Select Committee on Health Minutes of Evidence

Memorandum by the Health Service Ombudsman for England (CC 23)


  1.  The long term NHS funding of patients (usually elderly and disabled, often, but not exclusively in care homes with nursing) is usually called "continuing care", and results in all social and health care needs being paid for by the NHS, without any form of means testing.

  2.  In my special report to Parliament in February 2003 (NHS Funding for Long Term Care, HC399) I recommended that strategic health authorities and primary care trusts should (in summary):

    —  review the criteria used by their predecessor bodies, and the way those criteria were applied, since 1996, taking into account the Coughlan judgment, Department of Health guidance and my findings; and

    —  make efforts to remedy any consequent financial injustice to patients, where the criteria, or the way they were applied, were not clearly appropriate or fair.

  I also recommended that the Department of Health should:

    —  consider how they can support and monitor the performance of authorities and primary care trusts in this work;

    —  review and clarify the national guidance on eligibility for continuing NHS health care and include definitions of the terms used;

    —  consider being more proactive in checking that criteria used in the future follow that guidance;

    —  consider how to link assessment of eligibility for continuing NHS health care into the single assessment process and support the development of reliable assessment methods.

  3.  The Department agreed to all but one of the recommendations made in that report. That recommendation was that the Department should review their guidance to strategic health authorities on eligibility for continuing care.

  4.  According to the Department's figures, nearly 12,000 retrospective reviews have been carried out, with 20% of these resulting in partial or total NHS funding for the patient. However, in my Annual Report for 2003-04 (HC 703) I expressed disappointment that there had been considerable delays in carrying out the reviews and that, despite the development of new eligibility criteria for the 28 strategic health authorities, I still had concerns which I planned to raise with the Parliamentary Under Secretary for Community, Dr Ladyman. I also said that I intended to publish a further report to Parliament later in 2004.


  5.  In my further report, (NHS Funding for Long Term Care: Follow up report HC144 16 December 2004) I reported that, although there had been considerable effort locally to retrospectively review cases fairly and robustly, there had been considerable problems. Complaints to me revealed:

    —  significant delays in completing retrospective reviews and a lack of capacity to deal with the number of cases;

    —  difficulties of interpretation of eligibility criteria (and the Department of Health's 2001 guidance on which those criteria were based) to decide who should qualify for full funding;

    —  confusion about the distinction between continuing care full funding and "free" nursing care—particularly at the higher band;

    —  flaws, often systemic, in the way retrospective reviews were carried out; and

    —  delays in making restitution payments to those found eligible for continuing care full funding.

  6.  In more than half of the cases my Office examined we found that the assessments had not been carried out properly. The problems included poor quality clinical input to both assessment and decision making, inadequate documentation, failure to consider changes in a patient's health care needs over time, and lack of involvement of, and poor communication with, patients, carers and relatives.

  7.  Our conclusion was that, while there had been a lot of hard work at local level with examples of good practice, and the Department of Health had instigated some improvements in respect of `new' continuing care cases, these developments fell short of the level of guidance and support that was needed by healthcare professionals in this difficult area. We recommended that the Department of Health needed to lead further work in six key areas by:

    —  establishing clear, national, minimum eligibility criteria which are understandable to health professionals and patients and carers alike;

    —  developing a set of accredited assessment tools and good practice guidance to support the criteria;

    —  supporting training and development to expand local capacity and ensure that new continuing care cases are assessed and decided properly and promptly;

    —  clarifying standards for record keeping and documentation both by health care providers and those involved in the review process;

    —  seeking assurance that the retrospective reviews have covered all those who might be affected; and

    —  monitoring the situation in relation to retrospective reviews and using the lessons learned to inform the handling of continuing care assessments in the future.

  8.  I met Dr Ladyman to express my concerns and shared a copy of my draft report with him. I was pleased when on 9 December 2004 he announced to Parliament that he had commissioned a "new national framework for the assessment for fully funded NHS continuing care".

  9.  I publicly welcomed this initiative and was encouraged when Dr Ladyman wrote to me saying that he believed his statement went beyond most of the recommendations in my report and that his officials intended to work closely with mine so that the national framework could benefit from our experience.

