Derek J.Cole, M.A. (Law), LL.B. (Cantab)
9 Anglesea Terrace, ST LEONARDS ON SEA. N38 0QS
www.NHScare.info
Derekjjcole@stlenoo.freeserve.co.uk
The Chief Executive,
East Sussex County Council,
. Pelham House, St Andrews Lane
Lewes, East Sussex, BN7 1UN
Dear Sir,
16th Dec, 2002
There is a flagrant and disgraceful defiance of the Court of Appeal in the draft Surrey and Sussex 'eligibility criteria' which your council may be unlawfully asked to accept. The Court has said that those 'whose primary needs are health needs' are under the Health Acts 100% the responsibility of he N.H.S.
In violation of this page 4 of the (incomplete) Draft 3 from Surrey & Sussex says.
'There is an important distinction between people who require continuing NHS care (100% NHS funded package of care) and others with continuing health needs…..'
There is no such distinction in Lord Woolf's judgement. Both categories are entitled to free care and the whole document is catastrophically unlawful.
This letter is to require and request you to withhold any agreement by the County Council to the draft 'eligibility criteria' being circulated by the Surrey and Sussex H.A. on the grounds that they are fatally flawed and totally unlawful under Coughlan
I represent various Council Tax payers of East Sussex in dispute with the Surrey and Sussex Health Authority over the provision of Free Continuing Care as required by the Coughlan Case. Cases concerning three patients are going before the Complaints Convenor for the South Downs and Weald PCT, two other cases are being put on hold pending a decision in those cases and one lady has died.
The PCTs are basing their refusal of free continuing care on the basis of this draft document (Draft 3) not yet in force and which is producing decisions which do not comply with the law under Coughlan. Although as far as my self-funders are concerned, the document has no legal significance (being merely part of the internal decision making process), it is intended to become an agreement with the various Social Services Departments in the area and would commit those Councils to unlawful expenditure, as outlined by James Goudie Q.C. in his 'opinion' to you of March, 2000. On my joint application with Mr Squires, winner of the Dorset Ombudsman's case (and who I advise) the Audit Commission is already looking into this.
This is made much more critical by the Community Care (Delayed Discharges) Bill which provides for your council to be fined if you fail to handle promptly cases which are defined 'as unlikely to be safe to discharge the patient from hospital unless one or more community care services are made available for him' (Clause 2 (1) (b).' The wording clearly means that you cannot take be asked responsibility for 'health needs' and 'disability cases' under Coughlan. It is therefore imperative that you do not sign away your rights.
The Surrey and Sussex draft 'criteria' are fundamentally flawed, as is HSC 2001/015; LAC (2001) 18 on which it is based, because it is based on the treatment the patient must receive whereas Coughlan is based on the condition of the patient even if no treatment is possible. There is no mention of Miss Coughlan's treatment in the judgement. It is based on her condition, which went 'far beyond' (Lord Woolf's words) what the NHS could lawfully pass on to Social Services.
In a report to Paul Burstow M.P. on 1st Aug, 2001,I described the above circular as 'Misleading, unlawful and calculated to deceive'.
I attach a more detailed 'opinion' on the 'Criteria' and a commentary on the new Act. . I am hoping to put a copy of the Ombudsman's Dorset decision, which confirms my opinion, on the website www.nhscare.info and send you a copy.
The draft criteria are so monumentally unlawful that I am looking into the possibility that officers who adopt or implement them are personally liable for 'misfeasance in public office'. I hope to receive your assurance that your Council will not agree the new criteria.
Derek J.Cole, M.A. (Law), LL.B. (Cantab)
9 Anglesea Terrace, ST LEONARDS ON SEA. N38 0QS
www.NHScare.info
Derekjjcole@stlenoo.freeserve.co.uk
Report on Draft 3 of Surrey & Sussex Primary Care Trust
NHS Responsibility of Continuing Care - eligibility Criteria.
Page One
22.2.a. The words 'complexity or intensity or unpredictability' are totally unlawful. Coughlan covers all those with 'health needs' or 'disabilities'.
c. Mr Justice Hidden ruled that under section 21 Social Services could not be responsible for ANY nursing. ALL 'tending the sick'(the dictionary definition) is nursing. Dr Morgan for the Health Authority conceded in Court and the Secretary of State did not dispute that only things akin to washing and feeding are 'Social Care'. All else is 'nursing'.
The Court of Appeal decided that this ruling was too tight and in 'obiter dicta' allowed a very minor change so that Social services could provide Nursing care ancillary to the accommodation. They can do minor tending of the sick. However, the actual judgement makes it clear that virtually every patient transferring from hospital to care home remains 100% the responsibility of the N.H.S
Page two.
3.1.2 This is a flagrant and disgraceful defiance of the Court of Appeal. Although the Court has said that those 'whose primary needs are health needs' are under the Health Acts 100% the responsibility of he N.H.S., this clause says 'There is an important distinction between people who require continuing NHS care (100% NHS funded package of care) and others with continuing health needs…..'
There is no such distinction in Lord Woolf's judgement. Both categories are entitled to free care and the whole document is catastrophically unlawful.
Pages 6 & 7.
