Despite the recent national guidance (or maybe because of it), there still seems to be confusion about how to decide who qualifies for continuing healthcare on the NHS. This article cannot be a comprehensive guide to the law in this area, but it sets out some pointers about how disputes between primary care trusts and local authorities can be resolved.
It is the PCT's role to decide who qualifies for continuing care, not a joint matter for the PCT and local authority. The local authority has a right under the the Delayed Discharges (Continuing Care) Directions 2007 to be consulted during the process and has a duty to provide advice and assistance to the PCT in carrying out the assessment.
Ultimately, the decision will lead to PCT funds being spent (or not) on providing a person with social care, as well as funding that person's healthcare needs. That, by definition, is a decision that can only be made by the PCT. It also means a PCT can make a valid decision to refuse continuing healthcare even if the local authority does not agree with the decision.
Decisions need to be taken by a multidisciplinary PCT team applying the national guidance. A multidisciplinary team means 'a team consisting of at least two professionals from different healthcare or social care professions'. It could be a doctor, nurse or social worker all employed by the PCT, or it could be a team of people employed by the PCT and the local authority.
The patient has a right of appeal to the strategic health authority but the local authority has no such right. The relevant direction states that 'any dispute between a primary care trust and the relevant social services authority about (a) a decision as to eligibility for NHS continuing healthcare or (b) where a person is not eligible for NHS continuing healthcare, the contribution of a primary care trust or social services authority to a joint package of care for that person, shall be resolved in accordance with a dispute resolution procedure agreed between the two bodies concerned'.
However, there is no nationally agreed dispute resolution procedure. Each PCT and local authority need to write their own procedure.
The dispute resolution procedure should set out a process for the PCT and the local authority to follow to seek to resolve the issues. Normally, it should say that if a case cannot be agreed, it will go to mediation or arbitration. However, (unless there is an arbitration clause) if the PCT and the local authority cannot agree the case may end up in court.
But who ultimately funds care when there is a dispute? Can the PCT or the local authority make a claim for reimbursement if it turns out that the wrong public body has funded the care? The departmental guidance is clear that services should not be withdrawn from the patient but is less clear about settling the books if it turns out the wrong party has been paying out.
It suggests that 'the process could operate in a similar way to the panels established under the Community Care (Delayed Discharges etc) Act 2003, and similar panels may be implemented by directions at a future date'.That gives a fairly heavy hint towards reimbursement, which can be a serious issue, with packages costing hundreds of thousands of pounds per year. In our view, the simple answer is 'yes, there is a legal right to reimbursement'.
If a PCT tells the local authority: 'This is not continuing healthcare, please do an assessment under section 47', the local authority ought to carry out the assessment whether it agrees with that decision or not. If a local authority says: 'We think this is a continuing healthcare case', then the PCT has a duty to carry out the assessment regardless of whether it agrees it is, or even is likely to be.
Picking holes in the other body's paperwork or disagreeing with the anticipated result is no justification for failing promptly to comply with the statutory duty to carry out an assessment. And if there is then a disagreement it should then go promptly to the dispute resolution procedure.
We suggest that the dispute resolution procedure should include a simple contractual right for either body to reclaim any costs of care that, on a proper analysis, should have been picked up by the other organisation. We also have leading counsel's advice that there is a right to such a payment under the principle of quasi contract or restitution, but it has not been tested in theUKcourts as far as we know.
It seems better to include this as a contractual right under the procedure rather than arguing the law on every occasion. However, that also means that if an SHA panel finds that a patient ought to have had continuing healthcare, not only will the PCT have to compensate the patient for nursing home fees etc, but may also have to reimburse the local authority, which may have been providing part funding.
There is no substitute for good joint working and a clear understanding of the legal duties of both sides. However, with the Association of Directors of Adult Social Services working hard to shift as many cases as possible to PCTs, the NHS needs to make sure the desire to get on with partners in County Hall is not an excuse for taking on vast funding commitments that do not qualify under the rules.