Summaries by Derek Cole. 18th Dec, 2002 (updated 22 Jan 2003)
New case. In E.308/99-00 4th Nov, 2002 the Ombudsman has recommended that the Health Authority should review the case of a patient in the early stages of alzheimers and all other self-funders back to 1996.
'..... the new Authority should ....... review the eligibility criteria for funding continuing care that have been in operation since April, 1996 to ensure that they were (and are) in line with the Coughlan judgment and other relevant guidance............the new Authority should then determine whether there were any patients ..... who were wrongly refused funding for continuing care and make the necessary arrangements for reimbursing the costs they incurred unnecessarily.'
The Consultant's report of 12th February 1998 stated of this patient.
'He appeared to be more confused and disorientated but there was an improvement in his behaviour. He is now much more tolerant of other people, more accepting of personal care so much that the female staff can manage him'.
That is to say, he was a typical early stage Alzheimer patient needing personal care from 'female staff', not nurses. None the less, he was in a Care Home because of his Health needs and under the Court of Appeal ruling the N.H.S. was legally obliged to pay all his Care Home fees.
Somerset and Dorset H.A. had inherited from the old Dorset H.A. 'criteria' adopted in December 2001 based on the Ministry circular HSC 2001/015; LAC (2001)18 of 28th June, 2001. The patient was clearly NOT eligible under that criteria. The new Health authority none the less concluded that he is eligible for free care under 'Coughlan' and has agreed to refund everything unlawfully required to be paid.
Mr I.J.Carruthers, Chief Executive of Dorset & Somerset NHS wrote on to the patient's executor on 6th Dec,2002,
'You will be interested to know that the policy and eligibility criteria were amended in December 2001 and have been extensively reviewed in the light of the report of the Health service Ombudsman and the comments which you have made in your correspondence.'
By implication, he accepts that criteria based on the above circular were unlawful and that the arguments advanced by the Executor - now advised by Mr Derek Cole, M.A. (Law) LL.B. (Cantab) - correctly stated the law.
The Ombudsman technically only recommended that the H.A. review the case in the light of Coughlan, as she has no authority to interpret the law, but the final paragraph, 33 , 'Conclusions' is very revealing. 'The new Authority has agreed to implement my recommendations in Paragraph 26. They say they are prepared to consider reimbursement to Mr Squires on receipt of the necessary details of expenditure incurred. They have asked me to convey through my report - as I do - their apologies to Mr Squires for the shortcomings I have identified'. We don't know what passed between the Ombudsman and the H.A. but the overwhelming inference is that they jointly concluded that the December 2001 criteria and the circular (above) on which they are based cannot be sustained at law.
There are strict rules over what happens before a patient is asked to become a 'self-funder'. The Ombudsman says
I would really have expected to see a record of a more detailed assessment ..... I recommend that in future assessments of eligibility should including why the patient is considered to meet, or not to meet, all the criteria'.
. This supplements and is extra to the requirement for a 'written care plan' laid down by DoH booklet 25253. The criteria in 'Coughlan' are, of course, 'Health Needs' and 'Disabilties'.
Dorset & Somerset NHS IJC/vjp kj\ceo\ijc\letters\squires.let.doc Health Authority 6th Dec, 2002 Charter House, Mr R.S.Squires Bartac4, Ebsleigh Farm Wartercombe Lane, Bridestow, Lynx west Trading Estate, Devon, Yeovil, EX20 4QF Somerset, BA20 2SU
Dear Mr Squires,
Continuing Health Care Assessment of Mr C.H.Squires
Thank you for your letter relating to the Report by the Health Service Ombudsman following the complaint made relating to the continuing health care of your late father Mr C H Squires
The Health service Ombudsman has upheld the complaint in relation to the interpretation of the eligibility criteria by the former Dorset Health Authority. I wish to offer our sincere apologies that the criteria applied by the former Dorset Health authority to the continuing care of Mr C H squires were restrictive.
The Dorset and Somerset Strategic Health Authority support the findings of the Health Service Ombudsman. Action is now being taken to implement his recommendations. I would be grateful if you could provide details of the expenditure incurred in relation to the continuing healthcare your father received so that the appropriate reimbursement can be made inline with the recommendations made by the Health Service Ombudsman.
You will be interested to know that the policy and eligibility criteria were amended in December 2001 and have been extensively reviewed in the light of the report of the Health Service Ombudsman and the comments which you have made in your correspondence.
I am asking Mr Peter Ballantyne, Head of corporate Business, to contact you to discuss and agree the funding reimbursement with you in respect of the continuing healh care costs to be met by the former Dorset Health Authority. Mr Ballantyne will also respond to any outstanding issues raised in your recent letters to the Health Authority.
I apologise for the inconvenience and distress which you may have experienced.
I J CARRUTHERS
Cc: Ms Hilary Bainbridge, Office of the Health Service Commissioner.
Chair: Mrs Jane Barrie Chief Executive: Mr Ian Carruthers, O.B.E.
Derek J. Cole M.A.(Law), LL.B. (Jesus College, Cambridge)
9 Anglesea Terrace,
St Leonards on Sea,
20th Jan 2003
In addition to the Dorset report, Hilary Bainbridge has in addition given four similar rulings but we only know of three.
+ Complaint against Berkshire H.A. David Gooch, son and executor, lives in California but has put details on a website.
+ Complaint against Wigan and Bolton Health Authority and Bolton
Hospitals NHS Trust: Case No. E.420/00-01
+ Malcolm Pointon, an Alzheimer's patient in Cambridgeshire, is to have his care home fees paid for him by the N.H.S. after the Alzheimers Society called in the Ombudsman. Medical reports show that needs no NHS Nursing, but because of his 'Health Needs' and 'Disabilities' he is none the less entitled to free care. No doubt details are available from South Cambridgeshire PCT and the Alzheimers Society
I also give you a quote from Hansard. The underlining is mine.
QUOTE FROM THE HEALTH MINISTER. HANSARD 15th Jan, 2003
'Perhaps I can give some reassurance, at least to my hon. Friend the Member for Hampstead and Highgate (Glenda Jackson), by describing some of the improved safeguards-especially those relating to advocacy, about which my hon. Friend was concerned. Individuals wanting to know whether they should receive fully funded continuing NHS care should be informed as part of the assessment process. As I said earlier, the single assessment process and all other guidance make it clear that that is the first question NHS and social services need to consider when assessing the ongoing needs of someone who, potentially, has a primary need for health care.'
NOTE. The ministry circular of 28th June, 2001 quoted below by the Ombudsman says
(c) HSG(95)8 is lawful, although could be clearer.
James Goodie Q.C. who was in Court throughout as Counsel for the N & E Devon Health Authority, in an opinion given to various Health and Social Service Departments in Essex in March 2000 says brutally that it was 'unlawful'.
