The national framework for NHS continuing healthcare comes into force on 1 October. Eve Francis gives a legal perspective on the implications of the framework for PCTs and NHS trusts and the pros and cons of the new regime

The national framework for NHS continuing healthcare and NHS-funded nursing care is designed to establish a simpler, more consistent system of assessment to determine eligibility for full NHS funding of long-term care.

Its key goals are to help staff arrive at decisions consistently and transparently, and make sure people can get the help they need on an equal basis, wherever they are inEngland.

The frameworkreplaces primary care trusts' individual policies for assessing eligibility for continuing care and local care planning and review processes.The three-tiered system for nursing care is replaced by a single band and eligibility will be determined alongside eligibility for continuing healthcare.

The framework introduces a screening process where healthcare professionals and social workers determine whether a full assessment of need is required by applying the new NHS continuing healthcare needs checklist.

Where appropriate, a comprehensive assessment of care needs is carried out by a multidisciplinary team, including relevant specialist and non-specialist assessments. While healthcare professionals are told to work with social workers in completing the assessment and decision support tool, one person will be responsible for co-ordinating the assessment and ensuring it is completed in a timely manner. People with a rapidly deteriorating condition can be ‘fast-tracked’ by a senior clinician.

The decision support tool must be used to assess and record eligibility. It identifies 11 ‘care domains’ or areas of need, but these are not exhaustive and establishing a ‘primary health need’ remains the key to qualifying for continuing healthcare.

The decision tool provides guidelines for determining a primary health need but is not prescriptive and cannot directly determine eligibility. The multidisciplinary team must exercise professional judgement before making a recommendation on eligibility to the PCT.

Assessment, care planning and review processes should be person-centred and comply with the core values and principles set out in the framework. For example, steps should be taken to maximise understanding and participation, and joint working between PCTs and local authorities is encouraged and may become mandatory in the future.

There are no substantive changes to care planning. A case review is now required after three months and then annually, unless further reviews are required or requested. In a review, the screening checklist should be applied and full assessment carried out where necessary. If someone previously found ineligible later qualifies for continuing healthcare on review and their needs have not changed, then back-dating the funding should be considered. Funding already in place should never be unilaterally withdrawn without a joint reassessment of health and social care needs.

In a dispute between NHS bodies or between the PCT and local authority about responsibility, local dispute resolution procedures should be used. Existing funding should remain in place pending the outcome and provision of care should not be delayed.

Pros and cons of the new regime

You cannot fault the intentions behind the framework. It is also hard to fault its contents. The problem relates to what it does not say, and the following problems remain:

  • The lack of a single coherent statutory regime governing the respective responsibilities of the NHS and local authorities in meeting continuing care needs. While the various overlapping provisions continue to apply, further inconsistencies and uncertainty are inevitable and will lead to further disputes.

  • It remains the sole responsibility of the PCT to identify, commission and contract for all services required to meet the needs of those who qualify for NHS continuing healthcare. While the local authority can provide services, there is no apparent duty on them to do so. This causes tremendous problems, particularly for patients living in the community who may lose vital social care services previously available from the local authority. Given the broad obligation owed by the NHS under the current regime and its budgetary constraints, the risk of patients being left with inadequate provision runs high, although commentators have recently suggested that the legal framework, properly understood, in fact requires local authorities to plug any gap in care provision that arises.

  • The lack of direct payments for meeting health needs means patients can lose independence and control over their care. PCTs can commission to maximise continuity of care, that is, to maintain a similar package of care to that already in place and should take account of individual preferences, but this is not always possible. Our Health, Our Care, Our Say makes it clear that direct payments will not be extended to NHS healthcare in the near future.

The missed opportunity to clarify the current law, as well as the respective duties of local authorities and the NHS to meet a person's continuing care needs, means the framework faces significant obstacles.

To its credit, the standardised assessment process should go some way to help healthcare professionals and social workers carry out assessments more consistently and transparently, ensuring people receive a timely and comprehensive multi-disciplinary assessment of their needs. However, it does nothing to address the difficulties staff face in determining how those needs are met or guarantee that individuals get the help they need, as well as ensuring that help is fairly and consistently provided.