There has historically been a problem in getting funding for NHS continuing care for elderly people with mental health, psychological needs, or those who are cared for at home.
The Health Select Committee
The Health Select Committee has recently carried out a report on the issues of funding for NHS continuing care. As well as recognising that the current system results 'in frustration for health and social care professionals, and sub-optimal care and financial hardship for some of our most vulnerable populations.' It has also made a number of recommendations to address the current problems of the system.
- The Government should remove the artificial distinction between a universal and free health care service, i.e. the NHS, and the means-tested and charged-for system of social care run by local authorities. This would serve to remove the controversial issues of who should receive free care.
- The cost of funding free personal care could be offset against the administrative costs associated with 'policing the divide between health and social care.'
- A national set of eligibility criteria for NHS continuing care should be drawn up to remove the inconsistencies and inequities of the current system around the country. This should be coupled with a National standard assessment methodology.
- The Government's new eligibility criteria should take into account mental health and psychological needs as well as physical ones.
- A greater flexibility in funding for NHS continuing care should be introduced to enable people to be cared for more easily in their own homes, if that is what they want.
- Those needing continuing care should be sought out and identified to their PCT so that they can be assessed. At the moment many of those who would qualify for care are not being identified.
- The 'artificial barriers' between health and social care should be removed to establish a fully integrated heath and social care system.
The report can be found
here
Leigh Day & Co. have helped numbers of families in their struggle to get the right care and the necessary funding for their family members.
Patients with Alzheimer's disease
Case: Care at home
An elderly woman with Alzheimer's disease was being cared for in her own home. The local authority had told her family that her homecare package was the highest level of care she could receive at home, and that if she needed more care she would have to go into a residential home.
Her family were convinced that it was in her best interests to stay, and be cared for, in her own home. They wanted Kent Council to pay at least the same as residential care would have cost.
Following a mediation meeting, the council agreed to provide a more extensive care package at home which the family described as '200% better'. The family were represented by Alison Millar in the Human Rights department at Leigh Day & Co.
Case: Rape in a residential home
An 81 year old woman who is suffering from severe Alzheimer’s disease, was physically attacked and raped by one of the residents in her care home. The woman’s daughter did not discover the rape for 6 – 8 months, as the patient was unable to tell anyone what had happened to her. The patient could not communicate but lost a lot of weight during the period after the attack because of the stress it had caused. Someone at the care home was aware of the attack all along, but didn’t tell anyone.
Knowledge of the assault only came to light when a whistle-blower informed the woman’s family of the situation. Her daughter was extremely distressed by the news and even more by the fact that the care home had no plans to move her mother away from the attacker.
Frances Swaine, partner in the Human Rights department of Leigh Day & Co. Solicitors became involved in the case and threatened legal proceedings against the care home. A Judicial Review was planned to challenge the decision of the home not to move her. However, within weeks she was allowed to take up a place in an alternative home.
Case: care home problems
A man with early onset dementia was being cared for in a mixed gender residential home. Due to his condition, he began to show inappropriate sexual behaviour on a few instances. These urges were later controlled by changing his medication. However the care manager felt that he should be moved to protect the female residents.
The man was aware that discussions to move him were being undertaken and he became withdrawn and depressed. It was felt that he had enough capacity to consent to the medication for his behaviour and that moving him would adversely affect his mental and physical health.
As a result of independent reports commissioned by the Human Rights department at Leigh Day & Co., the care home eventually agreed that it was not in the best interests of the man to move him to another care home and they let him stay.
His family were represented by Frances Swaine and Emma Jones, partner and solicitor in the Human Rights department.
Case: Eligibility for continuing care
A man with epilepsy and neurological deterioration was assessed by his local authority. He was deemed to be entitled to help with his day to day activities and his ex-wife, who was his carer, also needed some help. The family requested direct payments so that they could hire the help they needed themselves.
The money never arrived and then a review six months later reduced the amount of help they were allowed to 2 hours housework a week. Still the money never came and then four months later the offer of care was withdrawn completely. The local authority maintained that the man wouldn't meet their eligibility criteria.
Alison Millar, solicitor in the human rights department at Leigh Day & Co. became involved and issued judicial review proceedings against the Council as it is illegal to withdraw a care package without a re-assessment of the person's needs. The local authority then agreed to re-assess him and he now has a care plan and package to help with his personal needs.
Clinical negligence
Many solicitors will not even consider a clinical negligence case for an elderly person because of the 'cost versus reward ratio' is reduced as life expectancy decreases. While the cost versus benefit of a case must always be considered, Leigh Day's clinical negligence team are always happy to assess cases involving elderly patients.
Case: Lack of consent
A recent case was a previously fit and healthy 78 year old man, who is now wheelchair bound. He underwent an operation on his prostate at Queen Elizabeth Hospital in Greenwich, South-East London. The operation in July 1997, known as a Trans-Urethral Resection of the Prostrate (TURP), was for what was thought to be 'bladder outlet obstruction'. The man had a past medical history of a narrowing of blood vessels in his arms and legs and had been taking anticoagulation medication for some years.
The patient suffered internal bleeding caused by the operation. This caused a blood clot which then obstructed the blood supply to the spinal nerves. The clot was in an artery to the spine and caused damage to the nerves so that he lost power in his legs and control of bladder and bowel.
The hospital trust later argued that the injury was an inevitable reaction to surgery and that the general nature of the operation had been clearly explained.
However, the patient felt that his doctors had not explained to him that he was to undergo a TURP operation and had not given him a chance to consent and to appreciate the particular risks that the operation entailed.
The man was represented by Henry Dyson in the Clinical Negligence department at Leigh Day & Co. Shortly before trial, the client accepted an offer of a substantial sum of damages after a settlement meeting. The hospital did not admit of liability.
The settlement has allowed our client to remain living independently despite his disability.
Mental Capacity and substituted decision-making
Elderly distressed man
One of the problems faced by elderly patients, particularly those with dementia or psychological problems, are the issues of decision-making if the patient no longer has this ability. One of the aims of the new Mental Capacity Act, which is due to come into force in 2007, is to empower people with mental health problems and those with diseases causing mental deterioration, to be more involved in decision-making about their affairs, healthcare etc. The Act deals with substitute decision-making by attorneys and lasting power of attorney which will focus on health and welfare issues as well as financial and property matters, as they do now.
A new system of Independent Mental Capacity Advocates will be set up to help people who have no family or friends to help them in their decision-making. It also deals with advanced decision-making about subjects like refusing medical treatment. There will be new roles for the Court of Protection in making decisions about best interest medical treatment or financial matters if there are disagreements about what should be done.
For more information or to talk to a solicitor about a patricular problem, please call Leigh Day on 020 7650 1200 or email
postbox@leighday.co.uk.
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