Memorandum by Mackintosh Duncan Solicitors
We are a firm of solicitors specialising in
the fields of health care, community care, incapacity and mental
health law. We represent service users and their carers in enabling
them to access the services to which they are entitled and require
by virtue of illness, disability or any other reason.
We were the instructing solicitors in the case
of R v North and East Devon Health Authority, which
resulted in the Court of Appeal judgment in July 1999. Since that
time we have advised on numerous cases concerning NHS continuing
We have seen and contributed to the submission
from The Law Society and endorse the points made in that submission.
It is our view that the recent announcement
of Stephen Ladyman of a national framework for NHS funded continuing
care will not resolve the current crisis. Any framework which
is open to interpretation and based upon the Department's current
understanding of its legal responsibilities will lead to more
confusion and injustice. Another framework will do nothing to
address the core problems if its content is incorrect and
misleading. If the Registered Nurse Care Contribution is retained,
a national framework will do nothing to correct the perception
that has been created that only those people whose needs exceed
the high band are eligible for continuing NHS health care.
The current position has been caused by the
refusal of the Government to accept and implement the judgment
of the Court of Appeal in the Coughlan case. Mr Ladyman's
announcement was accompanied by a comment that previous eligibility
criteria applied by health authorities had been lawful. As confirmed
by the study into criteria in 1999 undertaken by the Royal College
of Nursing, when 90% of criteria analysed were said to be outwith
the Coughlan judgment. It is our experience that criteria
applied now (with the implementation of the RNCC toolsee
below) are more draconian than prior to the judgment of the Court
of Appeal and shift purchasing responsibilities unlawfully onto
The judgment of the Court of Appeal in the Coughlan
case clearly establishes that where a person's primary need is
for health care, and that is why they are placed in nursing home
accommodation, the NHS is responsible for the full cost of the
package. Contrary to the picture painted by the Government, social
services authorities may only purchase nursing services in strictly
limited situations, in accordance with the judgment. Whilst much
of the debatehas concentrated on nursing home placements, it must
also be remembered that eligibility for NHS funded care is not
relevant to the location in which that care is provided. Those
people cared for in their own homes whose primary need is for
health care may well be eligible for NHS funded care.
The boundary between health and social care
is a matter of law and not a policy issue. Until and unless Parliament
provides otherwise, health services must be provided free at the
point of delivery. However, the current system works to achieve
the oppositecharging those who are most ill for the provision
of services for which they have already paid.
The introduction of the system of "free
nursing" under the RNCC tool (which defines nursing care
as being the exclusive remit of registered nurses) has been the
most significant step taken by the Department in avoiding its
legal responsibility for the provision of NHS funded continuing
care. Practitioners and statutory bodies have accepted the RNCC
tool as replacing continuing care, with only those whose needs
are above the highest band of RNCC qualifying for NHS funded continuing
The Department of Health has failed to take
a lead in assisting health authorities, NHS Trusts and PCTs as
to the correct legal approach they should take with regard to
continuing care, despite being urged to do so by the Health Service
Commissioner. The outcome has been confusion on the part of the
statutory authorities, unnecessary expense in undertaking reviews
of eligibility, and distressing/unsatisfactory outcomes for patients
and their relatives.
We have seen many sets of eligibility criteria
currently being operated. In our view, none of those criteria
are in accordance with the Coughlan judgment. In many cases,
people would be eligible only if they were near death. and seen
by our members are not in accordance with the Coughlan
judgment. There continues to be a mistaken belief that chronic
health care for patients in a stable condition is no longer the
responsibility of the NHS. This was the very error which led to
the Coughlan case being brought.
