We move to agenda item 3, which we agreed to defer until the Cabinet Secretary for Health, Wellbeing and Sport was available. I welcome the cabinet secretary, Shona Robison, and her Scottish Government officials. Brian Slater is the policy manager for health and social care integration and Clare McKinlay is a solicitor in the directorate for legal services.
I invite the cabinet secretary to make some introductory remarks, after which we will move directly to questions.
Thank you, convener. I will be brief. I am pleased to introduce our guidance on hospital-based complex clinical care, which we published last Thursday and which came into effect yesterday. The guidance replaces the previous arrangements for national health service continuing healthcare. It simplifies and clarifies the process, brings transparency about decision making and brings fairness and equity in funding arrangements. It is firmly based on the recommendations of an independent review that reported last year. I thank Ian Anderson, a past president of the Royal College of Physicians and Surgeons of Glasgow, who led the review.
No one who has been in receipt of NHS continuing healthcare under the previous arrangements will be disadvantaged by the new guidance. Such people will continue to have all costs met by the NHS for as long as they remain eligible under the old criteria. In future, however, the primary eligibility question will simply be:
“Can this individual’s care needs be properly met in any setting other than a hospital?”
We want people to be cared for in their own homes within our new integrated services, with joined-up health and social care provision and vital roles for our third sector partners. As Irene Oldfather from the Health and Social Care Alliance Scotland said in welcoming the guidance,
“Hospital is not a place to live. It is a place to be treated, when clinically appropriate.”
I am happy to take any questions, convener.
12:00
Thank you, cabinet secretary. The first question is from Richard Simpson.
I said when the report came out that I had considerable concerns. They have been partly addressed by the cabinet secretary’s decision to ensure that the 385 people—I think that that is the number—who are getting NHS continuing care in the community will continue to get it for as long as they are eligible. That is welcome.
However, we need to recognise that there is now a substantial divergence between the situation in England and the situation in Scotland. In England, 60,000 people are in receipt of the equivalent continuing healthcare and are having their full costs met, and there is a national decision-making tool and an independent appeals system. Neither of those is going to exist in Scotland. There will be no decision-making tool and, as far as I can judge from reading the guidelines, there are no clear guidelines. There is simply that one question that needs to be answered.
The appeals system will be within the health board, with appeals to the medical director, who will be driven partly by clinical need but also by costs because, if the health service does not have to pay for wherever the person is living, there will be a saving to the health board. The system does not have any independence or any clarity, and that concerns me.
I am also concerned because I have no clear idea, from reading the guidance, whether there will be support for somebody who is receiving considerable and intense care on a continuing basis and can live in the community in a care home but requires, for example, support for things such as percutaneous endoscopic gastrostomy—PEG—feeding or assisted ventilation or who requires specific and intense care for problems including advanced dementia and learning disability with additional needs. Such individuals may previously have been supported under chief executive letter 6 from 2008 but, as far as I can judge, they will not be supported under the new rules.
If I was running a care home in Scotland, I would be concerned that I would have to meet those needs without receiving additional funding and that the additional funding that was necessary would have to be supplied by the individual if they could afford it or by the local authority if they could not.
The last issue that I want to address is terminal care, which we discussed earlier this morning. I do not know where that fits into the situation. In England, under the clinical commissioning groups, care homes receive additional funding from health boards for all the things that I have mentioned—complex care needs and terminal care. What is the mechanism in Scotland for ensuring that such people will be properly supported in the community at home or in care homes and that that support will be properly funded?
The review was set up because there were many complaints about the previous system. That is why we reviewed it. The previous cabinet secretary kicked that independent review off and, when it reported, it concluded that the previous system was unclear. There could have been two people in rooms next door to each other in a care home, one of whom was being funded under the previous arrangements through the NHS and one of whom was not, even though they had similar needs. The system was found not to be consistent, which is why the overhaul happened and the recommendations were made.
The simple question of whether someone’s needs can be met in any setting other than a hospital brings a clarity to the situation that was not there before. It is a clinical decision, but the simple question that must be answered is about where the person can be cared for.
The appeals process involves a second opinion and then determination by the medical director within the board. Ultimately, the ombudsman will be the port of call beyond that if there is still a dispute.
