Department of Health ignores NHS continuing Healthcare Human Rights warnings


The Article below appeared in Disabled Go website.

It shows that NHS primary care organisations and HSCTs are refusing to provide continuing healthcare packages in people’s homes, and instead insisting they move into a residential setting ie private state institutions, in breach of their human rights.

Campaigners have warned, more than 40 NHS English primary care organisations, that their policies will see service-users with complex healthcare needs forced into institutions in breach of disabled people’s human rights.

Despite the warning, the Department of Health last night 25/1/17 refused to say if it had any concerns about the policies on NHS continuing healthcare (NHS CHC), or whether they complied with its own guidelines.

Reasons why the Department of Health can systemically ignore the disabled’s Human Rights

DOH is not responsible for the NHS, as NHS England was substituted by the Health and Social Care Act 2012.

They are only guidelines so not mandatory.

No individual can find a lawyer nor pay for one to sue under the HRA and risk over side’s costs and if they did it is unlikely the courts would uphold these rights.

Such manipulation and contempt for the public, who pay for these services appears standard through successive government policies and law which have put the public in this appalling position.

They have been hoodwinked by their own governments and public services.

Research on the policies, published last week by disabled campaigner Fleur Perry, showed at least 44 clinical commissioning groups (CCGs) – and probably many more – would be willing to move disabled people with high-cost support packages into residential or nursing homes against their wishes.

Perry, who edits the website Disability United, is herself a recipient of NHS CHC.

Her research, using Freedom of Information requests, showed, that the 44 CCGs had drawn up policies containing “concerning” phrases, that suggested they would move disabled people eligible for NHS CHC, out of their homes, into institutions against their wishes, even if the cost of a homecare package was only slightly more expensive than residential care.

Most of the other CCGs that responded to her requests said they relied on the Department of Health’s National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care, and the NHS England Operating Model for NHS Continuing Health Care*.

Perry’s research has alarmed disabled activists and other campaigners for independent living.

Jenny Morris, a member of the Independent Living Strategy Group, which is chaired by the disabled crossbench peer Baroness [Jane] Campbell, said the group was “extremely concerned” by the research.

Morris, who helped write the Labour government’s Improving the Life Chances of Disabled People white paper, said:

This is taking us back to a time when disabled people were not considered to be equal citizens.

“It is also a denial of human rights to a private and family life, and a direct contravention of article 19 of the United Nations Convention on the Rights of Persons with Disabilities, which states that disabled people have the ‘right to live in the community with choices equal to others’.

“The UK government has signed up to and ratified this convention and CCGs as public bodies should not be taking decisions such as this.”

Rob Greig, chief executive of the National Development Team for inclusion (NDTi) – which works with charities and government departments, including the Department of Health, to promote inclusion and independent living – said the research was “seriously concerning”.

He said it was not a surprise that such policies existed but he was surprised at

the blatancy with which it was acknowledged [by CCGs] and the extent to which it was found”.

Greig, a former national director for learning difficulties and currently a member of the Equality and Human Rights Commission’s (EHRC) disability committee, said he would bring Perry’s research to the EHRC’s attention this week.

But he said that, because of the continuing reductions in EHRC’s budget and its expertise on disability, he was not sure if it had the

“capacity to continue to raise and take up issues such as this”.

Yet the same Human Rights Commission has supported and paid for a Supreme Court Appeal in favour of abortion rights in Northern Ireland in October 2017.

He said that NHS England needed to be

“asking questions of those authorities that have responded in this way”, and added:

“If they are breaching human rights then the human rights legislation needs to be brought into play.”

He said the culture within the health sector meant health professionals

don’t automatically think of the human and civic rights arguments when it comes to designing people’s services”.

He added: “Therefore it’s not right, but perhaps not surprising that the healthcare system will not consider the impact on people’s rights and personal autonomy when deciding what sort of service they want to put someone in.”

In response to one NHS consultant who suggested on Twitter that the solution to the CCG policies was for people receiving NHS CHC to ask for a personal health budget (PHB) – giving them control over how their CCG funding was spent – Greig said this might be a solution for only a limited number of people.

He said: “I think it’s on record that the number of people receiving personal health budgets is pretty low at the moment.