. Health Service Commissioners Act 1993
Report by the Health Service Ombudsman for England Investigation into a complaint made by Mr R S Squires
E.208/99-00 Health Service Commissioners Act 1993 Report by the Health Service Ombudsman for England of an investigation into a complaint made by Mr R S Squires Ebsleigh Farm Bridestow Devon EX204QF
Complaint against: Dorset Health Authority (the Authority) and Dorset HealthCare NHS Trust (the Trust)
Complaint as put by Mr Squires
1. The account of the complaint provided by Mr Squires was that his father,
Mr Charles Squires, suffered from Alzheimer's Disease. In December 1997 his
father was admitted to Fordingbridge Nursing Home, Hampshire, initially for
respite care. In February 1998 a team which included Trust staff decided that Mr
Squires senior did not meet the Authority's eligibility criteria for the provision
of NHS funded inpatient continuing health care. He remained at Fordingbridge
until its closure in February 2000, with his care being funded by means-tested
social services benefits and his own resources. From 2 February 2000 until his
death in February 2001, he resided at Deer Park Nursing Home, Devon, where
his care continued to be funded in the same way. In January 1998 Mr Squires
suggested to the Authority that the NHS should be responsible for funding his
father's long-term nursing care. The Authority explained that if a person were
sufficiently ill to require NHS care, then that would be provided within a local
hospital; its policy was to fund nursing home placements only if there was no
suitable hospital or other inpatient facility available. The outcome of Mr Squires
senior's assessment meant that responsibility for funding his care rested with the
local authority. Mr Squires was dissatisfied with the Trust's final reply. On 22
April 1998 he made a request for an independent review (IR), principally on the
basis that the Authority's criteria for funding long-term inpatient continuing
health care were more restrictive than allowed for in national guidance. After a
further attempt at local resolution he made a second request for an IR. The
Authority closed its file in April 1999 because Mr Squires had not clarified his
outstanding concerns. Mr Squires remained dissatisfied.
2. The complaints investigated were that:
(a) the Authority's eligibility criteria for funding long-term NHS
inpatient continuing health care were unreasonably restrictive and
did not reflect the principles laid down in the relevant NHS
(b) the Trust failed properly to assess Mr Squires senior's eligibility for
NHS-funded continuing inpatient care.
3. The statement of complaint for the investigation was issued on 8 November
2000. Comments were obtained from the Trust and the Authority and relevant
documents, including clinical records, were examined. I have not included in
this report every detail investigated, but I am satisfied that no matter of
significance has been overlooked.
National guidance; Eligibilitv criteria - health care needs
I 4. In 1995 the Department of Health issued guidance (HSG(95)8) on NHS
responsibilities for meeting continuing health care needs..The guidance detailed
a natIonal framework of conditions for all health authorities to meet, by April 1996,
in drawing up local policies and eligibility criteria for continuing health care and in
deciding the appropriate balance of services to meet local needs. The guidance
stipulated that the NHS had responsibility for arranging and funding
:continuing inpatient care, on a short or long term basis, for people:
where the complexity or intensity of their medical, nursing care or
other care or the need for frequent not easily predictable interventions
requires the regular (in the majority of cases this might be weekly or more
frequent) supervision of a consultant, specialist nurse or other NHS
member of the multidisciplinary team. . ..
, . . .. who require routinely the use of specialist health care equipment or
treatments which require the supervision of specialist NHS staff , ;I
i~~ 'who have a rapidly degenerating or unstable condition which means that
they will require specialist medical or nursing supervision.'
, '" The inpatient care might be in a hospital or in a nursing home.
5. In further guidance, EL(96)8, in February 1996 the Department of Health
'. . .. It will be important that eligibility criteria do not operate over
restrictively and match the conditions laid out in the national guidance.
Monitoring [of authorities' criteria] raised a number of points where
eligibility criteria could be applied in a way which was not in line with
. an over reliance on the needs of a patient for specialist medical
supervision in determining eligibility for continuing inpatient
care. There will be a limited number of cases, in particular
involving patients not under the care of a consultant with
specialist responsibility for continuing care, where the
complexity or intensity of their nursing or other clinical needs
may mean that they should be eligible for continuing inpatient
care even though they no longer require frequent specialist
medical supervision. This issue was identified by the Health
Service Commissioner in his report on the Leeds case and
eligibility criteria should not be applied in a way to rigidly
exclude such cases.'
6. In August 1999 the Department of Health issued further guidance on
I i continuing health care in a circular HSC 1999/180. This was in response to a
. Court of Appeal judgment in the case R.v.North and East Devon Health
Authority ex parte Coughlan (the Coughlan case). That judgment summarised
its conclusions as follows:
'(a) The NHS does not have sole responsibility for nursing care. Nursing
care for a chronically sick person may in appropriate cases be provided by
a local authority as a social service and the patient may be liable to meet
the cost of that care according to the patient's needs. Whether it was
unlawful [to transfer responsibility for the patient's general nursing care to
the local authority] depends, generally, on whether the nursing services are
(i) merely incidental or ancillary to the provision of the accommodation
which a local authority is under a duty to provide and (ii) of a nature which
it can be expected that an authority whose primary responsibility is to
provide social services can be expected to provide. Miss Coughlan needed
services of a wholly different category.
The Department's guidance included in its description of the judgment:
'(b) The NHS may have regard to its resources in deciding on service
I (c) HSG(95)8 is lawful, although could be clearer.
(d) Local authorities may purchase nursing services under section 21 of the
National Assistance Act 1948 only where the services are:
(i) merely incidental to the provision of the accommodation which a
local authority is under a duty to provide to persons to whom
section 21 refers; and
(ii) of a nature which it can be expected than an authority whose
primary responsibility is to provide social services can be expected
(e) Where a person's primary need is a health need, then this is an NHS
(f) Eligibility criteria drawn up by Health Authorities need to identify at
least two categories of persons who, although receiving nursing care
while in a nursing home, are still entitled to receive the care at the
expense of the NHS. First, there are those who, because of the scale of
their health needs, should be regarded as wholly the responsibility of a
Health Authority. Secondly, there are those whose nursing services in
general can be regarded as the responsibility of the local authority, but
whose additional requirements are the responsibility of the NHS.'
Authorities were advised to satisfy themselves that their continuing and
community care policies and eligibility criteria were in line with the judgment
and existing guidance, taking further legal advice where necessary. Where they
revised their criteria they should consider what action they needed to take to reassess
service users against the revised criteria.
7. A Royal Commission on Long Term Care had reported in March 1999. That
I had recommended that housing and living costs for those in long term care
should be paid for by individuals according to their means, but that the cost of
necessary personal care should be met by the state. In England the government
decided to adopt a rather different approach: from October 2001 the NHS has
funded care in nursing homes provided by registered nurses (for those who
would otherwise have to pay): but not all personal care provided by other staff.