Richard Simpson mentioned the position in England. We have two different systems and two different policy positions. It would be a mistake to think that the situation in England is perfect and that there are no complaints. I will illustrate that with some quotes. The Alzheimer’s Society has said that there are huge failings and “people facing endless delays”. We are told that
“Experts are demanding an overhaul”,
and that
“the system is not fit for purpose and fails vulnerable people”
and is “a postcode lottery”. We are also told that the
“Health Ombudsman says there are 40,000 outstanding cases, with some having waited years for a decision”.
It must be understood that there are significant concerns about the English system, which is certainly not perfect.
On the different policy positions, we should bear in mind the fact that 78,000 people in Scotland are benefiting from free personal and nursing care, whereas that is not the situation in England, where there is no policy of free personal care. We have made a policy decision to assist 78,000 people by providing them with free personal and nursing care, whereas in England a different policy route has been followed. That is absolutely in line with the fact that health is a devolved area in which we can make different policy decisions.
If Richard Simpson feels that this would provide him with some comfort in relation to his concerns, I would be happy to review how the new guidance was working over a period of, say, six to 12 months, once it had been operating for a period of time, and then come back to the committee with any information that arose from that. I hope that that would address any concerns that Richard Simpson or anyone else might have in that regard.
Thank you for that.
I agree that we have the absolute right to make separate decisions that are quite different from those that are made in England. I also concur with the view that England is wrestling with similar difficulties to the ones that we are wrestling with. However, the fact remains that in England 60,000 people are receiving full funding, whereas in Scotland, in a care home context, the free personal care policy provides roughly £9,000 out of a £34,000 funding requirement, on average. The families who, in time, will replace the 385 families who are being supported will have to find £24,000, if they can afford it. If they cannot afford it, that cost will fall on the local authority.
That leads me to my supplementary question. What additional funding will be provided to care homes to fund those people who will now be looked after in care homes but who will not be funded by the NHS? What transfer of funds will be made for those patients—the current figure is 385, but it used to be considerably higher—who will now be looked after in the community, if they are fit to be looked after there, but who will no longer be funded by the NHS?
I want to probe the issue of the number of people who are affected. No one who was assessed under the previous guidance will be affected; they will continue to receive their full entitlement. Going forward, it is estimated that around three quarters of people will continue to meet the criteria in the new guidance and a quarter will not. That amounts to just over 100 people—112 is the figure that I have.
Because of their income levels, two thirds of those people will be entitled to have their full costs met by the local authority—I think that I am correct in saying that those include accommodation costs as well as the costs of free personal and nursing care. That means that around 35 people will be regarded as self-funding for the accommodation costs, although those people will still get free personal and nursing care if they are over 65. The situation will be different for those who are under 65, but the vast majority of the people concerned are over 65. I am not seeking to take anything away from the fact that those people will have to pay their accommodation costs but, in the grand scheme of things, a relatively small number of people will be affected.
As far as resource transfer is concerned, we are in a different world now because of integration and we have an integrated budget—in the light of the new integrated joint boards, health and social care budgets are now one. The old idea of resource transfer from one system to another does not apply because there is one system and those resources come out of the integrated joint board. There will be no significant saving anyway. We worked out that the new system will save about £3 million a year, which, in the overall scheme of things, is not a huge amount. It is not about savings; it is about bringing clarity to decision making because, as you know, the old system led to many complaints about a lack of consistency. That is why the review came up with the new system.
Is there ever a perfect system? Every system will have challenges, but I feel that the new system has a simplicity about it that will bring a clarity that the old system lacked. I hope that knowing the numbers who will be affected has brought a bit of perspective as well.
Rhoda Grant is next. I will let you back in later, Richard, if you have more questions.
I just wanted to say that I am surprised by the numbers. I will look at them more closely, but they do not seem to add up.
You can come back in later, when Rhoda Grant and Bob Doris have asked their questions. You will get all the time you need later.
The cabinet secretary said that no one who is included under the old system will be disadvantaged as they will remain covered, but that presupposes that people will be disadvantaged in the future, because people who would have received that support will no longer receive it. It seems to me that, despite what the cabinet secretary said, it is a cost-saving exercise. The new system does not seem to come from the perspective of putting patient care first and putting patient needs and how best to look after patients up front rather than how money is paid out and indeed what they will pay. What benefit will patients get from the new system?
