NHS continuing care: why you may lose
The meaning of the phrase “nursing and other healthcare”
There is a substantial and growing disconnect between the public who see their relatives suffering from profound disability and illness, often involving neurological disorders such as dementia and stroke, and the view of NHS continuing care teams in Clinical Commissioning Groups that such patients do not mainly have health needs and for whom the NHS will only provide very limited health support. As a result, the care of these patients is mostly privately funded or jointly funded by the social services department and the patient.
The standard justification for this practice is that the health needs of the patient are not intense, complex or unpredictable enough to be an NHS responsibility. This rationale has a superficial connection to the method of determining eligibility set out in the National Framework published by the Department of Health but it operates not according to the Framework but to criteria regarding the determination of a “primary health need” that pre-date it and which reflect a longstanding institutional preference to apply resources to acute hospital and specialist care and minimising the provision of long term continuing health care.
This approach holds that a patient is not eligible for NHS continuing care if the nature of the care they require is that which the facility (generally a nursing home) usually provides for this kind of patient and the patient does not require additional skilled/registered nursing or other NHS staff inputs beyond its usual service for patients with these needs.
This paper looks at whether this working practice is lawful. It concludes that it is beyond the remit of local authorities set out in the Care Act 2014 to provide a service for end stage neurological disease patients which is practically indistinguishable in appearance from long term hospital care. This is because the patient has no capacities which a social services department can support in any other aspect of their wellbeing than their immediate needs for health care. The practice relies on a definition of general nursing work done in a nursing home as being not health or nursing care for the purposes of the relevant test of eligibility. This paper holds that there is insufficient legal justification for a view that general nursing care provided to patients with these needs is not nursing care within the meaning of the NHS Act.
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