8. In 1993 the Department of Health issued guidance on establishing district of
residence: the health authority where the person was usually resident was
responsible for funding care. The guidance explained that where a placement by
social services was temporary, then the health authority of usual residence
remained responsible for health care funding. If a permanent placement in a
home was funded totally by a health authority outside their area, then they
remained responsible for funding: otherwise the health authority in which the
home was situated became responsible.
9. However in 1998 a Guidance note (HSC 1998/171) was issued to NHS
bodies on allocation of funds to Health Authorities (HAs) and Primary Care
I. Groups (PCGs) in 1999-2000. This said that HAs would 'continue to be
primarily responsible for all those resident in their boundaries' and linked their
responsibilities to patients registered with GPs which were part of PCGs for
which HAs were responsible. In 1999 Primary Care Trusts (PCTs) were being
established and regulations (The Primary Care Trusts (Functions) (England)
Regulations 2000) detem1ined that a PCT was responsible for funding care for
patients of GPs within the PCT's remit. Those regulations came into force in
10. A replacement for the 1993 guidance on district of residence (paragraph 8)
was issued in draft form in October 2002.
! 11. In April 1996, the Authority published its original policy and eligibility
criteria for the provision of continuing health care. A revised version, under
which Mr Squires senior was first assessed, was published in April 1997. It
'Health Authority Responsibility
2.2 The Health Authority sees as its responsibility the provision of
continuing inpatient or residential care for people who:-
. need regular specialist medical or nursing supervision or
. have complex medical, nursing or other clinical needs; or
. are likely to die in the very near future and for whom discharge
from hospital would be inappropriate.
'2.3 The Health Authority is committed to arranging and funding
continuing inpatient or residential care for people who have such
needs. Explicit eligibility criteria are contained in each of the care
group sections which follow.
'2.19 People in nursing homes are funded either privately or
Ii through the local authority Exceptionally the placement might
rf:' be funded by the NHS where no suitable hospital or other in-patient
~~f'~' , facility exists. The Health Authority will not fund nursing home
.~ placements other than in the exceptional circumstances described , ",it"
'OLDER PEOPLE SUFFERING FROM MENTAL ILLNESS
5.1 The Health Authority will continue to fund continuing care for
people who meet the eligibility criteria set out below. The policy
and criteria outlined below apply to older people suffering from
dementia and those with severe functional mental illness. Inpatient Continuing Care
5.2 People will be provided with NHS continuing inpatient care if,
following clinical assessment, one or more of the following apply:
a) The person's behaviour is extremely restless and in any other
residential setting they would be at risk.
b) The person's behaviour is highly aggressive, either physically
or verbally, to such an extent that it requires specialised multidisciplinary
team management, including behavioural
strategies, in a controlled environment.
c) The person's behaviour is highly uninhibited and could not be
managed in any other residential setting.
d) The person has difficult behaviour coupled with heavy physical
dependency requiring active regular supervision (weekly or
more frequently) by a consultant.
e) The person requires secure care under Home Office
1) After acute treatment or palliative care in hospital or hospice,
the person is likely to die in the very near future and discharge
from [NHS] care would be inappropriate.
5.3 In Dorset such provision will usually be made in a local NHS
facility, either a small residential unit or as part of a community
hospital. Clinical management will in all cases be by a consultant
Annex four to the policy lists the services then purchased to meet needs in the
area. It indicates that the Authority funded 131 continuing care beds for older
! people suffering from mental illness or dementia.
Mr Squires' concerns
12. In a letter to this office on 13 June 2000, Mr Squires summarised his
complaints as being:
'The Dorset Health Authority misled me, through protracted
correspondence and prevarication to conclude that they were responsible
for meeting my father's continuing health care needs. It was only after
many months of delay that their convenor refused to grant me an
independent review on the grounds that the [Authority] were not, in fact,
the responsible authority.
'I contend therefore that either [the Authority] were deliberately
obstructive with the intention of frustrating my legitimate complaint, or they were grossly incompetent if they really were unaware of the
geographical and administrative boundaries of their own jurisdiction ' My original complaint was that my father was entitled to fully funded
continuing health care as he was suffering from a disease and that the
eligibility criteria against which he was assessed were unlawful in that they
did not accord with published guidelines 'The (later) judgement and the subsequent Appeal Court ruling in
Coughlan, vindicates my contention that my father always was, and
remains, entitled to receive fully funded NHS nursing care '
13. A letter dated 18 October 2000 from Mr Squires to the Ombudsman
' my father is in the final stages of Alzheimer's Disease He requires 24-hour nursing care. The law says he is entitled to receive
that care free of charge from the NHS ,
'[The Authority's refusal to fund his care] is unlawful because in July
1999 the Court of Appeal decided that Miss Pamela Coughlan was
entitled to have all her care costs met by the NHS. In their judgement
their Lordships concluded that a local authority may purchase 'nursing
services merely incidental or ancillary to the provision of (the)
accommodation.. .' Their Lordships added 'Miss Coughlan needed
services of a wholly different category'. Clearly Miss Coughlan's care
was not considered 'merely incidental or ancillary' to her need for
accommodation and she was therefore entitled to receive NHS funded
'In fact it is the law that if the primary reason for being in a nursing
home is to meet a health, not a 'social' need, then all care must be free
'A comparative analysis between the care supplied to Miss Coughlan
and to Mr Squires shows conclusively that there is no fundamental
difference whatsoever between the nursing services supplied to Mr
Squires and those supplied to Miss Coughlan. . . .
'The Appeal Court did not create new law, but simply clarified the
existing law. My father is therefore entitled to receive full retrospective
care funding from the date he first entered Fordingbridge Nursing Home
in December 1997. His daily nursing records show that his needs are
basically unchanged and illness was, and is, his sole reason for being in a
nursing home. In other words, had he not developed Alzheimer's
Disease he would have remained in his own home '
Correspondence and key events
14. I set out below a summary of the key correspondence and events.
Mr Squires senior lived with his wife in Dorset. He suffered from Alzheimer's
Disease. From July 1997 he received periods of assessment and respite care at
the Trust's Oakley House, Wimborne, under the care of a consultant in the
psychiatry of old age (the consultant).
1 December 1997
Mr Squires senior was discharged home from Oakley House after a period of
respite care. Subsequently Mr Squires expressed concern to NHS staff about his
mother's ability to continue caring for his father, saying he felt that long term
care was needed.