First, it is not a cost-saving exercise, because hardly any costs are saved. If it was a cost-saving exercise, we would be saving a lot more than the £3 million that I mentioned to Richard Simpson. That is not a large cost saving. At the end of the day, all the resource will be in one integrated budget, so it is not about saving resources for the NHS. All the resource will be part of one system.
It would not have been fair to retrospectively apply the new guidance to people who were assessed under the old system. When I said that people will not be disadvantaged, that is what I meant. The new guidance is effective from 1 June. As I explained to Richard Simpson, around a quarter of those who are going to be assessed under the new guidance will not get their costs met through the NHS. We have looked at the modelling, and about three quarters will. The quarter who will not amounts to just over 100 people. Two thirds of them will get their costs met in a care home because of their income level, so we are talking about a third of the quarter—which amounts to about 30 to 40 people in any one year—being required to pay their accommodation costs. If they are over 65, they will still be entitled to free personal and nursing care.
The benefit that patients will get is fairness. If we look at previous complaints, they were based on a lack of consistency. Two people could live next door to each other in a care home—one whose costs were covered under the old NHS continuing care system and one, who might have similar needs, whose costs were not being covered. That lack of consistency was the basis of a number of complaints about the old system, and that is why the independent review came up with the new system.
In policy terms, we want as few people as possible to be living in hospital. The policy aim for a number of years has been to try to avoid people living in hospital. For a relatively small number of people, the clinical assessment will be that, because of their particular health needs, the only place where they can be looked after is in a hospital environment. However, I am sure that we all agree that we want to minimise the number of people who are in that situation.
You have still not said what the benefit of the new policy is to patients.
12:15
The benefits are fairness, consistency and clarity. It did not benefit people to be in a care home in a situation of inequity. If people do not need to be in a hospital, it is better for them not to be there but to be in a different environment, either at home or in a homely setting. Hospital is not where people want to be. Some people have to be in hospital because of clinical decision-making, but it will be a relatively small number.
Is it not the case that, under the old policy, people received funding outwith hospital depending on their care needs, while the new policy means that people will only receive funding in hospital? In fact, you are putting a disincentive in place—if families and carers cannot afford to make that provision themselves, they will try to get people to remain in hospital rather than move to a more homely setting. The policy could have the unintended consequence of more people spending time in hospital, rather than fewer.
The complaints about the old system were about the inconsistency of some people in care homes being funded under that system when they had the same needs as other people who were being funded by the local authority or were self-funders. That is why we had the review. We would not have had it if the old system was working perfectly well, everybody was happy and it was all hunky-dory. That was clearly not the case, and that is why there were so many complaints. We had to bring clarity and consistency to the process.
I have already explained to you about the relatively small number of people—the self-funders—who will be required to pay their accommodation costs. In the scale of things, it is a relatively small number of people, albeit that I accept that they will be required to pay their accommodation costs.
I do not think that the new system will generate an increase in people remaining in hospital, because that will be a clinical decision. It is not about people deciding that they will stay in hospital. There will be a clinical decision about whether their health needs determine that they should stay in hospital. Otherwise, they will not stay in hospital but will be in a different setting.
Surely the care should be gauged according to the person’s needs rather than where they are being looked after. If somebody has complex needs, they would have been looked after and their whole care costs would have been borne by the NHS. If they are under 65, under the new system, they or their families will bear the whole care costs.
If they have complex care needs, they will still be cared for under the new guidance. That will be a clinical decision. However, if they can be cared for in a different environment, that means that their health needs are not such that they require hospital care. Surely we do not want to keep people in hospital who do not need to be there. They will then be in a different setting. I have already explained to you that the vast majority of those people will get their accommodation and free personal nursing care costs met by the local authority. A small number, who are self-funders, will have to pay their accommodation costs.
Those who are under 65 are in a different situation, but only a very small number of those people are under 65. The vast majority of them already get all their costs paid because of their income level. Of course, those who are under 65 are also eligible for disability living allowance—or personal independence payments, as the new system is brought in. We are looking at free personal care for those who are under 65, and that will be part of our discussions.
We need to differentiate between the finance and the clinical care. People will still get the care that they need. A very small number might have to pay for elements of that but, under the new system, people will still get the care wherever they are. If they are in a hospital, they will receive appropriate care; if they are in a care home, they will receive appropriate care; and if they are in their own home, they will receive appropriate care.
