Patients 'wrongly charged' for nursing home care

NHS sign outside hospital

Paying for nursing home care

This is not a new subject but it is an important one. The opinions expressed that “the issue needs to be highlighted through the courts in Scotland, as it was in England” seems to me to miss the point entirely. Highlighting the issue through the courts will add to the stresses already in families at this difficult point in discharge planning. The only people able to highlight the issue in the courts are likely to be those eligible for Legal Aid and there will be few solicitors willing to act on a  No win No fee basis  in these matters and provide indemnity in the event of the case being unsuccessful.

The point is that “there is no independent appeals process in Scotland”. The word independent is crucial in this analysis. It is such a system that is needed- independent, transparent, and accessible. An opportunity exists to do that with the Tribunals Bill following the consultation on “a new tribunal system for Scotland”.

The position in relation to NHS Continuing Care is set out in CEL 6 (2008) NHS Continuing Healthcare. The overall objective is stated to be intended to –

“Promote a consistent basis for the assessment of, and provision of, NHS continuing health care.

Ensure care provision is based on robust assessment and decision making processes.

Ensure that patients and their carers have access to relevant and understandable information.

Agree a basis for the development of effective local agreements on inter agency and multi disciplinary working in relation to NHS continuing health care”

In these objectives the guidelines have largely failed families and those with disability.

It first of all needs to be decided what NHS Continuing Healthcare is not. It is not a way of replacing the Local Authority responsibility and our own means tested financial obligation to pay for our stay in a residential care home. It is not a way of avoiding selling a person’s home so that family may inherit. It is, as the guidance explains “a package of continuing health care provided and solely funded by the NHS. The NHS, and not the local authority or individual, pays the total cost of that care. NHS continuing health care may be for prolonged periods but not necessarily for life and entitlement should be subject to regular review…..Due to the level of specialist treatment required it is expected that NHS continuing health care will be provided in a hospital ward, hospice or a contracted inpatient bed, which may be based in a care home.”

The eligibility section states -

43. The consultant (or GP in some community hospitals) will decide, in consultation with the multi-disciplinary team, whether the patient-
(a) needs inpatient care arranged and funded by the NHS;
(b) needs a period of rehabilitation or recovery, arranged and funded by the NHS; or
(c) should be discharged from inpatient care (see section 8).

44. Continuing inpatient care should be provided where there is a need for ongoing and regular specialist clinical supervision of the patient as a result of-
(a) the complexity, nature or intensity of the patient’s health needs, being the patient’s medical, nursing and other clinical needs overall;
(b) the need for frequent, not easily predictable, clinical interventions;
(c) the need for routine use of specialist health care equipment or treatments which require the supervision of specialist NHS staff; or
(d) a rapidly degenerating or unstable condition requiring specialist medical or nursing supervision


The guidelines set out the appeal procedure and it is that which is flawed.


The appeal procedure states-

Where an individual does not agree with the decision on eligibility for NHS continuing health care, or decision to discharge, he or she (or carer or advocate) can appeal the decision by requesting a second opinion from another appropriate, competent medical professional.

This second opinion should ensure that:
• An appropriate assessment has been carried out.
•Appropriate specialists with the required expertise were involved in the process.
•A proper record of the decision making process has been produced.
• An independent clinical decision is reached

The appeal system is not transparent and independent; it is not accessible and is always organised internally by the medical practitioner who made the first decision. The timing is not specified nor is there an obligation to publish reasons. There is a sound argument for the appeal system to form part of the First Tier Tribunal system.

The reaction of Alex Neil MSP, the Health Secretary, reported by Eleanor Bradford on BBC Scotland, to set himself up as a one man Tribunal appeal system is bizarre. For him to be reported as saying“ Mr Neil urged those who felt they had been wrongly turned down for a continuing healthcare package to contact him and he would ensure the situation was "properly investigated".

This is the worst sort of political hypocrisy, designed to deal with the issue while the Health Secretary is in the sight of the BBC. What about those who will be wrongly turned down next week, next month and next year?