Forum members will be only too aware of the growing practice of NHS PCT's and SHA's to ignore their own rules when it suits them. The 'National Framework' is published by the Department of Health - so complain direct to them via. this link: http://www.dh.gov.uk/en/ContactUs/DH_066319 - and don't forget to let us know the response - if any! Steve.

Is the revised 'National Framework' now fully compliant with Coughlan/Grogan ie revised June 2009? Or still Fatally Flawed according to The Law Society?

Their 'National Framework' is fatally flawed because a) The Health Act does not provide for the application of ANY criteria to determine who is and is not entitled to NHS care 'free at the point of need'.
b)If it were lawful to apply ANY 'national framework' then the current one would not be lawful because Pam Coughlan would not qualify for NHS continuing care if it were applied to her. (It's NOT 'Coughlan Compliant') Moreover the original DoH concept was to compel all the different NHS trusts to adopt a common set of (albeit unlawful) criteria as each had it's own set of rules which created a 'postcode lottery. 'This has proved a total failure as now each health authority interprets their 'National rule book' differently!
There is only ONE criterion required to qualify for free NHS care: 'Patients with an illness, disability or injury who are so ill that they require full time nursing care are entitled to receive ALL the care they require 'free at the point of need'.
NOTE: 'Grogan' was heard in a lower court which cannot revise or rescind the judgement of the Court of Appeal. Only the Lords could do that! Steve.

My mum is about to have a CHC assessment in hospital, having broken her hip, but to be discharged maybe this week if care can be sorted out for her. She has moderate Alzheimers and various long term health conditions which make her liable to falls, plus rectal prolapse. Carers visiting 3 times a day is what is suggested, and that seems to me an appropriate way to start - she does not need full time nursing care. I've looked at the decision support tool, and on the basis of that too, I think she may well not get the CHC from the NHS, depending how the 'domains' get assessed/manipulated.

I see from your post that the underlying principle is that if full time nursing care IS needed then it must be provided free by the NHS. Is this set down in law somewhere? It seems simple and straightforward, compared to statements about 'primary healthcare need' or whatever. (Yet there seem to be plenty of horror stories where even this simple principle has not been implemented.)

Does that mean that there is NO principle that the NHS should provide lesser levels of care free of charge?

It seems to me that CHC may be provided free even if the need is less than full time nursing care - am I right? If not, there seems little point in appealing against an unsuccessful assessment, unless we are trying to establish that full time care is needed (which at this stage of mum's illness, we are not).

As you can tell, I am only just at the beginning of all this, and I can see it's a nightmare for everyone. I'd appreciate your comments.

Dear Steve,
I complained to the Parliamentary and Health Service Ombudsman regarding Wiltshire PCT's refusal to grant CHC funding to my
mother who is 86 and has alzheimers and is in a residential home (in the EMI unit) because she did not have primary health needs.

I have had a reply from the Ombudsman which says "we have decided not to investigate your complaint, as we consider that on the whole, the SHA has acted appropriately in accordance with Department of Health Guidelines, and has provided sound reasoning for their decision not to award your mother NHS continuing healthcare funding.

We have identified some concerns around the SHA's review of the PCT's process. However, we have seen no evidence that the IRP failed to consider any key clinical facts when reaching a decision. ........"It does not appear that the DST was completed by an MDT, and our Adviser has raised concerns that the IRP report does not appear to address this issue. However, this omission does not appear to have adversely impacted on the decision as the review panel undertaken by the PCT did have the involvement of a MDT, and it is evident that the IRP discussed your mother's care needs with you and the PCT......the Ombudsman recommends a re-assessment.

So where to go from here?? I must admit I have been sitting on this reply for a while - until I found the energy to go into battle again. Some advice gratefully appreciated. Thank you in advance.