3.3.7 &3.3.8. All those within the High and Medium bands have 'health needs' entitling them to 'free care' under the Health Acts as defined by Coughlan.
3.3.9. Arguably, some of these have minor nursing needs permitted to be passed to Social Services under Coughlan (and thus to be means tested). If a Registered Nurse is required, the N.H.S. can make a grant.
3.3.10. All he conditions described qualify as 'Health needs' under Coughlan. E.g. It is irrelevant of the patient is 'stable' or 'unstable'.
Page 8. 4.1. Category 2. the list 'physiotherapy …….. stoma care' all indicate 'health needs' and 'disabilities' as described in 'Coughlan'
Page 9.
4.2.3. 1. & 2. The restrictive words (see above) go 'far beyond', in Lord Woolf's words, what the Health Acts permit. It is unlawful to rely on the treatment required. It is the patient's condition which is the test.
4.2.6. The rule in Coughlan is 'Health needs', not 'Health Care needs'. This goes to the root of the whole problem. It is the condition of the patient, not the care which can or (unhappily) in some cases cannot be provided which is the basis of Coughlan.
Page 10.
4.2.10. Blank. My cases in Lewes, Haywards Heath, and St Leonards and Hastings are being considered on a mythical system!
4.2.x. This makes a bow at Coughlan. It should say not 'overall scale' but 'primary need is health needs' and 'disabilities'. If it did it would make the first 9 pages waste paper.
4.3. The number actually falling into this category must be minute, as most are entitled to free care under Coughlan.
PAGE 12.
6. The Community Care (Delayed Discharges Bill) provides for councils to be fined if they fail to handle promptly cases which are defined 'as unlikely to be safe to discharge the patient from hospital unless one or more community care services are made available for him' (Clause 2 (1) (b).
For the first time it provides a dispute settling mechanism between The NHS and councils and prohibits recourse to the Courts except in extremis. This replaces the advice East Sussex received from James Goudie Q.C. in March 2000 to seek Mandamus to force he N.H.S. to do its duty.
In view of the large amounts which maybe involved, council-tax payers are entitled to expect Social services to contest all fines under this procedure, which is governed by Article 6 of the Human Rights Act under the rule in Salesi v Italy.
Social Services can only be made responsible for 'community care services' not required to be provided by the N.H.S. under the Health Acts. The fines can only be applied for a very limited range of cases indeed - the providing of social care, (washing, feeding etc,) as conceded by the NHS & the Secretary of State in Coughlan.
It is of the utmost importance that councils do not accept this unlawful document, as it could impose unlawful fines on them.
THE CONTINUING CARE REVIEW PANEL.
As this cannot review the lawfulness of the 'criteria' it is useless and complainants should go direct to the complaints procedure and on to the Ombudsman.
Appendices
ASSESSMENT OF CARE NEED FOR CONTINUING CARE PLACEMENT.
+ the word 'Care' shows the wrong approach is used - see above.
+ The Borderline Column. All show 'health needs' and 'disabilities' entitled to free care under 'Coughlan'
+ The social Column. Almost all the 'care' described in this column is 'nursing' not 'social care' (see 'Coughlan' above) . Some may and some may not fall within the 'nursing incidental to he accommodation' in Coughlan. Only an independent Tribunal can decide.
DRAFT
The correct criteria.
Agreed draft join instructions to N.H.S. and Council staff.
'Patients with 'health needs' and 'disabilities' are under the Health Acts 100% the responsibilityof the N.H.S. Only patients with minor nursing needs ancillary to the accommodation can be passed to the council for 'means testing' to become self-funders or as customers of Social Services.
In the Court of Appeal, Lord Woolf said 'Coughlan was grievously injured in a road traffic accident in 1971. She is tetraplegic; doubly incontinent, requiring regular catheterisation; partially paralysed in the respiratory tract, with consequent difficulty in breathing; and subject not only to the attendant problems of immobility but to recurrent headaches caused by an associated neurological condition'.
Anybody as disabled as she was is entitled to100% free care by the NHS.
Lord Woolf also said that refusing her free care would go 'far beyond' what the Health Acts permitted and restricted those who could be passed to Social Services.
In E.308/99-00 4th Nov, 2002 the ombudsman found that a patient in the early stages of Alzheimers with no specific nursing needs was covered and the Somerset & Dorset H.A. has agreed to a refund from early 1998 to March 2000, when the patient moved to Devon, where a decision is due shortly. The Consultant's report of 12th February 1998 stated 'He appeared to be more confused and disorientated but there was an improvement in his behaviour. He is now much more tolerant of other people, more accepting of personal care so much that the female staff can manage him'. That is to say, he was a typical early stage Alzheimer patient needing personal care from female staff, not nurses. None the less, he was in a Nursing Home because of his Health needs and under the Court of Appeal ruling the N.H.S. was legally obliged to pay all his Nursing Home fees.
Officers of the N.H.S. and the Council should consider the above decisions carefully, study the detailed medical reports and then put to themselves the question required by the Common Law. 'On reading the decisions and the medical reports, would a reasonable person, the passenger on the Clapham omnibus, regard the patient as entitled to 100% free care or not?'
END OF DRAFT