19 December 1997
Mr Squires senior was admitted to Fordingbridge Nursing Home, Hampshire,
initially for a four-week placement of respite care, organised by Dorset Social
13 January 1998
Mr Squires wrote to Social Services saying that there was no question of his
father being able to return home at the end of the planned period of care on 16
January. He said he felt that his father's long term care was the responsibility of
the NHS not Social Services. He said he had been in touch with Oakley House
about the situation. Mr Squires senior remained in the nursing home as a long
26 January 1998
After speaking to Mr Squires on the telephone, the Authority's contracts
manager wrote to the Trust about the arrangements for Mr Squires senior.
i 27 January 1998
Mr Squires wrote to the contracts manager expressing the view that as Mr
Squires senior was suffering from an illness, the Authority - rather than social
services - had a statutory duty to fund his long-term nursing care. Three days
later he sent the contracts manager invoices for his father's care at
Fordingbridge Nursing Home, and requested that they be settled by the
Authority on behalf of the NHS.
6 February 1998
The contracts manager replied reiterating what he had said in the previous
telephone call. He said that social services departments were responsible for
funding care in nursing homes. If someone was sufficiently ill to require NHS
care, then that would be provided in a hospital. Social services had confirmed
the assessment previously made by the consultant that Mr Squires senior did not
require admission to an NHS inpatient facility for his continuing care.
Responsibility for funding of the care therefore rested with the local authority.
He returned Mr Squires' invoices. He also sent Mr Squires a copy of the
Authority's eligibility criteria for continuing inpatient care.
9 February 1998
Mr Squires rejected the contracts manager's contention that the Authority was
not responsible for funding Mr Squires senior's care, on the basis that his father
appeared to meet some of the Authority's criteria for continuing inpatient care.
10 February 1998
The consultant and a community psychiatric nurse (CPN) re-assessed Mr
Squires senior at Fordingbridge Nursing Home and said that he did not meet the
Authority's criteria for NHS funded continuing care.
11 February 1998
The contracts manager informed Mr Squires that the consultant's most recent
assessment of Mr Squires senior had been that NHS care was not appropriate.
He said again that the Authority expected any Dorset resident who met the
criteria for continuing care to be admitted as an inpatient to an NHS facility, and
that the Authority would not expect to meet the costs of a nursing home
placement, as those were funded by social services.
23 February 1998
Mr Squires wrote to the Authority's chief executive, expressing dissatisfaction
with the contracts manager's decision that Mr Squires senior's care was
ultimately the responsibility of social services. He reiterated his view that as his
father was clinically ill, his nursing care and treatment was the responsibility of
the NHS and should be provided free of charge.
r 27 February 1998
, The Authority's chief executive explained to Mr Squires that:
. It was the Authority's policy to fund placements in nursing homes only if
there were no suitable hospital or other inpatient facility, because there were
sufficient beds in the Authority's area to meet the needs of all those patients
requiring NHS continuing inpatient care;
. Mr Squires senior was placed in a nursing home after the consultant assessed
him as not requiring NHS inpatient care;
. If Mr Squires senior's health needs changed in the future and, following
admission to hospital, he was re-assessed as meeting the criteria for inpatient
care, the Authority would expect him to remain in hospital;
. The NHS Community Care Act 1990 gave local authority and social services
departments responsibility for funding nursing home placements, taking into
account the financial means of the individual.
S March 1998
Mr Squires replied contending that the Authority's policy was in breach of their
own published criteria and NHS guidelines. He pointed out that authorities
could pay for nursing home places.
22 April 1998
After exchanging further correspondence with the Authority's chief executive
Mr Squires wrote to the Authority's convener (the convener), requesting an IR
and explaining his chief concerns:
1. The Authority's criteria for continuing inpatient care were not applied
correctly in his father's case. He had not seen a report of his father's initial
r . .
assessment by the consultant and did not, therefore, know how it had been
carried out or on what basis his father was assessed as not meeting the criteria;
2. The Authority's criteria were more restrictive than allowed for in the NHS
national guidance. He said that neither of the first two bulletted points of 2.2 in
the Authority's criteria (paragraph 11) made it clear that supervision required
was for weekly or more regular interventions and that supervision covered
specialist equipment as well as treatments: nor did that section reflect the
national guidance about people with rapidly degenerating conditions. On
sections 5.1 to 5.4, he pointed out that limiting the reference to supervision to
that by consultants was more restrictive than the national guidance and referred
to EL(96)8 (paragraph 5). He expressed concern about references in paragraph
5.2 to the person being at risk 'in any other residential setting'. That seemed to
imply that people could only meet the criteria if admitted to an NHS facility. He
said that if, as that and the contracts manager's letter suggested, the Authority's
intention was to never fund placements in nursing homes then that was out of
line with the Authority's policy and with national guidance.
22 May 1998
The Authority's assistant patient services manager replied to Mr Squires that the
first of the above concerns should be put to the Trust's chief executive, as the
consultant who assessed Mr Squires senior was employed by the Trust. She
advised Mr Squires to pursue his broader concerns with the Trust and
Southampton and South West Hampshire Health Authority, because Mr Squires
senior had become a Hampshire resident once his placement in F ordingbridge
nursing home became permanent and he registered with a Hampshire GP. The
assistant added that the Authority could consider Mr Squires' request for an IR
of his concern that their criteria for continuing inpatient care were more
restrictive than allowed for in national guidance.
1 July 1998
Mr Squires senior was discharged from the Trust's Old Age Psychiatry Service,
as he no longer needed psychiatric input.
Further correspondence with Mr Squires ensued.
-.,.,... - -
I September 1998
The convener infoffi1ed Mr Squires of his proposal to consider his request for an
IR on the basis ofMr Squires' concern that the Authority's eligibility criteria for
continuing inpatient care were more restrictive than allowed for in national
guidance. He sought Mr Squires' confiffi1ation that he was happy with that
proposal and requested evidence that his father consented to him pursuing the
complaint. (He did not receive a reply from Mr Squires.)
9 October 1998
The convener infoffi1ed Mr Squires that, as matters stood, he could not proceed
further with his request for an IR, as Mr Squires had failed to provide either
agreement as to which matters fell within the Authority's remit or evidence that
his father supported the complaint.
11 October 1998
Mr Squires infoffi1ed the convener that he had replied to the convener's letter of
1 September, but he had addressed the letter incorrectly. He confiffi1ed that he
wished to proceed with his complaint against the Authority, he consented to
contact with the Trust and said that he had power of attorney to act for his
20 October 1998
The assistant patient services manager infoffi1ed Mr Squires that a copy of his
original letter of complaint (dated 22 April) had been sent to the Trust chief
executive, and that the convener was considering Mr Squires' request for an IR.
25 October 1998
Mr Squires wrote to the Trust's chief executive, saying that his complaint was
not primarily that the Trust had incorrectly applied the Authority's eligibility
criteria for the provision of continuing health care, but that the criteria were
unsound and fundamentally flawed.