Further Developments and Subsequent Events

  10.  To this end, on 17 December 2004 my officials spoke at a special meeting (called for and hosted by the Department of Health) to brief strategic health authorities continuing care leads. We now plan to meet with strategic health authorities to discuss the problems that we have identified from our caseload of complaints. The purpose of these meetings is twofold:

    —  First, to make sure that relatives and carers who complain to us with justification about flawed retrospective review processes and consequent unsafe decisions have their cases properly reviewed or reassessed in a fair and transparent way.

    —  Secondly, to use these subsequent robust reviews as a way of encouraging strategic health authorities and their trusts continuously to improve their standards in future continuing care cases. This should ensure that the majority of disputes are properly and fairly dealt with and should obviate the need for complainants to bring large numbers of justified complaints to my Office.

  11.  To date these visits have been generally welcomed by strategic health authorities and have proved very useful. They have provided a forum for frank and open discussions and we hope that they will help the health authorities to develop an approach to continuing care that will ensure that past and future cases will be assessed quickly, fairly and robustly. Officials from my Office and the Department of Health have met to share these experiences and explore the principles that we see as essential to the national framework. We are also planning a further three-way meeting to include strategic health authorities' continuing care leads. Further, at a meeting with the Department on 11 February 2005, it was confirmed to my officials that the new national framework would include national minimum eligibility criteria, backed by suitable assessment tools, guidance and Directions.

Other important issues

  12.  In addition, there are two further issues which in our view need to be considered by the Department.

  13.  First, the resolution of the widespread confusion and misunderstanding of the relationship between "free" nursing (particularly at the RNCC high band) and fully-funded continuing care. Following advice from Counsel, we wrote to the Department at the beginning of February 2005 to set out our understanding of the issues and to seek urgent clarification. We have an increasing number of complaints about this issue. Carers and relatives claim that, 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 also meet the criteria for full funding. We are awaiting a reply from the Department.

  14.  Secondly, the other theme in current complaints to me is about redress, where it is accepted that funding was wrongly withheld. My principle is that the individual, or their estate, should be put back in the position they would have been in had the maladministration not occurred. I am currently considering a number of cases where the complainants appear to be able to substantiate claims that a house was sold, or a job given up, to care for someone, as a direct result of the failure to give continuing care funding at the appropriate time. I am also looking at the interest rate which is used by trusts when paying restitution, and at the appropriateness of botheration payments, where the handling of the complaint by the trust or the authority has been particularly poor. These issues are being taken forward with the Department, rather than at authority or trust level.

What should be in the National Framework?

  15.  From our experience, to produce a robust National Framework for continuing care, the Department needs to:

    —  create clear, comprehensible, national eligibility criteria;

    —  develop a nationally validated approach to the assessment and documentation of a patient's health care needs to ensure fairness and consistency and enable reasonable and robust decisions to be made about eligibility for continuing care, which can stand up to challenge and scrutiny;

    —  provide agreed definitions of criteria used to make decisions, such as "intensity"; and "complexity", or, better still, find improved wording to replace them —perhaps through the use of plain English;

    —  clarify the situation where health care is given by a non-NHS practitioner, such as a nursing home employee, private carer or relative;

    —  review and make recommendations about what is an appropriate decision making body (panel) for eligibility decisions for NHS continuing care;

    —  agree a national standard and a set of agreed competencies for NHS continuing care assessors;

    —  set up nationally organised training for, and assessment of, NHS continuing care assessors;

    —  initiate a thorough review and secure national agreement about the distinctive differences between "nursing care" and "personal, hygiene and social care" for the purposes of qualifying for NHS continuing care;

    —  examine the relationships and differentials between NHS continuing care criteria and funded nursing care criteria and review similar phraseology within both;

    —  review and clarify eligibility in relation to degenerative conditions which inevitably lead to death (eg Alzheimer's Disease); and

    —  establish a national communications strategy to help all sections of society understand the criteria for NHS funded continuing care.


  16.  I very much welcome the Department of Health's broad commitment to taking the lead in developing national criteria for NHS funding for continuing care and that this Committee is contributing to the development of this important area of public policy through its current Inquiry. I hope that the experience and expertise of my Office in investigating problems with continuing care over many years will be welcomed not only as making an important contribution to the establishment of a robust, fair and open system which will earn the confidence of patients, carers and professionals alike, but also in drawing a line under the retrospective review exercise when I am satisfied that patients and carers have received reasonable funding decisions based on robust assessments.

Ann Abraham

25 February 2005

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