Continuing Health Care - Preparing to fight PCT's decision

CHCscandal

Peter Black AM
Welsh Liberal Democrat Assembly Member for South Wales West - Visit my main website at www.peter-black.net


Sunday, August 16, 2009

The hidden scandal of unfunded nursing care - correction


A few days ago I blogged on the case of Marjorie Eyton-Jones from Benllech, Anglesey, whose family recovered more than £165,000 in nursing fees which were wrongly paid. I suggested that the judgement was a landmark case that could have wide-ranging ramifications for the National Health Service and hopefully beneficial implications for families in the same situation as those of Mrs Eyton-Jones.


However, I have now been contacted by her family's solicitor who has pointed out that the decision was not made by the court, therefore no judgement was made. This was not clear from the news reports and I based my conclusion on a conversation with a BBC researcher which turns out to have been misleading.
The solicitor tells me that this case is one of many her firm, Hugh James, have been able to seek reimbursement from the Health Authority following their failure not to assess or to assess inaccurately using restrictive guidance (another example was her client Jane Czyrko who was also interviewed on Radio Wales). The firm currently act for over 750 families in Wales and England.

The fact that this case has been settled out of court like the many others before it means that there is no precedent that can yet be relied on by these 750 families or others who have not yet taken their case this far. That is unfortunate because it means that we will continue to get inconsistent outcomes and that families will need to fight all the way to get what they should be entitled to.


I will take this up with the Minister as I had originally intended and press her to introduce some clarity into this process but it will be a much longer haul without a definitive judgement to rely on.

To remind anyone in need of help re continuing care assessments:-

"JUSTICE OVER CARE HOME COSTS" is the headline on the front page of the Daily Mail, last Wednesday 19th August 2009. This highlights the recent victory of three families who won back over £350,000 from the NHS, for patients with Alzheimer's and Parkinson's. So far about £8million has been recovered for a further 750 families - that's an average of over £10,000 per family.

Pam Coughlan will be interviewed on BBC Radio 4's "You and Yours" broadcast next Wednesday 26th August.

At the same time, Robin Lovelock will explain "Coughlan", play the three minute Pam Coughlan video, and answer questions. This is at the "Golden Age" event at the new Ascot Racecourse Pavilion.

Sadly, few people know the simple facts and how to claim or recover what is rightfully theirs. 750 families are a small proportion of the hundreds of thousands of families who have been duped into paying Care Home fees, when the Law demands that the NHS should pay. The Government and Department of Health have spent the last ten years, since Pam's historic victory in the Appeal Court, "ducking and weaving". The Ombudsman, The Royal College of Nursing, and The Law Society have made the facts clear: "Social Care" is part of Health Care, and the Law demands that anyone with care needs the same or greater than Pam Coughlan, must be 100% funded by the NHS - including all costs of the Care Home.

Over ten years ago, in July 1999, Pamela Coughlan won her case in the Appeal Court, the highest court in the land, against this New Labour Government. The case made the law very clear: anyone with health care needs the same or greater than Pam, is entitled to being fully funded by the NHS. i.e. "Continuing Care". This includes all costs, including those of accommodation, if the patient is in a Hospital, Hospice or Care Home.. It also applies if the patient is being cared for in their own home.

Since then the Government have followed a strategy, conceived by the earlier Thatcher Government, to evade the legal obligation of the NHS to pay for long term care. e.g. the result of stroke, road accident, Alzheimer's, Parkinson's, or a host of other health conditions. The NHS have closed down long term stay beds, typically occupied by geriatric patients, and used Social Services to approach the family, misinform them, and get them to pay for the Care Home, after means testing. Those that do not have sufficient savings, or a house to sell, become the burden of local Council Tax payers.

In 2002 Robin set up the web site www. NHSCare.info after he received expert legal "Coughlan" advice related to his late mother. Over the years this web site, and the "Coughlan Campaign" group have provided expert advice to hundreds if not thousands of families, and even Law Firms who now offer "no win no fee" services to claim back Care Home costs from the NHS. The group include Steve Squires and David Gooch, two of the "winners" in the first Ombudsman's Report, published in early 2003.

The group includes legal experts and Pam Coughlan herself, together with a network of families, some of whom have already won their case, such as Stephen Johnson. A linked message board provides a Forum and support for claiments throughout the country.
The Coughlan Campaign group, and www. NHSCare. info have been the primary source of information whenever there is interest in the subject of "Coughlan" and long term care.

Despite criticism by the Ombudsman, the Royal College of Nursing, and the Law Society, the Government and NHS continue to evade paying for the majority of patients in Care Homes. They employed delaying tactics of consultation on a new "National Framework".

