Correspondence between Ms Anne McDonald
and the Office of Parliamentary and Health Service Ombudsman (CC
23B)
CONTINUING CARE FUNDING AND REGISTERED NURSING
CARE CONTRIBUTION
I am writing to seek your clarification and
comments on the issue of high band Registered Nursing Care Contribution
(RNCC) and full NHS continuing care funding (NHS CC).
As you are aware, from Melanie Henwood's report
and from the Ombudsman's follow-up report on NHS funding for long-term
care (HC 144, 16 December 2004), there has been considerable confusion
across strategic health authorities and trusts as to the relationship,
if any, between RNCC and NHS CC. This is not a theoretical issue.
We have a large number of complaints where the patient has been
found to fulfil the requirements for the high band of RNCC, but
the complainants argue that NHS CC funding should have been granted.
We are "parking" these complaints for a short period,
rather than launching a series of investigations against trusts
and health authorities, in the expectation that we can clarify
matters with you and agree a way forward.
Our view, confirmed by independent legal advice,
is that NHS CC and RNCC are two completely separate funding systems.
This is made clear by a number of statements contained in various
directions concerning both continuing care and free nursing care.
Circular HSC 2001/015: LAC (2001) 18 ("Continuing care, NHS
and Local Councils' Responsibilities"), paragraph 10 states:
"10. Section 49 of the Health and Service
Care Act 2001 will remove from local councils the responsibility
for providing nursing care by a registered nurse. Directions will
require the NHS to take responsibility for such care in the future,
including those currently self-funding their care. Guidance on
this will be issued over the summer, with the introduction of
free nursing care from October 2001. None of this guidance will
alter the NHS' existing responsibility to provide a full package
of NHS services where there is a primary health need."
This later Guidance, concerning the introduction
of free nursing care (HSC 2001/017: LAC (2001) 26), contains a
similar statement at paragraph 9:
"9. The directions relate only to nursing
care as defined in section 49 of the Health and Social Care Act
2001 [care by registered nurses]. They do not relate to any other
kind of care. In other words, the obligations of the NHS in relation
to other types of care (including other types of nursing care)
remain."
This statement is again made in the "NHS
Funded Nursing Care Practice Guide and Workbook". Paragraph
1.7 states (in bold print):
"1.7 These responsibilities [for
continuing NHS health care] will remain unchanged; the requirement
to fund the registered nursing care of people in care homes will
not reduce the need to also make provision for continuing NHS
health care."
The message should, therefore, be clear: the
provision of free nursing care (RNCC) has no effect on other rights
to the provision of free care that a person may have. Given the
respective benefits of NHS CC over RNCC, it is equally clear that
a person in need of ongoing health care should first be assessed
for NHS CC eligibility. If found eligible, the assessment process
stops there and RNCC considerations are unnecessary. If, however,
a person is not eligible for NHS CC, a separate assessment of
their need for care by a registered nurse (the RNCC assessment)
is normally warranted.
I know from our informal discussions on this
issue that we agree that this is the correct approach. However,
from the complaints we have received, it is apparent that many
trusts are carrying out the two assessments in reverse. They are
first determining whether a patient is eligible for RNCC, and
if so, at what band. They then assess NHS CC eligibility, disregarding
those nursing needs that have led to the RNCC banding. Consideration
of the entirety of an individual's health needs is therefore absent
when NHS CC is assessed. The result is that many people are not
being properly considered for continuing care funding. Where
we see this wrong approach, we are writing to the trust or strategic
health authority and requesting a re-review, with the right approach.
Again, I think you will have no difficulty with this, and indeed
I think you have pointed strategic health authorities towards
the right approach.
A common expression of this mistaken prioritisation
of the RNCC assessment over a NHS CC assessment derives from the
wording of the Coughlan judgment. At paragraph 30 of the Coughlan
judgment, the Court of Appeal expressed its view of the nursing
care that could lawfully be provided by a local authority as part
of its social care package:
"(e) The distinction between those services
which can and cannot be so provided is one of degree which in
a borderline case will depend on a careful appraisal of the facts
of the individual case. However, as a very general indication
as to where the line is to be drawn, it can be said that if the
nursing services are:
— merely incidental or ancillary to the
provision of the accommodation which a local authority is under
a duty to provide . . .
— of a nature which it can be expected
that an authority whose primary responsibility is to provide social
services can be expected to provide, then they can be provided
[by local authorities as part of a social care package]."
The rationale that is given to many complainants
for refusal of full funding is some version of the following:
"Because care that is being delivered by
registered nurses is no longer being provided by local authorities
(but funded by the NHS through RNCC), this care no longer goes
into the equation as to whether the overall nursing provision
is more than merely incidental or ancillary to the provision of
accommodation."
In other words, a person's needs for registered
nursing care do not count towards eligibility for NHS CC funding
as that aspect of care is already funded through RNCC. I would
appreciate your agreement that that approach is also wrong.
A further and most serious consequence of this
mistaken approach is that it allows, and indeed encourages, individuals
with high levels of health care need to be assessed at high band
RNCC rather than as eligible for NHS CC 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 CC funding, given the similarity of the wording.
I explain this further below.
