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posted 1 Sep 1999 in Volume 4 Issue 6
Coughlan CASENOTE
R v. NORTH AND
EAST DEVON HEALTH AUTHORITY ex parte COUGHLAN (Secretary of State for Health and
Royal College of Nursing intervening).
Introduction
(It is intended that this article is
read in conjunction with the analysis of the judgment in the above case by
Richard Gordon QC and Tim Ward. The analysis follows this article).
This case involves the
first detailed analysis by the Court of Appeal since the advent of the welfare
state of the obligations of the Secretary of State for Health to continue the
promotion of the National Health Service. The judgment addresses several grounds
of challenge in the proceedings, but it is the main issue of national
importance, namely, the 'health and social care divide' which raises crucial
questions for practitioners advising clients regarding their entitlement to
health and social care services and where the responsibility lies for the
payment for those services.
Facts of the
case
The
central issue in the case for practitioners was whether the NHS is still
responsible for long term health care, and in particular whether the
responsibilities for 'general' nursing care (however defined) have been
transferred from the NHS to local authority social services departments with the
implementation of relevant sections of the NHS and Community Care Act 1990 in
April 1993 and the issuing of Governmental guidance in 1992 and 1995.
To see how the issues
arose in the particular case, it is necessary to look briefly at the facts as
they related to Ms. Coughlan, the applicant.
Ms. Coughlan was injured in a car
accident in 1970, resulting in severe disabilities. She lived at Newcourt
Hospital, Exeter, a longstay hospital for young severely disabled residents for
over 20 years. In the late 1980s, the then Health Authority proposed that a
replacement for Newcourt be built, in order to provide the residents with
greater 'dignity, privacy and respect'. At first, the residents opposed the
plan, but the then Health Authority gave them an express assurance that they
would be able to remain at the new purpose built facility for the rest of their
lives. In reliance on that assurance, which was later confirmed in writing, they
moved into Mardon House in 1993.
Following the move, there was concern
that as the ex Newcourt residents died, their places were not taken by new
longstay residents, but by short term acute rehabilitation patients.
In 1997, the Health
Authority met with the remaining longstay residents and told them that they
would have to move from Mardon to private nursing homes elsewhere as 'the NHS is
no longer responsible for long term care'. The residents were told that their
needs would be assessed against the Health Authority's eligibility criteria for
continuing health care under the NHS, which had been agreed locally with the
social services department.
The residents were assessed against
the criteria and failed to meet the level of need required for NHS funded care
(save for one resident who subsequently died) as defined by the Health
Authority.
Following a consultation process (itself the subject of proceedings), a
decision was reached by the Health Authority to close Mardon House and move the
rehabilitation service from Mardon to an old hospital ward in Exeter.
Judicial review
proceedings were issued on the basis that the Health Authority had fundamentally
misinterpreted its responsibilities for long term health care provision under
the National Health Service Act 1977, that this misdirection had led to the
drafting of unlawful eligibility criteria, which in turn had 'killed demand' for
any future longstay placements at Mardon House. The proceedings also addressed
the issue of the breaking of the 'home for life promise' and the thorny question
of whether a legitimate expectation can give rise to a substantive
benefit.
The
judgment of Mr. Justice Hidden at first instance (which found for Ms. Coughlan
on all issues) was appealed.
Implications of the Judgment
for Practitioners
The judgment has been widely reported
in the media. However, it has given rise to a misleading picture for clients and
practitioners alike. The Secretary of State for Health, Frank Dobson, issued a
press release stating that he was 'delighted' with the outcome, on the basis
that it safeguarded the future for thousands of vulnerable people. The
implication was that scarce NHS resources were not, after all, to be used to
provide health care for those deemed 'able to pay'. In fact, the judgment makes
it clear that where a person's need is primarily for health care (eg.nursing),
the NHS must fund the whole cost of the placement in a nursing home. This would
apply to a great many nursing home placements for elderly people with dementia,
or who are severely physically incapacitated.