These new rules were criticised by the Law Society, since they did not include a simple "Coughlan Test". i.e. comparison of the patient's care needs with those of Ms Coughlan. Instead, these deliberately vague rules were put in place in late 2008, and - of course - result in the majority of patients being denied Continuing Care - to which they are entitled under the Law (the 1946 National Health Service Act).

CHCscandal

http://www.dailymail.co.uk/news/article-1208735/Pensioner-Alzheimers-100-000-care-home-fees-repaid-NHS-trust-claimed-did-qualify-funding.html

http://www.dailymail.co.uk/news/article-1207796/Health-chiefs-caving-care-home-costs.html

& another further repayment


http://news.bbc.co.uk/1/hi/england/shropshire/8213647.stm

Pam Coughlan speaking on You & yours tomorrow, 26th Aug 2009 12.04pm radio 4

dollywops

monkeyspanner wrote: »

Based on the symptoms and degenerative nature of your MIL's medical condition I think you should ask for another assessment asap. If possible ask to be present so that you can argue the assessment classifications at the time with the assessor. Prior to that assessment I would recommend you familiarise yourself with the DST(Decision Support Tool and the continuing healthcare framework see previous posts for links). If possible work through the DST yourself and make your own judgement as to classifications prior to the assessment so you have a position to defend. If possible take another person with you as a witness to the discussions. Ask for a copy of the assessment and adjudication. Keep a record of any correspondence as the PCT sometimes "can't find" relevant documents when the IRP takes place

A couple of things to bear in mind here which the CHC framework spells out:
1. A well managed need is still a need e.g. if behaviour has and would be a problem but is being managed by medication this should still be assessed as if the meds were not being given.
2. If there is any doubt about a classification the worst case should be taken.

If unsuccessful again ask for an independant review panel with the PCT and if unsucessful with the IRP you can take it to the SHA and then to judicial review. There are specialist solicitors who can help you on a no win no fee basis and will carry out an initial review for nothing. If you would like a suggestion PM me.

IMHO I think you would also have a strong case for a retrospective review as the previous decision is probably suspect.

The PCT's first response will nearly always be no so don't give up.

As regards the financial position I think your FIL would be well advised to take specialist advice as there are a number of wrinkles in the system which could prevent him having to pay further.
For example:
1. Any joint assets should have been separated at the time of your MIL going into a care home. This prevents the council assessing half the value of a reduced shared asset as only your MIL's original share should be taken into account.
Original shared asset £50000, MIL's share £25000
Depleted shared asset after £15000 care home fees £35000, MIL share £17500
But actually if separated MIL's share should be £10000.

2. If your FIL is over 60 and living in the family home the value of the home should be disregarded when assessing if a council contribution is due.

3. Any asset which has an insurance element should be disregarded from the asset calculation. This can apply to certain assurance bonds.

4. Your FIL does not have to disclose his income or assets to the council but can be asked to contribute if the council thinks he is able.

There is a very good fact sheet about care home funding here:
http://www.counselandcare.org.uk/assets/library/documents/16_Care_Home_Fees_Paying_them_in_England.pdf

I hope this helps.

We did not follow this up at the time, but I know the time has now come to take things further.

MIL was seen by a consultant yesterday to discuss a stomach peg. It was decided it was not in MIL's best interests to have this procedure. At the end of the discussion, I asked the consultant about CHC and told her what happened 18 months ago. She appeared to be very surprised that MIL had failed to qualify at that time.

Anyway, my question is do we ask for a new assessment or ask for a retrospective review of the original one. My husband is prepared to take this all the way, if necessary, but I would like to start off from the very best position.

monkeyspanner

The simple answer is both. It is I think unlikely that both could be considered together but in some ways this is an advantage as you can ask for a new assessment and lodge a request for a retrospective review. If your MIL gets a positive on a new assessment it does not necessarily mean you will suceed on a retrospective review but it may give you more basis to make a case.

On the practical side were you given the detail of the decision on the last assessment? It may be useful to look at the DST and why your MIL was turned down last time.

dollywops

monkeyspanner wrote: »

The simple answer is both. It is I think unlikely that both could be considered together but in some ways this is an advantage as you can ask for a new assessment and lodge a request for a retrospective review. If your MIL gets a positive on a new assessment it does not necessarily mean you will suceed on a retrospective review but it may give you more basis to make a case.

On the practical side were you given the detail of the decision on the last assessment? It may be useful to look at the DST and why your MIL was turned down last time.

From what I remember, MIL ticked all the boxes, but not high enough - something like that.

