Patients 'not ill enough' for care funding
BBC Scotland has discovered further evidence that Scottish people are being wrongly charged care home costs.
The BBC has now learned of three people who are minimally conscious or in a vegetative state who have been told they are not "ill enough" to get their care costs paid by the NHS.
The three individuals all suffered serious strokes.
The Scottish government said more than 150 cases had been referred to local health boards for investigation.
Anyone who has a complex medical condition and who needs nursing care because they are ill, rather than just frail, should have that care paid by the NHS. This is called "NHS continuing healthcare".
Families of two of the individuals wrote to Health Secretary Alex Neil to ask him to overturn the decision, but were told their relatives did not qualify.
Last year, BBC Scotland revealed that the number of people who were having their care bills funded by the NHS was falling in Scotland, whereas it was rising in England.
The number of people having care bills paid by the NHS has fallen by 37% in Scotland over the past four years.
While Scotland does provide personal care for free, people in care homes and nursing homes are still charged accommodation costs.
BBC Scotland asked an independent expert to assess one of the cases.
Mary Fyans, 86, was so severely brain damaged by a stroke that she can do nothing for herself except breathe.
Independent consultant nurse Jane Buswell has 37 years of clinical experience and is an expert in long-term care of older people.
She frequently reviews funding decisions as part of an appeal process in England.
She reviewed all paperwork relating to Mrs Mary Fyans and visited her to carry out a face-to-face assessment.
Mrs Buswell concluded that Mrs Fyans was "totally dependent on others" with "intensive and complex needs" and would qualify for NHS funding if she lived in England.
Mrs Fyans' family are in the process of selling her flat in order to pay care home costs in excess of £40 000.
However this "hotel bill" should be paid by the NHS if the resident needs a high level of nursing care.
Since 2003, thousands of people in England have been able to claim back care costs, following a landmark decision by the Ombudsman. Although that ruling doesn't cover Scotland, the NHS has the same duty of care and lawyers say the same principles should apply.
David Short, of solicitors Balfour and Manson, said: "At present if you are in Scotland and needing this care you are disadvantaged compared to someone who is living in England and Wales.
"I'm aware of one case where the English assessment tool was used and the lady would have passed for eligibility, but when it came to the Scottish guidelines the lady was found not eligible. So the problem is the guidelines laid down by the Scottish government."
Following a BBC Scotland investigation into continuing healthcare payments last year, the health secretary promised to review the situation and urged anyone who felt they had been unfairly turned down for funding to contact him.
While there is an independent appeal system in England there is no such process in Scotland.
Three charities have told the BBC they have concerns about the difficulty people are having accessing NHS funding in Scotland.Huge bills
A spokeswoman for Parkinsons UK said: "It's clear that NHS Continuing Care in Scotland is failing. We estimate hundreds of our most vulnerable people are being left to pay for care that should be free."
End Quote Craig Stockton MND Scotland
Continuing healthcare payments can make a large difference to people's lives ”
She added, "While some families affected by Parkinson's are helped by personal and nursing care, it's simply not enough to offset the lack of NHS Continuing Care funding for those who are most unwell. We know of one family who faced huge care bills of over £30,000 in just 16 months."
A Stroke Association spokesman said: "We recognise the eligibility criteria has to be strict, however, it also needs to be fair.
"We are in contact with a number of families of people who have had a stroke who have been told that their loved one does not meet the eligibility criteria for a continuing care package.
"This can be upsetting and difficult for families to understand and can be worsened by the knowledge that if they lived elsewhere in the UK, the story might be quite different."
Craig Stockton, chief executive of Motor Neurone Disease (MND) Scotland, said: "We are very concerned that there are still problems with continuing healthcare payments and that some people with the greatest healthcare needs, such as Motor Neurone Disease, are suffering through lack of access to these funds.
"Continuing healthcare payments can make a large difference to people's lives and we need to make sure that those that are eligible for such payments, receive them."Independent review
A Scottish government review of NHS continuing healthcare is due to be published this month.
End Quote Alex Neil Health Secretary
The reason I set up a review into this policy was to make sure that in future we apply it properly”
Speaking on BBC Radio Scotland's Good Morning Scotland programme, Health Secretary Alex Neil said: "It may well be that if you are in a long-term vegetative state, then you are obviously unlikely to be in a situation where there is going to be a sudden change to your condition.
"So it may well be that, although these people are very ill, they do not meet the criteria for this particular policy, and quite frankly, I don't think we can generally say, without commenting on an individual case, that they would do south of the border."
He added: "The reason I set up a review into this policy was to make sure that in future we apply it properly and that it's not open to wide interpretation between different health board areas.
"The decision in each case is made by a senior clinician and if the family disagree with it then they can appeal to other clinicians within the health board or ultimately to the Scottish Public Sector Ombudsman."
A Scottish government spokesman said more than 150 people had been in touch with the ministers and all of those cases had been referred to their local health board for further "thorough investigation".
"The health secretary has been very clear that all of these cases should be looked at again to make absolutely sure that those who are entitled to this funding receive it," the spokesman said. "We are awaiting feedback from boards on the outcome of these investigations."