Guidance for identifying local authority responsibilities within Continuing Health Care
Produced by All Wales Adult Service Heads
Continuing Care Sub-Group – June 2007
Forward
The status of this document is guidance agreed by ADSS Cymru (Association of Directors of Social Services) as representing a reasonable statement of the extent of the duties and responsibilities of social services authorities in assessing people who could qualify for continuing health care funding.
The aim is to:
· assist consistency of practice across Wales;
· assist social services staff in negotiations with health colleagues, by providing consistent guidelines;
· ensure that social services’ staff are operating within the statutory and legal framework;
· assist in communication with individuals and their families, when considering service and funding availability.
The guidance has been developed by a group of Adult Service Heads (AWASH) and I want to recognise the efforts of the group, its allied members and AWASH as a whole for the work done.
The guidance was developed following specific concerns and legal opinion that social services were actually or potentially acting ‘ultra vires’ or outside the law, particularly following the Coughlan and Grogan judgements. The development process has involved consultation with health colleagues, WAG officials and WLGA and has taken independent legal advice. However, it remains a guidance in relation to the social services’ responsibility only.
Its application has to be determined by local partnerships and with due consideration for the effect on individuals, their families and services across health and social care. It is recognised that practitioners will need training in order to understand the guidance and how to implement it constructively within their multi-disciplinary teams.
It is recognised that with a limited public purse, the resourcing of Continuing Health Care and, consequently, the funding of long term care in general, remains a major financial pressure on the system as a whole. However, it is hoped that this guidance will help in clarifying the picture and assisting in determining what and how identified needs are met.
Moyna Wilkinson
Health Interface Lead
On Behalf of ADSS Cymru
Contents
1. Guidance
2. Assessment Support Tool
3. Process chart
4. Appendix A – Benchmark legal cases
5. Appendix B NHS Continuing Health Care Appeal Panel Decisions
6. Appendix C Model letters for NHS Trusts/ LHB’s
1. Introduction
1.1. This pack provides staff responsible for care management with a clear framework regarding Local Authority policy on service eligibility in relation to continuing health care (CHC) responsibilities of the NHS.
1.2. The health care criteria against which patients’ health needs are assessed were introduced in 1996. Subsequently, there has been increasing interest and challenge, most notably the Court of Appeal judgment in 1999 (Coughlan[1]) which set a standard against which all NHS CHC guidance has subsequently been tested.
1.3. The issue of application for NHS funded continuing health care is now a key part of the care manager’s assessment of user needs. Entitlement to CHC means that services are provided free to the patient, whereas eligibility for Local Authority funded services will involve means testing and the potential for significant financial contributions from the user. In addition, it is important to bear in mind that the Local Authority must ensure that only those services for which it is responsible are funded through Community Care budgets. In an environment where NHS and social care staff are working to provide a good quality seamless service, robust, consistently well presented assessments should demonstrate the limits of the Council’s responsibilities.
2. Needs Assessment – Is the service required arising from health or social care needs?
2.1. Does the service user have needs which arise from ill-health or disability? What is health care and consequently a NHS responsibility, as opposed to the Local Authority’s duty to provide accommodation and social care? This has been an issue since the inception of a National Health Service in 1948.
2.2. Following legal advice commissioned by all Local Authorities in Wales[2] Local Authorities have been advised that they may be acting unlawfully in funding and means testing a number of people who may be entitled to continuing health care funding.
