligibility for continuing care funding was of crucial importance,
and told us his ultimate aim:
Broadly speaking, we want to end up with a system
where absolutely everybody in England will be able to say, "the
assessment I have had would have come to exactly the same conclusion,
whether it was held in London or Carlisle or wherever it was.[53]
66. To address the problem of different criteria
in different SHA areas, the evidence received by the Committee
has almost universally been in favour of the introduction of a
single, national set of eligibility criteria. This was also reflected
in the report of the independent review commissioned by the Department
of Health. Although the Ministerial Statement issued in December
2004 only referred to a national 'framework', the Department's
memorandum suggested that national criteria were being planned.[54]
However, the Minister was unable to give us a categorical assurance
that this would be the case:
John Austin: The new national framework
will have a single set of national eligibility criteria?
Dr Ladyman: We have those discussions,
but my belief is that that is where we will end up. This is a
consultation; we are bringing the 28 strategic health authorities
together to identify best practice. They are giving us a very
clear message. They want to have one single set of national eligibility
criteria, so my belief is that is what we are very likely to agree
with. If, in the course of these discussions, we find that is
not practical, we will have to have something different.[55]
67. The
NHS has an urgent need for a single, universal set of national
eligibility criteria for continuing care to end the inequities
and inconsistencies that have developed as a result of the current
system. It is unacceptable that in one part of the country a person
with a specific set of care needs would be assessed as qualifying
for fully funded NHS continuing care, while a person with identical
needs living in a different part of the county would be deemed
ineligible, and would potentially have to fund all or part of
their care from their own means. We welcome the Minister's aim
of addressing this problem, and we welcome his conviction that
the current review will result in the development of a single
set of national eligibility criteria. However, he was not able
to give us a categorical assurance on this point. A single, national
set of eligibility criteria for NHS continuing care is crucial
to ensure coherence and equity, and we urge the Government to
ensure that a single set of national eligibility criteria is developed.
68. Much of the evidence we have received indicated
that the introduction of a single set of national criteria is
long overdue. Indeed, this issue was first raised by a predecessor
Health Committee as long ago as 1995, but successive Governments
appear not to have recognised this problem until the Ombudsman
published her report in 2003. It is regrettable that the Department's
own internal systems did not identify this problem sooner, and
that it took 16 complaints to the Ombudsman before it was finally
addressed.
69. Perhaps even more worryingly, the Ombudsman recommended
that the Department should provide further national guidance to
clarify the situation in February 2003, but it was not until almost
two years later, in December 2004, that the Department acted on
this by announcing the development of a new national framework
and guidance for continuing care. The lack of further guidance,
according to the Ombudsman, had a direct bearing on the retrospective
review process:
Between the period of the first report and the
second report, the February 2003 and the December 2004 reports,
not only did we have the complaints coming through, we had a great
number of practitioners from trusts and Strategic Health Authorities
telephoning us almost on a weekly basis to say, "We are struggling
with this criteria. We are trying to do our best. Can you come
down and train us? Can you tell us what to do? Or, better still,
can you come and sit on the panel and do this with us?"
Of course, we had to keep our distance from that. I think there
were considerable efforts to try to get this right, but they did
not have the guidance or leadership at that time to get it right.[56]
70. Ms McHale also argued that the Department should
have been more proactive in supporting SHAs:
I think more could have been done with regard
to clarification and transparency about the definitions and the
applications.[57]
71. The Minister told us that national criteria and
guidance were not prepared after the Feburary 2003 report for
logistical reasons:
We did that because, frankly, going from 95 to one,
at a time when we had this huge review to carry out, our judgment
was that it would just have been an impossible task to do that.[58]
However, while we accept that carrying out the retrospective
reviews entailed a significant increase in workload for SHAs,
this does not explain why the Department itself was unable to
start work on developing a single set of criteria.
72. We
are concerned that it has taken so long for the Department to
recognise and address the problem of inconsistent continuing care
criteria. We recommend that the Department should consider its
own internal monitoring processes with a view to detecting problems
like this at an earlier stage in future. It also seems that an
opportunity was missed, at the time of the Ombudsman's report
in February 2003, for the Department to start work on developing
an urgently needed single set of national criteria. The Department
ought to have acted sooner to develop a single set of national
criteria, and we recommend that this work be completed as a priority,
within the 12 month timescale indicated by the Minister.
44 Department of Health, NHS Responsibilities for
meeting continuing health care needs, HSG(95)8, 1995 Back
45
Health Committee, First Report of Session 1995-1996, Long Term
Care - NHS Responsibilities for Meeting Continuing Health Care
Needs, HC 19-I, paras 50-51 Back
46
Department of Health, HSC 1999/180 Ex-parte Coughlan: follow
up action continuing health care follow up to the Court of Appeal
judgement in the case of R V North and East Devon Health Authority
1999; Department of Health, HSC 2001/015 LAC(2001)18, Continuing
Care: NHS and Local Councils' responsibilities, 2001 Back
47
Health Service Ombudsman for England, Press notice 18 February
2003, OMBUDSMAN UPHOLDS COMPLAINTS ABOUT REFUSAL OF NHS FUNDING
FOR LONG TERM CARE Back
48
Q100; see also CC01 Back
49
Qq31-33 Back
50
Q271 Back
51
Q36 Back
52
Qq 7-8 Back
53
Q272 Back
54
CC09, para 5 Back
55
Q273 Back
56
Q245 Back
57
Q15 Back
58
Q271 Back
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