Feature

posted 2 Jun 2003 in Volume 8 Issue 4

Part two: What to do next

Elderly-client practitioners must be able to decide whether a client should qualify for NHS continuing health care. Failure to do so could not only leave clients paying unnecessarily for care, but also risk a negligence claim against the solicitor acting on their behalf. Caroline Bielanska continues her exploration of the issues with a practical look at what practitioners need to do in challenging and reviewing decisions on NHS-funded care.

Receivers, attorneys and advisers need to consider whether the person for whom they act or acted in the past, qualifies for NHS continuing health care. Failure to consider whether to challenge a decision or ask for an assessment may amount to negligence on the part of the practitioner acting for the older and disabled client. When money is expended on care, families will look to get some redress, whether from the health authority or from the lawyer acting in the case. It is an area of concern that practitioners cannot afford to ignore.

The starting point in reviewing a decision is to obtain a copy of the criteria for continuing NHS health care that was in use at the time of the original decision, as well as any new criteria published since then. These criteria used to be set by the health authority. Since April 2002, health authorities have consolidated and there are now 28 larger strategic health authorities (StHA). Each StHA will have its own criteria and the various local PCTs operating under their StHAs will use one set of criteria. StHAs are not responsible for delivering services. They are responsible for managing the performance of all the PCTs in their area, ensuring quality performance. They are also a key link between the Department of Health and the NHS. Their role is to focus on longer-term planning and ensure national priorities are included in local plans. PCTs are responsible for the planning and securing of health services and improving the health of the local population. PCTs must ensure the provision of health services including GP’s, hospitals, dentists, mental health care, walk-in centres, NHS Direct, patient transport (including accident and emergency), population screening, pharmacies and opticians. It will be the PCT that manages the budget for continuing care. In addition, they are responsible for integrating health and social care so the two systems work together for patients.

Practitioners also need to have a copy of any nursing care assessments that have been undertaken. These may include a copy of the nursing-care plan, any discharge summary, and the nursing care by a registered nurse assessment and any continuing care assessment. In addition, it is useful to have a copy of the needs assessment conducted by social services. It is from this information that practitioners can decide whether more information needs to be obtained from or provided to the NHS and whether a review is necessary. The following questions may assist but they are in no way meant to be an exhaustive list:

Has a comprehensive single needs assessment taken place?
When was the decision made that the patient did not qualify?
Who made the decision?
What was the basis for the decision?
Can you see the logic of the decision by comparing the patient’s clinical health care needs with the criteria?
Did the person making the decision use the criteria and was there any nursing checklist? It may be that based on the information you have on the patient that some of his health-care issues were ignored.
Can you see how the decision was reached?
Does the criteria follow the government guidance and the Coughlan case?
Is the criteria restrictive and has the criteria been applied in a restrictive manner?
Do you feel the right decision was reached based on the criteria and the patient’s health (assuming that the criteria are in line with guidance and the law)?
Since moving into a care home, has your client’s condition worsened?
Has the local NHS changed/relaxed the criteria since your client moved in, as a result of the Coughlan case?
Has the NHS seen your client at a time when it may have been possible that they fulfilled the criteria for fully funded care, and if so, was any consideration given to offering full funding?

Continuing care review panels (as distinct from complaints)

Prior to the new guidance, any continuing care review of a decision was limited to those who were being discharged from hospital but it is now extended to other decisions, which could, for example, be made in a nursing-home setting. Annex E of LAC (2001) 18 has more details of the review and complaints procedure. The complaints procedure is being reviewed at the present time in NHS Complaints Reform – Making Things Right, subject to legislation being passed.

The review procedure does not apply when trying to challenge the contents of the criteria, rather than the application if the criteria are in issue. The alternative is to use the complaints procedure and if necessary seek redress from the ombudsman or by judicial review.

A decision is usually made at the point of discharge from hospital but could also have been made at the nursing care assessment as to whether the patient needs NHS continuing health care. It is this decision that will need to be reviewed. For residents who have moved into care homes post October 2001, there will be evidence of their nursing care needs because of the requirement for a RNCC assessment to have taken place.

At the time of discharge, if the consultant (or GP if the patient is in a community hospital) feels that the patient is in need of intensive support after acute hospital treatment, there should be a multi-disciplinary assessment. A decision made at this point that the person does not meet the criteria for continuing NHS health care can be reviewed. Some patients moving into nursing care pre-October 2001 may have been discharged from hospital without a multi-disciplinary assessment or any consideration of how they should have their care needs met. Often social services were not involved in the discharge as the family were making arrangements independently. For clients in this situation, practitioners may need to seek redress through the complaints procedure.

Practitioners who feel that they act for a client, not in hospital, who may qualify for free NHS-funded care, can approach the NHS to ask for a continuing health care assessment. This can be obtained by approaching the GP for a consultant referral, approaching the PCT direct or asking social services for an assessment or reassessment of the client. Social services have a duty to involve the appropriate NHS body if during the assessment of needs it becomes apparent that the person has health care needs. Social services essentially act as the facilitator. The purpose of the review is to ensure:

Proper procedures have been followed in reaching decisions about the need for continuing NHS health care and the NHS services contributing to continuing health and social care;
The StHA’s eligibility criteria for continuing NHS health care are properly and consistently applied.

