From Derek Cole on 11th December 2002:
The following is a response to one of the 'consultation documents' on free care put out by Area Health Authorities who, after three and a half years, have decided that they should at least pretend to obey the law.
To pursue our campaign in your area, you should search for your city or county's 'Area Health Authority' and the write to the Chief Executive, enclosing what follows below and asking for an assurance that the Coughlan Judgement will be obeyed. You should copy it to your County/City Director of Social Services insisting the Council do not approve any unlawful criteria.
Derek Cole. 10thDec, 2002
Complaint about typical consultation document
Criterion One - Continuing NHS Health Care. (Definitions may vary in other areas)
Of the five definitions listed, only the last (although it was not part of the judgement regarding Ms Coughlan herself) has any lawful validity. The first three unlawfully make the intensity of the treatment the test, whereas in Coughlan the test is the condition of the patient, even if no treatment at all is possible. This view has been up held in the Dorset case.
The fourth definition is too narrow. Anybody terminally ill has clear 'health needs' and is 100% the responsibility of the NHS however long the final period maybe.
The phrase 'incidental or ancillary to the accommodation' was not part of the main Coughlan ruling. It was 'obiter dicta' by which the Court of Appeal modified slightly Mr Justice Hidden's ruling that Social services could provide no nursing at all. As at law, ALL tending the sick (the dictionary definition) is nursing the Court regarded this as slightly too tight. Dr Morgan conceded, and the Secretary of state did not disagree, that only things like washing and feeding are personal care. In cases of difficulty, Lord Woolf said the NHS must pay for everything.
I insist that you delete the unlawful criteria and substitute the Coughlan ruling, that the Health Acts say that everybody with 'Health Needs' and 'Disabilities' is entitled to free care, together with the outcome of the appeal to the Ombudsman in Dorset. You should list Lord Woolf's account of Ms Coughlan's condition together with the comment that refusing her free care would be 'far beyond' what the Health Acts permitted.
You should clarify it by quoting the Dorset patient's condition which, after Appeal to the Ombudsman, entitled him to free care'. 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.