Whilst some are disappointed that the
Court did not go as far as declaring all nursing the sole remit of the NHS (and
thus still allowing some 'muddying of the waters'), social services are only
empowered to purchase nursing care where it is 'ancillary or incidental' to the
nursing home placement.
Whether nursing for a particular individual falls within this definition
will depend on the quality and quantity of the nursing provided, and is a
question of tact and degree rather than a clinical issue. However, social
services may not go beyond the boundary of providing what is properly part of a
social services package.
As the definition of the respective responsibilities of the NHS and
social services is a legal issue, it is helpful to look at the position of Ms.
Coughlan herself. The Court held that the services provided to her and the
nature of her disabilities were in a 'wholly different category' to the scope of
social services responsibilities under s.21 National Assistance Act 1948. On one
analysis, therefore, Ms. Coughlan's care needs provide an initial benchmark of
the division between the responsibilities of the NHS to fund the whole package
of care and social services' remit.
Ms. Coughlan required assistance with
feeding, transfers from bed to wheelchair, a special pressure sore mattress,
intermittent catheterisation, and occasional bowel suppositories. She was able
to enjoy social activities, able to be driven to visit friends and was also
mobile with an electric wheelchair.
Whilst Ms. Coughlan's disabilities
were undoubtedly severe, many current residents of nursing homes present with
greater care needs. For example, any person who requires 24 hours nursing care
would, on the basis of the Coughlan benchmark, be entitled to the cost of their
placement under the NHS free of charge. Examples might include those suffering
from Alzheimers' Disease requiring a high level of nursing care. In addition,
clients with less continuous but more complex needs such as artificial feeding,
tracheotomy care, bladder washouts, oxygen therapy etc. are likely to benefit
from the test established in the judgment.
In fact, all of the above health
services were deemed by North and East Devon Health Authority to be 'general
care' and thus the responsibility of social services, and not the NHS as far as
nursing home placements were concerned. The Court criticised the Governmental
guidance issued in 1995 (NHS Responsibilities for Meeting Continuing Care Needs)
which referred to 'specialist' (as opposed to general) care as being an NHS
responsibility, and took the view that the guidance (while not altering the
obligations of the NHS) had led to a confusion on the part of the Health
Authority as to its responsibilities which, in turn, had led to unlawful
criteria. The Court took the view that definitions of general and specialist
health care based on nursing disciplines, terms of employment of nursing staff,
and tasks undertaken were not helpful.
The evidence before the Court was,
however, that many if not most Health Authorities have developed similar
eligibility criteria to North and East Devon. Indeed, the criteria in South and
West Devon are identical and those of (at least) Gloucestershire and Wiltshire
are broadly similar. The inescapable conclusion must be that most criteria are
unlawful, and urgent action is needed to ensure that new criteria are drafted
which comply with the terms of the judgment.
In the meantime, those who have been
assessed as not meeting their Health Authority's criteria for NHS funded care
(in particular in nursing homes) should be encouraged to seek a reassessment of
their needs against the guidelines in the judgment. Any challenge to a decision
not to fund under the NHS may well also involve a challenge to the criteria
which exist at the time.
For those who have already made substantial payments for their nursing
care, the issue of restitution remains, but care must be taken in ensuring that
the first cases that reach the Courts are sufficiently clear in their
application of the judgment to the facts of the case in order to preserve the
current position.
Given the fact that the judgment still leaves residents, their carers
and the statutory care agencies in some doubt as to where the line must be
drawn, the fact that the Department of Health is considering the issuing of
guidance in the light of the judgment is of little consolation. The Government
is still 'considering' its response to the Royal Commission's Report on Long
Term Care, which has recommended that all personal care, whatever the setting in
which it is provided, should be free of charge. Perhaps it would be better if
instead of issuing press reports of being 'delighted' with a ruling that still
leaves vulnerable people and their carers uncertain as to the future, Mr. Dobson
could listen to the views of his own Commission and implement its
recommendations without delay.
C Nicola
Mackintosh
Partner, Mackintosh Duncan
The author is indebted to Pam Coughlan
for her permission to disclose personal information about her case in the hope
that this will assist others.
