Overview of continuing care

Defining continuing care

Continuing care in the context of this website means “NHS Continuing Healthcare”.

The Department of Health’s official definitions of continuing care and of NHS Continuing Healthcare are:

‘“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. “NHS Continuing Healthcare” means a package of continuing care arranged and funded solely by the NHS.’
(Source: The National Framework for NHS Continuing Healthcare & NHS-funded Nursing Care, published 26 June 2007).

In the various publications and websites about continuing care, you may see it referred to in any of the following terms (with or without the word “health” before the word “care”):

  • Continuing (health) care
  • NHS continuing (health) care
  • NHS-funded continuing (health) care
  • NHS fully-funded continuing (health) care

Unless the publication states that it is referring to continuing care in general, like in the first Department of Health definition above, you can normally assume that it means “NHS Continuing Healthcare”.

The continuing care package

NHS Continuing Healthcare packages can include, but are not limited to, any or all of the following:

  • Care home accommodation fees (whether the care home is classed as residential or with nursing)
  • Nursing care by a registered nurse
  • Nursing care by someone who is not a registered nurse (e.g. a carer or care assistant at a nursing home)
  • Specialised medical treatment and / or the use of specialist medical equipment
  • Palliative care
  • Personal / social care, such as help with washing and feeding
  • Respite health care.

Legislation around continuing care states that NHS Continuing Healthcare can be provided in any of the following locations:

  • A residential care home
  • A care home with nursing
  • A hospital
  • A hospice
  • The patient’s own home.

Qualifying for continuing care

The National Framework states that the reasons behind a decision about a patient’s eligibility for continuing care funding should NOT be based on:

  • Diagnosis
  • The setting of the care
  • The ability of the care provider to manage care
  • The use (or not) of NHS employed staff to provide care
  • The need for or presence of ‘specialist staff ’ in care delivery
  • The existence of other NHS-funded care
  • Any other input-related (rather than needs-related) criteria, e.g. financial considerations.

Instead, a patient will be considered as eligible for continuing care if they are assessed as having a Primary Health Need.

In other words, the patient’s “Primary Need” for health care must over-ride any other care
needs that they might have, such as help with personal care.

If a patient’s Primary Health Need qualifies them for continuing care funding, then the entire package of their care will be funded by the NHS. If they are assessed as ineligible for continuing care, then the patient or their family may need to pay for some or all of their care – which could be very expensive. So it is crucial that when a patient is assessed, the right decision is made about whether or not they have a Primary Health Need.

When a case that has been turned down for continuing care funding is referred to Cheselden, our first action is to review the case and the patient’s medical notes to determine whether the patient has or had a Primary Health Need. If we consider that the patient has or did have a Primary Health Need, and therefore may be eligible for current or retrospective continuing care funding, we will progress the case further.

Defining a Primary Health Need

There has been and still is confusion about what exactly constitutes a Primary Health Need. Numerous documents issued by the Department of Health and several high-profile court cases have focused on the concept of a Primary Health Need, but there is concern that this concept has still not been clearly defined.

The National Framework refers to the “primary health need test” that is used to help decide if a patient is eligible for continuing care. The Framework states that a patient would NOT be eligible for NHS Continuing Healthcare if the kinds of nursing and other care that they need:
“i. are no more than incidental or ancillary to the provision of accommodation which
LA (Local Authority) Social Services are under a duty to provide; and
ii. are not of a nature beyond which a LA whose primary responsibility is to provide
Social Services could be expected to provide.”

In other words, if a patient has nursing or other healthcare needs that go above and beyond what the Local Authority can provide by law, then the NHS is responsible for the patient’s care package and its funding.

This statement can, and has been over the years, interpreted in different ways as it can be very hard to say who should provide a certain service (see “Health Care or Social Care?” below). The Coughlan judgment in 1999 went some way towards clarifying this and is often referred to as a benchmark for similar cases.

The lack of clarification over what is a Primary Health Need means that there is a risk that during a continuing care assessment, a patient may be wrongly assessed as not having a Primary Health Need. They would then be wrongly denied NHS Continuing Healthcare funding.

To find out more how Primary Health Needs are considered in continuing care assessments, click here

If you or a relative are paying for, or have paid for, health care costs
but feel that this should not be the case due to the existence of a Primary Health Need,
contact Cheselden now so that we can assess your case.

Health care or social care? And who provides it?

It can be very hard to draw a line between what is a health care need and what is a social care need – and therefore whether a service should be funded by the NHS or charged for by Local Authority Social Services. For example, a patient who needs help with feeding could be said to have a social need. But if feeding can only be done by medical intervention such as via a PEG tube into the stomach, this could be classified as a health need.

The situation is made more complicated by changes in the law that have altered the kinds of healthcare services that the Local Authority can provide. For example, in 2001 the NHS removed all power from the Local Authority to provide Registered Nursing Services. Since then, only the NHS can do this. So the ”primary health need test” would have had a different meaning before 2001 to what it means today because before 2001, a Local Authority was able to provide more health services.

Despite this, the Local Authority can still provide other healthcare services, although these are not clearly defined in. the National Framework. The Framework merely points out that “Local Authorities can provide some health services” and refers to the 1948 National Assistance Act, which states that the Local Authority can provide health services not provided by the NHS – but which ones?

This issue formed the basis of the 1999 Coughlan judgment, the most important court case in the history of continuing care. The case hinged on whether the Local Authority was lawfully allowed to provide certain nursing services to Pamela Coughlan which had previously been provided by the NHS. The court ruled that under the “primary health need test” referred to in the previous section, Ms Coughlan’s care needs were primarily for healthcare and not social care, and went beyond the scope of what the Local Authority could lawfully be expected to provide. Ms Coughlan was therefore granted NHS Continuing Healthcare funding.

Continuing care for dementia sufferers

Before the introduction of the National Framework in October 2007, the families of patients with dementia and related mental health illnesses often felt that the continuing care assessment process discriminated against patients with these conditions, in favour of patients with wholly physical complaints. A number of high-profile court cases and complaints investigated and upheld by the Health Services Ombudsman highlighted this issue over a number of years. The National Framework has attempted to address this imbalance, but it is still a key area of concern for charities such as the Alzheimer’s Society who continue to campaign for fair access to continuing care for dementia sufferers.

More about Continuing Care

Please visit the other sections of this website to find out more about continuing care. In the Links section, you will find links to external websites that can provide you with more information. But remember, if you want to make a claim for continuing care payments that you have already made – whether the patient is still in care or is deceased – you should contact Cheselden without delay as time can be of the essence.