from Robin on 18th February 2006: The following, received by email from Derek Cole, is the text of Derek's address to Southover Church ladies pensioners group last Thursday. It does not include specific advice, such as that elsewhere on NHSCare.info, but I'm sure you will enjoy the content :-)
Exodus 20, 12.
‘Honour your father and your mother that you may live long in the land which the Lord your God is giving you’
This is not a sermon – I leave that sort of thing to my sister – but it seems apt to start with one of the most fundamental texts of all. Indeed in adapting my words to suit a specific gathering, I am only following the example of St Paul who, on finding a temple to an ‘Unknown God’ in Athens took advantage of it to tell the citizens that God was no longer unknown. However, I hope you will treat me more kindly than the Athenians, who responded by encouraging St Paul to move on quickly.
For the first time in my life I have had to deal with politicians and civil servants and now I know why the country is in such a flaming mess’. Those were not my words but said to me by the late Tom Clark, Sports Editor of the Daily Mail, after the daft Moscow Olympic Boycott. But they do very tersely sum up my experiences with NHS and Council Managers over free care for the fathers and mothers, or perhaps the grandfathers and grandmothers, of the present working and tax-paying generation.
In July, 1999 the Court of Appeal in the Coughlan Case ruled that it was unlawful for Social Services to take over responsiblity from the NHS and charge those who need Nursing Homes because they are ill. The NHS had to pay. This court order has been disobeyed by the public administration of this country so that in a vast number of cases, possible as many as half a million, the life savings, property and/or assets of the old, the ill and the infirm have been unlawfully expropriated by the State. Jenny Howard’s Aunt and Uncle were two of the victims.
To quote Lord Woolf’s actual words, the Court ruled that Social Services could only impose charges if the care was ‘incidental to the accommodation’ and that the NHS must pay the bills for those whose ‘needs are primarily health needs’. I am indebted to Pam Coughlan herself, a vociferous and stout hearted campaigner for the rights she established, for details of the five patients led by her who secured the ruling. Two of them were in a coma and totally immobile, not capable of being nursed, but in passing Lord Woolf implies it was absurd in law to refuse one of them, Ross Barnett, free care. Yet to this day the NHS in defiance of the law NEVER pay for such a case.
However, in retaliation, we have organised a group of campaigners who are also flatly refusing to allow their relatives to pay. The first was Matthew Coppard, your former bell-ringer, just as Jenny Howard was one of the first to assert the patient’s right to a refund. The initial major publicity was secured by the report by Paul Burstow M.P ‘Who pays, who cares’ of November 2002. I made contributions to this and gave Anne advance notice of it. She duly put a note in your Parish Magazine. After a meeting at her house, these cases got under way several months before the Ombudsman reported in February 2003.
After the 1992 Election, the Sun ran the headline ‘It was the Sun what done it’. If the Government’s planned new framework belatedly complies with the law, your editor can justly boast ‘It was Southover Parish Magazine what done it’.
When we win, it will be the ordinary citizen’s victory. I find it very odd at the age of 74 that sitting in the corner of my bedroom with a modest computer I seem on the point of proving beyond doubt that a major Government policy is plainly unlawful, but then my legal opinion, like the Attorney General’s, has so far been withheld from the Cabinet. I hope I will still be with you in future years. Mary has long thought I will end in the Tower. She is now convinced it will be the axe.
The Health Select Committee contemptuously spoke of 'Finance Directors taking clinical decisions...... Decisions often driven by budgetary concerns ..... clinical decisions are overturned without explanation. This should not be allowed to continue’. Various firms of solicitors have been paid vast sums of taxpayers money to justify disobeying the law. It has been obvious to our campaign group that these solicitors, all of them major national firms, have been deliberately dishonest. It is the Mein Kampf principle, telling a lie that is so big nobody would believe that it could be a lie.
That indeed was our problem. However we have been dramatically vindicated. Pam’s solicitor, Nicola Mackintosh, the Law Society and the Society of Solicitors for the Elderly all told the Commons Health Committee that everything being done was unlawful and the Committee commented last April, as I reported on Channel 4 news, These are very serious charges which the Government must answer.