26 October 1998
The Authority sought confiffi1ation from the South and West Regional Office of
the NHS Executive that its current policy and eligibility criteria for continuing
inpatient care were in accordance with national guidance.
9 November 1998
Regional Office told the Authority that in early 1996, it had assessed the
Authority's original policy and eligibility criteria and found it to confoffil to' the
national guidance (to which I have referred in paragraph 4). Having examined
the revised version, Regional Office staff had concluded that it did not unduly
restrict access to services.
20 November 1998
The Trust's chief executive explained to Mr Squires that a multidisciplinary
team, led by the consultant, assessed Mr Squires senior at Fordingbridge
Nursing Home on 10 February 1998 and decided that he did not meet the criteria
for NHS funding for care for older people suffering from mental illness or
dementia. He also listed the criteria which would noffilally result in an
individual being provided with NHS continuing inpatient care. He explained
that inpatient care would have been arranged for Mr Squires senior if the team
had felt that any of those criteria applied to him. However, the team felt that Mr
Squires senior no longer needed specialist psychiatric input and his psychiatric
medication had been stopped.
2 December 1998
Having taken clinical advice, the convener advised Mr Squires of his decision
not to grant an IR at that stage. He referred the complaint for further local
resolution so the Authority could give a fuller explanation of the background
relating to continuing care arrangements.
17 February 1999
The Authority's chief executive provided Mr Squires with a fuller explanation
of the background to the NHS and Community Care Act of 1990 in relation to
continuing care arrangements.
23 February 1999
Mr Squires wrote to the convener, copying the letter to the chief executives of
the Authority and the Trust. He referred to the initial judgment in the Coughlan
case. He said that that clearly and categorically placed responsibility for ~
nursing care upon the responsible Health Authority. He also expressed his
intention to seek professional advice concerning the legality of the continued
means-tested funding of his father's care by Dorset Social Services.
6 March 1999
Mr Squires made another request to the Authority for an IR. By that time he
summarised his complaint as, 'In refusing to fund my father's continuing
healthcare needs [the Authority] are in breach of their legal obligations under
cuuent NHS statute'. He refeued again to the initial judgment in the Coughlan
15 March 1999
The Authority's convener asked Mr Squires to clarify his outstanding concerns
in the light of the chief executive's detailed reply to Mr Squires of 17 February.
He said that a further request for IR could only be considered in relation to the
22 April 1999
Having heard nothing further from Mr Squires, the Authority closed its file.
27 April 1999
Mr Squires complained to the Ombudsman about the actions of the Authority,
the Authority's convener and the Trust.
17 May 1999
One of the Ombudsman's staff asked Mr Squires to provide further information.
Mr Squires did not reply to that letter until 14 February 2000.
6 January 2000
The owners of Fordingbridge Nursing Home informed Mr Squires of its
imminent closure. They said that they would liaise with Mr Squires, the
Authority and social services to ensure that Mr Squires senior was found a
suitable home with the minimum amount of disruption.
7 January 2000
Mr Squires asked the Authority's chief executive if Mr Squires senior could be
reassessed against the NHS continuing care criteria. That letter included:
'In view of the ruling by the Court of Appeal in the Coughlan case, it
appears that Alzheimer's patients in particular are entitled to receive NHS
care free of charge as there is a primary need for constant health care, thus
the whole of that care must, according to Government Guidance, be borne
by the NHS.
'I would therefore be grateful if you would take the necessary action to
ensure that my father receives the level of care to which he is entitled funded by the NHS in accordance with current law.'
18 January 2000
The chief executive of The New Forest Primary Care Group wrote to
Southampton and South West Hampshire Health Authority's commissioning
manager. That letter included:
'I ~ave asked [Mr Squires senior's GP] if he would liaise with District
Nursing and Dorset Social Services so that a joint assessment [of Mr
Squires senior] can be carried out as soon as possible.
'My understanding is that although Dorset Social Services retain
responsibility for [Mr Squires senior's] social care needs, the
Southampton and South West Hampshire Health Authority and New
Forest Primary Care Group have responsibility for meeting health needs if
they are in line with the continuing care criteria '
i A 2 February 2000
Mr Squires senior moved to a nursing home in Devon.
14 February 2000
Mr Squires wrote to the Ombudsman with further infoffilation and explained his
--- "".c. 'C"C'- ",",C.'C"',",cc. cc""'"
Mr Squires senior died.
Com laint a The Authori 's eli ibili criteria are unreasonabl restrictive
and do not reflect the principles laid down in the relevant NHS guidance
15. A letter dated 29 November 2000 from the Authority's chief executive to
the Ombudsman included:
'. . .. I would wish to emphasise at an early stage that, while [Mr
Squires senior] was resident in Dorset when he entered respite care in Fordingbridge Nursing Home, on 14 January 1998 he registered with [a
GP] in Hampshire, as the placement had become permanent. From 1 April
1999, as part of the changed arrangements for establishing Primary Care
Groups, he became the responsibility of . . .. Southampton and South West
Hampshire Health Authority. Our files indicate that [Mr Squires] did not
contact [the Authority] about his father's care until 22 January 1998 when
he spoke to [the contracts manager]. It appears that he was in contact with
Dorset Social services prior to that date.
'I consider that [the Authority's] eligibility criteria for funding long-term
NHS inpatient continuing health care are not unreasonably restrictive and
reflect the principles laid down in the relevant NHS guidance. Extensive
consultation took place before drawing up the policy, as explained in my
letter of 17 February 1999 to Mr Squires, and has taken place since. As a
I result ~f~r Squires's co~cems [th~ A~thority] c~ntacted [regio~al offic~]
J for theIr VIew on the polIcy and cntena and receIved confirmatIon that It
1 conformed to national guidance and did not unduly restrict access to
! services. The letter from [regional office's director of policy], dated 9
November 1998 confirms this.
, . . .. As the convener requested, Mr Squires was sent a further letter by me
explaining the background to the NHS and Community Care Act 1990 in
relation to continuing care arrangements. This is my letter of 17 February
'By this time the judgment in the case of R v North and East Devon
Health Authority, ex parte Coughlan, had been published and Mr Squires
wrote to [the Authority] (and others) to inform us that he was taking legal
advice as a result of that judgment. He also made a further request for an
[IR] 'As a result of the Coughlan judgment and the contents of [HSC(99) 180]
[the Authority] asked its legal advisers to examine the April 1997
Policy and Eligibility Criteria for the Provision of Continuing Health Care
and received confirmation in a letter dated 3 November 1999 that it was
in accord with the spirit of the Coughlan judgment.
'Based on the recommendation made by [the Authority's legal advisers]
the Authority has, since November 1999, applied the eligibility criteria in
accordance with the Court of Appeal judgment as distinct from the
precise wording of the policy document. . ..'
