The guidance is expected to restrict the cases where the NHS has an absolute obligation to continue to provide free care. At the same time it is intended to clarify those cases where patients can be discharged to means-tested care in private nursing homes because nothing can be done medically to improve their condition.
Virginia Bottomley, the Secretary of State for Health, said the guidance was on its way as she launched a framework document within which social services departments should produce local community care charters by the end of next year.
The new advice, which is expected to specify that the NHS retains responsibility for patients with multiple and complex handicaps, follows a special report from the health ombudsman earlier this year on a case in Leeds.
There, a profoundly brain-damaged, doubly-incontinent man who was unable to comunicate or feed himself was discharged to a private nursing home from Leeds General Infirmary on the grounds that nothing more could be done medically to improve his condition. His wife had to find pounds 6,000 a year in top-up fees for the home - even though the family was on income support. The ombudsman found the health authority, Leeds Healthcare, guilty of a 'failure in service', pointing to guidance which states that 'no NHS patient should be placed in a private nursing or residential care home against his/her wishes if it means that he/she or a relative will be personally responsible for the home's charges'.
Health authorities warned that they faced a 'financial time-bomb' if the requirement were honoured and they had to pay for continuing care. Ministers have since been reviewing the guidance. The fact that the existing rules have been widely ignored, however, will allow them to present the new advice as tightening up on the NHS's responsibilities.
Mrs Bottomley said yesterday that 'time-honoured practices' of what constituted free NHS care and what constituted means-tested social care had been 'eroded' in some places. The new guidance would clarify that, ministers believing that some health authorities had been too quick to shed responsibility for continuing care.
None the less, critics will argue that any definition will be less generous than the existing rules which in theory give patients and their relatives a right to refuse to pay for continuing nursing care.
Explaining the community care charters, Mrs Bottomley said they will spell out the standards users of social services can expect, including entitlement to a proper plan for their future care before hospital discharge, and a statement of any charges for services they will face, how they are calculated and how to challenge them.
Comparison of the charters when they appear will highlight differences between local authorities' provision. The charity Mencap protested that the new document missed the chance of setting genuine national standards for community care. But Denise Platt, president of the Association of Directors of Social Services, said priorities and needs varied locally and councils should not be locked into providing rigid packages of care laid down nationally.