Hello AH
A typical reply from the Ombudsmans office - several of us have had similar. Even though they are not going to do a full investigation , you have the right to go back to the SHA and ask that they do a re-assessment as the O'man recommends, this time with you fully involved. (Just found your post at the top of the 'stickies' - perhaps better to start a new thread where it will not be missed?) In our case also, the O'man wouldn't do a full investigation, but did say they found evidence of maladministration - so we have written to the Chief Exec. at the SHA insisting that they address this - we have suggested by a fresh IRP done by a different SHA. We sent them a copy of the O'mans letter, redacting any bits that were irrelevant. Not holding out too much hope, but we intend to carry on being a thorn in their side as long as possible!
HK

Esquires wrote:There is only ONE criterion required to qualify for free NHS care: 'Patients with an illness, disability or injury who are so ill that they require full time nursing care are entitled to receive ALL the care they require 'free at the point of need'.

Hi, this is my first post and I do not generally post on messageboards so I am not certain I've done this quote correctly. I've spent hours on the internet trying to find clarification of what constititues "nursing care". My Mum has dementia. She is in a residential section of a nursing home. She has had a DST decision go against her as her needs are considered to be social and not nursing. She has severe cognition needs according to the DST. She is totally immobile (her legs/ligaments are fixed in a curled up position) but because positioning her is not considered life threatening, she has only scored high and not severe, she is doubly incontinent, she has to be fed, she has just recovered from severe pressure sores, she has bouts of depression (though the records do not support this and I intend to complain about the psychiatrist). Apart from when she had the pressure sores, she has only been attended to by care staff so it has been concluded that this is not nursing care.

"Nursing care' is simply the dictionary definition 'Caring for the sick" - Lord Woolf in 'Coughlan'.
There is no lawful demarcation between so called 'social care' and 'health care' - it's ALL NURSING CARE - plus there are no longer 'residential homes' and 'nursing homes' - they are now all 'care homes' and the level of care they provide is determined by their licence which is in turn contingent upon their staffing levels and facilities. Steve.

Thank you for your reply, Esquires.

I can see that you have a tremendous understanding of these issues but I must admit that I find all this terminology and conflicting definitions extremely confusing.

The Matron who is currently involved in my Mum's assessment for Continuing Healthcare Funding has put in writing (on the initial checklist form) that my Mum isn't in receipt of Nursing Funding (ie the £100+) because she is in a residential home but that she would qualify if she was in a nursing home. To complicate things further, she is in a residential bungalow with 12 others (there is also a nursing bungalow and a bungalow for people with learning difficulties) but the care home title is "......Nursing Home". Were my Mum not settled in her bungalow, she would have been moved to nursing by now.

Ironically, the PCT that owns the Home is closing the nursing bungalow and redesignating the residential bungalow as Nursing. My Mum and several others are being evicted from what was the residential bungalow, as are most of those in the Nursing Bungalow. They are only retaining people who have a place for life and two people who have been assessed as qualifying for continuing healthcare. The charitable organisation that runs the Home are going to take responsibility for the learning difficulties, which is well funded, but private paying and social services funded residents are no longer required.

This matron, like so many NHS staff, is talking total CRAP! The law - the 1946 National Health Service act - states that ALL care shall be provided 'free at the point of need regardless of the ability to pay' Thus care can be provided in any sort of institutional environment such as a hospital, hospice or any kind of care home, in the patients own home or that of a relative or carer or in fact a tent in a field or garden shed! Other than where a charge is made, the experience and qualifications of the carer are immaterial. Every resident British citizen who has an illness disability or injury of such severity that they require 24/7 care is entitled to NHS funded continuing care. The 1946 National Health Service Act established the NHS on 5th. July 1948. Nowhere in the Act is there any mention that 'Eligibility Criteria' may be used to determine who should or should not be entitled to receive free NHS care. In fact the Act specifically states: 'The services so provided shall be free of charge' The NHS themselves confirm that this hasn't changed and the Act has not been repealed. Although modified by later acts the core principles remain intact: The NHS say that they "hold a continuing commitment to the founding principles of the NHS which can be summed up as: The provision of quality care that meets the needs of everyone, Is free at the point of need and is based on a patient's clinical need not their ability to pay" See
http://www.nhs.uk/aboutnhs/CorePrinciples/Pages/NHSCorePrinciples.aspx
Thus under the Health Acts ALL those with an illness or disability qualify for NHS care 'free at the point of need'. Note though, that a 'health need' is NOT synonymous with a 'need for health care'. The former is the only qualification needed for entitlement under the Health Acts to 'free' NHS care. Obviously all patients have a 'health need' or they wouldn't be 'patients' but they do not necessarily require or receive any 'health care' or treatment - Pam Coughlan and other tetraplegics and many cancer patients for example. It is the patients condition not the nursing care a patient requires or receives, nor who provides it, nor the setting in which it is provided, that is paramount and triggers their entitlement to free care. (despite what the NHS and SS say!)Steve.