16. The chief executive of the new Dorset and Somerset Health Authority (who
had been the chief executive of Dorset Health Authority until its abolition at the
end of March 2002) provided further comments in October 2002. In those he
'It was only in November 1999 that the former Dorset Health Authority
was advised that there might be a difficulty arising from the interpretation
of the policy and eligibility criteria in the light of [the Coughlan
judgment]. In a letter of advice [from its solicitors] the former Dorset
Health Authority was advised not to implement any amendments until
further guidance from the Department of Health was issued. Further legal
advice received in February 2000 confirmed that any difficulties might lie
in the interpretation of the policy rather than the precise wording of the
policy itself. 'The above legal advice was received some time after the assessment of
~ the eligibility of [Mr Squires senior] for continuing care was undertaken
but it was taken into account when the revised policy and eligibility
criteria were produced in 2001.'
~.l..~-- 1 9
Those comments also included:
'The former Dorset Health Authority undertook an in-depth review of its
policy and eligibility criteria for continuing health care and published a
revised document in December 2001. This review took into
consideration the judgement of the Court of Appeal ex parte Coughlan
and the ensuing guidance from the Department of Health published in
June 2001 The updated criteria were examined and modified by the
legal advisors to the former Dorset Health Authority before the final
version was agreed.
'The review in 2001 acknowledged that the original criteria could give
rise to an interpretation that was restrictive. The former Dorset Health
Authority satisfied itself that the updated criteria agreed in 2001 could not
be applied in such a restrictive way.'
17. The legal advice received by the Authority in November 1999 included:
'. . .. There is a danger in eligibility criteria defining "specialist" in
extremely narrow terms. "Specialist" should not be assessed by looking at
the level of qualification required for a particular task. Rather, it is
necessary to look at the intensity, quantity, continuity and range of the
nursing services required. , . . .. Although the judgment is not retrospective, it is one which is deemed
to clarify the law and therefore to say what the law has always been. It
follows that if anyone has paid for nursing care that ought to have been
provided on the NHS then they may be entitled to reclaim the monies
, . . .. Even though I have identified parts of the policy document that
might be suitable for amendment, I do not recommend any immediate
steps are taken to implement those recommendations. This is particularly
so given that further guidance is expected to be issued by the Department
of Health in the near future.
'I also recommend that a "risk management" exercise is undertaken. The
Health Authority may wish to identify cases in which NHS funding has
been refused because a particular patient was not regarded as requiring
"specialist" nursing care. It would be prudent to identify all cases where
patients are regarded as receiving "general" nursing services but those
services are of an "intensity, quantity, continuity and range" that might be
considered beyond the responsibility of a Local Authority. This exercise
will identify those cases for which the Health Authority might have future
responsibility and cases for which there is potential "retrospective"
'Apart from planned amendments to the document, the Health Authority
should consider the manner in which the eligibility criteria is applied at
the present time. The Health Authority should ensure that its policy is
applied in accordance with the Court of Appeal judgment as distinct from
the precise wording of the document. This is important. '
The further legal advice received by the Authority in February 2000 included:
'The Opinion from Counsel also identifies a problem with paragraph
2.19. As currently drafted paragraph 2.19 states that the Health Authority
will only be prepared to fund where no suitable hospital or other inpatient
facility exists. This is the point I mentioned in my earlier letter of
advice. I do not think that this requirement cannot [sic] be sustained in
the light of the Court of Appeal's Judgment in Coughlan.
'Counsel's opinion is that the requirement for active regular supervision
by a consultant - as a pre-condition for continuing in-patient care -
cannot be sustained. This is not a point that I covered in my previous
letter of advice. However, I think that Counsel's opinion is probably
'I remain of the view that specific risks to the Health Authority in the
short term lie in the manner in which the eligibility criteria are applied as
distinct from the precise wording of the criteria.'
18. Mr Squires has been arguing since January 1998 that the NHS should pay
the full cost of his father's nursing home care. During the period since then he
has put forward various reasons why he believes that to be so, mainly that the
Authority's eligibility criteria were over-restrictive. Before I consider the
arguments about that I need first to resolve the question, which otherwise causes
confusion in this case, of Y!:h1.9l! HA (if any) might have been responsible for
Mr Squires senior's care at what point.
19. In 1998 responsibility for NHS funding rested with the HA where the
patient was usually resident (paragraph 8). Mr Squires senior lived in Dorset
and first moved to the nursing home in Hampshire only for respite care. It was
at that point that his son requested NHS funding for Mr Squires senior's long
term care: and since his permanent home at that point was still in Dorset, it was
quite correct that he was then assessed under Dorset Health Authority's criteria
with a view to them funding his care. If he was, properly, not eligible for NHS
funding by that Authority at that point then, once he became permanently
resident at the home in Hampshire, the HA there (not that in Dorset) became
responsible for any NHS care he needed. Mr Squires could have asked for his
father to be assessed under the Hampshire criteria in 1998. On the other hand if
Mr Squires should in fact have been judged eligible for funding by Dorset
Health Authority for his long term care in JanuaryIFebruary 1998, under the
terms of the 1993 District of Residence guidance (paragraph 8) then they would
have retained that responsibility (while he still met their eligibility criteria)
even though the home was in the area of Southampton and South West
Hampshire Health Authority. The subsequent guidance on funding of HAs,
PCGs and PCTs suggests that that situation changed in April 1999, when the
Southampton and South West Hampshire Health Authority would have become
the responsible body for any funding.
20. So the key issue in this case is whether Mr Squires senior should have been
considered eligible for funding by Dorset Health Authority from early 1998 to
March 1999. His son argues that he should have been. He says that the
Authority's criteria were unnecessarily restrictive, and that his father was
entitled to funding for his care because he needed the care as a result of a
disease. He has quoted from the judgment by the Appeal Court in the Coughlan
case in support of his view.
