Coughlan Implications for health law and beyond

Feature

posted 1 Sep 1999 in Volume 4 Issue 6

Coughlan
Implications for health law and beyond

On July 16 1999 the Court of Appeal gave judgment in R v. North and East Devon Health Authority, ex p. Coughlan (The Times, July 20 1999). Whilst the principal importance of this case lies in the fields of health and social services law, the judgment of the Court of Appeal has much wider ramifications.

The nursing care issue

The first and 'critical issue' identified by the Court was 'whether nursing care for a chronically ill patient may lawfully be provided by a local authority as a social service.' This is of crucial practical importance. If the answer to the question is 'yes' then the patient will have to pay. The reason for this lies in the statutory framework. Health care - provided by the NHS - is, of course, free at the point of delivery (s.1(2) National Health Service Act 1977). Social care provided by social services - may be charged for, subject to a means test (s.17 Health and Social Services and Social Security Adjudication Act 1983). Residential accommodation provided by social services must be charged for (s.22 National Assistance Act 1948). Materially, 'accommodation' has an extended definition under s.21(5) of the 1948 Act and includes 'other services, amenities and requisites provided in connection with the accommodation'. The mandatory charging power, therefore, is potentially very wide-ranging.

In Coughlan the applicant argued that all nursing care must be provided free of charge under the NHS and that social services lacked even the power to provide this service. This argument was accepted, by Hidden J, at first instance (see The Times, December 29 1998). The Court of Appeal (Lord Woolf M.R., Mummery and Sedley LJJs) disagreed to this extent: it held that there were circumstances in which social services departments could purchase nursing care. What is important about its judgment, as we shall explain, is that it will have the practical effect of redrawing the boundary between health care and social care. There will be a large class of people currently being charged for 'social care', who, under the terms of the Court of Appeal's judgment, are entitled to receive that care free under the NHS.

The Court, in Coughlan, observed that this boundary would be very difficult to draw. Nevertheless, the clear implication of the judgment is that the eligibility criteria used to determine access to health care are, in the case of most health authorities, unlawful.

It is necessary to understand something of the facts of the case. Ms Coughlan, the applicant, suffered a serious road traffic accident in 1971, and is tetraplegic. She and several other 'young disabled' patients had been living at a traditional NHS hospital (Newcourt Hospital). They were given a 'home for life promise'. It came to this: if they agreed to move from Newcourt Hospital to a new purpose-built NHS facility called Mardon House they could live at Mardon House for as long as they chose. It would be their home for life. Within a few years the Health Authority reneged on its promise. They said that the patients no longer met the Authority's health eligibility criteria and would have to leave Mardon House. The Health Authority wanted to move them to a nursing home. The practical reality was that this would be a nursing home for the elderly; the youngest of the residents was in his 20s.

The Authority apparently thought that Central Government Guidance issued in 1995 (HSG(95)8) meant that only 'specialist' nursing care remained the province of the NHS. 'General' nursing care was the remit of social services and, therefore, subject to charging. In this case the Health Authority's eligibility criteria excluded from the NHS matters including 'bladder washouts' and 'tracheotomy care'.

The Court of Appeal ruled that these eligibility criteria were unlawful. It also held that the Authority was guilty of an abuse of power and a breach of Article 8 of the European Convention on Human Rights. We return to these issues below.

In the context of substantive health/social care law there are 5 important points to be drawn from the case.

First, the question of whether nursing is health care or social care is, in part, a question of law for the Courts. The Court of Appeal said that the legal status of the services depended upon whether the services were: (i) merely incidental or ancillary to the provision of accommodation which a local authority is under a duty to provide under s.21 of the National Assistance Act 1948 (and, accordingly, within the extended meaning of 'accommodation' under s.21(5): set out above) and (ii) of a nature which it could be expected that social services could be expected to provide. In one sense this analysis is circular: if this is right, the question whether social services can be expected to provide a service is dependent upon whether they are under a legal obligation to provide it. The all-important point, though, is that it will, in practice, be the Court that determines whether the boundary has been lawfully identified in any given case.