“In the right circumstances it might be a solution for some people. It would not be accurate to say that it could be a widespread solution to this.”

Greig suggested that using a PHB might only work if someone receiving NHS CHC, with a support system in place, was able to use the flexibility provided by a PHB to spend their allocated budget “in a more cost-effective way”, but only if the Clinical Commissioning Group was not allocating resources to those receiving PHBs from a perspective of “we are doing this to save money”.

Sue Bott, deputy chief executive of Disability Rights UK, said:

“PHBs are certainly the way to gain control over how your health needs are met, but we do need to challenge those Clinical Commissioning Groups who have a policy of limiting PHBs to the cost of residential care.

“CCGs need to understand the principles of independent living and how meeting support needs contributes to disabled people’s right to be full citizens in their communities.”

A Department of Health (DH) spokeswoman refused to say if DH was concerned about the 44 policies or if it believed they complied with its framework*.

But she said in a statement: “Every person with complex needs should be offered the right level of care for them, in the right environment.

“We expect all Clinical Commissioning Groups to follow the National Framework for NHS Continuing Healthcare* and continued independence should be considered as part of the overall approach to care planning.”

She added:

As CCGs are statutory bodies in their own right, it does not fall to the Department of Health to approve an individual CCG’s approach.

“All CCGs are provided with national guidance which helps inform their policies.

“From 2015 to 2016, NHS Continuing Healthcare has been included in the quality assurance processes for CCGs.

“This will help make sure that all CHC assessments are consistent across the NHS, and that they comply with the CHC National Framework.”

NHS England had failed to comment by noon 26/1/2017.

*The NHS England operating model stresses that “personalisation should be at the heart of all NHS Continuing Healthcare assessments and the provision of care and support”, and calls for “innovative, personalised packages of care”.

The Department of Health national framework says CCGs “should commission services using models that maximise personalisation and individual control and that reflect the individual’s preferences, as far as possible”, and that although cost can be taken into account, it “has to be balanced against other factors in the individual case, such as an individual’s desire to continue to live in a family environment”.

The framework points to a 2005 human rights legal case in which the high court found, that forcing a woman who needed constant nursing care into an institution would infringe her right to a family life under article eight of the European Convention on Human Rights, and that article eight should be given “considerable” weight in such cases, although the cost of a package “is a factor which can properly be taken into account”.

( But this ignores the fact that the LA/HSCTs can apply to the court of protection, if they suspect a person incapable, and say it is in that person’s ‘best interests’ that they have enforced services and effectively ignore their s8 HRA and this is what is happening. )

Author Kathryn Hodgson
Digital Marketing Executive at

NB under the Care Act, if a person is ‘incapable’, the LA must approve any personal budget support, which, as their policy is only an institution, they will not.

Or, only pay for support workers, who they control, and are trained in assessing and reporting safeguarding issues that can then be used to obtain court orders for removal to an institution.

Last year 433 million was granted to LA/HSCTs for this purpose.

The disabled, if not ‘incapable’, can sue breach of the LA ‘s duty to support and HRA, but unlikely to get a lawyer, experts, and risk paying LAs legal costs, if they lose which is likely.

If MCA ‘incapable’, the disabled are represented by a state Official Solicitor,  as Lasting Powers of Attorneys are voided, and Guardianships not granted.

This OS will decide removal is in their ‘best interests’ under MCA.

The Government are hijacking the money available to the disabled and their families under the Chronically Sick and Disabled Act 1970  for health, care.

And if under 25 education, and paying it to their commissioned private monopoly corporate providers.

If the disabled is assessed ‘incapable’, as is always the case, under the Mental Capacity Act 2005, these services along with any medication, restriction can be enforced for life, as can be any type of personal care-  washing etc and contact with friends and family.

Neither the money paid for these nor the services provided, appear accountable.

And their only oversight, is an Adult Services Manager who is employed by the commissioner of the services.

Below is a relevant comment on Community Care Article on this

‘Further, the ‘personalisation agenda ‘ was /is the foundation for this culture to develop, the Standing commission for Carers are aware of this.

