Case digest

Public law Health Service Ombudsman

The Health Service Commissioner has produced a report on completed investigations from April 2003 until September 2003. She confirmed that she received over 3,000 complaints as a result to her special report on NHS Funding for Long Term Care for Elderly and Disabled People, published in February last year. The majority of these cases have been sent back to the various strategic health authorities to reconsider.

However, the following two cases are relevant:

1. Assessment and information about NHS continuing care: Central Manchester PCT and Central Manchester and Manchester Children’s University Hospitals NHS Trust. Case No E.629/01-02

Mrs W, suffered from vascular problems as a result of diabetes. She was admitted to hospital for the amputation of her left foot but following this she had a stroke. Her wound was not healing properly, so a further operation was carried out to remove part of her leg.

Prior to the second operation, the family were invited to a “care-planning meeting” to discuss Mrs W’s care after her discharge from hospital. Mrs W’s daughter, Mrs H had planned to care for her mother at home, but this was dropped after persuasion of the various professionals. Mrs H and her family had not been told of the purpose of the meeting, nor of the financial implications of their decision to move her mother into a nursing home. They had not been told of the existence of continuing NHS health care and the review process.

Mrs W sold her home to pay for her care but over a year later, she moved to another nursing home in another health authority area where she then qualified for NHS-funded continuing care. Mrs H made a complaint to the Trust but they declined to deal with it as they said it was “misplaced” and she should take the matter up with social services. They held fast to this view until the Ombudsman intervened.

Findings

The nursing assessment was clinically correct and that Mrs W did not qualify at the point of discharge from hospital for NHS-funded continuing care, although she should now approach the health authority directly on this;
Mrs W’s family had not been involved in the assessment process despite their level of involvement in Mrs W’s care and expressed desire to care for her at home;
The district nurse had concluded that Mrs W was ineligible for NHS continuing care without notifying the family or advising them of what this means;
The family had not been given any information about the financial consequences of a nursing-care placement;
The care-planning meeting took place before the second operation;
The Ombudsman was extremely critical of the Trust’s refusal to handle the complaint and considered that an apology was not enough and that a financial remedy was appropriate.

2. Inadequate consideration given to eligibility for NHS continuing care: The former Gloucester Health Authority Case No. E.112/02-03

Mrs D was admitted to hospital following a stroke in November 1999 and remained there until June 2000, when she was moved to a nursing home. Mrs D, as a result of a stroke was immobile and unable to speak, as well as being an insulin-dependent diabetic. A PEG tube (fed by tube through the stomach) was removed just before her discharge. The health authority had agreed to pay a contribution of ten per cent towards the cost of her care. In February 2001, the family asked for a review of her entitlement to NHS continuing care but the health authority concluded that Mrs D did not qualify and that they had made an error in paying a contribution towards her care, as the PEG feed had been removed prior to discharge. The family appealed this decision and, following a review, the health authority concluded that she did not qualify. Mrs D died in December 2001 and her daughter Mrs M complained to the Ombudsman.

Findings

The Health Authority’s assessment documentation was incomplete;
The family had been given no information about the eligibility criteria for NHS continuing care and comprehensive guidelines should be put in place to ensure that proper and timely assessments are carried out on such patients;
The family were not properly involved in the discharge from hospital process, when decisions were made about the nursing-care needs of Mrs D and it was recommended that in future, family and carers should be involved and participating staff should be fully trained to carry out the assessment process;
The nursing home had not received from the hospital a proper care plan for Mrs D;
The documentation supporting assessment had not been altered in line with the judgement of Pamela Coughlan, which led to inconsistency and lack of clarity, although the criteria itself had been reviewed;
The length of time taken for the Health Authority to complete the review was too long;
The eligibility criteria should be reviewed and Mrs D and other patients like her should be assessed against the reviewed criteria and if they are eligible they or their estates should be reimbursed the costs.

Public law case digest compiled by Caroline Bielanska, solicitor, TEP and freelance consultant. She can be contacted at: caroline.bielanska@ntlworld.com.

Private law

1. Jennings & another v Cairns & another [2003] WTLR959

The donee of a gift from a relation who failed to ensure that the gift was made as a result of full, free and informed choice is under an obligation to compensate the estate of the donor.

The donor, an elderly maiden lady, Miss Davidge, who was aged eighty seven at her death, appointed one of her nieces as executrix (“the executrix”) under her will. She gave the executrix her home and 50 per cent of the residue of her estate. The remaining 50 per cent was divided between another niece and nephew.

Approximately seven years before her death, Miss Davidge also gave an enduring power of attorney (EPA) to the executrix and her mother. The EPA was never registered but following a stroke, which Miss Davidge suffered about two years prior to her death, the attorneys began to act under the EPA. At the same time, Miss Davidge moved into a nursing home. Her hearing and health were significantly affected by two strokes and two falls.

Following Miss Davidge’s death it became clear that she had entered into a number of lifetime transactions, which either directly or indirectly benefited the executrix, her family or companies with which she was associated and which significantly diminished Miss Davidge’s estate. A claim was brought by the other residuary beneficiaries. Their main arguments centred around the executrix having exercised undue influence over Miss Davidge and also that she had breached her duties under the EPA. As a result, they claimed that she should be ordered to account to the estate.

The court considered the formula set down in Royal Bank of Scotland v Etridge [2002] 2AC773, which held that the presumption of undue influence must be rebutted by a defendant showing that the transaction was entered into after “full, free and informed thought”. As a result of Miss Davidge having reposed trust and confidence in the executrix, she was, therefore, in a position of influence and there were a number of financial transactions which called for explanation. This being the case, the burden of proof then shifted to the executrix to show that Miss Davidge was fully aware of the nature of the transactions into which she entered. If this burden could not be discharged, the court would be at liberty to infer that undue influence had been used. In addition, the executrix was in a fiduciary relationship with Miss Davidge as donor of the EPA and owed a duty of good faith and duty to avoid a conflict between her personal interests and those of Miss Davidge.

The court held, following the analysis in Etridge of cases where the parties’ relationships could give rise to an opportunity for improper influence, that more was needed than simply the existence of the relationship for influence to be found to be proved. In this case, the executrix had failed to provide an explanation that would make it possible for the court to otherwise infer from her conduct that she was using money for her own purposes.

An order for account was made for the executrix’s dealing with Miss Davidge’s assets under the EPA and a substitute personal representative was appointed under Section 50 Administration of Justice Act 1985. Although the executrix was granted permission to appeal, the appeal has recently failed.

2. Jemma Trust Co Ltd v Peter D’Arcy Liptrott & others [2003] EWCA Civ 1476

The Court of Appeal held that it was still open for a solicitor to make a separate charge based on value for the administration of an estate provided that such remuneration overall remained fair and reasonable as required by the Solicitors (Non-Contentious Business) Remuneration Order 1994. It was noted that the authorities did not just permit solicitors to charge by reference to a percentage of value but indicated that, in relation to non-contentious business, charging by reference solely to an hourly rate was to be resisted. It was also not decisive that, in assessing costs in contentious business, it had become usual practice to incorporate the value element of any money or property into the hourly rate. It was held, however, that it would normally be right to reduce the value element by reference to a regressive scale and various applicable bands were given.

Private law case digest compiled by Julia Abrey, partner at Withers LLP. E-mail: julia.abrey@withersworldwide.com