Thank you for your advice. My husband will contact the PCT and ask them to arrange a new assessment. I was not present when MIL had her assessment last time - I only had an opportunity to talk to the PCT representative afterwards. This time, my husband will make it perfectly clear that he is to be present when his mother is assessed.

I am also going to download all the literature and my husband and I are going to go through it all very carefully. I believe it is these documents we need to read.

http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/Continuingcare/DH_073912

Is there anything else we need to know before we embark on this process.

monkeyspanner

Yes that page gives you the information you need if your MIL lives in England (Wales and Scotland being devolved have not taken up the new system). I would advise reading not only the DST but also the national framework it is heavy going but is the primary source.

It is interesting you mention your MIL ticked all the boxes but not high enough. Although called a DST it is really only an standardised assessment tool. I have been unable to find any guidance on how the results of the DST should be assessed in the actual decision making process. As a result there is still a huge variance in the number of people per 50000 of population being awarded CHC across different areas of the country although the new system was supposed to deal with the postcode lottery. You might also find this commentary on the new CHC system by the Association of Directors of Socil Services interesting http://www.buckscc.gov.uk/moderngov/Published/C00000124/M00002459/AI00002867/$ContinuingCareGuidanceAppendix3.doc.pdf

During my MIL's assessment and decision process I got the distinct impression that being well informed particularly if you were familiar with the national framework put you at an advantage over many of the people involved. They had only been trained in the mechanics and did not fully understand the background principle. Also persistence was the key as the initial answer is nearly always no except in the most obvious cases. Incidentally I have reread your original post and I would have thought your MIL's primary need was very obviously medical.

Good luck and if you would like any more advice I would be happy to try to help.

Les_Booth

We are about to start the dreaded process for my brother-in-law who has been in a Nursing Home since 27th May - CHC screening meeting tomorrow.
He has vascular dementia - can not hold a conversation
Is doubly incontinent
Is unable to feed himself
Is now wheelchair bound - albeit he was on his feet before admission to the home.

The social worked stated in an e-mail today "...As I explained to you there were changes on 1st October with regard to screening/assessment for CHC Funding ..."

Do you have any idea what those changes were ? I've tried googling but no success so far.

monkeyspanner

It appears that a number of the proceedure documents have been updated effective October 2009. This page gives you links to a number of guidance and proceedure documents.

http://www.dh.gov.uk/en/Healthcare/IntegratedCare/NHSfundednursingcare/index.htm

However this document states that if the assessment proceedure has started prior to 1 october then the process should be continued under the 2007 rules

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_106175.pdf

Unfortunately I can't advise which would be more advantageous for you.

There has been a reissue of the public leaflet for Oct 2009 which states
When the National Framework was introduced on 1 October 2007, there was a commitment that we would review the guidance after one year and this work has now been completed. The review has not changed the way in which eligibility decisions are made, nor has it changed the level of nursing/healthcare needs that entitles an individual to NHS continuing healthcare. This leaflet takes into consideration the changes that have been made within the National Framework following the review and has been specifically produced to answer your questions about NHS continuing healthcare and NHS-funded nursing care.

Here is a link for that leaflet
http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_106229.pdf

How this statement stacks up with the e-mail you received I am not sure.

CHCscandal

Les_Booth wrote: »

We are about to start the dreaded process for my brother-in-law who has been in a Nursing Home since 27th May - CHC screening meeting tomorrow.
He has vascular dementia - can not hold a conversation
Is doubly incontinent
Is unable to feed himself
Is now wheelchair bound - albeit he was on his feet before admission to the home.

The social worked stated in an e-mail today "...As I explained to you there were changes on 1st October with regard to screening/assessment for CHC Funding ..."

Do you have any idea what those changes were ? I've tried googling but no success so far.

In care home since 27th May? who is paying?, how was he accepted into a care home? was it straight from hospital? if so a CHC is mandatory on discharge.

Please keep in mind that HEALTH needs are being redefined as Social needs in order to charge under means testing.


Website for new framework:- http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/Continuingcare/DH_079276

Website for dst assessment tool:- http://www.dh.gov.uk/en/AdvanceSearchResult/index.htm?searchTerms=decision+support+tool+2009

DOH description of the process/policy etc:- http://www.dh.gov.uk/en/AdvanceSearchResult/index.htm?searchTerms=dst+assessment+tool

(sorry about the long post, but hopefully you can be more armed with information when taking your case forward).

Firstly the Social Services cannot assess for a health need/primary health need.

If you/family havn't been involved together in a multi disciplinary assessment by the NHS then 'The Process' has not been followed.