21. I found that Dorset Health Authority was responsible, in February 1998, for
detennining whether Mr Squires senior's condition meant that he fulfilled the
criteria for NHS funding for his care. I shall deal first with the Authority's
criteria in relation to the national guidance in 1998 (ie before the Coughlan
decision). Mr Squires explained his chief concerns about that to the Authority's
convener on 22 April 1998 (paragraph 14). He questioned first section 2.2 of
the document setting out the Authority's policy on funding continuing health
care. However that section did not attempt to define fully the Authority's
criteria, as section 2.3 made clear but, it seems to me, was a summary. I do not
therefore think it unreasonable that it does not cover all the points in the
national guidance. I think Mr Squires' concerns about sections 5.1 to 5.4 are
more valid. While I recognise that the Regional Office of the NHS executive
apparently accepted that the criteria were not over-restrictive, it seems to me
that the criteria, 5.3 in particular, do imply that Q!!Iy those patients requiring
clinical management by a consultant will be eligible: whereas EL(96)8
emphasises that that should not be the case. I am also uneasy at the way the
criteria appear to link eligibility to needing care in an NHS unit. One would
expect any HA to have a number of people entitled to NHS continuing care, and
some HAs might have enough provision in NHS facilities to meet all those
needs whereas others might not. So a reluctance to fund care outside the NHS
does not necessarily indicate a failure to make sufficient provision: though if all
the long term care was provided in large institutional hospital settings it would
raise questions about the quality of life offered to such patients. However the
crucial issue in this case is how the Authority's criteria were likely to be applied
in practice. Whereas the criteria do indicate (at 2.19) the possibility of
exceptions being made, given the general wording that was likely to be missed
by those trying to interpret the policy. Indeed that seems to have happened in
Mr Squires' case: the contracts manager's early correspondence with Mr
Squires seemed to take the line that, because Mr Squires senior could be cared
for in a nursing home rather than in an NHS facility, that necessarily meant he
did not qualify for funding. So I do conclude that, in practice, the criteria were
rather too restrictive in comparison to the relevant NHS guidance at the time. I
am not at this stage expressing any view as to whether that led to any practical
injustice to Mr Squires senior, ie whether or not that meant he did not receive
NHS funded care to which he was entitled. I shall return to that point.
22. Before that however I shall deal with Mr Squires' other initial argument (not
linked to the national guidance), that his father was necessarily entitled to NHS
funding for his care because it was precipitated by his illness. I am not aware of
any legislation which says that whenever any type of care is needed because of
an illness, that should be provided by the NHS. It is well established in law that
the NHS does not have to provide even all b~ care which a person might
need, and the guidance following the Coughlan judgment picked up that point
saying that the NHS may have regard to its resources when deciding on resource
provision. That guidance also made it clear that the judgment did not call into
question that local authorities may make provision for nursing care, as well as
more general personal care. So I do not see that the fact that Mr Squires senior
needed care because of a disease meant that ~ that care necessarily had to be
provided by the NHS.
23. That brings me to Mr Squires' final argument that his father's fundamental
entitlement to NHS funding for his care was established by the Coughlan
judgment. He quotes the part of the judgment which says that it is generally
unlawful for authorities to transfer responsibility for nursing care to local
authorities unless the care is incidental or ancillary to the local authority
services. He says that the nursing services his father received (in 2000) were
very similar to Miss Coughlan's. While Mr Squires does not appear to have had
a direct response from the Authority on this point, despite his letter of 7 January
2000, they told me that they had received legal advice that their criteria were 'in
accord with the spirit' of the Coughlan judgment and that since November 1999
they had applied the eligibility criteria in accordance with the judgment rather
than the precise wording of the policy document.
24. I have to say that I find that unconvincing. I have explained earlier why I
concluded that, in practice, Dorset's criteria were rather more restrictive than
envisaged by HSG(95)8. But in the light of the Coughlan judgment, and the
subsequent guidance, they were far too restrictive. Many patients who required
significant amounts of nursing care, which could not be regarded as merely
incidental or ancillary to the provision of accommodation by a local authority,
would not satisfy the Dorset criteria. The fact that since November 1999 they
felt the need to apply the criteria in a different way, and not in accord with the
precise wording of their policy document, suggests that they were aware of a
discrepancy. The legal advice which they received (paragraph 17) identified
various concerns with the policy but did not recommend immediate changes to
it, partly because further guidance was expected from the Department of
Health. I can see that that expectation might have influenced HAs to take less
immediate action than they might otherwise have done. However I cannot see
how the Authority could expect the criteria to be applied in a way consistent
with the judgment without changing them and/or guidance accompanying them:
especially when clinical assessments under the criteria might be done by various
different staff, often those employed by local NHS Trusts rather than the
Authority itself. Nor can I see that that approach provides adequate transparency
for the public about the eligibility criteria.
25. I note the legal adviser's suggestion that the Authority should conduct a
'risk management' exercise to identify cases where, in the light of aspects of the
Coughlan judgment, the Authority might have a 'retrospective financial
responsibility'. I have not seen any evidence to suggest that the eligibility of
patients (and Mr Squires senior in particular) was properly reviewed following
the judgment. Although, by the time of the judgment, events had moved on
since it seems that responsibility for any appropriate funding for his care had
I passed to Southampton and South West Hampshire in April 1999, the Authority
should have checked that the initial judgment about his eligibility (back in
1998) was reasonable in the light of the judgment and subsequent guidance. I
uphold the complaint.
26. I turn now to the question of remedial action. In 2001 the Authority finally
did review its policy and eligibility criteria and adopted a new version in
December of that year. The organisation of the NHS has also changed since
these events. Dorset Health Authority no longer exists. Responsibility for
setting eligibility criteria now lies with a new Dorset and Somerset Health
Authority (the new Authority), and the relevant budget for funding such care
will be held by a PCT. While I recognise that the new Authority played no part
in these events, I must regard them as responsible for taking remedial action. I
recommended that the new Authority should, with its associated PCT and local
authority colleagues, review the eligibility criteria for funding continuing care
that have been in operation since April 1996 to ensure that they were (and are)
in line with the Coughlan judgment and other relevant guidance. I further
recommended that the new Authority should, with colleague organisations,
then determine whether there were any patients (including Mr Squires senior)
who were wrongly refused funding for continuing care, and make the necessary
arrangements for reimbursing the costs they incurred unnecessarily. While Mr
Squires has compared his father's needs in 2000 with those of Miss Coughlan,
as I have explained earlier, it seems that the Authority were not responsible for
providing his father's health care by then. Furthermore Mr Squires senior
suffered a degenerative condition, so he was more likely to be eligible for
funding as time went by. The appropriate way forward seemed to me to be for
his eligibility in 1998-9 to be reconsidered in the light of available information
about his condition then, once appropriate criteria for that period had been
Com laint b The Trust failed ro erl to assess Mr S uires senior's eli ibili
for NHS-funded continuing inuatient care.
27. In correspondence to the Trust in October 1998 Mr Squires referred to his
complaints about them being as follows:
' I have not been provided with a copy of [my father's] original health
care assessment. I have received a copy of a letter (12.3.98) from [my
father's consultant], addressed to [the Authority's contracts manager,
simply stating that [my father] "does not meet the criteria for continuing
" care.. ..
'Neither the precise way in which my father fails to "meet the criteria"
nor the tests (if any) which were carried out in order to arrive at this
conclusion are specified in this letter. I can thus only conclude that my
father "fails to meet the criteria" simply because [the consultant] says so.
Clearly this is unacceptable and open to challenge.
