From Derek J. Cole M.A. (Law), LL.B. (Jesus College, Cambridge) 1st Aug, 2001

Nursing Home fees: Report on Ministry circular HSC 2001/015:LAC(2001)18

(www.doh. gov.uk/i ointunit/ccc.htm)

The minister's circular of 28th June 2001 is unlawful, misleading and likely to deprive patients with "Health Needs" of their right to free care.

Quotations from the circular are in plain bold print. My comments are in Italics.

Detailed comment.

Summary.

'The purpose of the guidance is to ensure the N.H.S. and local councils agree together'

As the transfer of a patient out of "Continuing N.H S. Care" will involve Council Tax Payers, either individually or through Social services, paying very large bills, it is the legal duty of Councils to resist all such transfers as far as they reasonably can. They are by law required to disagree. Too easy acceptance of responsibility may attract the attention of the District Auditor. Social Services also have a "duty of care" to defend the interests of those of their often very vulnerable clients who may be required to pay for themselves.

Action.

'Health authorities ... are asked to ensure that continuing NHS care policies. . . comply with this guidance'

This is attempting to impose the Minister s view in possible defiance of the Law. The court of

appeal has treated previous circulars as "unlawful" (see the opinion of James Goudie QC's opinion to Essex CC. Feb 2000). This should have been qualjfied by the words "providing that the Court of Appeal's ruling in "Coughlan" is consulted and complied with at all times

'agree joint continuing health and social care eligibility criteria with local councils' This is an unlawful attempt to draw a precise legal line contrary to the ruling of the Court of Appeal, which says "there can be no precise legal line drawn ". "The distinction between those services which can and cannot be provided (as part of a social services care package) is one of degree which in a borderline case will depend on a careful appraisal of the facts of the individual case paras 30 (d) & (e) ".

Decisions in borderline cases are a matter of law, not medicine.

'ensure that review and complaints procedure are in line with this guidance... ' The procedure in this circular is unlawful.

Terms used and scope of this guidance.

5 "Continuing care" (or long term care) . . . . to address both physical and mental health needs. It may require services from the NHS and/or Social care" This is unlawful: The Court of appeal categorically stated "If the primary need is a health need, then the responsibility is that of the NHS.". NHS care should "identify at least two categories of persons who, although receiving care while in a nursing home, are still entitled to receive the care at the expense of the NHS. First, there are those who, because of the scale of their health needs, should be regarded as wholly the responsibility of the health authority. Secondly, there are those whose nursing services in general can be regarded as being the responsibility of the local authority, but whose requirements are the responsibility of the NHS". Mr James Goudie QC, sums up "if a care package includes nursing tasks which the NHS is required to provide and carer's tasks which could be described as nursing tasks or carer's tasks and no division of charges between the two sets is possible, the Health service has to take the full resnonsibilit~ ". (My underlining).

"Intermediate Care . . . normally up to six weeks" This has no statutory authority. Any implication that free care normally ends after six weeks is unlawful.

7 "Continuing health and Social care". See above paragraph.

Local Policies for continuing Care.

12 prior agreement of joint eligibility criteria See above.

14 only one set of criteria should be produced for each health authority area . . . . The law is the law and the citizen s entitlement to free NHS care for Health needs is overseen by the courts and is equally valid throughout the country.

15 See earlier comment.

22 A need for care from a registered nurse alone is not sufficient reason for receiving continuing NHS health care . . . If a patient has 'Health needs', the Court of Appeal ruled that the patient is 100% the financial responsibility of the NHS. if the nursing needs are "de minimis", this statement is true, but the need for any 'nursing' is strong 'prima facie' evidence for the patient that it is 'a borderline case' will depend on a careful appraisal of the facts of the individual case' in the words of the Court of Appeal .

Social services are under a duty of care to assist such a patient in appealing any adverse decision..

REVIEW PANELS.

'An adverse decision can impose huge financial burdens on the patient including a charge on the family home leading to its eventual sale'. In a dispute I eventually won for a Guillain-Barre sufferer in Essex, the

patient was charged over £30,000 in less than three years. These vast liabilities can only be imposed by an "Independent Tribunal" under article VI of the Human rights Act This whole section is unlawful under that Act.

35) The panel's key task is to assess whether the health authority's eligibility criteria have been correctly applied... . That statement is unlawful: The key task is to decide if the Law laid down by the Court of Appeal has been correctly applied.

36) The panel's role is advisory and it does not have legal status.... That statement is unlawful.

Annex C / see previous comments.

Annex D - The Coughlan judgement

a) The NHS does not have sole responsibility for all nursing care .etc etc See earlier comment The circular makes no direct quotes from the Court of Appeal to support this "guidance ".

b) Miss Coughlan needed services of a wholly different category That sentence is uninformative and calculated to deceive. The circular should here give the salient points of the Judgement, which form the only lawful "eligibility criteria", with a reference to the full judgement on its web-site for decision makers to refer to. Bizarrely. the DoH web site states that the Judgement is not available on the internet

c) It would be a breach of Article 8 of the European convention of Human Rights... . The Court of Appeal has ruled that the Convention, now the Act, does apply to these matters.

Annex E. Review and complaints procedures.

Purpose and Scope.

1) health authority's eligibility criteria... . Unlawful (see earlier). Substitute Court of Appeal judgement

2) The review procedure does not apply etc etc Unlawful under article VI

7) The Health authority does have the right to decide in any individual case not to convene a panel Unlawful under Article VI

Establishment of review panels.

9) .... containing representative of the health authority and one of the PCTs Unlawful under article VI

'representative .... of the local council'. Unlawful under Article VI if it refers to a Council responsible for Social Services.

10) The chair should be selected by the Health Authority Unlawful under Article VI

11) Selection of the right person as Chair As the decision is a matter of Law, it would seem desirable that the Chair was a lawyer.

14) . . .request an interview with the health authority officer Under Article VI, this cannot be used to prevent patients calling any witnesses they wish.

15) The panel must retain patient confidentiality at all times Agreed but Article VI requires that the decision and the reasons must be given in public. Presumable a 'Mrs X' procedure should be followed and, by law, it should be unlawful to identfy the patient

19) The role of the panel is advisory. Unlawful under Article VI