With an increasing ageing population putting additional pressure on the NHS, the reality is that more and more people are being penalised in not qualifying for the 'free' nursing care provision they are entitled to. However, changes in the law governing this provision have enabled many to claim against the fees they're been unfairly paying. In fact, it is estimated that the recent clarification in the law in the UK means that, as a whole, the NHS faces the prospect of paying out in the region of £10 billion.
Rhodri Williams, medical negligence solicitor at leading south Wales law firm, Leo Abse & Cohen, is currently representing several cases where people have been wrongfully and unlawfully refused access to NHS care. Here he talks about why this is the case and what people can do to ensure they are properly assessed and that they don't become victims of the system.
"There have been situations where people have been wrongfully and unlawfully refused access to NHS Fully Funded Nursing Care and have had to pay significant nursing care fees over a substantial period of time. We have represented clients with numerous claims brought successfully against the Local Health Boards in Wales in cases where they have wrongfully been paying fees for nursing care.
"We believe that it is important for elderly people and their families to be aware of the options when it comes to the provision of long term care, both from the view of who's responsibility it is to provide it but also in terms of funding this long term care and on what basis their means will be assessed.
"In recent years there has been a tendency for people to live at home for longer as they grow older by having help and assistance from members of their family or from an external carer. Sometimes a person's care requirements are such that they are over and above what their family can realistically provide, even with the best of intentions.
"There may come a time when a person decides that they would prefer to move into a home. This home could be residential in nature, and EMI (elderly mentally infirm) residence or even a registered nursing home.
"Ordinarily a person's health and nursing care needs should be assessed at this stage to ascertain their eligibility for NHS Fully Funded Nursing Care, the availability of which depends entirely upon the person's health needs.
"The law currently states that if the person's requirement for nursing care arises primarily from a health need then it would be the responsibility of the NHS to meet these needs. As with all NHS care and treatment, under statute it is to be provided free at the point of delivery and no charge should be made.
"In addition to the nursing care, if the caring needs are significant, the NHS would also provide accommodation as long as the need for accommodation is related to the nursing care needs. But it is here where the law is then put to the test.
"Local Health Boards in Wales now have uniform eligibility criteria as laid out by the National Assembly for Wales to ensure that the basis upon which a person's eligibility for 'free' nursing care adheres to the law.
"However, as with any set of criteria, they are open to interpretation, misinterpretation and misunderstanding and certainly across Wales they are often inconsistently interpreted from one Local Health Board to another.
"Therefore, it is vital that a person affected by these set of circumstances should seek professional legal opinion and advice on these complex issues and whether the assessment has been correctly undertaken and the eligibility criteria used, lawfully applied.
"If the person is deemed eligible then (all things being equal) they are entitled to receive 'free' nursing care and accommodation under the NHS. If not, then the other options are Social Services or a privately run Nursing Care or Residential care home.
"If a person is not eligible for NHS Fully Funded Nursing care then Social Services will carry out a means assessment to ascertain the person's requirements for personal care and nursing but also for their financial circumstances. It is important to ensure that if the person involved has assets or that their contribution to their fees is to be significant, they seek financial advice from a specialist.
"This is the case because it is possible for Social Services to include assets within the means test which they should not include. Also at this stage, it is advisable for a person who is planning future care provision to work out how much they will need to pay so an appropriate investment vehicle can be put in place to safeguard these funds.
"It is also critically important at this stage for the person to think about appointing a member of their family as their attorney or agent which can take effect if, in the years to come, they lose the capacity and ability to handle their own affairs. The family member or the individual that they trust will then be able to act on their behalf and in their best interests.
"It would also be prudent for the person at this stage, when planning for the future and dealing with the management of affairs and assets, to revisit the provisions within their will or certainly put a will in place if they have not already done so. Legally, it is important to have certainty that they will be looked after from funds put by.
"Going forward it is also important to keep an eye on the patient's nursing care requirements and their health needs. If the person's health deteriorates either suddenly or gradually over time, their eligibility for 'free' NHS nursing care could change. Not only will this provide a substantial saving but it also minimises the loss to the estate that they are able to pass on at the end of their days."
Q&A'S
Q. How do I know if I might qualify for compensation?
A. It's always worth seeking professional advice to help ascertain your position. If, however, you are already receiving nursing care with quite significant health needs and you feel you have not been properly assessed, then seek legal advice.
Q. How far back might I be entitled to compensation for?
A. If a person has had significant health care needs, potentially fees incurred as far back as 1st April 1996 can be the subject of a claim, together with interest and compensation also for the stress and inconvenience involved.
Q. Can I claim compensation on behalf of my dead relative?
A. Yes, it is possible to make claims on the behalf of the estate of a deceased person.