The second point is that Coughlan does not provide any clear answer to the boundary question. There are likely to be a raft of cases seeking the Court's ruling on where it lies. The Government's view seems to be that the Court of Appeal's judgment will not affect many patients. But this is, surely, wrong. We consider that the Royal College of Nursing was right, immediately following the judgment, to suggest that virtually every nursing home placement where nursing is charged for by social services is now at risk of being challenged following Coughlan. If nursing for which there is a 'primary' rather than an 'incidental' need is health care then most nursing care provided in nursing home placements should be funded by the NHS. After all, frail or elderly persons are, almost always, placed in nursing homes because their primary need is for constant nursing care. Indeed, it could be said that the entire placement, in such cases, will have to be funded by the NHS because Government Guidance indicates that where there is a primary need for health care the whole cost of placement in a nursing home must be borne by the NHS (see para 7 of HSG(92)50).

Next comes the question of charging. Where a client has been charged in the past then the question is how to recover payments made on an erroneous understanding of the law. Claims for restitution have been made in judicial review challenges although this raises difficult questions. In private law it is now recognised that money paid under a mistake of law may be recovered (see Kleinwort Benson Ltd v. Lincoln City Council and Others [1998] 3 W.L.R. 1095). That case also makes clear that limitation will only run from the date the 'mistake of law' is brought to light by the courts - in other words, the date of the Court of Appeal's judgment in Coughlan, at the earliest. This may be prove to be the most straightforward route for recovery in cases where payments have been made to social services by patients although the legal and procedural issues are complex. If, by contrast, a charge for nursing care has not yet been imposed patients' lawyers can challenge its legality in the Courts by way of judicial review.

The fourth practical point is that most Health Authorities now face the possibility that their continuing health eligibility criteria will be challenged in the Courts. The evidence in Coughlan was that North and East Devon Health Authority's criteria were similar to most Health Authority's criteria throughout the West country. If this is so then the likelihood is that most Health Authority's continuing criteria are unlawful and should no longer be applied. In reality most persons who are being charged in nursing homes will have been assessed as needing social care rather than health care because of NHS criteria that are very like those of North and East Devon. The very basis of a judicial review challenge to charging will, in the first instance, have to be based upon a challenge to these criteria. There may well now be further cases brought to Court to challenge eligibility criteria that are only cosmetically different to those of the criteria in Coughlan. As one NHS expert said after Coughlan, 'the devil lies in the detail'. If the criteria are unlawful then patients will have to be reassessed on fresh criteria. This, too, will no doubt give rise to challenges.

Lastly, the response of the Government to the Court of Appeal's ruling may itself give rise to further litigation. New Guidance has been promised. In Coughlan HSG(95)8 was challenged and was heavily criticised albeit not found to be unlawful. New Guidance must interpret the Coughlan decision in accordance with the judgment of the Court. If it fails to do so it will be open to individual applicants to seek judicial review and, in particular, declaratory relief that the new Guidance is unlawful.

Wider implications

The judgment in Coughlan raises a number of points of wider interest in public law.:

In deciding that the Health Authority's eligibility criteria were unlawful, the Court of Appeal has, in effect, opened up new areas of justiciability in judicial review. As far as we are aware this was the first time such a challenge to eligibility criteria had been upheld. It is, of course, a canon of public law that the Courts will not entertain a challenge to clinical decisions (see, eg, R v. Cambridgeshire Health Authority, ex p. B [1995] 1 W.L.R. 898). Where, however, the clinical decision impugned is premised upon unlawful eligibility criteria that decision will necessarily have to be revisited in the light of fresh criteria. Such eligibility criteria are by no means unique to health law. For example, many social services departments have created community care eligibility criteria for service provision. These, too, can now be challenged.