A) That assessments must be multi discipminary, lead by health/NHS to determine a primary health need.
That, if in hospital, then the NHS is responsible until all appeals procedures are exhausted.
C) That a checklist must be completed in the first instance to determine eligibility for assessment, once this has determined
eligibility for full assessment, then family MUST be central to the decision making process, involved in all meetings, which must be multi disciplinary
to measure against the decision support tool as a guide to the presence of a primary health need.
D) That the MDT(multi disciplinary team) assessment MUST use a PHN ( primary health need )approach/ focus at all times, it is essential to remember that social needs are a consequence of health needs that is why social needs are an intrinsic part of the DST( decision support tool) assessment, the judgement in 'coughlan' determined in law that social care is part of health care, as in hospitals, where all social care is carried out as part of the health need, (i.e. washing/providing sustenance/hopefully helping to digest the sustenance/dressing) these are the only social/personal
needs that the social services can lawfully provide under the 1946 national assistance act when in care, but are as said an intrinsic part of health needs, therefore
become part of the overall health need.

When at home and having social care services assessed , shopping, cleaning and other services can be provided & charged for by the SS.

Pam Coughlan, only has personal needs (social care) she has no nursing needs what so ever, (she is a tetraplegic) but the judge defined in her case that her needs were 'of a nature' that the social services could not place, provide and charge for, therefore setting the demarcation line which is intrinsic to all assessment criteria since then, to the present day, and central to all published frameworks since 2001, but interpreted individually throughout the UK by the various health services and social services diluting & fuzzing the 'demarcation point' in order to charge when someone has means.

Primary Health Need - is only a 'concept' phrase that the secretary of state has developed, it is not mentioned in any court cases or the original 1946/48 acts, nor are any assessments or criteria mentioned.
See section 25 New Framework page 13 of 65. See also sections 26 - 29, in particular section 29 where deterioration is discussed, now & if likely in the near future within the planned review period & can be taken into consideration for immediate eligibility before the deterioration has occurred.
Core values and Principles: from section 33 to 35 , 35 being relevant for all representatives/family etc to be central to the input of the decision making process.


Assessments within the New Framework section 51, page 20 of 65 of the revised framework.
If the social workers have used the SAP(single assessment process) for assessment, they more than likely will not have identified any health needs, as they are not clinically trained and cannot determine a health need, but should have brought in health assessors when completing a FAC (fair access to care) assessment which is like a checklist, where is puts people assessed as in need of community care into one of four bands, critical/substantial/moderate/low within the critical and substantial, there is a box for health needs occurring now or in the near future and the word substantial is used, this is the 'trigger' for involving health assessments and ALL discharges from hospital MUST involve a checklist for CHC(continuing Healthcare) then a full assessment if that indicates a need, the checklist is set deliberately low to 'capture' all who appear to need an assessment.

For people in mental assessment units, they are likely be assessed using the 'CARE PROGRAMME APPROACH' Section 53.
Page 22 of the framework shows the flow chart of the assessment trigger and process, your mother must fit into this area.
The problem occurs here at this point where the delayed discharges situation comes into play, that is why the social workers are 'bothered' because they are charged a substantial
amount on a daily basis by the NHS if the NHS has deemed someone fit for discharge, that may be to the continuing care of a care home, and advise the social services via a section2(2) form that the person is in need of community care services, BUT this should only take place after a full assessment for CHC has been considered and the LA/social services MUST not accept the section 2 if it is clear that a CHC assessment has not been carried out.

Of course if a CHC assessment has been carried out, they (SS) and yourselves would have had to be part of it! ??!!??

Checklist section 60, thro to 78, Decision making:- It is clear within this section from section 79 that the multi disciplinary meeting is the determining factor in all cases, after this comprehensive meeting has taken place which in theory should be timed to enable enough discussion if necessary together to show at the end of it, the picture which may
indicate the PHN, this section make sit clear that at the end of this meeting, the appropriate decision will be obvious or decided by all/to all.
From that point some (many if not all) PCT's/Trusts use panels, which are clearly gate keeping functions, which are not supposed to be authorised by the DoH documentation.

As the MDT is generally carried out on site probably/with the decision makers who know the subject/person, have all details to hand and should have brought all aspects to the table for thorough discussion, overall may have indicated eligibility and all agreed at the end of the meeting, this can be overturned at the panel where 99% of panels do not allow representation by the family.

