denotes premium content | Jan 10 2009 Feature
posted 1 Mar 1997 in Volume 2 Issue 3
National Health Service v Local Authority
Eligibility Criteria
Tish Hanifan examines the eligibility criteria used by the NHS and Local Authorities
The expectation of many clients as to who will fund their Long Term Care, if needed, is that `the State will provide'. The growing realisation that for many people any funding will have to be self-generating is seen as an abrogation of their `right' to free care `from the cradle to the grave'.
The use of the term `the State' only muddies the waters when trying to understand Community Care; the responsibility for funding is now split between the Social Services and the National Health Service. To assume that health care is funded by the National Health Service and that social care is funded by Social Services is far too simplistic. Even determining what is health care and what is social care is not straightforward. The care given to patients in hospital, for example, goes way beyond what could strictly be described as purely clinical and conversely some of the health care provided in Nursing Homes is funded by Social Services (or even sometimes by the residents themselves). However, the financial implications of being incorrectly assessed are serious.
Community Health Care if provided by the NHS is free at the point of delivery to the patient.
Community Care if provided by Social Services, is means tested and therefore not free.
Advice as to who falls into which category can only be given by having regard to the Eligibility Criteria guidelines issued by the respective Social Services and the Area Health Authorities. Unfortunately these are drawn up by each of the Authorities for their own use and are subject to both local interpretation and to differing exercise of the discretion which is an integral part of the guidelines. Indeed the Health Authorities have specifically been asked to develop their own guidance which should, however, be based on the national NHS guidance. These Eligibility Criteria frequently have as part of their approach the ideology that excessive detail produces unhelpful inflexibility and have therefore produced guidelines with the objective of increasing flexibility, the practical effect of which is to have very little specific detail and local variations. The need for local knowledge of your particular area, and its decision making and interpretation of guidelines is therefore paramount.
The implementation of the National Health and Community Care Act 1990 has highlighted the overlap of responsibility. Indeed this is specifically referred to in Community Care in the next decade and beyond: Policy Guidance which states specifically:
"The objective must be to provide a service in which the boundaries between primary healthcare, secondary healthcare and social care do not form barriers seen from the prospective of the service user. Care must be focused on meeting the needs of individuals and their carers appropriately and sensitively. This objective must be a priority in collaborative planning involving health and local authorities." (paragraph 1.11.)
This overlap between areas of responsibility is clearly demonstrated in cases where elderly people are admitted to hospital and decisions have to be made as to their discharge. Once a condition has been stabilised a patient is no longer the responsibility of the NHS. (This does not include palliative health care, i.e. active care of patients whose disease is not able to be cured which remains the responsibility of the NHS).
A decision concerning a patient's discharge and covering both community health care and social care, should be made by the Local Health Authority and the Social Services. This commitment to a multi-disciplinary decision is further contained in the Patient's Charter which also recognises the involvement of carers (whose particular needs must now be considered following the Carers (Recognition and Services) Act 1995).
The policy guidance states that:
"Patients should not leave hospital until a supply of community care services has been agreed with them; their carers and all the authorities concerned." (paragraph 3.44)
The guidelines used by the Health Authority will be those issued in their Eligibility Criteria. (These have been in effect since April 1996 as part of a summary of action contained in the document The NHS Responsibilities for Meeting Continuing Health Care Needs LAC(95)5 and HSG(95)8) and in their hospital discharge policy contained in Discharge from NHS patient care of people with continuing health or social care needs: arrangements for reviewing decisions on eligibility for NHS continuing in-patient care.
Paragraph 20 of the Hospital Discharge Guidance states that the decision to discharge a patient will be the responsibility of the Consultant in consultation with the multi-disciplinary team and taking into account the results of the assessment and the local eligibility criteria. The Eligibility Criteria importantly contain the procedure for reviewing decisions on eligibility for continuing in-patient care.
However, in the majority of cases the disputes that arise at the time of a patient's discharge from a hospital concern the decision as to where a patient will go when discharged. A frequent cause of complaint is where the care package proposed for the elderly person makes an offer only of either a residential or nursing home as opposed to a care package which allows the elderly person to stay in their own home.
The guidance on hospital discharge states that `a patient has a right to refuse to be discharged into a residential or nursing home.' (paragraph 27). (However a patient whose condition has stabilised does not have the right to occupy a National Health Service bed indefinitely).
In such situations the guidance contained in paragraph 29 states that after consultation between the Health Authority and the Social Services Department, the hospital should "implement discharge to the patient's home or alternative accommodation, with a package of health and social care within the options and resources available". The reference to the resources available is obviously now subject to the Gloucestershire decision and also to the Lancashire decision. Although following these decisions the Local Authority is entitled to meet the assessed needs of the elderly person in the most economical way possible, the assessment should nevertheless be looked at carefully to see whether or not it has taken into account all of the needs of the elderly person and not just their need for physical care. If the elderly person is discharged into a nursing home there is an overlap of responsibility in that Local Authorities have the responsibility to arrange nursing home care (Section 21 of the National Assistance Act 1948). Residential care may however be funded by the NHS if the patient fits the criteria for in-patient continuing health care set out in the Eligibility Criteria. Most Eligibility Criteria would afford this opportunity to only the most severely disabled people. (In these exceptional circumstances the residential care would of course be free to the elderly person as, because it has not being provided by Social Services, it would not be means tested).
Where an elderly person is to receive care within the home the NHS will only provide specialist equipment if that care is being delivered as part of an agreed health care package where eligibility for continuing in-house care has already been agreed. The Health Authority would not usually fund specialist equipment after a Social Services assessment for Community Care (Section 47 assessment) unless this assessment has itself included an agreement that the elderly person is also eligible for NHS continuing care.
The National Health Service guidelines on which the Eligibility Criteria of Health Authorities are based sets out a future objective that elderly persons health and social needs should be met by services that are "co-ordinated, integrated and relevant to their needs". It suggests that this might be achieved by `joint commissioning'. This is defined as `problem solving between the relevant agencies in order to make the best possible use of resources in response to local needs, in the best interests of users and carers'. The Department of Health guidelines suggest that joint funding could be part of a country-wide strategy or part of a local project. Either way, whilst laudable in its intentions, the continuing integration of both funding and decision making between Local Authorities and Health Authorities makes is absolutely essential that elderly client advisers should be very familiar with the specific guidelines and practices within their particular geographical area.
Because the Health Authorities Eligibility Criteria had to be developed by the 29 September 1995 and finalised by 1 April 1996, many of them are drafted specifically in terms of financial constraints. Many Eligibility Criteria contain as part of their summary `the Health Authority, as with all public bodies, can only fund services up to the limit of its available resources' and The NHS Responsibilities for Meeting Continuing Health Care Needs LAC(95)5 and HSG (95)8.) Section B.12 also states `As for all other areas of NHS care, Health Authorities and GP fund holders will need to set priorities for continuing health care within the total resources available to them'. These link the concept of need to that of financial resources.
What is clear however is that the use of Eligibility Criteria is a t the heart of the assessment of the elderly client's needs. The future use of Eligibility Criteria by either the Local Authority or the Health Authority where it purports to determine needs, but takes resources into account, could well be held to be unlawful.
Tish Hanifan, Barrister, Arnolds Oak Farm, Eastling, Faversham, ME13 0BD
