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Too
old for a nurse London
- The government is under pressure to clarify who should finance long-term
nursing care amid mounting criticism that chronically sick and frail
elderly people have been forced to pay for care that should be free. Since
the community care reforms of the early 1990s, there has been confusion
about the circumstances in which nursing home residents can expect the NHS
to fully fund their care and when they have to pay means-tested charges
levied by social services. About 10% of the 190,000 people
in nursing homes in England have their continuing care paid for by the NHS.
But in February the health service ombudsman, Ann Abraham, warned that
thousands might have been wrongly denied this funding, which covers
healthcare, personal care and accommodation costs. Next Tuesday an
all-party parliamentary committee will examine the implications of her
report. A landmark court of appeal
judgment in 1999 ruled that when a person's primary need is healthcare
then the NHS should freely provide care as if the person were in hospital.
This ruling in the case of Pamela Coughlan added that only when nursing
care was "merely ancillary or incidental to the provision of
accommodation" would social services be responsible. But guidance issued by the
Department of Health suggested the ruling meant that the NHS only had to
pay for care when people were near death or almost entirely dependent on
medical treatment. Coughlan's solicitor, Nicola
Mackintosh, said whether an individual's nursing care is "merely
ancillary or incidental" has become a get-out clause for the NHS.
"The department has done nothing to clarify the funding situation. It
has effectively colluded with health authorities to restrict free
care," she said. In 2000 the Royal College of
Nursing found that 90% of health authority and social services eligibility
criteria were unlawful. Many drew an artificial distinction between
general and specialist care, arguing that the former, which covered tasks
such as artificial feeding, was social care and subject to charges. Such bad practice persists,
according to the ombudsman. In the first four test cases reviewed this
year, she found that the people involved had been left thousands of pounds
out of pocket because of overly restrictive funding criteria. Ms Abraham called on the
organisations to check any decisions taken since 1996, which might have
been unlawful. All strategic health authorities and primary care trusts
were ordered to check that their eligibility criteria complied with the
Coughlan ruling, while the department has agreed to review its guidance. A source at the ombudsman's
office said assessments of a further three cases would be published in
June. The source said the watchdog would press ministers to address the
problem quickly. But the task is considerable. One of the limited
circumstances under which a person would receive free care in Thames
Valley is "in the final states of a terminal illness and likely to
die in the near future, around 4-8 weeks". The health authority said
that, according to a QC, this complied with the Coughlan ruling. But a health ombudsman official
said: "Life expectancy should have nothing to do with eligibility.
This sounds like an attempt to limit the authority's financial liability.
If you don't die within eight weeks are you then charged?" Since February the watchdog has
received 4,857 complaints about decisions made by every strategic health
authority in the country, which suggests that the NHS could be liable to
pay out millions. In March, health authorities in Suffolk and
Hertfordshire were ordered to refund the families of two Alzheimer's
sufferers £20,000 and £26,305 respectively. Older people's charities say
that such injustices need never have arisen had the government fully
accepted the recommendations of the royal commission on long-term care.
Three years ago the commission called for all nursing and personal care to
be free. While Scotland accepted the proposal, Whitehall chose to make the
English NHS only cover the cost of nursing care, introducing three rates
of funding - £40, £75 and £120 - depending on the level of a person's
needs. Pauline Thompson, policy
officer for Age Concern England, believes that "ministers used the
introduction of 'free' nursing care to muddy the water about eligibility
for fully funded continuing care. Health authorities appear to have
wrongly assumed or conveniently decided that the new scheme superseded the
Coughlan judgment." She points out that one of the
cases assessed by the ombudsman as eligible for free continuing care
matched the description of someone entitled to the highest band of nursing
care funding. "If you're on the highest
band of free nursing care you probably have a case for getting fully
funded continuing care. And given that some people on the lower band have
been placed in the highest band following an appeal, many more could be
missing out," she said. Ms Mackintosh warned that without clarification of the funding criteria the introduction this autumn of fines for social services departments that fail to promptly arrange care for patients ready to leave hospital would only exacerbate the situation. "Hospitals will tell social services to arrange community care quickly or get fined, but social services could refuse, arguing the person needs to be in a nursing home and that's the responsibility of the NHS under the Coughlan ruling. The result will be that health and social care agencies battle to exclude people. Copyright
© 2002 Global Action on Aging
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