The informal stage

The PCT should ensure that appropriate steps have been taken to resolve the case informally and that the review is completed within two weeks of the request for a review being received. The period starts once any action to resolve the case informally has been completed and should be extended only in exceptional circumstances. In practice, there are considerable delays in reviews. This may be a reason to complain to the ombudsman for the length of the delay.

If the patient clearly falls outside the eligibility criteria or where it is clearly not appropriate for the panel to consider the matter, it is possible for the PCT to decide that no panel should be convened. If this occurs, the PCT should give a full written explanation of the basis of the decision with details of the complaints procedure.

A designated individual will be responsible for maintaining the review procedure and collect information, including interviewing the patient, family and carers. During the review period, patients should remain in NHS-funded accommodation.

The formal stage

The review panel should comprise the following:

A chair with a clear understanding of the panel’s purpose and who is able to communicate to those concerned. It will be a recruited post and will be independent of the health authority;
Nominated panel representatives from the health authority and local authority.

The panel should meet to discuss the individual cases. They can also invite the clinical adviser and the PCT’s officer who will have compiled the evidence. If appropriate, the patient’s nominated person can be called to attend the meeting.

The panel’s role is advisory and has no legal status. The PCT, however, should accept the decisions of the panel in all but exceptional circumstances. If a decision is rejected, the authority must give written reasons for the decision to the patient and to the chair of the panel. The PCT must send in writing the outcome, with reasons to the patient and all relevant parties.

Complaints about NHS services

The complaints procedure is the initial process, which applies if the patient is unhappy with the criteria, but it can also be used to challenge the type and content of the service being provided.

Usually, complaints will be investigated if the complaint is made within six months of the event, or made within six months of realising that there is something to complain about (as long as this is not more than 12 months after the event). These limits can be waived if there are good reasons for a delayed complaint. In the light of the Ombudsman’s report it is likely that complaints will be allowed outside this period.

Stage 1

This encourages local resolution of the complaint, usually with a meeting between the complainant and the continuing care official of the local PCT.

Stage 2

If the complaint is not resolved, the complainant may ask the convener for an independent review.

The convener is usually a non-executive director of the relevant PCT who, in consultation with an independent lay person, makes a decision as to whether an independent review panel investigation is appropriate. It is not automatic and if it is denied, then it may be appropriate to then complain to the ombudsman. The independent review panel will comprise three members:

A lay chair (a person nominated by the Secretary of State for Health);
The convener;
A third, lay member.

The panel investigate the complaint, and produce a written report. The panel can make recommendations about the circumstances of the complaint and about service improvements and any other action that should be taken to resolve the complaint. If the complainant is still not happy with the outcome he can take the matter to the ombudsman.

The ombudsman

Prior to complaining to the ombudsman, practitioners will need to have pursued a complaint through the PCT or StHA (as it is possible to complain to either), whether as a complaint or as a review. It may be that a panel review was unreasonably refused, the complaint was not satisfactorily answered or it took too long to deal with the complaint.

The complainant can be the patient or, if they have died, their personal representative, a relative or someone else. Where the patient is not complaining, it must be clear why he is not doing so and say whether the patient agrees that you may complain on their behalf, if possible.

Time limits

The complaint must be made no later than a year from the date when the complainant became aware of the events that are the subject of the complaint. This can be extended in exceptional circumstances such as the local investigation taking much longer than it should have done.

The ombudsman can investigate complaints against hospitals or community health services, which include poor service, failure to purchase or provide a service you are entitled to receive and maladministration. The ombudsman does not have to investigate every complaint as it is up to the ombudsman to decide whether to take up any particular complaint. If it is not to be investigated reasons will be given.

Investigation

If the ombudsman decides to investigate, a statement of complaint is sent to the complainant, which sets out the matters the ombudsman will look into. The PCT will be asked to send to the ombudsman their comments and all relevant papers, which are studied. Interviews may also be conducted.

The report

At the end of the investigation, the ombudsman prepares a report. A copy is also sent to the PCT, StHA and the complainant, with recommendations if the complaint is upheld. It does not mean that the PCT has to follow those recommendations but it is usual.

Exceptionally, complainants may not always have to go through the whole complaints procedure before approaching the ombudsman. You should put the complaint to the relevant health service body. However, if at the end of three months you are not satisfied with the response received, or with the progress to resolve matters, complainants can write to the ombudsman who will decide whether to intervene at that point.

The web address for the ombudsman for England and Wales, which provides material including a complaint form for continuing care cases is: www.ombudsman.org.uk.

The Health Service Ombudsman for England
13th Floor
Millbank Tower
Millbank
London SW1P 4QP
Telephone: 020 7217 4051
Minicom: 0207 217 4066

The address of the Health Service Commissioner for Wales is:
5th Floor
Capital Tower
Greyfriars Road
Cardiff CF1 3AG
Telephone: 029 2039 4621

Caroline Bielanska is a solicitor,TEP and freelance consultant. She can be contacted at: caroline.bielanska@ntlworld.com. Caroline is grateful for the valuable input Pauline Thompson, Policy Office, Age Concern England has made to this article.