Not at any time did the promoters and policy developers say the ‘outcome’ was systematic abuse of Carers to breaking point so that the people we care for can be Justifiably [ in their eyes] removed, because at that time the market still needed to be developed, now it has been developed the system and market needs feeding and supporting and it is our vulnerable family members who will be doing it .

They have all got a price on their heads and are a valuable commodity. Family Carers are disposable defunct’.






  1. Once again you are on the ball.

    Continuing Health Care is yet another minefield. Obviously Martin’s epilepsy entitles him to CHC, and always has.

    In 2006 Surrey and Bucks contested in Court who was responsible for CHC, and in Court they decided to divide it 50/50. The battle continued. No assessment had been done since 2007. I pushed and pushed for an up to date assessment and on 17 May 2016 they decided Martin WAS NOT ELIGIBLE FOR CHC. I made a formal complaint to which they have never replied.

    So Martin’s severe and complex epilepsy has been written out of his care plan.

    However Surrey and Bucks (now Chiltern) state “The nurse assessors and social worker agreed that Mr Buckley should continue to be funded 50/50 by Surrey County Council and Bucks CCG, in accordance with the court ruling of 2007. In other words, Ocean Community Services are receiving £2,400 a week for a service they are not providing.

    Chiltern also state (9 Nov 2016) “As you currently do not have registered Power of Attorney for Mr Buckley,s Health and Welfare, it has not been possible to enable you to have a copy of the Decision Support Tool that was completed or the relevant supporting documentation provided by Riverdale. At this time it would not be appropriate for you to request an Independent Review without the above authorisation in place to enable you to proceed.”

    This is where I became a total jibbering wreck. All correspondence from me has been ignored since then.

    Angels and ministers of grace defend Martin, because no one else will.

    Shirley Buckley EPA


  2. Martin’s story is the same as all the others, only their’s is worse, as many don’t have you to fight for them or expose the corruption of the huge sums of public money spent on inadequate enforced care services.

    As we know from this blog, money is not the problem with either the NHS or Social Care, there is no cost cutting quite the reverse.

    Austerity and cost cutting are being used in the media, as the excuse to obtain even more money for these greedy private providers, which after many million pound buy out payments, will all eventually, be venture capital US/Canada owned cults. And our loved ones will be audit statistics, factory farmed for ever more profit and we, their parents, have to go to our graves with the horror of this.

    And in your eighties, what you most deserve is peace of mind, and time with your son, who is in no way ‘incapable’ and should be leading his own life, as he wants to. His current life is the anthesis to independence as it appears akin to enslavement and anything but proper care.

    Issy’s National Autistic School was paid NHS continuing funds up to 24/5/2013, yet she had been at home with us since 28/1/2013.

    This was a third of the £177,000 tax free, NAS were paid for her 52 week enforced placement. Yet she was resident with us for a third of the year.

    That is £59,000 a year tax free equal to £80,000.

    By contrast, we to date have received nothing, having been assessed by NHS as not being eligible for such funding.

    Yet a private care provider, would get at least £80,000 NHS funding, in addition to Care Funding of a similar amount and Education as she is under 25. And poor Issy would be portrayed,as as difficult to care for as possible to obtain the maximum funding.

    This is not only corruption, but the hijacking of the disabled and their families entitlement under the Chronically Sick and Disabled Act 1970.

    And no one is accountable for these huge sums nor the services provided.

    And the government propoganda from all sources is that the NHS and Social Care is in crisis because of lack of money.When their real object, is to syphon off as much public money as possible into their chosen private providers.

    Thank you for taking the time to write such a long comment . It’s a scandal that noone MP, charity, agency, RRP, OS, IMCA will help you or any of us.

    Best Wishes to you and Martin,



    1. Thanks for letting me know. Is it possible for you to put a comment o n to his post as to how it is progressing.

      I would be very grateful even for very general information.

      Thank you for letting meknow and taking t e time to make acomment. Best Wishes, Finola


      1. Living in care home because social hrs do not cover my needs. No choice deterioration no where to turn. Scared. Appeal for continuing health care way off as appeal nurses when I asked working furiously hard. I ve to appeal alone over phone as now unable to travel nor have means. Be assessed monitored left right centre in a continuous loop of a degenerative condition wasting away fast. Doubt where suitable to live now age 52, I have a home. No words but to accept this even though I do have good hearts caring….

