bulletin
Who cares?
27 August 2009
A recent decision by the Health Service Ombudsman will
pile pressure onto NHS Trusts, increase scrutiny of decision making
on funding continuing healthcare and encourage more complaints and
claims.
The Government recently published the Green Paper, ‘Shaping the
Future of Care Together’, launching a ‘Big Care debate’ on the
future of adult social care, and especially the way in which this
should be funded. Our recent bulletin, ‘A Green Paper and grey expectations - is the
'Big Care Debate' big enough?’ asked if this debate goes far
enough and whether it tackles the underlying fundamental problem;
healthcare is free of charge while social care is means-tested. It
can therefore be very hard to determine in practice where the
boundary is drawn and there could be no better example of this than
the case of Judith Roe.
Judith Roe suffered from Alzheimer’s and died at age 74 in
October 2008. She had been assessed as ineligible for NHS funded
continuing healthcare (CHC) as the Primary Care Trust (PCT) deemed
her care needs were social rather than healthcare. Mrs Roe
therefore had to sell the family home to fund the £600 per week
nursing home fees. Her family’s complaint has now been upheld by
the Health Service Ombudsman, who found that she should have been
granted CHC, and ordered the trust to repay more than £100,000.
Strictly speaking, the Ombudsman only has power to recommend a
payment of compensation, but her recommendations carry enough
weight that 99% of them are complied with. As an indicator of the
trend, the Ombudsman’s staff has increased from around 250 to
nearly 400 over the last year, reflecting an increased workload
under the reformed health and social care complaints system, and we
can expect her profile and role to grow.
In other cases, Alzheimer’s and Parkinson’s sufferers, or their
families, have recovered hundreds of thousands of pounds.
Collectively, the implications for PCT budgets would be enormous if
all patients with those conditions are to have all their care fully
funded by the NHS.
Despite the Government’s guidelines on CHC - the National
Framework and Decision Support Tool, currently being revised and in
force from October 2009 - there is still a lot of local discretion,
in other words a ‘postcode lottery’. The facts of individual cases
are diverse, and local priority setting is encouraged in other
policy contexts, not least the Next Stage Review. Each PCT, of
course, has its own limited budget and a statutory duty to balance
the books. Nonetheless, people are more and more ready to challenge
decisions they do not like.
Emotive as the subject matter is, the tone of the press coverage
and commentary is hardly conducive to a calm and balanced debate
over priority setting and allocation of finite resources. Whilst
one newspaper criticised PCTs for “shameful flouting of the
rules”, a correspondent wrote, “unlawful, unaccountable
and unnecessary – job description for the average ‘health
administrator’… a cosy club for the socialist unemployables”.
Another predicted that, “in a few years time they will complain
that too much of their budget is taken up paying legal fees and
compensation to those they have tried to defraud of their rightful
dues…”. Indeed, one firm of solicitors quoted in the press
coverage is said to already have 750 more cases in the
pipeline.
The new NHS Constitution starts with the promise that the NHS is
a ‘comprehensive service’, but the Courts have usually recognised
that this can only be an aspiration, and is by definition
unachievable within a finite budget. The Ombudsman has not yet
published a detailed report on her decision and reasoning in this
case, but the press coverage will only encourage complaints and
claims. The language of 'entitlement' in the NHS Constitution and
Department of Health policy will inflate expectations which simply
cannot always be met within limited resources.
On its face, this decision seems to be good news for local
authorities, moving the burden of funding onto the NHS budget, but
they should also be wary. While the PCTs are obviously first in the
firing line, social care providers could also feel the heat from
increased scrutiny on access and funding decisions, for example if
disgruntled service users and their families feel that they do not
adequately challenge PCT decisions not to fund.
While the distinction between (costly) social care and (free)
healthcare remains so important, but sometimes obscure and
apparently arbitrary, this incendiary combination will only work to
the advantage of those making a living from the disputes,
complaints and claims that this will cause.
talk to us
save to PDF
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.