We have severe concerns as to whether the
proposed framework will do anything to remedy the existing problems
in view of the history and the unwillingness of the Government
to grapple with the problem and accept responsibility for past
We endorse the approach taken by the Law
Society and consider that a national framework will only be of
assistance if the following conditions are met:
(a) the RNCC system is abolished;
(b) the framework is one set of national
eligibility criterion with a standard assessment method to be
applied by all Strategic Health Authorities, PCTs and NHS Trusts
in conjunction with local authority social services departments
so that individuals whose primary need is a health need will receive
fully funded care no matter where or in what setting they live;
(c) the framework/criteria do not make any
distinction between general or specialist nursing care, as both
are nursing care arising from healthcare (as opposed to social
(d) the framework/criteria emphasise that
funding decisions should not be determined by the predictability
of a condition, the qualification of the professional undertaking
the care or the nursing discipline concernedthe crux is
the health of the patient and whether these are the primary need,
as well as the "ancillary/incidental test" set out by
the Court of Appeal;
(e) the framework/criteria properly address
the health needs of people with mental health conditions, including
dementia and learning disabilities; and
(f) that the Government takes proactive steps
to ensure compliance.
FOR NHS FUNDED
One of the most important consequences of the
Coughlan judgment was the quashing of the eligibility criteria
for health services applied in North and East Devon (South and
West Devon also had similar criteria). However few details were
given by the Court in the judgment of the criticisms of the actual
criteria under scrutiny in the case.
(a) differentiated between general nursing
and specialist nursing carewhich was found to be "elusive",
and "unhelpful" by the Court;
(b) distinguished between nursing disciplines
for the purposes of deeming eligibilityeg Stoma care or
tissue viability nurses were deemed to be "specialist"
(ie NHS funded) and district nurses, community psychiatric nurses
were deemed to be "general" (ie social services funded).
This was rejected by the Court of Appeal; and
(c) distinguished between "specialist"
and "general" nursing on the basis of a list of taskscatheter
care, wound care, bladder washouts, artificial feeding etc were
said to be "general" nursing care and therefore social
services' funding responsibility within a nursing home.
The underlying difference between "general"
nursing and "specialist" nursing as a mechanism for
determining funding responsibilities still remains, despite the
criticisms of the Court of Appeal. This is a real barrier to understanding
the correct legal responsibilities for the purchase of long term
Our experience of reviewing eligibility criteria
currently being applied is that the criteria have become more
sophisticated and complex, with care domains and scoring systems.
They mask the actual consequence of their application, which is
that the same incorrect assumptions about general and specialist
care remain. In particular, the following factors are invariably
quoted as being relevant (list not exhaustive):
(a) predictability of care (the assumption
is that predictable care is not usually health care);
(b) regularity of need for nursing care (this
is usually access to a "registered" nurse, and if only
infrequently over a 24 hour period then the assumption is that
the care tends towards social services' purchasing responsibilities);
(c) equating expectation of registration
standards of a nursing home with purchasing responsibilities (eg
where the criteria state that a "normal" nursing home
will have certain standards of staffing and equipment, then this
is usually deemed to be the social services norm for purchasing,
with any additional staffing being the responsibility of the NHS);
(d) regularity of review by a consultant
(the assumption is that infrequent review cases will be a social
Ms Coughlan's condition and needs were said
by the Court of Appeal to fall wholly within the funding responsibilities
of the NHS. However, her particular needs are considerably less
than the majority of residents in nursing homes. Therefore, applying
the RNCC tool, Ms Coughlan would not meet the medium or high band
of RNCC, let alone the (higher) threshold of fully funded NHS
care. Given the comments of the Court of Appeal regarding her
individual needs, we consider that this has been overlooked by
health authorities in developing their criteria.
Any national framework/criteria must operate
so that if Ms Coughlan were to present herself in any area of
the country, she would be eligible for fully funded NHS continuing
The obligation of the Secretary of State is
to provide a National Health Service under the NHS Act 1977 (as
consolidated). Whilst this is a target duty, qualified by a range
of factors, it should not allow for variations in the right of
access to health services. Needs can be met in different ways
across the country, but this does not permit a different right
of access to health services.