2.3. This means that local authority representatives have to fulfil 2 distinct but related roles.
2.3.1. Determining whether we are able to provide services under the National Assistance Act ( based on whether health needs are merely incidental and ancillary- see 2.4 below)
2.3.2. Contributing constructively to the Multidisciplinary NHS Continuing Health Care Assessment
2.4. Whilst this is a complex and developing area of work staff should be reassured that there will be training and support available and that there is a formal disputes process to deal with situations where agreement cannot be reached within the MDT
2.5. The following advice needs to be implemented. The advice is based on:
2.5.1. The Coughlan Judgement[3]
2.5.2. The Recommendations of the NHS Ombudsman[4]
2.5.3. The Grogan Judgement[5]
2.5.4. National Assistance Act 1948
2.5.5. WHC (2004) 54; NAFWC 41/2004: August/2004 - NHS responsibilities for meeting Continuing NHS Health Care Needs: Guidance 2004 – National Assembly for Wales
2.5.6. Continuing NHS Health Care – framework for Implementation in Wales 2004 – National Assembly for Wales
2.5.7. WHC (2006) 046: NAFWC 32/2006: October 2006 - Further advice to the NHS and Local Authorities on Continuing NHS Health Care.
2.5.8. Legal Advice commissioned by all Local Authorities in Wales[6]
2.6. The above judgements, guidance and advice concentrate on what a Local Authority is empowered to provide. In Coughlan the Court of Appeal stated that:
2.6.1. Local Authorities may purchase nursing services using section 21 of the NAA 1948 only where the services are:
2.6.1.1. Merely incidental[7]or ancillary[8] to the provision of accommodation which a Local Authority has a duty to provide. (quantity test)
2.6.1.2. Of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide”. (quality test)
2.7. All parties in Grogan agreed that Local Authorities, Local Health Boards and NHS Trusts had to look at “the primary needs”. If a person’s ‘primary need’ is a primary health need[9] then the NHS will be responsible for providing for that need (which could include, for instance, full funding of a person’s accommodation in a Nursing Home if that is his or her assessed need).
2.8. The introduction of the Registered Nurse contribution towards the Registered Nursing Care costs (RNCC) of a person in a nursing home has led to some confusion. However the Judge in Grogan found that the RNCC assessment was only relevant after a decision had been taken as to whether a person is eligible for NHS Continuing Healthcare. It is only if s/he is not so eligible that a determination of the RNCC should be undertaken.
2.9. Ms Coughlan, although highly intelligent and intellectually active, was tetraplegic and so was largely immobile with the inevitable consequence that she was doubly incontinent and needed two people to move her and was dependant on others for her basic care. The Court held that Ms Coughlan was entitled to CHC. Her needs could not be provided for by social services – they were of ‘a wholly different category’.
2.10. It follows that any person who has these needs is very likely to qualify for CHC and would certainly require a CHC assessment.
3. Guidance
3.1. Care Managers should ensure that the Assessment Support Tool (Eligibility for Local Authority Funded Care) is used to identify, distinctly and clearly, the nature and extent of the individual’s needs/ potential risks
3.2. Any decision as to whether services can lawfully be provided by the Local Authority has to be determined by an assessment carried out with the patient and where appropriate their family/ carer.
3.3. In assessing against the quantity and quality issues care managers should not be over-influenced by any distinctions made in the CHC criteria between specialist and general health care. In Coughlan the Court of Appeal found such a distinction (between ‘general’ and ‘specialist’ nursing) to be unhelpful –. In the Leeds case the fact that the patient did not need specialist medical supervision was not considered by the NHS Ombudsman as an acceptable basis for denying him CHC.
3.4. Such a distinction (if focussed on the nature or ‘quality’ of care required) may however be helpful in gaining understanding of the patient’s overall needs (eg is it primarily a health need or is the health need ancillary or incidental to the social care of the patient?). The assessment should consequently be focused on both the nature of need and the quantity of care required to address the need.
3.5. The key factor in determining eligibility is not HOW or by WHOM, the health care is delivered rather it is about the LEVEL OF HEALTH CARE NEEDS which an individual has and whether they mean that the care required is of a quantity or quality which indicates that the individual has a primary health need.
