Southend-on-Sea Borough Council
Agenda
Item No.
Report of Corporate Director, Adult and Community
Services
to
Cabinet
on
25 September 2007
Report prepared by: Mike Boyle
The National Framework for NHS Continuing Health Care and NHS Funded Care.
Executive Councillor: Councillor Mark Flewitt
A Part 1 Public Agenda Item
1.
Purpose of Report
The purpose of this report is to brief Cabinet on the introduction of a new
National Framework for NHS Continuing Health Care coming into effect on the 1
October 2007. The outcome of an assessment for NHS Continuing Health Care
will determine whether someone is entitled to free NHS care; a joint package
funded by the NHS and the Council; or local authority funded services only.
2.
Recommendation
That Cabinet notes the implications of the new National Framework for NHS
Continuing Health Care and NHS Funded Care.
That the Chief Executives of the PCT and Southend University Hospital NHS
Foundation Trust be invited to the next meeting of the Health and Social Care
Scrutiny Committee to outline the arrangements being made to ensure that local
arrangements comply with the National Framework.
That Officers report to Cabinet in March 2008 on the impact of the National
Framework.
3.
Background
Introduction
‘Continuing Care’ means care provided over an extended period of time to a
person aged 18 or over to meet physical or mental health needs which have
arisen as the result of disability, accident or illness. ‘NHS Continuing Health
Care’ means a package of continuing care arranged and funded solely by the
NHS. The actual services provided as part of that package should be seen in
the wider context of best practice and service development for each client
group.
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An individual who needs ‘continuing care’ may require services from the NHS
and/or from local authorities. Both NHS bodies and LAs therefore have
responsibilities to ensure that the assessment of eligibility for, and provision of,
continuing care takes place in a timely and consistent fashion. If a person does
not qualify for NHS Continuing Healthcare, the NHS may still have a
responsibility to effectively contribute to that person’s health needs. This is
sometimes known as a ‘joint package’ of continuing care. The most common
form of a joint package is in residential care where the NHS pay the cost of
nursing and the local authority pays for the cost of accommodation and
personal care. However there are numerous examples in Southend of joint
packages helping people to live at home, particularly for Adults with a Learning
Disability and people with sensory or physical impairments.
Prior to the introduction of the new guidance, each local authority and Primary
Care Trust, within parameters set by the Strategic Health Authority, were
required to agree local eligibility criteria and operating processes, for access to
Continuing Care and NHS Continuing Health Care. This resulted in the
inconsistent application of eligibility criteria and frequent legal challenges.
Members should note that if an elderly home owner requiring long term care is
assessed as being ineligible for full continuing care, the NHS will fund, without
charge, all nursing and related health services. However, the person will be
expected to contribute towards the cost of the accommodation and personal
care, if they have savings or capital in excess of £21,500, up to the full costs of
those services, approximately £350 per week. This means that many elderly
home owners need to sell their homes to pay for the cost of their residential
care.
Individuals who are assessed as eligible for NHS Continuing Health Care
receive all services free of charge.
There are three significant legal judgements influencing the current guidance:
The Coughlan Judgement
Ms Coughlan was injured in a traffic accident leaving her with only limited
mobility in her left arm. She lived in accommodation within an NHS facility and
required support with virtually all activities of daily living but had little health or
nursing needs. The NHS proposed to move Ms Coughlan to alternative
accommodation in the community but without entitlement to NHS Continuing
Health Care. Ms Coughlan challenged this decision and the High Court upheld
her challenge on the basis that the level of support and services she required
were beyond the scope normally expected to be provided by a local authority.
Following this decision, the Department of Health instructed PCT’s to record in
future specifically why people being assessed for NHS Continuing Health Care
failed to meet the ‘Coughlan Test.’
The Goldsmith Judgement
Mrs Goldsmith was living in a local authority residential care home but following
a fall she was assessed as requiring nursing care and therefore could not return
to her original residential placement. Her family challenged this decision.
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The High Court made a number of judgements in this case, based around the
transparency of the process, and required future decisions to be properly
recorded, for people to have a right to make representation and to be informed
of how they could appeal a decision.
The Grogan Judgement
The previous and new guidance states that people will be entitled to NHS
Continuing Health Care if their primary need relates to their health. Mrs Grogan
was assessed as someone who required a nursing home with high levels of
nursing support – she was not entitled to full NHS funding. Her family
challenged this decision and the High Court found that if someone had high
nursing needs their primary need would most probably relate to their Health and
therefore she was entitled to NHS Continuing Health Care. Following this
judgement the Department of Health instructed PCTs to review all higher
nursing needs cases and set about a national review of continuing care practice
across the country.
The new guidance, which comes into effect on the 1 October 2007, contains
two significant changes to existing practice:
(a) Instead of each of the 28 Strategic Health Authorities in England having its own
rules, tools and processes for determining eligibility for NHS Continuing Health
Care, there should be one national approach on determining eligibility, with a
common process and national tools to support decision making for the NHS in
England.
(b) Rather than having a separate nursing determination to assess an individual’s
need for registered nursing care in a nursing home, and which places recipients
into three bands, there should be one single band for NHS funded Nursing Care
in a nursing home. The determination of eligibility for NHS funded Nursing Care
should be integrated into the same framework as eligibility determination and
care planning for NHS Continuing Health Care.
What This Means In Practice.
The guidance sets out some core values and principles including:



Financial issues should not be considered as part of the decision about an
individual’s eligibility for NHS Continuing Health Care. Therefore local
authorities or PCT’s cannot delay treatment or appropriate care if there is a
dispute about funding responsibilities.
