In NHS Continuing Healthcare assessments you’ve no doubt heard the expression ‘primary health need’
It’s a curious thing – because in other areas of NHS healthcare – e.g. going to see your GP, being admitted to hospital or accessing other kinds of NHS services, the chances are you’ll never hear the words ‘primary health need’.
Why? Because it’s an expression that was included in the first main NHS Continuing Healthcare funding assessment guidelines in 2007 (the National Framework for NHS Continuing Healthcare and NHS funded Nursing Care).
It’s an expression that was created to describe eligibility for NHS Continuing Healthcare funding.
A ‘primary health need’ is a concept, not a legal definition of care or care funding.
Page 7 of the National Framework (October 2018) states:
“Primary health need’ is a concept developed by the Secretary of State for Health to assist in deciding when an individual’s primary need is for healthcare (which is appropriate for the NHS to provide) rather than social care (which the Local Authority may provide under the Care Act 2014).”
So the first point to make here is not to get confused by the terminology. The concept is actually very simple – as we explain here…
Let’s look in more detail at what a ‘primary health need’ actually is
…plus what it means and how it affects you when being assessed for NHS Continuing Healthcare.
The National Framework guidelines were drafted in response to the Coughlan case, a landmark case in NHS Continuing Healthcare law:
In simple terms, there is a dividing ‘line’ between care that the NHS must pay for and care that is the responsibility of a local authority.
- When a person’s care is the responsibility of the NHS, that care is free of charge.
- When it is the responsibility of a local authority, the person may be means tested.
A ‘primary health need’ is simply a way of describing that a person’s care is on the NHS side of that line.
At this point it’s worth reading about the Coughlan case – because it was the judgment in this case that established the dividing line.
Essentially Pamela Coughlan challenged a decision that her needs were on the local authority side of that line, and successfully argued in the Court of Appeal that the NHS should fund all of her care.
The description of a ‘primary health need’ in the National Framework comes from the Coughlan case:
In a nutshell, a person has a ‘primary health need’ when the nature of their care is beyond that which a local authority can legally provide. Just like in Pamela Coughlan’s case: her care needs were the responsibility of the NHS to fund.
So a local authority cannot take responsibility for care that is on the NHS side of the line. If it does, the local authority will be in an illegal position.
But how do you know which side of that line your care needs fall?
Essentially, by going through the NHS Continuing Healthcare assessment process.
Questions have been raised, however, about the legality of the assessment ‘tools’ and eligibility criteria in Continuing Healthcare guidelines; if Pamela Coughlan were assessed against them, there is some debate about whether she would actually have been found eligible.
That said, the assessment process (the Checklist, the full multidisciplinary team (Decision Support Tool) and the Fast Track) are the assessments that people needing care do currently have to go through – and so it’s vital to familiarise yourself with them.
Keep in mind always, though, that any assessment for NHS Continuing Healthcare must be Coughlan compliant. In other words, it must comply with the judgment in the Coughlan case – and take account of that dividing line we mentioned earlier.
The National Framework itself on page 153 confirms that Pamela Coughlan’s needs were of a level that meant she did indeed have a ‘primary health need’:
“In respect of Ms Coughlan, her needs were clearly of a scale beyond the scope of local authority services.”
How does a ‘primary health need’ relate to the Fast Track process?
A person whose condition is rapidly deteriorating and who may be at end of life should be Fast Tracked through the NHS Continuing Healthcare assessment process. Once they’ve been Fast Tracked, they should automatically be deemed to have a ‘primary health need’, as outlined on pages 63- 67 of the National Framework (revised October 2018):
217. “Individuals with a rapidly deteriorating condition that may be entering a terminal phase, may require ‘fast tracking’ for immediate provision of NHS Continuing Healthcare.”
218 .”Therefore, the completed Fast Track Pathway Tool, with clear reasons why the individual fulfils the criteria and which clearly evidences that an individual is both rapidly deteriorating and may be entering terminal phase, is in itself sufficient to establish eligibility.”
In summary, saying that someone has a ‘primary health need’ is the same as saying they are on the NHS side of the funding dividing line – and therefore eligible for full NHS Continuing Healthcare funding.