Thank you, Esquires.

Well, there you go then, Arhoolie - just tell them all it's CRAP and let us know how you get on.

If you achieve it by just saying CRAP and HUMBUG(s) then you'll have worked miracles.

You can quote the 1946/1948 NHS Act until you're blue in the face, followed by each and every amendment along the way (to suit the incumbents at the time), and if you then achieve a solution, there will be a long queue behind you all wanting to touch your sparkle.

Free at the point of need - v. free at the point of delivery. That's the missing link.

If it's delivered, it's free.

If it's needed but not delivered ............. you can whistle for its delivery.

Contact Esquires, he will deliver. But may not be necessarily free at the point of need, but charged for at the point of delivery.

Hi Victoria

I apologise but this is quite a learning curve for me at the moment. I am sure it has been for everyone but I am just starting out.

I'm afraid that I do not understand your point regarding need and delivery. It has gone straight over my head. Would it be possible, please, to explain what you mean.

The 1946 National Health Service act says that every resident British citizen having an illness disability or injury shall be entitled to receive NHS care free at the point of need.The NHS confirm on their own website that they "hold a continuing commitment to the founding principles of the NHS which can be summed up as: The provision of quality care that meets the needs of everyone is free at the point of need and is based on a patient's clinical need not on their ability to pay" See http://www.nhs.uk/aboutnhs/CorePrinciples/Pages/NHSCorePrinciples.aspx
NHS care is not 'free' of course as it is funded from general taxation NOT as many believe from National Insurance contributions. Steve.

Steve,

The NHS core principles website you linked to

http://www.nhs.uk/NHSEngland/thenhs/about/Pages/nhscoreprinciples.aspx

states:

* That it meet the needs of everyone
* That it be free at the point of delivery
* That it be based on clinical need, not ability to pay

NB. 'free at the point of delivery' and also 'based on clinical need, not ability to pay'.


I'm not questioning that for one moment, but there is a difference that I think can be overlooked, unless we can find a legal reference.

I have searched without success so far for an online original reference to 'free at the point of need'.

That's why I have questioned the difference between 'free at the point of need' as opposed to 'free at the point of delivery'.

Steve, would you please supply an online original legal reference to 'free at the point of need'?

VM

Does this help at all?
http://en.wikipedia.org/wiki/National_Health_Service_(England)

Oops should have said search document for "point of" - it refers to point of use!

The application of their 'National Framework' is just a cynical ploy to deprive certain patients of their statutory rights. The law however recognises that no one can be deprived of their statutory rights and every resident British citizen has the right to receive NHS care 'free at the point of need' under the health act. This is confirmed by the NHS via. their own website. If financial losses are incurred through the deprivation of a patients rights accorded by the health act, then the person or persons responsible could be held personaly liable and face the sanction of exemplary damages. So when your relative is denied NHS continuing care, obtain the names of those panel members responsible and bring a charge against them under the 'supply of goods and services act' or serve them with a 'Mandatory Order' to comply with the law.
NOWHERE does the DoH 'National Framework' state that it 'Does not affect your statutory rights'. Therefore it can be assumed that it does indeed affect the users statutory rights and consequently it is unlawful.

Esquires wrote:The application of their 'National Framework' is just a cynical ploy to deprive certain patients of their statutory rights. The law however recognises that no one can be deprived of their statutory rights and every resident British citizen has the right to receive NHS care 'free at the point of need' under the health act. This is confirmed by the NHS via. their own website. If financial losses are incurred through the deprivation of a patients rights accorded by the health act, then the person or persons responsible could be held personaly liable and face the sanction of exemplary damages. So when your relative is denied NHS continuing care, obtain the names of those panel members responsible and bring a charge against them under the 'supply of goods and services act' or serve them with a 'Mandatory Order' to comply with the law.
NOWHERE does the DoH 'National Framework' state that it 'Does not affect your statutory rights'. Therefore it can be assumed that it does indeed affect the users statutory rights and consequently it is unlawful.