Section 57 advises there should be no gap in provision of services, therefore if a decision cannot be made whilst the individual is occupying an ACUTE bed, interim services
must be agreed and put in place until the appeals procedure is fully exhausted and the social services cannot charge or recharge or backdate any charges for this.
Any services provided by the NHS include all social requirements and cannot be charged as they re an intrinsic part of the NHS service.
Section 99, planning to cover all needs must take place whilst ongoing assessments/appeals are in process.
Sections 112 Links to Other policies specifically mentions mental health act 1983.See section 115 where the LA may assist the NHS in the provision of services if section 117 applied
but the services cannot be charged for, there are no powers.
However section 116 gives the clue to the distinction between a mental disorder (psychosis) and a Physical health needs when under section 117, which remain on discharge, it seems
that a recognised mental disorder under section 117 order determines aftercare under the NHS, whereas physical health needs, existing in tangent with the mental disorder, may
determine a separate assessment for CHC!.
It says that any mental health problems under the section 117, cannot be identified within the DST assessment for physical health needs to determine then primary physical health need
in conjunction with the section 117 aftercare need!!


Extract from the New framework
Executive Summary
1.The National Framework. This revised framework sets out the principles and processes of the National Framework for NHS continuing healthcare and NHS-funded nursing care. Revised directions will be issued under the National Health Service Act 2006 and the Local Authority Social Services Act 1970 in relation to the National Framework.
2.Legal framework. We set out the main responsibilities for the NHS and local authorities (LAs) that are in primary legislation, and explain the influence of key court cases. The Coughlan judgment examined the responsibilities of the NHS and LAs, particularly regarding the provision of nursing care. The Grogan judgment examined the interaction between NHS continuing healthcare and NHS-funded nursing care.
2.Primary health need. We describe how the phrase a ‘primary health need’ has developed, and how this concept helps in determining when someone should receive NHS continuing healthcare.
4. Core values and principles. We set out the main things to remember when assessing somebody and deciding whether they should receive NHS continuing healthcare. The individual, the effect their needs have on them, and the ways in which they would prefer to be supported should be kept at the heart of the process. Access to assessment, care provision and support should be fair, consistent and free from discrimination.
5. Eligibility consideration. At the heart of the Framework is the process for deciding whether someone is eligible for NHS continuing healthcare or NHS-funded nursing care. Assessments should be carried out by a multidisciplinary team, in line with the ‘Core Values and Principles’ section, and should take account of other existing guidance.
6. Commissioning, care planning and provision. The primary care trust should identify and arrange all services required to meet the needs of all individuals who qualify for NHS continuing healthcare and for the healthcare element of a joint care package. We set out the key principles in both circumstances.
7. Access to other NHS-funded services. Those entitled to NHS continuing healthcare continue to be entitled to access to the full range of primary, community, secondary and other health services. We also set out how joint packages of health and social care services should operate.
8, Links to other policies. We point to other areas of law and policy that may be relevant to this Framework, especially areas concerning mental health, children’s continuing care and personal health budgets.
9. Review. Regular reviews should be carried out – the first no later than three months after the initial decision, and then at least once a year subsequently. Some people will need more frequent reviews. We describe this in more detail.
10. Dispute resolution. We set out the processes to follow when there is a disagreement concerning an eligibility decision. Separate procedures are set out for disputes between the NHS and LAs, and for when an individual disagrees with a decision or with the process used to reach it. We also describe the other steps that may be taken if this does not provide a satisfactory solution or if an individual wants to complain separately using the relevant complaints procedure.
11. Governance. Both primary care trusts and strategic health authorities have roles in overseeing the process. We explain this in the final section.

Key areas of change within the revision, the main being the appeals process, they try to say that any eligibility decision from 1/10/09 remains the decision until all appeals have been through, whereas prior , if ineligibility was found, the NHs had to fund until all appeals.

so you can imagine now they think the appeals proces will take forever.
BUT, they said it will only come in when they ahve issued further instruictions, which they ahve not done so far, so previous criteria annex e still in operation.

The descriptors in the domains are much better, if you are at the checklist stage (screening) ?? mentioned, then focus on the domains with astericks, these are crucial, put as much info as possibel into these domains.

Also included now is provision for possible/known/forecast deterioration which ahs to be taken into consideration.

Best of luck

See also the other CHc thread:- http://forums.moneysavingexpert.com/showthread.html?t=2011463

Very good site for details on how is was and still is:- www.nhscare.info

Forum: people in the same situation support and help each other:-

http://continuingcareforum.lefora.com/

Freshwater

Don't want to butt in on this thread but, having recently found it, would like to say a huge thanks to CHCscandal and monkeyspanner who have both helped me tremendously - not only in directing me to appropriate links but also for their reports of successes which have encouraged me to persevere.