The Court of Appeal's judgment in Coughlan
confirmed that the boundary between health care under the NHS
Act (the "Health Act") and social care under the National
Assistance Act 1948 (the "Social Act") was a matter
of law and legal definition. It decided that the Health Authority
in the case had unlawfully transferred responsibility for health
care services to local authority social services departments.
The Health Authority had crossed the line.
The consequence of this part of the judgment
is that it is not a matter of agreement between a health authority
and a local authority where the boundary between health and social
care should lie. This is in fact a legal question, and social
services are not permitted in law to purchase/provide health care
services beyond the very limited circumstances set out in the
judgment. Nevertheless, we know from local authorities that they
have felt under great pressure from their health partners to agree
to criteria which plainly involve the purchase by social services
of high level health care services.
The failure of the Department of Health to issue
national criteria had led to 28 Strategic Health Authorities developing
widely different criteria dependent on geographical location and
also the approach taken by different local authorities. This is
truly a "prescribing by post code" situation, but in
relation not only to medication, but some of the most crucial
of health services, namely those required by the chronically ill
and vulnerable. True it is to say that 28 different SHAs are better
than the 100 previous Health Authorities, but this does not correct
Moreover, different NHS Trusts and PCTs have
developed assessment tools for the application of the criteria.
This has further complicated the situation as although superficially
Health Authorities are applying the same criteria throughout all
PCTs in their area, in practice different assessment tools are
being used which result in different outcomes.
In summary, therefore, the criteria assessment
system is extremely complex, and not understood by practitioners,
service users and carers alike. It is arbitrary, dependent on
location, and a whole range of factors which are not aligned to
the Coughlan test for continuing care.
We are of the view that a national set of criteria
is the only way in which the existing complexity and unnecessary
suffering and cost can be avoided in future.
We support the comments made by The Law Society
regarding the detrimental effect of the introduction of the RNCC
The RNCC system created a further complex layer
of administrative difficulties and misled the public and providers
of services into assuming that it replaces the Coughlan
judgment regarding NHS funded continuing care. The RNCC is the
creation of the Department of Health, not Parliament and the three
bands are arbitrary to the extent that the Department of Health
had an almost entirely free hand in determining the eligibility
criteria for each band of support.
We support the view that those persons falling
within the medium and high bands of the RNCC tool are properly
the legal responsibility of the NHS, as opposed to social services.
On any sensible analysis, the thresholds for the medium and high
bands exceed the "ancillary and incidental" test set
out by the Court of Appeal.
In our view, the creation and development of
the RNCC tool has proved to be the most significant reason why
health bodies have failed to properly appreciate their full NHS
continuing care responsibilities. It has replaced consideration
of whether a person's primary need is for health care with an
assumption that the only nursing for which a person cannot
be forced to pay (ie registered nursing) is health care. In our
view this has distorted the true legal responsibilities of the
NHS as provided by the Court of Appeal and led to widespread inequalities
We have been assisting many people with mental
health difficulties and/or learning disabilities in relation to
continuing care issues. Our experience is that it is most difficult,
if not impossible, to obtain fully funded NHS care for a person
with mental health difficulties or learning disabilities unless
they have the most extreme challenging behaviour, or their mental
disabilities are accompanied by physical health needs.
There seems to be an assumption that mental
health nursing or learning disabilities nursing is "non medical"
due to the fact that it involves high levels of supervision, as
opposed to physical invasive treatments.
We are particularly concerned at the impact
that the failures to fund continuing care has had upon local authorities'
social services departments' abilities to continue to fund community
care services. Obviously, if excessive (and unlawful) expenditure
is taking place by social services in respect of health services,
it means that it is more difficult for them to fund basic community
care services. This has a knock on effect upon the most vulnerable
sections of society, and means that certain client groups (eg
older people) will be less supported in the community. Thus a
Catch 22 situation is created which works against rehabilitation
and support of people in the community.