4. Quantity Test
4.1. In order to decide whether in practical terms the overall quantity of nursing care is merely “incidental and ancillary” to the provision of social care (the key test in relation to the volume of the service) the determination must be based on the assessment of need, NOT the service:
4.2. Accordingly reference to whether the service is provided by a nurse, domiciliary care agency, family carer or a neighbour is of very limited relevance. . For a Local Authority to fund health care, the primary assessed need must be for accommodation and/or social care services.. Health support does not have to be provided by a qualified nurse.
5. Quality Test
5.1. The second test – concerns the ‘quality’ of the service, namely whether it is a nature which it can be expected a local authority should provide. In Coughlan the Court of Appeal held that her needs (see Appendix A) were of a wholly different category to that which could be provided by the local authority.. The NHS Ombudsman reached the same conclusion in relation to patient N in her 2003 report on a complaint against Wigan and Bolton Health Authority E.420/00-01 (see Appendix A below) and in her 2003 Report concerning Mr Pointon E.22/02-03 she considered that the special skills it takes to nurse someone with advanced dementia could qualitatively be of a nature that a local authority could not lawfully fund.
5.2. The health needs of a user should be assessed against the Assessment Support Tool (see page 11). In considering the CHC criteria of complex, intense or unpredictable categories, judgments need to be made in the light of whether the primary need is for health care, rather than a social care need. For example, where the need requires health professionals to instruct or train carers in procedures it is likely to be a health need. Conversely, where the need is that which a lay person could normally meet this is likely to be social care.
5.3. Eligibility for CHC does not depend upon the person’s condition being unstable or unpredictable: Ms Coughlan’s care needs were neither. However if these factors are present, it is likely to be indicative of entitlement to CHC.
6. Reaching a Decision
6.1. When considering whether a user’s needs may be met by social care services, the assessment needs to state the reasons for any conclusion. For example:
6.1.1. “Mr X’s needs are primarily health related and sufficiently intense as to require services, which are not merely ancillary or incidental to his needs, because…..”
OR
6.1.2. “Mr X’s needs are for personal care to enable him to be maintained either in his own home or accommodated within a care home. His health needs are not such that they require nursing (or substitute care) of a nature or quantity that would be in excess of what it would be reasonable for social services to provide.”
6.2. The nature of the health care needs as assessed should clearly set out the reasons for reaching a decision and supported by reference to the ‘quantity’ and ‘quality’ test. Remember that as a Local Authority representative you do not need to conclude that the user WILL meet the prevailing CHC criteria, but merely that the user does or does not meet the criteria for services which the Local Authority can reasonably be expected to provide. The Assessment Support Tool (see page 11) will inform your decision making and the decision reached should be recorded.
6.3. Staff need to note that it is not lawful for a Local Authority to fund care packages where :
6.3.1. “a person’s primary need is a health need”
and this means that s/he is:
6.3.2. assessed as having a need for nursing or other health services that are more than ancillary or incidental to the provision of accommodation which the local authority is under a duty to provide and not of a quality that it would be unreasonable or a social services authority to provide.
6.4. The process is complicated by the fact that there are 2 parallel decisions being made; the LA decision as to whether s/he is eligible for LA services and the multidisciplinary decision as to whether the person is eligible for NHS CHC . It is the assessment of a person’s needs carried out by a multidisciplinary team (MDT) which determines whether someone is eligible for CHC or not. The LHB receives the assessment/application from the MDT and then agrees it or otherwise. However the MDT do not have the authority to decide whether someone is eligible for LA funded care, this lies with the LA representative at the meeting. Where there is disagreement then the disputes process should be invoked. In such situations staff should ensure that the individual receives appropriate care whilst the dispute is resolved. Current guidance indicates that where there is a gap between the LA and NHS CHC eligibility thresholds the NHS should take responsibility for funding the care.
6.5. This tool makes it clear that some clients will very clearly have a ‘primary health care need’ where ‘nursing or other health services’ are ‘more than incidental to the provision of accommodation’, e.g. someone who has a PEG or Ng tube