In 1999 a high-profile case re-drew the boundary line between NHS and social services’ funding of nursing care in nursing homes. The Coughlan case was of fundamental importance to Health and social services authorities, hospital discharge teams, care managers, clients, particularly those who are better off financially – and their families – yet the practical implications of it for users and authorities were not generally worked out for a number of years after the judgment. The case determined that social services were able (and obliged, after a favourable assessment of a person’s ongoing needs for nursing care), to contract for people’s nursing care and attention, (and therefore re-charge for it under national compulsory charging rules) when the quantity and quality of care was such as to be only ‘ancillary’ or ‘incidental’ to the person’s other social care needs.
When someone was over that line, there was no legal power to pay or purchase the extra nursing services, because the government had determined that a need for nursing care courtesy of the NHS (identified, the Court laid down, by looking at the range, frequency, intensity, specialism and continuity of the person’s nursing needs) could only be met by Health Authorities (now PCTs). Thus whilst PCTs were entitled to have discretionary criteria for the trigger point at which they would acknowledge that they would have to meet such needs, those criteria were supposed to be set with the legal limitations on local authorities’ service purchasing powers in mind.
Most PCTs’ criteria had focused on the skill factor, meaning that unless truly exceptional levels of specialist nursing care was needed, no-one qualified for continuing care in a nursing home setting, funded by the PCT, not even in part, let alone fully.
In Coughlan, the court emphasised that it is not merely the fact that a client could feasibly be cared for in a nursing home setting which determines that the LA is properly liable for the funding: the NHS should still be paying for some people in nursing homes by way of direct contracts with the home, in whole or, in part – the Court envisaged splitting the cost for at least some people. That would mean that the nursing home placement, and the ‘basic’ nursing and the rest of the package could be paid for by social services and re-charged to the client, but the extra hours of attention needed for an individual, over the norm, if such could be identified, should be funded by Health. Of course it was difficult in practice to decide what was basic nursing and what was above that line, even if one’s PCT was acting correctly in relation to its own line above which it recognised that someone was entitled to fully funded NHS arranged care, by reference to having a Primary Health Need (the DH’s euphemism for the condition you needed to be in, in order to qualify…)
Perhaps in order to protect the NHS from nursing homes, local authorities and clients arguing for at least part funding in virtually every case, the Government implemented s49 of the Health and Social Care Act 2001 which introduced a prohibition on local authorities providing or arranging registered nursing care (‘RNCC’). A prohibition on spending directed to the LA sector implicitly meant an obligation on the NHS to fund everything defined as RNCC.
But alongside this legislative change the Department of Health issued guidance on the implementation of free nursing care under the Registered Nursing Care Contribution scheme. This scheme operated by way of flat rate contributions towards the cost of the registered nursing for those in nursing home placements on a high, medium or low banding determined by ‘descriptors’ set out within Department of Health Guidance. The descriptors were hard to distinguish from the descriptors in Coughlan for full funding, and the workbook issued to nurses allocating banding to patients had pen pictures of people in medium and high band, but no description of someone in the ‘higher’ Primary Health Need category of need, making it very hard to point to Coughlan-type profiles of need, any longer.
The accompanying guidance from central government maintained that everything that was -f rom then on – going to be for the NHS to purchase, had always been within the concept of that which is ancillary or incidental to social care – i.e. that it was the type of basic nursing that the LAs had always been allowed and mandated to purchase, and charge for, before. But it was clear to anyone familiar with the Coughlan judgment that a person meeting the definition of High Band RNCC would clearly have been someone able to argue, by reference to the Coughlan criteria, that they were well beyond the notion of the type of need that was set out in the National Assistance Act as being for LAs to buy and charge for. Consequently, it could be said that the line set down in that case, got fudged, and it became harder, rather than easier, to qualify for full funding, once the majority of people became entitled to a flat rate contribution towards their nursing home package. The new system was in line with the spirit of Coughlan, in that no-one now had to pay for their nursing, but because of the very tight definition of what counted as nursing, it was not in accordance with the detail, in Coughlan, in this writer’s view, and it definitely raised the Coughlan line that had been set, in practice.
In 2006 Grogan challenged the way in which her PCT had interpreted this Guidance and the decision that she did not qualify for 100% Continuing Care from the NHS. The High Court was highly critical of the local PCT policy and guidance issued by the Department of Health believing that the lack of clarity could have led to, or been a factor in, an incorrect approach being applied by the PCT. The Court held that the approach applied by the PCT was fatally flawed because it did not focus on the DH’s primary health need approach test as endorsed in the Coughlan judgment, and the staff using the policy had no training in what the legal concepts and rights, underlying the policy, were all about. The judgment also identified how qualifying for RNCC was seen as a pre-condition for qualifying for full funding, because of the emphasis in both sets of descriptors on skilled nursing, and how, ironically, once one had been banded, all chance of ever getting full funding, seemed to evaporate, making RNCC descriptors both a minimum and an exclusionary factor, in relation to anyone getting full free care! Following the Grogan Judgment the Department of Health issued further guidance and promised to carry out a comprehensive review of this area of law.
Following comprehensive consultation the Department of Health implemented, on the 01.10.07, the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care. This Guidance, together with Directions issued under NHSA 2006 and LASSA 1970, replaced all previous guidance and is a nationwide policy for the provision of NHS funded Continuing Healthcare and nursing care. It sets out the key definitions including the ‘primary health need’ test and the principles and values that should be applied during assessment of eligibility and care planning. It also implements a uniform set of decision making tools which must be used by all PCTs to determine whether a person would qualify for NHS funding and sets out expectations regarding the review, dispute resolution and appeal processes.
The system involves a patchwork of regulations, directions and guidance, and it is not expected that it will prevent further case law from developing. The weakness in the new approach, from the perspective of local authorities and clients, is that whilst it is clear that split packages are legal and available for those not qualifying for FULL free care, there is no guidance whatsoever as to how to negotiate a split. It is clear that many people will be in the grey area between Funded Nursing Care and FULL free NHS funding, because whilst scoring ONE Priority or TWO severes is said to be enough to constitute a Primary Health Need, there is nothing more said about how many Highs might make up a severe, or whether a person with Highs and Moderates across the 11 domains might well be regarded as having needs that are more than incidental or ancillary to social care needs that a Local Authority might reasonably be expected to buy.
The Association of Directors of Adults Services has issued advice to all local authorities indicating their own interpretation of the guidance, and calling for local championing of clients’ rights, pressure on PCTs for consistency and LA monitoring nationwide so that a clearer picture of who is getting what, can be developed. The weakness in that document, in this writer’s view, is the absence of any assertion of what sort of profile of need it IS proper and legitimate for LAs to meet, in light of the legislative framework for care in a registered setting, and care in unregistered settings, such as people’s own homes and assisted living. But since that framework is itself vague – using concepts such as ‘practical assistance in the home’ – this is perhaps not so surprising.
The issues that are arising, in the field, as it were, would seem to be as follows:
– Local authorities’ continuing involvement in care management and commissioning, once someone has qualified for full NHS funding;
– People’s reluctance to be assessed because they fear the loss of their direct payments, which cannot be matched under the NHS legislative framework, and the relevance of their consent to the process, given the legal limits to LA functions;
– Whether a person can qualify for terminal care NHS funding if they are in a terminal phase, regardless of their profile under the Decision Support Tool
– What should happen to people who seem genuinely to have needs above the LA legal limit, but below the NHS qualifying line?
– What becomes of people who were provided for once their long stay hospital closed, under the provisions of s28A of the NHS Act 1977 (now s256 of the 2006 Act) if they deteriorate so as to meet Primary Health Need criteria?
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