In the Grogan case last month, the Court totally justified our view.
Mr Justice Charles described the criteria as 'fatally flawed'.
He also said
'The decision maker is effectively left adrift on a sea of factors without guidance as to the test or tests he should apply'
'the physician has not paid close attention to the criteria.......his letter does not refer to the test he has applied ........an indication he has applied his own view based no doubt on his expertise and experience without identifying and perhaps without any close consideration of the test to be applied'.
This has just happened in Haywards Heath.
The Judge also says
'32. It was accepted that a consequence of the argument of the claimant was that the local authority had been, or may have been, acting unlawfully in accommodating and caring for the claimant and in charging for her accommodation and care. '
101 To my mind it does not matter whether this is clarified as a failure to set proper guidelines, or a failure to apply the correct approach in law, or a failure to give adequate reasons.'
That is, the NHS has got all three things wrong.
My refusniks are now quoting these words to the authorities and Jenny can reasonably say the same.
Mr Justice Charles’s ruling tallies so closely with our views that Mary and I are wondering if he hacked in to my database.
For the current state of play you should watch Panorama in March. They have interviewed and filmed about a dozen of my refusniks. I have about two dozen across the country who, like Matthew Coppard, are saying. ‘It is unlawful to ask the patient to pay and we will not pay’. As Matthew has said on Meridian, we would welcome a chance to defend an action in court, but no authority has yet dared sue any of my refusniks.
I first put a note in the Guillain Barre Magazine, ‘Reaching Out’, in December 1999 for the benefit of Mary’s fellow sufferers and at first I thought that simply a mistake had been made.
However, it soon became apparent that the authorities had no intention of obeying the law, indeed would duck and weave to avoid doing so. Very rapidly, I became drawn into representing a wide variety of cases, mainly thanks to Paul Burstow M.P. He introduced me to Robin Lovelock, who runs our website. Visiting Paul’s staff in the Commons in March 2002 I bumped by accident into John Burnett M.P., and he asked me to assist his constituent, Steve Squires, who later that year won the Dorset Ombudsman’s case. It emerged that the leading NHS solicitors and a Manager had incited two consultants to strike out the words ‘this patient needs intensive nursing day and night’ in their evidence to the Review Panel.
Steve and I had the consultants rebuked by the GMC but the Law Society refused to discuss the advice Solicitors gave to clients. The Manager has been promoted to the Board of his SHA. Steve appeared on BBC breakfast on 20th Feb, 2003, the day the Ombudsman reported
An early success was won for Jean Woolley, who appeared on main ITN news and London tonight that same day. After we applied for Free Care in April, 2001, nothing was heard after an acknowledgement until Richard Ottaway MP wrote to enquire. Croydon Social Services replied that they knew nothing of the cases but as a result their resident solicitor wrote to say the NHS had decided in June and the Council agreed that Jean was not entitled to Free Care. When we replied asking for the minutes of the meeting he replied that he had been mistaken, there had been no meeting because the Family Doctor had rejected her claim in May. That was a lie. When informed of this the Family Doctor made a belligerent phone call to the solicitor saying she had done no such thing.
After further pressure from Richard Ottaway and ourselves, the NHS agreed in April 2002 to pay for her future care. We asked for a refund of previous payments and compensation for the unlawful forced sale of her house. The Primary Care Trust’s solicitor replied suggesting that they pay £10000 plus costs, based on the 50% payment recommended by the Community Care Nurse to the – er - meeting last June. In fact 8 officials considered her case at a meeting we were told did not happen and three weeks before they told Richard Ottaway they knew nothing of the case. We replied pointing out the lies we had been told and saying we would not settle for less than £25000. This they agreed by return of post.
When in October 2002 I raised the Southover cases with the Sussex Downs and the Weald PCT, they were still using the old 1995 criteria ruled unlawful by Coughlan in July 1999. David Armitage, E.Sussex Director of Social Services, had helpfully sent a copy to Paul Burstow. However in November they told Matthew and me that their solicitors had approved new criteria said to be lawful. When they rejected our claims, obviously we asked for the document and Peter and Jenny brought it across to me with the comment ‘It seems to be defective’. Indeed, although the framework was there, the paragraphs listing the detailed rules were blank. The rejections were based on a blank piece of paper.