The decision making rationale should not marginalise a need because it is
successfully managed……..Only where the successful management of a health
care need has permanently reduced or removed an ongoing need will this have
a bearing on NHS Continuing Health Care eligibility.
The reasons for a decision on eligibility cannot be based on
o The setting of care
o The ability of the care provider to provide care
o The use (or not) of NHS employed staff to provide care
o The need for/presence of specialist staff in care delivery
o The existence of other NHS funded care
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o Any other input-related (rather than needs related) rationale.
The guidance sets out in detail the operating tools and processes that must be
applied in determining eligibility for NHS Continuing Health Care. The critical
determination will be based upon the national Decision Making Support Tool
attached as APPENDIX 1.
The tool breaks down the assessment process into 11 Care Domains:
Behaviour
Cognition
Communication
Psychological/Emotional Needs
Mobility
Nutrition – Food and Drink
Continence
Skin (including tissue viability)
Breathing
Drug Therapies and Medication: Symptom Control
Altered States of Consciousness
The Decision Making Support Tool categorises need by Low, Moderate, High,
Severe and Priority.
A clear recommendation of eligibility for NHS Continuing Health Care would be
expected in each of the following cases:




A level of priority needs in any one of the four domains that carry this level of
need
A total of two or more incidences of identified severe needs across all care
domains.
If there are a number of domains with high and/or moderate needs this may
also indicate a primary health care need.
In needs in all domains are recorded as low or no need, this would indicate
ineligibility.
The assessment is a multi disciplinary one and will include input from local authority
staff. The outcome will be a recommendation to the PCT, however the guidance is
explicit in stating that only in exceptional circumstances, and for clearly articulated
reasons, should the multi disciplinary assessment not be followed. In
circumstances where the PCT have established a panel to consider the
recommendation (and that is likely to be the case in Southend) Finance Officers
should not be part of the decision making process as the eligibility decision should
be independent of budgetary constraints. Patients and their families should be
informed of the funding decision within 2 weeks of the initial referral for a full
consideration of need.
There is a requirement for PCT’s to review decisions as people’s health needs may
change and they may no longer be eligible for NHS Continuing Health Care.
Paragraph 86 of the guidance may have implications for the Council:
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If a person was assessed as not needing NHS Continuing Health Care under
a previous system, and when reassessed under the National Framework is
found to be eligible for NHS Continuing Health Care, assuming that the
previous decision under the old system was properly taken(i.e. the criteria at
that time were lawful, the criteria were properly applied, there were sound
reasons for the decision taken and the process was properly documented)
that should not entitle the person to be reimbursed from the date they were
previously refused NHS Continuing Health Care. However, if their needs
have not changed, it should be considered whether their funding should be
back dated to the implementation of the National Framework.
There is a risk to the Council that there may be people currently in nursing care
whose needs have not changed, but under the new tool may be entitled to full NHS
Continuing Health Care. If this was the case the Council would have to return any
financial contributions received after the 1 October 2007. At this stage it is not
possible to quantify this risk but the Council would look to the NHS to reimburse
any refunds required.
PCT’s are required to establish a review mechanism to deal with appeals from
families or patients in respect of the eligibility decision. This would normally be
through a local review panel or by using a neighbouring PCT review panel to give
the appellant greater confidence in the independence of the process.
If it is not possible to resolve the matter at this stage, the family or patient can refer
the matter to the Strategic Health Authority Independent Review Panel. Paragraph
93 of the guidance sets out detailed and stringent instructions on how this panel will
come to a conclusion.
If there is a dispute between the local authority and an NHS body about funding
responsibilities it is expected that that a local disputes resolution process will
resolve the matter in a timely and robust manner.
4.
Corporate Implications
4.1
Resource Implications (Finance, People, Property).
Following the publication of the guidance in July 2007, Officers from the
Council, PCT and Hospital Trust have been meeting to consider how to
communicate the new process to patients and their families; the mechanism
and representation of the local decision making panel; and the process of
dealing with any disputes between the Council and local NHS bodies.
In financial terms the Government believe that the new National Framework will
result in additional expenditure by the NHS and therefore this should be cost
neutral or cost beneficial to the Council. On first reading, Officers believe there
may be a number of existing joint packages that under the new criteria would
result in a priority assessment and therefore become fully funded by the NHS.
The guidance has significant implications for local practice and we have,
through a number of joint budgets, established mechanisms to deliver joint
training and to amend and update policy and operational manuals.
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4.2
Contribution to Council’s Vision & Critical Priorities
Effectively implementing the new National Framework will contribute positively
towards our aims of becoming a healthier Southend and an excellent Council.
4.3
Consultation
This report has been considered and agreed by the Corporate Management
Team. Comments were invited from our colleagues in Health.
4.4
Equalities Impact Assessment
The Department of Health have undertaken an Equalities Impact Assessment
upon the new National Framework. A local EIA will be completed prior to the
report to Cabinet in March 2008.
4.5
Risk Assessment
The DH believe that the National Framework will require greater NHS funding, so
there is a low level of financial risk to the Council. However, Officers will analyse,
on a monthly basis, the financial impact of the new arrangements.
4.6
Value for Money
The new framework will not impact upon our current VFM arrangements.
4.7
Community Safety Implications
None
4.8
Environmental Impact
None
5.
Background Papers
The National Framework for NHS Continuing Health Care and NHS funded
Nursing Care – 26 June 2007. Department of Health.
6.
Appendices
Appendix 1: The NHS Continuing Health Care Decision Making Support Tool.
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