In England, the system dictates that, if someone meets the eligibility criteria, the NHS covers for their personal care needs, their social care needs and their health needs. However, the system is very muddled down in England and, as the cabinet secretary explained, there were a huge number of complaints about the old system. We have integration in Scotland that is bringing health and social care together. Why would we then want to differentiate between them, almost splitting them back up and saying, “This is for you and that is for you”?
But that is what the policy is doing. We are talking about moving care out of hospitals into the community and providing complex care within the community, at home or in a homely setting. Surely to base it on where people are cared for rather than on their care needs is the wrong starting point.
There has to be a system to decide whether someone requires very specialised, hospital-based care. There are some people who require that and cannot be looked after anywhere else. Unless you are suggesting that we start charging people for that within the NHS, which I do not think we could do because the NHS has never charged for accommodation, that would not be the right thing to do.
There has to be a clinical decision-making process about whether a person can be cared for in any setting other than a hospital. If they do not need hospital-based care, where they should be cared for is a matter for discussion. It could be a care home setting, a specialist care home setting or at home. However, there has to be a clinical decision about whether the person requires hospital care.
Dr Simpson wants to come back in. I will let you do that, Dr Simpson, but we are not going to—
My question was just on the numbers. I think that I have got it clear now.
There is no time pressure. You will get an opportunity to come back in, but first we will hear from other members who have asked to come in, starting with Bob Doris.
Maybe I am just getting a bit grumpy, convener, but I would say to Dr Simpson that he asked five questions rolled into one over a five minute period and had a supplementary on all of them, and now he wants to come back in and ask even more questions. There is a balance to an evidence session, Dr Simpson.
I will ask my question. Dr Simpson mentioned that the process could be an incentive to get people with complex needs out of hospital in order to save the NHS money, but Ms Grant said that it could be an incentive to keep people in hospital. It cannot possibly be both, but both positions have been put in questions to the cabinet secretary.
I would like some clarity and an assurance that every single time one of my constituents is assessed, they will be assessed purely on clinical need and not on any other issues, including financial issues, and that they will be cared for in the most appropriate setting. I would like an assurance that clinicians do that on a daily basis and will continue to do that irrespective of the guidelines. That was my supplementary question from earlier. Can we get that reassurance on the record today?
Absolutely. Financial considerations are not part of the assessment. The figures that I have shared with the committee show that there is no cost saving, and in any case, because of the world of integration, there is no benefit to one part of the system. It is absolutely not about that. I can give you that reassurance.
Thank you. I return to the structure. In the figures that you gave, which are helpful, you estimate that about 100 or 105 cases are—
We estimate that about 385 people each year will be looked at through the process and that about 112 of them will be assessed as not needing to remain in hospital under the new guidance. Those are obviously ball-park figures, but in general about a quarter will not stay in hospital under the new guidance. Of those, two thirds will be eligible for all their costs to be met by the local authority because of their income level.
What I am driving at is whether the number of constituents who are in hospital beds because they have complex clinical needs will change. Is there a bed management issue regarding ensuring that we have the right beds in the right places and at the right time within hospital settings? Is there a zero-sum game in relation to that?
There is always a need for every health board to plan the beds that they will require in the short and long term, and there is a tool that enables them to do that. They need to make sure that they plan for their share of those 385 minus 112—which is 200-odd—people a year who will require to remain in hospital. The number for each health board will be relatively small, but they will need to plan to ensure that there is appropriate care for those people. People who are already under those arrangements will not be affected at all.
Okay—I understand that. I support the equity argument and not charging for accommodation. The suggestion that we charge for accommodation in hospitals is ludicrous, and we should not go there. The NHS is too important for that.
We have a different situation in the social care sector. As we integrate health and social care and as the system develops, we might have increased expertise and capacity to deliver clinical care in a more homely setting outwith hospitals. As the system evolves, will the Scottish Government take cognisance of that and review and update the guidance, whether after one, two or three years? We have precedents for things such as delayed discharge, and we now have step-down beds.
As I indicated earlier, I would be happy to do that. We can pick a fixed point, for example a year, to allow us to have more experience of the new system.
