Confusion over the Registered
Nursing Care Contribution
89. The Registered Nursing Care Contribution (RNCC)
system was introduced in October 2001 on a phased basis, to transfer
responsibility for funding the nursing care[71]
of those in care homes to the NHS. Under the RNCC system an assessment
of a patient's nursing needs is carried out by a qualified nurse,
and a patient will be graded according to a three banded system,
which will determine the level of funding they get for their nursing
care needs:
- low (£40pw from 1 April
2005),
- medium (£80pw from 1 April 2005) and
- high (£129pw from April 2005).
90. The Department of Health has provided the following
guidance for assessment for the RNCC:
The High Band - People with high needs
for registered nursing care will have complex needs that require
frequent mechanical, technical and/or therapeutic interventions.
They will need frequent intervention and re-assessment by a registered
nurse throughout a 24 hour period, and their physical/mental health
state will be unstable and/or unpredictable.
The Medium Band - People whose needs for
registered nursing care are judged to be in the medium banding
may have multiple care needs. They will require the intervention
of a registered nurse on at least a daily basis, and may need
access to a nurse at any time. However, their condition (including
physical, behavioural and psychosocial needs) is stable and predictable,
and likely to remain so if treatment and care regimes continue.
The Low Band - The low band of need for
nursing care will apply to people who are self-funding whose
care needs can be met with minimal registered nurse input. Assessment
will indicate that their needs could normally be met in another
setting (such as at home, or in a care home that does not provide
nursing care, with support from the district nurse), but they
have chosen to place themselves in a nursing home.[72]
RNCC payments are made directly to the nursing home
where the patient is a resident, as under current legislation
the NHS cannot reimburse individuals directly.
91. Although the RNCC system should technically operate
separately from the continuing care system, with continuing care
funding being provided to those with the very highest needs, and
the RNCC system applying to those who do not qualify for continuing
care funding but still require nursing care, the evidence we received
suggested considerable confusion and significant overlap between
the two systems. This is partly because the wording used in the
RNCC criteria is almost identical to that used for continuing
care. To qualify for high band nursing care, people will need
to be assessed as having an "unstable" or "unpredictable"
state of physical health. However, as people assessed as qualifying
for fully funded continuing care must also have "unstable"
and "not easily predictable" health care needs, this
raises the question of whether it is possible to distinguish between
high band nursing care and continuing care funding. This confusion
was raised in many written submissions, and was also a major finding
of the independent review.
92. John Pye of the Royal College of Nursing argued
that the confusion stemmed from two policies developed in isolation
without adequate reference to each other:
It came along as a reaction to the long term
commission. It also did not take into account the policy we already
had in place for continuing health care, and the two sides have
never married up. I was listening to previous speakers about the
combinations and the relationship between the RNCC and continuing
healthcare. It was never thought about when RNCC came out, and
we have ended up with two policies and two procedures matching
in everything including the words, which places a great difficulty
on us within the nursing sector and certainly within PCTs in trying
to disseminate and make decisions on who funds and who does not.[73]
93. This confusion was also noted by the Ombudsman
in her report and, following legal advice, her office has written
to the Department to seek clarification about whether, given the
similarity of the wording used in both sets of criteria, those
who have been found to qualify for high band free nursing must
in fact also meet the criteria for full funding:
It seems to us, and is supported by our legal
advice, that if a person's needs for registered nursing care are
deemed to be at high band RNCC level, it is difficult not to say
that that person should also be eligible for NHS continuing care
funding, given the similarity of the wording … it is difficult
to see how a person with healthcare needs that properly place
him or her at high band RNCC would even have reached the stage
of an RNCC assessment, had he or she been properly assessed for
NHS continuing care. This is because the level of health care
needs that warrant high band RNCC would seem to be, at the least,
equivalent to those that should qualify a person for continuing
care funding, if not higher. [74]
94. Responding to the Ombudsman's letter, the Department
acknowledged that confusion had arisen at a local level. Although
the Department's letter did not specifically address the Ombudman's
argument that if a person's needs for registered nursing care
are deemed to be at high band RNCC level, that that person should
probably also be eligible for NHS continuing care funding, given
the similarity of the wording, the letter did suggest that this
confusion will be resolved in the forthcoming review:
When the Minister, Stephen Ladyman, announced
the work to develop a national framework for NHS continuing care
he made it clear that this should include NHS funded nursing care.
Also the development of the Single Assessment Process, and ensuring
all aspects of care needs are taken into account through that
process, has already been identified as the way to make sure the
process is handled correctly and consistently. This will be the
opportunity to clear up confusion and there could be options for
a significant change to the interface between NHS funded continuing
care and NHS funded nursing care.[75]
95. In oral evidence, the Minister told us that there
were no plans at the moment to integrate the two systems, although
he did not rule out the possibility. However, he did offer to
ensure that, if the two independent systems remain, detailed guidance
will be issued to clarify the distinction between continuing care
and high band RNCC.[76]
96. It seems to
us a nonsense that two separate systems exist for assessing eligibility
for fully funded NHS continuing care and for nursing care contributions
as fundamentally both systems are doing the same thing, which
is determining NHS funding of ongoing health care. We have heard
from several authoritative sources, including the Ombudsman, that
the criteria for assessing eligibility for continuing care and
high band nursing care are virtually indistinguishable from each
other, causing considerable problems for those charged with applying
them, and raising the possibility that, in fact, everyone who
qualifies for high band RNCC should also automatically qualify
for fully funded continuing care.