'In the absence of a detailed clinical report a definitive correlation
between the Health Authority's published criteria and my father's
condition cannot be made. '
28. A letter dated 28 November 2000 from the Trust's chief executive to the
'[Mr Squires] initially contacted [the Authority's chief executive] in early
1998 and [the Authority's chief executive] subsequently passed Mr
Squires's complaint to me in October 1998 to respond to the issues
regarding the health assessment of his father.
'I replied to Mr Squires in November 1998 advising that following the
assessment of his father the clinical opinion was that he did not meet the
criteria set by [the Authority]. In March 1999 Mr Squires kindly sent me a
copy of a letter he had sent to [the Authority] and I acknowledged this the
day after receipt.
'[HSC(99)180] was brought to the attention of all Consultants and
General Managers within the Trust. However the Trust complies with
implementing the criteria set by [the Authority] for continuing care
eligibility and I understand that [the Authority] sought legal advice about
this. I believe they were advised there was no need to change the criteria
they had set. . . .
'In response to the issue under investigation by your office. ... 'the Trust
failed to properly assess Mr Squires senior's eligibility for NHS-funded
inpatient care' I would like to make the following points.
'In my letter to [Mr Squires] dated 20 November 1998 I have given
the background for the assessment and the reasons why Trust staff felt Mr
Squires senior did not meet [the Authority's] eligibility criteria for
continuing care. I also offered the opportunity for [Mr Squires] to access
his father's notes if he wished to see the original health care assessment.
'. . .. These criteria are included in the 'Policy and eligibility criteria for
the provision of continuing health care' produced by [the Authority] in
April 1997 '[The consultant] and his team, who carried out the review, were of the
opinion that Mr Squires senior did not meet [the] criteria for inpatient
continuing care and as Mr Squires senior's needs were being met by the
F ordingbridge Nursing Home he was discharged on 1 July 1998 from the
Trust's elderly mental health service.
'Having had the opportunity of reviewing the complaint again; and
following further discussion with [the consultant] and [the Trust's
manager for elderly mental health], 1 cannot disagree with [the
consultant's] clinical opinion and the decision taken at the time appears
appropriate, given [the Authority's] eligibility criteria.'
29. The Authority's contracts manager wrote to a senior manager at the Trust
on 26 January 1998. That letter included:
'[Mr Squires] telephoned me on 22 January to discuss the situation and 1
explained to him that continuing care in a nursing home was the financial
responsibility of the Local Authority. If a patient was considered
sufficiently unwell to meet our criteria for continuing care then we would
expect that an admission would be made to a local hospital.
'We also discussed the assessment which had been carried out by [the
consultant] and 1 explained that [the consultant] did not consider that an
admission to hospital was appropriate, thereby confirming that Mr
Squires [ senior] was a Local Authority responsibility. 'I would be grateful if you could let me know when [Mr Squires senior]
was last assessed and whether or not you feel that a reassessment could
reasonably be requested by his son.'
30. The Trust were asked to provide the Ombudsman with relevant
documentation from Mr Squires senior's medical records relating to assessments
carried out by Trust staff in relation to the Authority's eligibility criteria. The
papers they provided did not include any detailed assessment against each of the
Authority's criteria. Most detail about the assessment was provided in a letter
from Mr Squires senior's consultant to his GP on 12 February 1998. That said:
'I reviewed [Mr Squires senior] today with [a community psychiatric
nurse] CPN ... We had the opportunity of meeting two trained nurses
who knew [Mr Squires senior] well. 'After an initial period when [Mr Squires senior] was similar to his
presentation [at the Trust's own unit] namely agitated, pre-occupied with
one of his former jobs (in a slaughter house), restless and sleeping poorly,
there has been a change after three weeks. He appeared to be more
confused and disoriented but there was an improvement in his behaviour.
He is now much more tolerant of other people, more accepting of
personal care so much that the female staff can manage him. He no longer
wanders, he is not irritable and there is much less pre-occupation with
slaughtering animals. He can be quite friendly with other residents. He
needs a good deal of assistance with his personal care. He has not tried to
, [Mr Squires senior] himself responded in a friendly manner to our
interview. 1 don't think he really remembered me but was able to say that
he liked staying where he appeared to be disoriented [sic]. He thought the
staff were good. There was a marked change in his demeanour from when
1 remember him before. He was quite happy to sit in the chair and there
was no sign of the agitation previously. He talked of killing just once.
'He is tolerating the medication without any problems and does not
'Whilst the cognitive aspects of his dementia may have deteriorated
lightly there have been marked changes in other respects for the better. He
does not meet the Health Authority's continuing care criteria and indeed
has settled very well in Fordingbridge Nursing home. The staff are happy
he stays. ...'
31. The consultant wrote to the Authority on 12 March 1998:
'I am writing to update you on the situation regarding [Mr Squires
senior]. 1 formally reviewed him on 10th February 1998 with the CPN who has been providing regular follow-up. He does not meet the criteria
for continuing care and appears well settled in the nursing home. He
himself wishes to remain there and the staff reported that they were quite
happy he should do so.'
32. Mr Squires complained that the Trust failed properly to assess Mr Squires
senior's eligibility for continuing inpatient care. He complains that the Trust
-~;;":j,,~ c ",,'i&,
had been unable to provide him with any detailed clinical assessment showing
why his father did not meet the criteria. Following correspondence from the
Authority to the Trust, Mr Squires senior's consultant psychiatrist visited him in
February 1998 and assessed him. The most detailed record of that assessment
seems to be in his letter to Mr Squires senior's GP. Like Mr Squires, I would
really have expected to see a record of a more formal assessment against each of
the criteria. However, I do not think it is appropriate to criticise the Trust
because that was lacking in this case. The Authority's contracts manager's letter
to the Trust (paragraph 29) would reasonably lead them to believe that the
crucial factor in deciding on eligibility for NHS funded care was whether or not
Mr Squires senior required hospital admission. The consultant felt that he did
not (and I have seen no evidence which would cause me to question that). I can
understand therefore why the consultant did not go on to record a more detailed
assessment in terms of the Authority's published criteria. I recommend that in
future assessments of eligibility for NHS continuing care by the Trust should
include recording why the patient is considered to meet, or not to meet, each of
the criteria. However, I do not see that the Trust deserve criticism in this case. I
do not uphold the complaint against them.
33. I have set out my findings in paragraphs 18-26 and 32. The Trust has
agreed to implement my recommendation in paragraph 32. The new Authority
has agreed to implement my recommendations in paragraph 26. They say they
are prepared to consider re-imbursement to Mr Squires on receipt of the
necessary details of expenditure incurred. They have asked me to convey
through my report - as I do - their apologies to Mr Squires for the shortcomings
I have identified.
Ms Hilary Bainbridge
Director of Investigations
duly authorised in accordance with
; paragraph 12 of schedule 1 to the
L-f- November 2002 Health Service Commissioners Act 1993
~ - -