From Derek J.Cole M.A. (Law), LL.B. (Cantab), 9 Anglesea Terrace, St Leonards on Seam TN38 0QS
To NHS Managers and Social workers concerned with Free Care.
The Conduct, Assessment and Investigation Unit of the Law Society have agreed to study my complaint that Bevan Brittan (formerly Bevan Ashford) are writing unlawful criteria
I am strongly supported by the Minister's response to Parliament in reply to evidence collected by the Select Committee that the standard Tests in various criteria (see below) are unlawful. his clearly indicates errors of Law by Bevan Ashford, errors which cannot have been honestly made. Patricia Hewitt does not dispute the evidence of illegality given to the Select Committee.
The common Test 'complex, require intensive professional support or are unpredictable in nature' is patently unlawful. Of the Tests applied in various areas, the words 'complex/complexity', 'intensity', 'unpredictable/unpredictability', 'instability/unstable' do not appear anywhere in the judgement. 'Intense' occurs once so that Lord Woolf could REJECT it as a test. Patricia Hewitt does not deny this and destroys the various SHA's position. Her response in Parliament on 21st July 2005 to the above Select Committee accepts our view and repudiates the 'criteria'. She fails to dispute the unlawfulness of the criteria. She admonishes SHAs to obey the law. She says.
The Secretary of State has always believed, and continues to believe, that those whose primary need is a health need should be the responsibility of the NHS, and has reminded the NHS that continuing care criteria, or the way in which they are applied, ought not to place inappropriate responsibilities on local councils.
This directly contradicts and thus cancels the 'guidance' of 28th June, 2001 only to pay for the 'unstable' and 'unpredictable'. The key point of the Select Committee's comment was that Pam's condition was stable and predictable so that the guidance (and criteria following from it) saying that only the unstable and unpredictable will be paid for MUST be unlawful. This is confirmed by the DoH Press Release of 21st July 2005 explaining the Response. It confirms that the NHS must pay for 'stable conditions'.
Pam Coughlan says she has been told that SHAs are being given revised 'Guidance' to confirm this.
SHAs frequenly say something like 'require regular and frequent health treatment by a qualified health professional over the rolling 24 hour period. That is NOT the Law. It was ruled in passing that Pam Coughlan, who is on the margin between Middle and Bottom Rate RNCC, could if necessary receive her Free Care in a Residential Home! The term 'Registered Nurse/Nursing' does not occur anywhere in the judgement. Patricia Hewitt agrees. Her 'Response' says - People should not be denied fully funded continuing care at home because the people providing the care are not registered nurses; it is the nature of the care which is crucial. Decisions on full funding should not be based on definitions of nursing.
As Patricia Hewitt says, the ruling refers to 'health need.'. The criteria written by Bevan Ashford defy this.