  3. Dear Fiona, please forgive me but I found your article too complex and too complicated to follow and understand, This is not a criticism of your article but my IQ. I like things simple.

    NHS must care for everyone and must provide good care for everyone irrespective of race, gender, ethnicity, ability, disability, gender, sex, life style or sexual orientation, age, religion and so on.

    I have no doubt NHS is failing to do this and if one has any doubt one must read many Twitter comments about NHS in crisis. NHS is in difficulty and there is no doubt about it. But is NHS in crisis, is there any hopes for NHS? I sincerely hope so. NHS and Social care are two Jewels in our crown and together we must make sure both of them become safer, better and last for ever as we all need both of them.

    I am very fond and proud of NHS and worked in NHS for 31 years as a consultant Paediatrician and then as Medical Director for nearly 15 years! Each year 360 Million patients are seen by 1.3 Million staff. Most staff work hard and try their best to provide excellent care to their patients.

    Sadly in last 10 years gradually NHS has gone downhill in some ways but improved in many ways. NHS is victim of its own success. One has to see survival for heart attack, cancer, chronic diseases, people with disability and so on. Longer we live more care we need and more pension nation has to pay for longer!

    Fundamental reason for such a gradual deterioration is we doctors have not taken interest in leadership and let managers (not a criticism of managers at all but their training is to manage the budget and targets) dominate the NHS. IT use has not been very good and we all work in silos and there is no good governance and accountability either for bad or poor managers or poorly performing doctors or other clinical staff. Of course, patient safety has been given top priority in theory but this has put lot of pressure on staff and culture of bullying, harassment, victimisation, discrimination so on are sadly rife in our NHS.

    Is there a light at the end of the tunnel? of course there is and Simon Stevens 5 years plan, reform of health and social care, Vanguard and Devomanc are the solutions provided we get leadership, culture, governance, staff, patient and public engagement right and we stop working in silos and use IT and digital health. NHS must be for the patients,with the patients and by the patients and I do hope one day I will see such a NHS and social care which we all can be very proud of.


    1. Sorry you found the post complex, this may stem from its different sources; it started with an article by Kathryn Hodgson, about the fact that all those living in their own homes ,who need, and are entitled to continuing treatment and care from their Health and Social Care Trust, are not receiving it, and are instead, being forced into residential accommodation, which is the only option given to them.

      My own comment then followed, and the post ended with another person’s comment on a Community Care Article.

      This enforced residential care, is in breach of their Human Rights under HRA 98 ,particularly s8 Right to Privacy and family life and also in breach of the Chronically Sick and Disabled Act 1970, and various other acts as amended which are in the posts picture caption.

      The post in no way critises NHS workers, merely, the fact that the consumer of NHS and Care services should have a choice over Care and NHS services and accountability.

      I think your comment ignores, the most important factor, and elephant in the room, that successive governments have conspired to ‘privatise’ the NHS and Social Care, culminating in the Health and Social Care Act 2012, to make the maximum profit out of public funds from a captive audience, who have no choice.

      And ‘privatisation’, no matter how dedicated the workers and professionals, can only but result in poorer services ,if there is no competition, scant accountability, and services are prescribed by monopoly corporations and provided by over managed, itinerant staff with an overriding profit motivation.

      A good book on the legislation and new structure,is ‘NHS For Sale’ by Davis, Lister and Wrigley.

      It is a lie that the NHS and Care are in crisis, because of lack of funding, secure wards in mental health hospitals are being paid £12,500 a week just to contain and drug. And more are being herded into such private hospitals and detained in the guise of mental health concern, there are huge wastes on pharma and unnecessarily agency staff and fees.Governments have deliberately starved certain areas to aid privatisation, and to even justify more money to be siphoned off into private hands.

      As A and E and, indeed GPs, might be insufficiently lucrative, they may start charging and/or become insurance based.

      And eventually, a few corporate monopolies, as with mental health, will own the rest of the NHS.

      The NHS needs to be reclaimed by its hardworking professionals and workers, so they can continue to do the excellent job that once made our NHS famous throughout the world, and also by its service users.

      Thank you for your comment, it is very much appreciated.

      Finola Moss


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s