Having just be refused CHC at appeal by the Bournemouth and Poole PCT (your favourite PCT Steve) do you really think this would work? I have all the names of those on the panel and would consider being the guinea pig in a test case if I could count on you for support. I did speak to you about my MIL's case a few months ago but the circumstances have now changed i.e. she passed away on 27/05/2011. This is strange really considering that one of the reasons she was refused CHC funding was because; "there was a significant improvement in her condition" I'm not exactly sure how they came to this decision because since being admitted to the care home in December 2008 no assesments were carried out until December 2010 and that was based on 30 minutes of checking the home's daily records. What were they using as their yardstick? If it was the assessment made in 2008 there is no way that she had improved on those figures.

Although I could now let the case drop as I no longer have to fight for funding I am appealing the decision anyway because, like everyone on this forum, I consider that the system is wrong and needs to be changed. Maybe if a test case was successsful then a precedent could be established in law.

"do you really think this would work?"

If I was in a fighting mood I'd say, you don't have to let it drop - you can still fight for what was right retrospectively. Presumably you'd need big bucks to "bring a charge against them under the 'supply of goods and services act' or serve them with a 'Mandatory Order'" and as I'm finding now, Councils and NHS PCTS have our taxes to support their legal battles so leaving us very very disadvantaged. I've come to the conclusion that anything in this Country that is connected with taxpayers money is unlikely to be well run and is highly likely to be run in an illegal manner - what can we do. Fight - but the cost is high in health terms believe me.
It's a great offer you're making though, to be the guinea pig. I'll watch this space with great interest.

Am new to this too, and just about to enter into the minefield of appealing against a decision by Brent PCT not to award funding for my sister.
In her case, she has deteriorated rapidly over the last two years with Multiple Sclerosis( an incurable illness, yet her care is deemed by the PCT to need mainly social care). She is in hospital after emergency admission from her nursing home when she was severely dehydrated and unable to eat following a urinary tract infection. Her weight had gome down from 36kg on admission to the nursing home 9 months previously (already dangerously underweight) to 31kg! The nursing home is primarily for elderly people and my sister is only just 50, but there is sadly a lack of suitable homes for younger people, and the few that exist are too expensive. In my sister's case, she did not have to sell up her home as many people have to, because she was not a homeowner, Instead, she was the other end of the means testing scale, having less then £13,000 assets which means you are eligible for Social Services funding. However, they are also under pressure with all these patients being denied CHC and there interest is finding the cheapest possible home - im my sister's case an old people's home where staff do not understand the nature of MS.
During my sister's stay in hospital, she was fitted with a PEG feeding tube as she is anable to swallow enough to keep her alive. This has to be managed by a trained nurse, but other than that her other needs are termed 'social care'. She is bedbound, doubly incontinent, can hardly speak and has severe cognitive impairment which means she can understand very little of what is going on and can no longer do things like reading. Her only quality of life is visits from family including her 15 year old daughter who now lives with her father (my sister's ex-partner). My mother has been very involved in her care and sorting out her affairs (we both now have Power of Attorney for her) but she is 80 and a full-time carer to my father with severe Alzheimer's. The care home we now want for my sister is not only suitable for her own needs but would also be nearer my parents making it easier to visit her. However, this is beyond the budget of social services, and unless we get CHC she will be unable to go there. The only possibility would be to do a third party top-up contract in partership with social services, but that would mean my parents remortgaging their house and paying out a small fortune. Of course, it is highly likely that in the not too distant future they will be forced to use their money anyway for my father when he needs full-time care.
We are in limbo at the moment waiting for several decisions to be made. Meanwhile my sister's discharge has had to be delayed while it is all fought out, so until it is, she is blocking a bed for someone else. Tough! That is the crazy system the NHS has chosen to use to save money (not giving deserving patients CHC while paying for my sister to stay in hospital at huge cost but needing, as they put it, mainly 'social'care!
Thank goodness for the internet and sites like this! I will certainly be forearmed for the next 10 years or so when I will be going through all this again for my parents.