You hit on the important point that there is a changing environment in which intermediate care and step-up or step-down beds—whatever one wants to call them—are a growing area. Of course, there should be no charging for the intermediate care model either, which covers short stays of around four to eight weeks, because those are to provide assessments for people who are going home. Those beds provide an additional mechanism to help to keep people out of acute beds or get people home when they are clinically ready for discharge from hospital but need more rehabilitation or aids and adaptations before they can get home. They are an important part of the system, and we want to see that capacity grow across Scotland.
I appreciate your answer. I will be interested to see how any review is taken forward. I am thinking of the medium term, where in theory clinical care units could be co-located with social care settings. There might be issues in relation to the resources that will be needed on site to do that, but it is important to make sure that the Scottish Government takes cognisance of evolving patterns of clinical and social care delivery.
Totally.
I have a couple of follow-up questions. The committee has taken a lot of evidence and we have probably all been involved in casework. Where there is any assessment—social work or clinical—there will be disputes and complaints, and the committee has focused on that issue. It is very controversial when someone is making a judgment about a person’s condition alongside the family and is considering what is appropriate. Into that mix is then added the financial cost.
I do not know whether a system that operated completely within the health board would address some of those issues, given the evidence that we have taken about local authorities making such decisions. In the health system, there are allocations for new drugs and for innovation, but how do people get access to those things? The board has a financial envelope, and that can bear down on the independence of the decisions that are made. I do not know whether you have considered that, or how you look to ensure that there is the greatest independence within the system.
I accept that, in the health service budget, a £3 million saving is not something that would drive you to make particular decisions, but I would be interested to know where it comes from. Is it from a reduced number of beds?
12:30My final question is on paragraph 5.8.2 of the review, which states:
“The Panel recognises that the current situation in Scotland, in which only those individuals aged over 65 years are eligible for free personal and nursing care, is unfair and inequitable. That view was also expressed by some Voluntary Organisations, who voiced concerns that the provision of free personal and nursing care is based on age rather than clinical need.”
At its heart, the policy is not correct. Paragraph 5.8.3 states that your review panel, which made the recommendations,
“believes that there is inequity in the funding of personal and nursing care needs for individuals under the age of 65.”
The new guidance does not mention the extension of free personal care to under-65s, although you mention that there is to be a review. Given that strong statement, why are we delaying action on that recommendation but pushing forward with the others?
I will come back to that in a second.
On the dispute mechanism, I accept that there will undoubtedly be disagreements, as there were under the previous system. However, the process that the independent review recommended is that resolution should remain within the boards, there should be a second opinion and there should then be a case for the medical director to look at—all from a clinical perspective. Ultimately, the ombudsman is there as a backstop and can take an independent look to decide whether the decisions are right or whether they have concerns about them. As part of a look back over maybe 12 months, we would want to monitor that area.
Can I respond to that, cabinet secretary? You are talking to the committee that took evidence on access to new drugs and medicines, and you are saying that medical directors or whoever will decide. We have taken extensive evidence on the subject, so it will be hard to convince us about that. I also understand that the ombudsman has no powers to direct health boards to take action. Everybody has the right, when they come up against a decision that they do not like, to go to the ombudsman, but we know from our casework—you probably do, too—that, in the case of a clinical decision, the ombudsman has no powers to direct a health board or do other than determine whether the procedures that are in place have been adhered to.
I do not know whether we need to reflect on that. We can never say that people will always agree—there will always be disputes—but if there is no final arbiter at the scene who is somewhat independent and can give direction or make recommendations that can change something, that is a big weakness. I am not saying whether it is wrong or right, but I suggest that there is a significant weakness in that appeals procedure.
I am not sure whether I will be able to convince you otherwise, but the ombudsman’s recommendations, decisions and comments on cases are listened to—boards do not ignore them, because it is a very public thing to have the ombudsman find against a board. The Scottish Government also has a role in monitoring that element of the procedure, and I give an undertaking to do so and see what we have captured after our 12-month review.
As you say, we are looking at the issue of free personal and nursing care for under-65s. We have been discussing the matter with the Convention of Scottish Local Authorities for some time, and we are doing some modelling. The biggest area of that is care at home, as the number of under-65s who are in a care home setting is very small. I think I saw the figure that 3 per cent of folk in care homes who are under 65 would be self-funders, which amounts to about 90 people. That is a relatively small number of people; nevertheless, we are looking at the issue and we are doing some modelling, because it is a complex area.
