Derek J.Cole, M.A. (Law), LL.B. (Cantab)
9 Anglesea Terrace, ST LEONARDS ON SEA, TN38 0QS.
23rd March 2003
The. 'eligibility criteria' recently introduced everywhere are catastrophically unlawful and in open defiance of the Court of Appeal. The Court has said that ALL those 'whose primary needs are health needs' or with 'disabilities' are under the Health Acts 100% the responsibility of he N.H.S.
The fundamental problem is the ministry circular of 28th June, 2001 HSC 2001/015/LAC (2001) 18 and its reference to its predecessor of 1995. It says.
(c) HSG(95)8 is lawful, although could be clearer.
This is palpably untrue. HSC 2001/015 was clearly issued by the Secretary of State in the knowledge that it is untrue with the deliberate intention of defrauding the elderly, the ill and the disabled of almost all their assets. Lord Woolf referred to the circular HSG(95)8 as 'flawed' and said the denial of free care as a result went 'far beyond' what the Health Acts permitted.
James Goodie Q.C. who was in Court throughout as Counsel for the N & E Devon Health Authority, in an opinion given to various Health and Social Service Departments in Essex in March 2000 says brutally that it was 'unlawful'.
All the subsequent advice given in 2001 HSC 2001/015/LAC (2001) 18 is in consequence unlawful. I find it difficult to believe that those who wrote the circular had actually read 'Coughlan'. If they had, they certainly had not understood it. If they understood it, they fraudulently misrepresented it.
The new.'criteria' everywhere are fundamentally flawed, as is HSC 2001/015; LAC (2001) 18 on which it is based, because they are 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.
The T.V.H.A. 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'.
NOTE. The Health Authority conceded in Coughlan, and Counsel for the Secretary of State did not contest it, that only things such as 'eating or washing' are Social Care and that everything else is Nursing.
Registered Nursing Care.
All those within the High and Medium bands have 'health needs' entitling them to 'free care' under the Health Acts as defined by Coughlan.
Arguably, some in the low band 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 of £35. The top two bands are clearly redundant and the 2001 Act providing for Register Nursing care has very little scope to operate.
Everywhere the approach to assessment is totally and bizarrely misconceived. The whole approach is wrong (see below)..Also it uses throughout the definition 'specialist' which Lord Woolf specifically ruled in terms has no meaning in law or medicine.
We have two decided cases. 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'.
He further commented that to deny somebody like her free care went 'far beyond' what the law permitted. James Goudie Q.C. subsequently commented that she 'was not a marginal case'.
The medical report on Mr Squires Senior said
'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'
. After the intervention of the Ombudsman and careful consideration of Coughlan Dorset and Somerset H.A. conceded that he was entitled at Law to 100% free care. They had already adopted 'criteria', almost identical to the new T.V.H.A. document, based on HSC 2001/015/LAC (2001) 18 and wrote to say they had now 'reviewed' it. As they had accepted responsibility for Mr Squires Senior and confirmed they had taken account of our arguments, this is a euphemism for saying they had clearly 'ditched' HSC 2001/015/LAC (2001) 18.
Mr Justice Hidden ruled that under section 21 of the National assistance Act, 1948 Social Services could not be responsible for ANY nursing. Dr Morgan (above) 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'. In fact, all 'tending the sick'(the dictionary definition) is nursing.
The Court of Appeal decided that Mr Justice Hidden's 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 in effect makes it clear that virtually every patient transferring from hospital to care home remains 100% the responsibility of the N.H.S
I very much hope that councils have not accepted this unlawful document, as it could impose unlawful fines on them under new legislation.
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 or now directon t the Ombudsman.
THE CORRECT 'CRITERIA'
I suggest something like the following.
'Patients with 'health needs' and 'disabilities' are under the Health Acts 100% the responsibility of 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?'
It is outside the scope of this opinion, but one of my complainants has discussed the Secretary of State's conduct with the Fraud Squad at Scotland Yard..
Both verbally and otherwise we have met the claim that Bevan Ashford are so experienced in the law that the new 'criteria' must be right. Officers have quoted Hampshire H.A. as say that Bevan Ashford won the case! Actually, they lost it comprehensively. It looks as though they have been hired by the N.H.S. to carry out the Secretary of State's policy not to obey the Court of appeal.
In the study of logic, argument 'from authority' is a recognized fallacy and is seen as an indication of a weak position. As Bevan ashford have been set up as an Aunt Sally, it seems discourteous not to knok them down
From Derek J.Cole M.A. (Law), LL.B. (Cantab),
9 Anglesea Terrace, St Leonards on Sea, TN38 0QS.
11th March 2003
Thames Valley Health Authority, in their catastrophically unlawful response 03/15 to the Ombudsman's Berkshire report, says 'The process and its associated material have been subject to review by Bevan Ashfords, who are leading lawyers in this field.'
In the study of logic, argument 'from authority' is a recognized fallacy and is seen as an indication of a weak position. In this case, it is pathetically easy destroy that authority.
Referring to the N & E Devon H.A. (advised by Bevan Ashford) Lord Woolf in 'Coughlan' quoted with approval Mr Justice Hidden's view
'as the judge points out, at one time the Health Authority was totally confused as to what the proper division of responsibility between the Health Authority and the local authorities was. Dr Gillian Morgan, the Chief Executive of the Health Authority, in her first affidavit accepts that this was the position. In paragraph 39 of her first affidavit she apologises for the confusion which she and other officers of the authority were under and appear to have caused by their statements. This could be the result of the shortcomings of the circulars.'
Bevan Ashford lost a wide variety of points in 'Coughlan'.
In Dorset, the Ombudsman adopted Mr Squires arguments and rejected those of Bevan Ashford. The Chief Executive, Sir Ian Carruthers, then wrote
'You will be interested to know that the policy and eligibility criteria were amended in December 2001 and have been extensively reviewed in the light of the report of the Health service Ombudsman and the comments which you have made in your correspondence.' E.G. Bevan Ashford had been ditched in favour of Mr Squires' opinion. The engineer knew the law better than the lawyer!
In Devon, Mr Squires is still awaiting action on his complaint on the handling there of his case under Bevan Ashford's advice, but two consultants have already been rebuked by the G.M.C. for falsifying the evidence which Bevan Ashford presented.
In her general report, the Ombudsman quotes at length from NHS solicitors advice in various areas, much of it from Bevan Ashford, and then comments
21. However, in a number of the complaints I have seen, any review of the criteria following the judgment seems to have been very limited, and criteria remained unchanged even when it is very hard to see that they were in line with the judgment.
AND Authorities were left to take their own legal advice about their obligations to provide continuing NHS health care in the light of the Coughlan judgment. I have seen some of the advice provided, which was, perhaps inevitably, quite defensive in nature.
The Ombudsman shows a distinct lack of enthusiasm for Solicitors' advice!
'Leading lawyers', maybe; but leading where?