Patients normally receive NHS Continuing Health Care in a hospital ward, hospice or a contracted in-patient bed with an independent sector provider such as a care home.
The NHS, not the local authority or individual, pays the total of that care. In Scotland, we have free nursing care and that element of the cost is met by the taxpayer – but the balance of the care home fees such as accommodation costs etc are not covered by the government or local authority.
It is for this reason that many people require to sell their homes in order to pay for the cost of care home fees.
The costs can amount to many thousands of pounds per year and often erode all of the assets of the patient until the minimum financial limit is reached.
Eligibility for NHS Continuing Health Care is where there is a need for ongoing and regular specialist clinical supervision of a patient as a result of: n the complexity, nature or intensity of the patient’s health needs, being the patient’s medical, nursing and other clinical needs overall; • the need for frequent, not easily predictable, clinical interventions; • the need for routine use of specialist health care equipment or treatments which require the supervision of the specialist NHS staff; or • a rapidly degenerating or unstable condition requiring specialist medical or nursing supervision.
In England and Wales, helpful guidelines have been produced which make it relatively straightforward to determine eligibility. That is not the case in Scotland.
The 2008 guidelines issued by the Primary and Community Care Directorate indicate that if someone wants to have an assessment to determine their care needs, they should contact their local social work department and it is they who should instigate, in consultation with a multi-disciplinary team, whether the person may be eligible.
If that team concludes the person may be eligible, the matter is referred to a medical specialist to determine whether or not the person is eligible. If they are found to be eligible, then all of the care home fees will require to be paid by the NHS.
The reality is that patients are not being considered for assessment. They are not being advised of the availability of NHS Continuing Health Care and in a few instances where families have asked for a relative to be assessed, they have been told that the relative would not be eligible in any event. Some have been told that the package is not available in Scotland.
Those responsible for tendering advice to patients are failing in their statutory duty. Many are not aware of the existence of the care package. The government needs to embark on an awareness campaign to educate those required to provide this service.
The current Scottish system, unlike the system in England and Wales, is difficult to follow.
If a person is found, after assessment by a medical specialist, not to be eligible, there is an appeals procedure to be followed.
This involves an appeal to a specialist employed by the same health board. If there is a difference of opinion, the decision is made by the medical director of the health board.
This appeals procedure, on the face of it, does not have the transparency we expect today. To allow a final decision to be made by a person who is ultimately responsible for the budget of the health board is inappropriate.
The Scottish Government should follow the English and Welsh model which allows appeals and claims to be made to a panel, so avoiding having to resort to litigation to resolve disputes.
One must question why the panel system is not being followed in Scotland and the easy conclusion to reach is that it is an attempt to save money, making it difficult for people to make claims where care home fees have been paid when they should not have been paid if the appropriate steps been taken to properly assess patients.
In conclusion, in Scotland there are patients being denied the appropriate NHS Continuing Care package – because of a failure to have patients assessed for the care package they are ultimately entitled to.
• David Short is a partner at law firm Balfour & Manson www.balfour-manson.co.uk