Select Committee on Health Minutes of Evidence


Memorandum by Mackintosh Duncan Solicitors (CC 32)

  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 care issues.


  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 tool—see below) are more draconian than prior to the judgment of the Court of Appeal and shift purchasing responsibilities unlawfully onto social services.

  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 opposite—charging 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 care.

  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 mistakes.

    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 care) needs;

    (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 concerned—the 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.


  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.

  The criteria:

    (a)  differentiated between general nursing and specialist nursing care—which was found to be "elusive", and "unhelpful" by the Court;

    (b)  distinguished between nursing disciplines for the purposes of deeming eligibility—eg 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 tasks—catheter 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 health care.

  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); and

    (d)  regularity of review by a consultant (the assumption is that infrequent review cases will be a social services responsibility).


  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 care.


  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 the problem.

  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 tool.

  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 and injustice.


  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.

February 2005

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