The Department of Health Guidance HSC 2001/015
sets out, at Annex C, the key issues that health authorities should
consider in establishing their eligibility criteria for NHS funded
continuing care. The ones most relevant for these purposes are
paragraphs 2-4:
"2. The nature or complexity or intensity
or unpredictability of the individual's healthcare needs (and
any combination of those needs) requires regular supervision by
a member of an NHS multi-disciplinary team, such as the Consultant,
palliative care, therapy or other NHS member of the team.
3. The individual's needs require the routine
use of specialist health care equipment under supervision of NHS
staff.
4. The individual has a rapidly deteriorating
or unstable mental, physical or mental health condition and requires
regular supervision by a member of the NHS multi-disciplinary
team, such as the Consultant, palliative care, therapy or other
NHS member of the team."
Although the wording of Annex C paragraph 6
and paragraph 22 of the main guidance could be read to exclude
nursing care need alone from NHSCC, these paragraphs sit most
unhappily with the three paragraphs just quoted which would seem
to include it.
As you are aware, despite the inherent contradictions,
these key issues have become the effective eligibility criteria
for strategic health authorities across the country.
There is much confusion over whether intensity
of health care need alone, ie without complexity or unpredictability
and therefore capable of being met by nurses alone, can qualify
a person for NHS CC. This seemingly stems from paragraphs 22 of
HSC 2001/015 and 6 of Annex C where it is stated that a need for
care from a registered nurse alone is not sufficient reason for
receiving continuing NHS health care. Our interpretation of these
paragraphs is simply that supervision by a registered nurse does
not, on its own, mean that someone should receive NHS continuing
care; their health needs still have to be sufficiently complex,
intense or unpredictable. These paragraphs are not saying that
a need for nursing care alone, regardless of how intense, can
never qualify a person for NHS CC.
This follows from our understanding of the Coughlan
judgment: it established that intensity of health care need alone
can establish eligibility for NHS continuing care. This is reiterated
in paragraph 2 of Annex C, quoted above, that lists "nature",
"complexity", "intensity" and "unpredictability"
as alternatives, not as cumulative factors, ie meeting only one
is sufficient to qualify for NHS continuing care. It would, however,
be helpful if you could confirm that this is also the Department
of Health's understanding.
By contrast, the accompanying Guide and Workbook
to HSC 2001/017: LAC (2001) 26 describes the needs for registered
nursing care people must have to qualify for high band RNCC at
paragraph 3.8:
"THE HIGH
BAND
3.8 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
the 24-hour period, and their physical/mental health state
will be unstable and/or unpredictable."
This definition does not allow for complexity,
intensity and unpredictability of health care needs to be alternative
types of qualifying need. Rather, a person must have "complex
needs", and their physical/mental health state must
be "unstable and /or unpredictable" in order to receive
high band RNCC. A person must therefore either have complex and
unstable, or complex and unpredictable health care needs.
This, in itself, appears to create a higher threshold of health
care need than would qualify a person for NHS CC.
In addition, however, a person will also need
"frequent intervention and re-assessment by a registered
nurse throughout the 24-hour period" (my emphasis). This
again appears to be a higher threshold than for continuing care
eligibility, where the healthcare needs must only be such that
they require "regular supervision by a member of an
NHS multi-disciplinary team". Of course, a registered nurse
could be a member of the NHS multi-disciplinary team.
Consequently it is difficult to see how a person
with healthcare needs that properly place him or her at high band
RNCC would have even reached the stage of an RNCC assessment had
he or she been properly assessed for NHS CC. 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. It would seem
to us therefore that a person properly assessed for nursing needs
and in receipt of high band RNCC, on the basis that the person
has intense nursing needs and/or complex nursing needs, would
qualify for NHS CC funding.
It is our view that the threshold for high band
RNCC was set at such a level that confusion with NHS CC was inevitable,
and that injustices will continue to occur without urgent action
to clarify matters. The current situation has worked to the disadvantage
of many old and vulnerable people and their relatives who, as
a result, have been wrongfully refused continuing care funding.
Due to our concerns about the compatibility
of high band RNCC with refusals of NHS CC, we placed on hold the
further consideration of complaints where the aggrieved was in
receipt of high band RNCC. Having now considered this matter further,
and taken advice from Counsel, we ask that the Department provide
urgent clarification as to the intention behind the words quoted
above, and clarification as to how you require practitioners to
distinguish between eligibility for high band RNCC and eligibility
for NHS continuing care funding. Upon receiving that clarification,
the Ombudsman may then seek further advice from Counsel as to
the legality of that approach and the decisions made by trusts
and strategic health authorities in complaints we are holding
and decide how we should proceed on the complaints we have on
this matter. This could be by launching a series of investigations
against trusts and authorities, or, preferably, by us agreeing
a way forward on the matter strategically, and resolving the complaints
en bloc (for example by asking trusts and strategic health
authorities to agree NHS CC for these meeting high band RNCC or
to reassess patients for NHS CC using your new advice and guidance).
I appreciate that you may need to take your
own legal advice on this matter, but given the number of complaints
that we are holding where potential maladministration rests on
this issue, I should be grateful for an early response. I am happy
to meet you and your colleagues to discuss this issue if you think
that would be helpful. However, that should be with a view to
moving swiftly to a statement from you giving your interpretation,
clarification and guidance on practice on this issue.
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