Fully Funded Health Care - Appeals
Grounds for appeal
A person or his/her family can approach the PCT if they disagree with the final decision regarding funding because they are dissatisfied with:
a. the procedure followed in reaching the decision.
- Did the Authority follow the current National Framework? (However, the guidance also states that “In reviewing decisions made before implementation of the Framework, PCTs should use the most relevant, lawful criteria. These may therefore be pre-National Framework criteria as long as they are Coughlan- and Grogan- compliant”.)
The following chart lists all the different processes which should be followed. Anyone considering an appeal should check that no stages have been omitted. (The Fast Track is appropriate for End-of-Life care; it is determined by recommendations from a Ward sister, consultant or GP using the Fast Track Pathway Tool. Strict time limits are not relevant to end-of-life care and should not be imposed. End-of-life care can be provided in a hospital , a hospice of the person's home)
b. the evidence collected, application of the guidance and/or use of the Decision Support Tool in the decision-making process.
Before using the DST, practitioners should ensure that they have obtained evidence from all the necessary assessments (comprehensive and specialist) in line with the core values and principles of the Guidance. i.e.
- assessment should be person-centred
- no discrimination on race, gender, religion, etc
- assessment should be transparent and explained at each stage so that individual or family can understand and make fully informed decisions
- any person may elect an advocate. Even where this is not the case, the views and knowledge of family members may be taken into account where consent has been given to seek these views.
- Eligibility is based on an individual's assessed health needs.
The reasons given for a decision on eligibility should not be based on:
- the location of care,
- the ability of the care provider to manage care,
- the use (or not) of NHS employed staff to provide care,
- the need for/presence of ‘specialist staff ’ in care delivery,
- the existence of other NHS-funded care, or
- any other input-related (rather than needs-related) rationale.
As stated above, financial issues should not be considered as part of the decision about an individual’s eligibility for NHS Continuing Healthcare. No Finance officials should have been involved in the decision-making.
In the National Framework, Annex E para 8 it states that “while this review procedure is being conducted, the PCT should continue to fund appropriate care. Any existing care package, whether hospital care or community health services, should not be withdrawn under any circumstances until the outcome of the review is known”.
The legal framework governing decisions is explained in the Guidance para 17-22.
If an individual was (possibly wrongly) assessed as not eligible in the past, yet is now entitled to continuing healthcare under the terms of the new National Framework, then he can appeal . The cut-off date for appeals relating to decisions or failure to make an assessment before April 2004 was November 2007, but it is possible to have other claims backdated and funds could be reimbursed. This was tested in court in the Pearce v Torbay Care Trust in January 2007, when Mike Pearce successfully argued that the Trust should have paid his mother's care home fees. His mother who had sold her home to pay the fees was unable to do anything for herself apart from chew and swallow. She died 2 years before the ruling in her son's favour.
http://www.guardian.co.uk/society/2007/jan/14/health.longtermcare
Retrospective continuing care funding and redress report Summary
http://www.ombudsman.org.uk/improving_services/special_reports/hsc/care07/
contains a further ruling from the Ombudsman to the effect that the Department of Health had (in a different case) issued confusing guidance which has led some health authorities to under-compensate successful applicants for retrospective care funding.
NHS continuing healthcare is not just for those with physical healthcare needs. It should also be available to those with mental health needs, including those relating to dementia if the level of needs meet the national criteria. The same NHS continuing healthcare criteria and assessment should be completed to assess the needs of someone with dementia, and the assessment should include the opinion of a psychiatrist or mental health professional. If anyone has been told that he or a relative is not entitled to NHS continuing healthcare because they have dementia, they should consider an appeal.
The Ombudsman gave a detailed ruling in 2003 in the Pointon case, in which Mrs Pointon sought fully funded care for her husband who suffered from Alzheimers. Although it predates the application of the new National Framework, the way the appeal is laid out could be useful guidelines. The level of detail on both sides in impressive. Both of the following urls should find the same document.
http://www.ombudsman.org.uk/improving_services/selected_cases/HSC/pointon.htmlhttp://www.ombudsman.org.uk/pdfs/pointon.pdf
The Ombudsman's report “NHS funding for long term care “ www.ombudsman.org.uk/pdfs/care03.pdf
is interesting reading, and cites previous cases, but is probably out of date and therefore irrelevant as it pre-dates the National Framework.
Useful urls:
The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care.
This url gives the executive summary and the link to download the full document.
http://www.nhs.uk/chq/Pages/2392.aspx
NHS Choices explanatory notes on the National Framework for NHS Continuing Healthcare, with useful links at end to other relevant sites.
Age Concern's Fact Sheet 20 – very useful;
Annual report on NHS Funded Continuing Care in NHS South West for 2007/08
(Concerns useful addresses and statistics on reviews/appeals).