When Matthew Coppard and I met a Panel in July 2003, the Sussex Downs and the Weald PCT told them that East Sussex Social Services had eventually agreed the criteria in March 2003. That statement was a lie. David Armitage wrote to Norman Baker in August saying they had not yet agreed. Under the FoI Act we now know that no Social Services Department in the two counties has yet even today agreed the Surrey and Sussex SHA criteria.
Peter, Jenny, Matthew and I have met the District Auditor twice, but he has allowed the unagreed criteria to be used on a provisional basis. Under the FoI Act, the Lib-Dems in Hastings have established that East Sussex Social Services have drafted a series of standard letters challenging decisions of the PCTs, but have not yet used any. Mr Justice Charles has now clearly indicated that by law they should do so.
Peter and Jenny obtained the following damning criticism from the Ombudsman of the Surrey and Sussex SHA, '------Several areas of concern .......within the SHA area
------Lack of an Independent appeal stage
------Failure .......to obtain clinical advice .........
------Full contemporaneous evidence.....not always considered
------Poorly explained for decisions to refuse to fund continuing care....
------hundreds of complaints made in recent months.'
Most damning of all, when an undercover BBC 'hospital worker' in Brighton in the Surrey and Sussex SHA area complained of the shocking treatment of the elderly, Matron replied dismissively 'this ward is £100000 overspent'.
Our overwhelming problem is alerting families to their legal rights. Without your parish magazine Jenny and Matthew would have known none of this. A fellow pupil of mine recovered £130000 from the NHS only because he read my note in the Old Oundelian.
It was therefore good news when Lord Hunt, then Health Minister, promised Parliament that all patients and their families would be told their rights. It was bad news that the Government broke this promise. I protested to my M.P., Michael Foster. It was good news when on 27th Feb 2004 I received his reply saying a Directive would be issued. It was issued that day. It was bad news when enquiries across the country showed that in many areas the Directive was being ignored. In Brighton in December 2004 the failure was so blatant in an Alzheimers case that I complained to Earl Howe, who termed it ‘a flagrant breach of promises made at the Dispatch box’ and to Lord Hunt, who wrote to the Secretary of State.
The good news was that in February the Surrey and Sussex Health Authority then issued a leaflet complying with the Directive. The bad news is that it concluded with the words “ The eligibility criteria for Surrey and Sussex have been agreed .............as “ Coughlan compliant” by the solicitors who were involved with Miss Coughlan
In fact Nicola Mackintosh, Pam Coughlan's solicitor, gave evidence to the Health Select Committee, who say Mackintosh Duncan ......told us that of the many sets of eligibility criteria they have seen which are currently being used 'none of these criteria were in accordance with the Coughlan Judgement'.
The SHA have since told me that they meant their own Solicitors, Bevan Ashford. They were the LOSING Solicitors in the case. Pam Coughlan has never been ‘involved’ with them in any way and fully agrees with her Solicitor, Nicola Mackintosh, although she is apt to be more blunt and forthright. This was in fact another lie.
Panorama will cover the extent of the chicanery and duplicity of the authorities in many cases. There is a relentless determination to avoid their legal obligations to the elderly. I am reminded of the two school teachers, husband and wife, taking refuge from the rain in a country church while out on a ramble. They stood studying the ten commandments inscribed on the wall and then one said to the other – ‘this should be like an exam paper, only four of these to be attempted’. The sixth clearly would not be attempted by the authorities today. If we fall ill, our generation is to be abandoned.
Mary, Anne and I, like many of you, lived through the war. Many of those I represent actually fought in the war. I have been struggling to secure proper provision for the families of a Prisoner of the Japanese, the Driver of a Sherman Tank at El Alamein, 2 veterans of the Battle of the Atlantic, a member of Fleet Air Arm, a survivor of the N.African landings, a soldier from 14th Army in Burma (the Forgotten Army), a Grenadier Guard, 2 veterans of the bitter post-war anti-terrorist campaigns in Malaya and Palestine, two civilians bombed out in the Blitz and above all a Dunkirk veteran who then served in 8th Army before landing on Juno Beach at 7.30 am.