Various campaigns have called for various groups to be exempt and for elements of free personal and nursing care for under-65s to be looked at. We are looking at that as part of a proper review process with COSLA and we will come to conclusions about that. I am very happy to keep the committee informed, because I know that there is a lot of interest in the issue.
What stage are we at with those discussions? The review recommendation about the current system being inequitable is a wee spur from the people who looked into the issue. I can understand that, as a result, the discussions are broader. What stage are you at in the discussions with COSLA? When are you likely to conclude?
Some financial modelling research is under way and we will wait to see what that tells us.
I was looking for a timescale.
Obviously, we want to do that in as short a time as possible. I am not going to put a firm date on it; I will get back to you.
Cabinet secretary, you know that you can trust us—whisper it to us. I am not looking for a drop-dead date. Can I take it from your response that the financial modelling is in the very early stages, or are you further into the process? What is the direction of travel? Do you accept the review recommendation that the current system is inequitable and needs to be dealt with?
It is not just the review that has said that; a number of bodies—organisations and campaign groups—and individuals have all said something very similar.
The issue is more complex, though, because it is not just about the current number of people who are under 65 who, if they were eligible, would not have to pay. It is also about what the demand would be in the future. That is why financial modelling is important to look at the current level of need and demand, and to project that into the future. I want to make sure that we have all that in proper order as we take forward discussions about what is affordable and what can be delivered. I certainly take on board what the review has said.
As regards the £3 million savings that the cabinet secretary mentioned, that estimate is based on the 100 new people who would come in. If the old eligibility system continued, we estimate that 112 people would be coming into the system and would be cared for in care homes. The NHS would pay the entire cost of that care, which would be around £600 a week. To do a very rough estimate, 112 times £600 times 52 comes to just over £3 million.
That is not a saving as such because, under the new system, most of those costs will be picked up by the new integration joint boards. We are not talking about resource transfers to local authorities; we are talking about the single pooled budget of the IJBs. Much of the cost will transfer to the IJBs. The balance of any saving will be reinvested by the IJBs in caring for more people at home.
So making provision for the under-65s would result in a cost transfer to local government of what amount?
If you did the same for the under-65s, do you mean?
Of those people, very few of the under-65s are in care homes.
Yes, but what if you extended that?
I worked out that there were about 90 people, but many of them will be entitled to DLA or PIP, so we would need to look at that in a bit more detail and get back to you.
So no costings have been worked out in relation to free personal care for the under-65s.
That work has been caught up in the other review. The work that has been done here has been around the modelling of those who were eligible under the previous guidance. Under the new guidance, we have not looked at the under-65s, because that has been captured by the work and financial modelling that is being done elsewhere, which has not concluded as yet.
Okay. Does anyone else have any other questions?
I am sorry if I irritate Mr Doris with my questions, but I want to get things clear in my mind. I may be confusing incidence and prevalence. A figure of 100 cases a year has been talked about, but they will not be replaced every year, of course. If there are 100 new cases a year, that is the incidence, but the prevalence is the number that will be involved permanently or over a period of time. I understand that that number is currently 385. We need to understand that, when you talk about a very small number of 100, the prevalence demonstrates that there are considerably more than that.
I will explain the numbers. We asked ISD to come up with estimates for us based on the census information that it collects. You are quite right: there are 385 people in care currently. The turnover rate is between 30 and 34 per cent. It is clear that the continuing care numbers have been coming down for the past seven years. In each census, roughly 30 per cent of people are new and 34 per cent of people come off the census at each point.
That is the incidence.
The calculation to work out in the next year how many new people would be eligible and would go into care under the new system is based on that.
So I am right: we are talking about incidence. There are 112 new cases, but they are not the permanent census cases. I know that the census data is also questionable, as the census is done on one day a year—that was questioned in the review report.
I have a final question about another thing that I am trying to understand. In the past, we have talked about category A and category B patients in relation to CEL 6 (2008). As I understand it, all our discussion is about category A patients. Can I get some clarity on category B patients and code 9 patients, as they are also a group of considerable importance? They account for 10,000 occupied bed days in any given month, or 120,000 occupied bed days a year.
I will start with the code 9s.
