Problems with record keeping
164. An enduring theme throughout our evidence was
the poor quality record keeping, and in some cases, absence of
records. This has caused considerable problems in carrying out
retrospective reviews. According to the independent review, the
quality of individual case records varied from very bad to excellent.
Instances were frequently cited where records were undated, unsigned,
or contained nothing of any relevance to the needs of the resident,
and where residents' notes were frequently in the wrong files.
In a few instances there were situations in which records were
not contemporaneous and had clearly been created for the purpose
of the review.[137]
165. Michael Young of North West London SHA argued
that the lack of records, and difficulty in accessing records
had not been anticipated by SHAs.[138]
Cath Attlee of Hounslow PCT told us that although problems with
record keeping were not evident everywhere, there were "examples
across the board" in all types of care settings, not only
residential care homes.[139]
166. Anne Williams of Citizens' Advice also argued
that in carrying out the reviews, some SHAs had been inflexible
in the types of records they would accept as evidence, refusing
to accepting evidence from carers, or even GPs or hospitals records,
and instead would accept only the "written contemporaneous
records of the nursing care that was given at that time"
that was prepared by the care home. As some nursing homes have
closed down, this creates an impasse, where the case "just
sits on a desk and it is very difficult to get it moved forward".[140]
167. The retrospective
review process has brought to light serious shortcomings in the
quality of information and record-keeping in assessments and in
on-going care management. Not all records can be kept indefinitely,
and we do not want to impose an intolerable burden on NHS organisations
and care homes. However, clearer guidance on what should be kept
and how long for is clearly needed, and we therefore recommend
that the national framework for continuing care should provide
detailed guidance on this. Because of the difficulties in obtaining
contemporaneous nursing records, we also recommend that SHAs who
are still involved in the retrospective review process should
adopt a more flexible approach to the types of evidence they will
consider, including carer evidence, and GP and hospital records.
Restitution or compensation?
168. SHAs told us that in accordance with Department
of Health guidance, they had made restitution payments to people
wrongly denied continuing care, based on the actual costs they
incurred adjusted for inflation, but not compensating them for
any other losses they might have incurred, for example if people
sold their homes, or had to give up jobs to care for relatives.[141]
169. However, in her memorandum the Ombudsman stated
that it is her principle that "where funding was wrongly
withheld, the individual, or their estate, should be put back
in the position they would have been in had the maladministration
not occurred"[142].
The Ombudsman has received many cases claiming compensation for
sale of houses or for loss of earnings, and is currently taking
these forward with the Department rather than with the individual
SHAs or trusts involved.
170. The Minister argued that the Government's policy
was based on the approach that "would have been arrived at
by the Courts". He argued that providing people with compensation
on the grounds that their house, had they not sold it, might have
increased in value, could give rise to increasingly ambitious
financial claims based on entirely hypothetical arguments, and
also pointed out that, when people were made retrospective payments
for continuing care, they were not required to pay back any benefits
they received at the time, to which they would not have been entitled
had they been receiving continuing care.[143]
171. It is beyond
the scope of this inquiry to address the question of whether people
wrongly denied continuing care should be given compensation for
house sales and loss of earnings as well as simple restitution
for the actual money they spent. However, the Ombudsman has raised
this as a serious concern expressed in a number of complaints
she has received. We urge the Government to liaise with the Ombudsman
on this issue to attempt to agree a common position. Where appropriate,
complainants should have access to adequate legal advice.
123 The Health Service Ombudsman for England, NHS
Funding for Long Term Care - Follow up report, HC 144, December
2004, pp1-2 Back
124
The Health Service Ombudsman for England, NHS Funding for Long
Term Care - Follow up report, HC 144, December 2004, p1 Back
125
Q246 Back
126
The Health Service Ombudsman for England, NHS Funding for Long
Term Care - Follow up report, HC 144, December 2004, p1 Back
127
CC29, para 2.4 Back
128
The Health Service Ombudsman for England, NHS Funding for Long
Term Care - Follow up report, HC 144, December 2004, p2 Back
129
CC15 Back
130
Para 3.43 Back
131
CC11 Back
132
Q74 Back
133
Q74 Back
134
Q126 Back
135
Q201 Back
136
Q335 Back
137
Department of Health (Henwood M ), Continuing Health Care:
Review, revision and restitution, December 2004. Back
138
Q51 Back
139
Q49 Back
140
Qq95-96 Back
141
Q56 Back
142
CC23, para 14 Back
143
Q340 Back