All of them came home to pay, out of real earnings a mere fraction of today's, income tax at 50% basic 97.5% top rate with Purchase Tax (now VAT) averaging 50%. This they paid to establish the very Health Service which has now abandoned them.
Indeed, I used to say to my father, who had been responsible for 20% of wartime Radar production, that the 97.5% tax rate was necessary to pay for the new NHS. This he received with a noted lack of enthusiasm, but I feel he would be incensed that these war veterans were now being denied the support he thought he was paying for.
I am dismayed by the decline in standards in British public life in our lifetime. In the Reith Lecture of 1950 Lord Radcliffe, who drew the frontier line between India and Pakistan, commented that the British were unduly modest about one of their biggest contributions to the world, an able Civil Service of great integrity. Indeed, in Rangoon in 1957 a Burmese Civil servant said to me proudly that he had been one of the ‘Elect of God’, the Civil Service of British India.
In Britain in the days of our youth we all had confidence in that integrity. Today, ‘Oh, how are the mighty fallen’. (2 Samuel 1.19). Even the head of the Civil service cheerfully admitted to an Australian Court that they could be ‘economical with the actualite’. Our campaign public spokesman, Ian Perkin, now Treasurer of the Sussex Police Authority and a leading refusnik, has shocking experience of this. As the Whistle-Blower at St George’s Tooting, he was unfairly dismissed after he forced the resignation of the Chairman and Chief Executive of the Hospital Trust for falsifying the target figures. The Court of Appeal clearly rejected as falsified the evidence given by the two of them and by the Senior Civil Servant responsible. When Ian asked if prosecutions for perjury would follow, his QC replied ‘30 years ago –Yes – but today it happens so often that judges just assume that they may not be told the truth by public servants’. This is widespread. Reports on the enquiry into the Shipman affair highlighted the comment by Dame Butler- Schloss ‘Doctors serve their own interests, not the patient’s’. To rub it in, of the perjurers the Chairman has become Chairman of Age Concern and the Senior Civil Servant received the CBE in the New Year Honours.
What we are faced with, and I urge you to watch Panorama, is ‘Spiritual wickedness in high places among the authorities and potentates of this dark world. (Ephesians 6.12). As a Cambridge Law Graduate, a Public School man, a Freeman of the City of London, a past Chairman of the Chamber of Commerce and a former Independent School Headmaster, if not quite agreeing with Dr Pangloss in Voltaire’s Candide ‘that all is for the best in the best of all possible worlds, at least I thought when I retired that we had a decent well-run body politic. All that belief has now totally disintegrated as a result of my experiences working for our most vulnerable citizens - the age group who sustained the nation through the war and the hard and difficult peace which followed. The sad things is that the many decent managers, doctors, social workers and others working at grass roots have been badly betrayed at the top.
But our generation knows how to stand its ground. Mrs Philo, a refusnik who appeared with me on Channel 4 news in April, was bombed out in the blitz. Having seen off Hermann Goering, no 21st Century bumblecrat is going to trample her down.
My advice to you and your friends is this. If any question of paying for your own or your friends’ and families’ healthcare arises say ‘No’. Ignore what officials tell you. You cannot believe a word they say. For instance, they never tell you that you cannot be required to sell your home in your own lifetime. If in doubt, ask Anne to put you in touch with me. Above all, never sign anything.
We started with Moses receiving the 10 Commandments. I will end by quoting his Song to the whole assembly of Israel in a similar time of decadence. He could certainly make a point. I address to the Trusts, Councils, Ministries and Assemblies which control the NHS today the words of Deuteronomy 32 (5)
‘Perverse and crooked generation whose faults have proved you no children of his, is this how you repay the Lord, ………….. Remember the days of old, think of the generations long ago, ask your father to recount it and your elders to tell you the tale.
Consider the distress of families facing the impending death of a loved one and at the same time being bullied and defrauded by agents of the state. This happened to a Conservative Councillor in Essex – and Panorama have filmed the funeral.