Mr Slater, for the record, will you explain what categories A and B and code 9 patients are?
Right. We are talking about the past seven years in which we have done the census. Category A people are those who are in hospital and are eligible under the previous NHS continuing healthcare criteria. We also asked ISD to capture information on people who have been in hospital for more than 12 months, do not meet the eligibility criteria and are not delayed discharges. Although they are not clinically ready for discharge, they are not under NHS continuing care. That number of people generally runs at around 500. They could be in hospital for any number of good and valid reasons. Those are category A and category B people.
Code 9 patients are delayed discharges who are outwith the immediate control of either the NHS board or the local authority to discharge within the agreed discharge timescale. That timescale has been two weeks; before that, it was four weeks and six weeks.
The code 9 cases are predominantly adults with incapacity who have gone into hospital for an emergency reason, and it has been deemed that they lack capacity to make decisions. If the family agrees, the discharge can take place as it routinely should; if there is disagreement, a guardianship order needs to be applied for. That needs to be done through the sheriff courts, and the process is very time consuming. It can take anything from three months to 12 months. They are the main body of code 9s.
A number of code 9 patients are delayed in hospital because the specialist facilities that it has been agreed that they need simply do not exist in the community. It may be that, among the category Bs, there are some who should not be in hospital. We do not exactly know that, because they are not clinically ready for discharge, so the doctors have not decided that they are clinically ready to leave. That needs to be looked at. However, those people will be in hospital for valid reasons. There may be long-term rehabilitation. We do not break things down by reason as such, but they will be captured in the revised data that we plan to collect, which almost brings the two together.
We will start to collect data that captures anybody who is in hospital for more than six months. Doing so on a snapshot basis is not ideal. I agree with Dr Simpson that that is not an ideal approach, but until we have absolute real-time data on everybody who is in hospital, that is about the only way that we can capture data. We will capture it in line with the review recommendation.
12:45
We also have some work under way to see how we can speed up the adults with incapacity issue. There is obviously a delay in the courts, and we are trying to understand what part of the process is causing the delay and whether it is something to do with the role of mental health assessment and so on. We are looking at what more we can do to make that process a bit quicker.
That is very welcome. I had experience of a patient with alcohol-related brain damage, whom we moved from the acute sector, where he was extremely expensive in terms of resources but it was not doing him any good, into an alcohol unit while waiting for a guardianship order. However, waiting for that order took six months and cost £60,000. I therefore very much welcome what the cabinet secretary is saying.
I just wanted to illustrate that this is a highly complex area. England has not got it right and I am not yet convinced that we have got it right. I very much welcome the cabinet secretary’s agreement to carry out a review within a year, because I think that we need to look at the issue very closely. One of the important things that Mr Slater said was that if the specialist facilities exist in the community, someone will be moved into them and will have to pay for that; if the facilities do not exist in the community, the person will be kept in the health service and will not have to pay for it. We will therefore always have some degree of inequity, and solving that will be a significant task for the cabinet secretary.
I apologise to my colleague Dr Simpson, because there are many words that I would use to describe him, but the word “irritant” does not spring immediately to mind.
I want to follow up on some of the convener’s questioning on dispute resolution. The most obvious example of dispute resolution occurs when a patient or a family disagrees with a clinical opinion. They have a right to a second clinical opinion as part of the process, but—I do not necessarily expect you to have the figures to hand for this—how routinely does that happen? How confident are patients and families about asking for a second opinion?
Of course, when a second opinion is requested, we would want to ensure that the second opinion would not be given by a clinician in the same clinical team as the clinician who gave the first opinion. There could be conflict in such a case. For example, if the senior clinician said that a person was good to go, it would be quite a big thing for a junior clinician to say that, in their view, the person was not good to go. We would hope that such cases do not eventually go to ombudsmen and the like and that the process will work, but I wonder whether we need a more nuanced approach to how we build in capacity and perhaps advocacy provision for individuals and families so that they feel confident about asking for a second clinical opinion. That issue might become more important as we go forward.
I am very clear that patients and families should be aware that that aspect is part of the process, and I will make sure that that happens. It should be laid out from the start, as should the whole process from second opinion to medical director and, beyond that, ombudsman. Brian Slater can confirm whether there is guidance around the second opinion process—I am not sure—but best practice would suggest that the clinician who gives the second opinion should not be from the same team as the clinician who gave the first opinion. However, we will take note of that point and ensure that, in practice, there is distance between the first and the second clinical opinion.
