15 June 2007
The NHS and local authorities must collaborate over continuing health care but uncertainty about the framework is making this difficult, and the lack of a dispute resolution procedure will not help matters
Cost shunting between primary care trusts and local authorities has become a big, potentially divisive, issue. As local government and the NHS struggle with increasing financial constraints, the situation can only get worse, hampering councils' ability to take on their community leadership, scrutiny and 'place shaping' roles and threatening other areas of the reform agenda, such as Local Area Agreements.
Moreover, the Department of Health might be missing an opportunity to introduce a formal dispute resolution procedure to avoid cost-shunting disputes.
There has been much media interest in the NHS continuing health care funding policy, with recent challenges to its eligibility criteria. And the impact of the yet-to-be-published National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care has been the subject of much debate.
People needing long-term NHS care for physical or mental health needs might also need help with their personal care such as washing or dressing. Such care is typically provided by council social services departments and is means tested. But if a patient is deemed eligible for NHS continuing care, the entirety of their health and personal care is funded by the NHS. The test for eligibility was developed in the cases of Pamela Coughlan and North and East Devon Health Authority and Maureen Grogan and Bexley NHS Care Trust.
Where individuals do not qualify for CHC, responsibility for care passes to the local authority but funding might fall to the individual, based on a means-tested contribution for personal care services. With potentially three parties financially interested in the outcome of the assessment, it is the focus of much attention.
The shared goal of local authorities and the NHS is to carry out an accurate assessment and deliver the best and most appropriate care to the individual. To reach this goal, successful collaboration between them is imperative.
Currently, and under the proposed framework, it will be the PCTs' responsibility to assess individuals' eligibility for CHC in collaboration with local authorities. Each strategic health authority is responsible for developing its own CHC eligibility criteria in accordance with Department of Health guidance, with the PCTs in their area applying this criteria — the SHA ensuring that the application is consistent. Without an integrated and national system of assessment, the criteria applied nationally has been inconsistent.
There is pressure on the relationship between the NHS and local authorities as a result of budgetary restrictions. Accusations of 'cost shunting' have been levied at both parties as a result of decisions they have taken to address deficits or meet budgets. It is in this environment that local authorities and PCTs are asked to work together to assess who is responsible for funding long-term care needs.
The framework, initially proposed in 2004, aims to ensure an integrated system of eligibility and assessment for CHC and to set out a single set of principles for the application of this criteria. It was subject to a three-month public consultation that began on June 19, 2006. The government's response has yet to be published.
A lack of proper collaboration between local authorities and PCTs leaves the responsibility for funding uncertain. This not only affects the people needing care, but also the organisations themselves, which might ultimately be forced to reimburse costs where care is incorrectly charged for initially.
Relatively straightforward changes could do away with some of these uncertainties. The DoH circular HSG(95)39 recognises the need for dispute resolution procedure. It says health and local authorities must establish appropriate arrangements for resolving disputes about responsibility for meeting continuing care needs.
It is notable, however, that numerous SHAs do not have dispute resolution procedures for cases of this kind and the framework does not propose any procedure to tackle this.
It is in the interests of both the NHS and local authorities to ensure that dispute resolution is planned for, and that an objective approach is taken, rather than individual disputes being resolved ad hoc.
Ensuring that a clear procedure can be implemented immediately in instances of dispute, with guidelines on how resolutions will be reached and who will be responsible for funding during the interim period, will benefit all.
Unless the awaited government response to the issue deals with this omission, the framework will miss out on an opportunity to ensure the uncertainty surrounding CHC is diminished for all concerned.
Stephen Cirell is head of local government and Professor John Bennett is a consultant solicitor with Eversheds. They are authors of Best Value: Law and Practice published by Sweet and Maxwell
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