The Framework Guidance referred to below defines NHS continuing health care as ‘Continuing care means care provided over an extended period of time to a person aged 18 or over to meet physical or mental health needs which have arisen as the result of disability, accident or illness’ and adds that ‘NHS Continuing Healthcare means a package of continuing care arranged and funded solely by the NHS’.
In February 1995 continuing care guidance was published in England and Wales as a first step towards defining with greater precision the boundaries between the responsibilities of the NHS and social services authorities for continuing care. The guidance required every health authority to prepare and publish local ‘continuing health care statements’ which spelt out which patients would be entitled to free continuing health care funded by the NHS.
Unfortunately over the years these statements and further guidance were misapplied by health authorities and the Department of Health was inactive in policing individual health authority continuing health care statements.
This changed in 1999 following the case of R v North and East Devon Health Authority ex p Coughlan which reinforced the finding that entitlement to NHS continuing care support arose, not merely when a patient’s health care needs were complex, but also when they were substantial.
Additionally the court emphasised that the setting of a person’s care did not determine the eligibility for continuing health care funding.
Following the Coughlan case the Department of Health took a further two years to issue further guidance. This guidance has been the subject of criticism by the High Court and the Health Service Commissioner.
There have been further court and Ombudsman cases relating to funding for continuing health care such as R (Grogan) v Bexley NHS Care Trust and others, Re Pointon, and R (T, D and B) v Harringey LBC to name but a few.
In June 2007 a new National Framework for NHS Continuing Healthcare and NHS funded Nursing Care in England was issued by the Department of Health accompanied by a ‘decision support tool’ (DST) designed to provide a fair and effective way of establishing individual entitlement to continuing health care.
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