It is in the guidance that a person is entitled to a second opinion that must be from a competent medical professional. The process is the same as that for any other clinical decision and applies not just to eligibility for hospital-based complex clinical care: people in general are entitled to a second opinion.
The panel spoke to key stakeholders about whether the second opinion should come from somebody from another health board, for example. However, they were very clear that it should not because, in a very small country such as Scotland, health professionals from different boards will all know one another, so the second opinion process should be contained in the same health board. However, I take Mr Doris’s point that the two opinions should not come from the same clinical team so that a junior doctor is not put in the position of overthrowing a senior doctor’s decision.
Yes. We will take up that point and ensure that it is understood in practice. We can issue that guidance as a letter.
It is maybe just a cultural and a confidence thing among the medical profession. Of course, it could be a fine judgment call whether clinical need would be met in hospital or whether capacity exists in the community. When it is a grey area and there is clinician disagreement, erring on the side of caution and using the hospital bed so that the full clinical support network could be accessed would seem to make sense. However, that decision would need to be taken in a way that is not seen to undermine the decision of a senior clinician in the same environment.
We will take that point away with us.
I have a question on the appeals mechanism. After a clinical decision is made, a patient can ask for a second opinion and, after that, they can go to the medical director. All those people who gave opinions would be employees of the same NHS board. What if there was a conflict between treatment and funding and someone was moved out of care as a cost-saving exercise? The ombudsman cannot look at clinical decision making; they can look only at whether the NHS board has followed the complaints process correctly. There is no independent opinion other than that that does not have a financial burden attached to it. How would you sort out that to ensure that a decision is looked at and is above suspicion of being made for a financial saving?
There is no big cost saving to the NHS, so that driver is not there. It is clear in the guidance that the decision making is clinical decision making. Indeed, it says that no account of financial considerations should be taken in making decisions.
Part of a clinician’s duty is to look at a patient’s needs. I have full confidence in clinicians doing exactly that. They will not take account of any other considerations, because the guidance is clear that they should not do that. That is why it is in the guidance. I emphasise that decisions are absolutely clinically based and that no other considerations should be taken into account.
As I say, as part of the review 12 months down the line, we can check and probe the matter, to ensure and reassure ourselves that no other issues are being brought into decision making. However, the guidance could not be clearer on that.
How would you “check and probe” decision making? The ombudsman cannot do that. They cannot look at or assess decisions that are based on clinical judgments. The issue is one of natural justice. We all hope that people will use the guidance properly. However, it is about not only being fair but being seen to be fair.
We could, for example, look at a sample of the cases in which a second opinion was requested or that went to the medical director and see whether there was anything different in how the decisions were made, whether the outcomes were different from those elsewhere or whether there was anything that stood out as strange. It would be difficult to say that someone could not be cared for in hospital if they could not be cared for anywhere else in the community. To make a different decision, the clinician would have think, “Where is this person going to be cared for?” If any decisions looked out of kilter, if you like, we could certainly look at those cases, and we could perhaps also look at a sample of the cases that involved a second opinion or went to the medical director.
As we have said on a number of occasions, given that there is no big cost saving to the NHS, the money is ploughed back into integrated resources. It is not as if a health board will make a saving that it could use to offset financial pressures elsewhere. The system will not operate that way.
I emphasise that, as part of a clinical decision, a multidisciplinary assessment is made. Clearly, the expertise of caring for people in the community has a big say in that. You would think that if the multidisciplinary team, who are experts in community care, are saying, “We cannot care for this person in their own home” or “We cannot care for that person in a care home,” the clinical decision will be influenced by that, which will affect the judgment on whether someone can be cared for in a hospital.
It is reasonable to say that, with all the continuing care funding, the specialities that these people are in are among the delegated functions, so the funding for older patients, whether they are in a care home or a hospital, will be delegated to the IJBs. I emphasise that we are not talking about transferring money from one statutory body to another. It will fall under the chief officer’s remit to make decisions on that budget.
As there are no other questions, I thank the cabinet secretary and her colleagues for their attendance.
Meeting closed at 12:55.Previous
Annual Report