97. We are surprised
that these two distinct policies regarding the funding of ongoing
health care have been developed by the same Department with seemingly
no regard for ensuring coherence or harmony between the two systems.
We urge the Government to put right this confusion and end unnecessary
bureaucracy immediately. It seems to us that the simplest way
to achieve this would be to integrate the two systems. If the
two systems continue to co-exist, there must be clarification
of the interaction between them, and we recommend simplification
of the banding system.
Questions over whether the criteria
are actually Coughlan-compliant
98. The Law Society, Solicitors for the Elderly,
and Mackintosh Duncan argued that current criteria, both for continuing
care and for nursing care contributions, set the bar too high
to be 'Coughlan-compliant'.[77]
99. In 1999, the judge in the Coughlan case ruled
that, as Pamela Coughlan's needs were primarily for health care,
the Health Authority was liable to fund her entire care package
- in other words, that she should qualify for fully funded NHS
continuing care. Thus the judgment in Coughlan establishes
that where a person's primary need is for health care, and this
is more than 'ancillary' or 'incidental' to their needs for accommodation,
the NHS is responsible for the full cost of the package. Social
services authorities may only purchase nursing care in strictly
limited situations, in accordance with the judgment.
100. The Department of Health
subsequently issued guidance to Health Authorities asking them
to ensure their eligibility criteria were 'Coughlan-compliant'.
Mackintosh Duncan described the test of 'Coughlan-compliance'
very simply:
Any national framework/criteria must operate
so that if Ms Coughlan were to present herself in any area of
the country, she would be eligible for fully funded NHS continuing
care.[78]
101. According to the Department of Health, all 28
sets of eligibility criteria now operating are legal and in line
with current guidance.[79]
However, Mackintosh Duncan, the Law Society and Solicitors for
the Elderly all argued that the Coughlan case would itself have
failed to meet the requirements of the guidance on eligibility
criteria, as Pamela Coughlan's condition was stable and predictable,
but with a high level nursing care needs.[80]
They also argued that, as the guidance is currently written, Pamela
Coughlan would not have been eligible for high band nursing care,
or even, in all likelihood, for medium band nursing care:
Ms Coughlan's condition and needs were said by
the Court of Appeal to fall wholly within the funding responsibilities
of the NHS. However, her particular needs are considerably less
than the majority of residents in nursing homes. Therefore, applying
the RNCC tool, Ms Coughlan would not meet the medium or high band
of RNCC, let alone the (higher) threshold of fully funded NHS
care. Given the comments of the Court of Appeal regarding her
individual needs, we consider that this has been overlooked by
health authorities in developing their criteria.[81]
102. Mackintosh Duncan went on to assert that, accordingly,
very few of the criteria currently being used by SHAs were actually
'Coughlan-compliant':
We have seen many sets of eligibility criteria
currently being operated. In our view, none of those criteria
are in accordance with the Coughlan judgment. In many cases, people
would be eligible only if they were near death. There continues
to be a mistaken belief that chronic health care for patients
in a stable condition is no longer the responsibility of the NHS.
This was the very error which led to the Coughlan case being brought.[82]
103. The
Minister has stated that all 28 sets of eligibility criteria now
operating are legal and in line with current guidance. However,
we have received evidence which calls this in to question, arguing
that in fact the Coughlan case itself would have failed to meet
the requirements of current eligibility criteria, either for NHS
continuing care, or for high or even medium band RNCC, as Pamela
Coughlan's condition was stable and predictable, although she
had high level nursing care needs. Mackintosh Duncan solicitors,
who specialise in continuing care law, told us that of the many
sets of eligibility criteria they have seen which are currently
being used, "none of those criteria are in accordance with
the Coughlan judgment". These are very serious charges which
the Government must answer. The new national eligibility criteria
must be explicitly Coughlan-compliant, ensuring that all people
whose primary need is for health care will receive fully funded
care, even if this requires a fundamental revision of the definitions
and terminology of the criteria.
59 Q112 Back
60
Q315 Back
61
Q108 Back
62
Health Service Ombudsman for England, The Pointon Case,
November 2003, para 43 http://www.ombudsman.org.uk/pdfs/pointon.pdf
Back
63
Q113 Back
64
Q115 Back
65
Q207 Back
66
CC22, paras 3.4.1-2 Back
67
CC24, paras 3.1, 6.1 Back
68
CC32 Back
69
Qq12-13 Back
70
Q14 Back
71
Care provided by registered nurses Back
72
http://www.dh.gov.uk/assetRoot/04/07/10/16/04071016.pdf Back
73
Q132 Back
74
CC23B Back
75
CC09D Back
76
Q328 Back
77
CC35, CC17, CC32 Back
78
CC32 Back
79
HC Deb, 9 December 2004, col 108 WS Back
80
CC35, CC17, CC32 Back
81
CC32 Back
82
CC32 Back