The judgment of the Court of Appeal is also ground-breaking on the question of legitimate expectation. That doctrine is well established (see CCSU v. Minister for the Civil Service [1985] A.C. 374) at least in so far as it concerns 'procedural benefits'. It has always been accepted that in some circumstances an authority may be bound to have regard to its previous policy or practice when it decides to depart from it (see, eg, R v. Home Secretary, ex p. Hargreaves [1997] I W.L.R. 906, policy on early release of prisoners). In other cases it has been said that there is a legitimate expectation of consultation before a decision is taken (see, eg, A-G for Hong Kong v. Ng Yuen Shiu [1983] 2A.C.69).

What has long been controversial, however, is the question whether there can be a legitimate expectation of a substantive benefit. In other words, whether an authority can be bound to provide anything more than the right to be heard. In Coughlan the applicant claimed to be entitled to a 'home for life' - as clear a case of a substantive benefit as one could imagine. This matter has been vigorously debated in the courts (see, eg, R v. MAFF, ex p. Hamble (Offshore) Fisheries Ltd [1996] 2 All E.R. 714; R v. Devon County Council, ex p. Baker [1995] 1 All E.R. 73; R v. Secretary of State for Transport, ex p. Richmond-upon-Thames London Borough Council [1994] 1 W.L.R. 74; R v. Home Secretary, ex p. Hargreaves [1997] 1 W.L.R. 906).

We would respectfully suggest, however, that in Coughlan, for the first time, the Court has grappled with this difficult question with the rigour and clarity it requires. The result is a judgment which appears to resolve the question authoritatively. The Court held that there could, indeed, be a substantive legitimate expectation in circumstances where the decision to frustrate the expectation is so unfair that to take a new and different course would amount to an abuse of power. It drew on a line of tax cases starting with R v. I.R.C., ex p. Preston [1985] A.C. 835 and culminating in R v. I.R.C., ex p. Unilever Plc (1996) S.T.C. 681.

Importantly, the Court rejected the argument that this doctrine was merely a facet of Wednesbury irrationality. It held that the doctrine was grounded in fairness and that the court rather than the decision-maker was the ultimate arbiter of what was fair. A decision which is 'rational' could still, however, be unfair and, accordingly, unlawful. The paring away of fairness from the Wednesbury doctrine is a welcome development (see 'The Billowing Fog' (1996) NLJ 1663, Gordon and Ward).

In Coughlan the Court of Appeal found that the decision to break the promise was not only an abuse of power but was also a breach of the applicant's right to a home under Article 8 of the European Convention on Human Rights. What is interesting about this is the readiness of the Court to entertain and, indeed. determine the argument on human rights as a free-standing ground of challenge notwithstanding, of course, that the Human Rights Act 1998 will not be in force until October 2000. It betokens an encouraging degree of receptivity to human rights points and appears to be part of an increasing tendency on the part of domestic courts (see, eg, Barrett v. Enfield LBC [1999] 3 W.L.R. 79).

The judgment also augurs well for future interventions on the part of organisations in support of applications for judicial review. Order 53 r.9(1) permits 'any person who desires to be heard in opposition to the motion' to be heard (emphasis added). The rules make no provision for intervention in support of an applicant's case. In Coughlan the Court of Appeal permitted not only the intervention of the Secretary of State but also an intervention by the Royal College of Nursing who supported the applicant's case on the nursing care issue. It is to be hoped that this flexible approach to intervention will be followed in the future.

Although Ms Coughlan did not succeed on all the issues, the Court was concerned that she should not bear any of the costs expressly on the grounds of the public interest nature of the case. This is entirely in line with the Law Commission's proposals for the reform of the judicial review procedure advanced as long ago as 1994. The fact that it has been put into practice is of potential importance to other litigants.

Richard Gordon Q.C. (Brick Court Chambers), Tim Ward (Monckton Chambers) acted for the applicant in Coughlan.