News from Derek Cole

updated 1500 Monday 14th July 2003

Here are some of the items that have appeared in the "Latest news from Derek" section:

14th July 2003: One bully-boy tactic is to threaten to move patients to another home if families assert the right to 'free continuing care' under Coughlan. Mark Oley of Unison, who with David Atkins runs the RAGE campaign against Home Closure, asks everybody to ask their M.P. to sign the Early Day Motion Below.

Claimants will know that the proposer, Paul Burstow, has led the 'Coughlan' fight. My daughter worked until recently for the Seconder, Tom Brake, and and Mary & I vigorously helped his reelection campaign. However, M.P.s. of all parties are likely to be willing to follow the lead given.

RAGE reports that after a group were moved from a home in St Helens four died in six weeks. The local MP will surely back resistance to any threatened move.


Motion below.

EDM 1565
That this House regrets the tragic death of 102 year old Winifred Humphrey 16 days after eviction from her care home; notes that currently elderly people in care homes have less rights in law than private or council tenants and no security of tenure; is concerned that Winifred Humphrey's death is one of many deaths caused by the trauma of forced eviction from a care home; notes that inadequate fee levels and commercial pressures are forcing care home providers out of business putting people's lives at risk; and calls on the Government to strengthen the protection given to frail elderly people facing evictions from care homes to ensure they enjoy continuity of care and have sufficient time in which to select alternative accommodation.

14th July 2003: In Coughlan the Court of Appeal said - 'the fact that a patient is being treated in one setting rather than another will not affect their health care needs.' The refusal to consider those in residential homes is thus, very specifically, unlawful. I am writing to the Ombudsman. The regulation requiring a continuing care review panel is Annex E (pages 16, 17 & 18) of the Health Service Circular / Local Authority Circular HSC 2001/015: LAC (2001)18. They try and fob you off with this and say it is the only appeal. It only interprets the criteria. It cannot consider the Coughlan ruling. It can be ignored by the PCT. However, if refused, you are fully entitled to use the complaints procedure - stage one protest letter to the complaints officer; stage two Independent review under a Lay Chair, under the following regulation. HSC/LAC Annex F (pages 19 & 20) The Court of Appeal in R (Cowl) v Plymouth City Council, 14th Dec, 2001 requires both sides to use this complaints procedure before going to Court.

31 March 2003: This may be a breakthrough: in North East the Independent Lay Chair in the 'Independent Review' has directed the PCT to look again. Further the complaints officer has said on the phone. 'We know we have got it wrong. The trouble is that with all the claims being made we are bankrupt'. This is the first response we have from a Lay Chair and does stress the need to insist on an 'Independent Review' under stage two of the complaints procedure. Do NOT ever accept a 'Review Panel' within the criteria as they only interpret the (unlawful) criteria. They do not obey the law. The ombudsman has not been involved as yet in this case.
Derek Cole.

15 Mar: letter to Nick Relph of TVSHA, see "... we shall sue members of your board personally ...

27 Jan: "The Thames Valley Health Authority (TVHA) 'eligibility criteria', intended to be introduced on 1st February 2003, are catastrophically unlawful and in open defiance of the Court of Appeal." and... "The TVHA 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'".
For details of Derek's report, see TVHA Criteria "Catastrophically Unlawful"

27 Jan: Another decision from the Ombudsman on a claim for a severely disabled patient in Gloucestershire is imminent. We have been promised full details for the website by the family.

22 Jan: updated Ombudsman ruling for Dorset, including statement by Jacqui Smith, the Health Minister.
The Ombudsman has recommended that the Health Authority should review the case of a patient in the early stages of alzheimers and all other self-funders back to 1996.

Latest score 22nd Jan, 2003. Favourable findings by Ombudsman.
+ Dorset, S.Cambridgeshire, Berkshire, Wigan and one other.
Derek Cole's cases
+ Wins . Essex, Scarborough, Croydon, one anon.
+ Hospital Trust backed off - Hemel Hempstead, Harlow, Hastings .
+ Outside Review Stage reached. Lewes (3), Liverpool, Havering.
+ Complaint procedure begun. Reading, Worthing, Hastings, N.Yorks, one anon.
+ M.S.P. pursuing complaint to Scottish Executive for claimant who has since died - Glasgow.
+ Complaint under consideration - Aberdeen.'

Other action.
+ Audit Commission (jurisdiction local Government). Investigating complaint from Steve Squires that Social Services have been making unlawful expenditure for patients who are under 'Coughlan' the sole responsibility of the N.H.S.
+ The National Audit office (jurisdiction central Government)(a)has asked the Audit Commission to keep it informed and (b) is to be formally asked by Paul Burstow M.P. to investigate the implications of the Ombudsman's findings.
+ We are preparing material for members of the House of Lords to use in debate on the Comminity care (Delayed Discharges) Bill.

19 Jan: The two cases featured in the S.Telegraph money section today as having won free care home provision after it was unlawfully refused them are both cases I have been running in 'Reaching Out', magazine of the Guillain Barre Group. Jean Woolley's case was all mine, but Steve Squires launched his Ombudsman's appeal himself before his M.P., John Burnett, introduced us. Both of them are giving massive support in other cases.

A patient referred to me by Paul Burstow M.P. has AT ONCE been granted free care AT HOME after presenting my statement of the legal Authorities to the Health Trust.

Sunday 12th Jan: 'Ombudsman secures third win. Malcolm Pointon, an Alzheimer's patient in Cambridgeshire, is expected to have his care home fees paid for him by the N.H.S. after the Alzheimers Society called in the Ombudsman. Medical reports show that needs needs no NHS Nursing, but because of his 'Health Needs' and 'Disabilities' he is none the less entitled to free care. The Ombudsman is known to have made two further rulings expected to have the same outcome, but details are not yet available.'

Saturday 11th Jan: Derek's draft 'eligibility criteria' for the Strategic Health Authorities.

Saturday 28th Dec: In my Devon and Dorset case concerning an ordinary Altzheimners' patient, the N.H.S. as a whole has accepted liability and Somerset & Devon H.A. will refund all amounts paid by themselves and other H.A.s, notably Devon, plus costs. A cheque is already in train for the Nursing Home to pay the fees still owing.

Also: "Whoever drafted the letters for the Ministers should be sacked"

Newsletter on 10th Dec 2002:

I have just received the amended 'eligibility criteria' for Sw Peninsula HA and have seen the Somerset & Dorset criteria.

They are both based on the circular of 28th June, 2001 (HSC 2001/015: LAC(2001) 18, which as I pointed out to Paul Burstow on 1s Aug, 2001, is as unlawful as its predecessor. I have no doubt the new East Sussex criteria are the same.

The circular makes the fundamental error of basing its approach on the treatment the patient receives, whereas the Couighlan ruling is based on the patient's condition, even if no treatment is possible.

My view was upheld by the Ombudsman in Dorset.

In any case, this circular was effectively negatived by the new circular of 25th Sept 2001. HSC 2001/17 : LAC (2001)26, (page 31 under 'Relationship with Continuing Care')., which says "Nothing in this guidance changes the duties of HA's to arrange and fully fund services for people whose primary needs are for healthcare rather than for accommodation and personal care" the circular continues "Where an individual's primary need is health care then the whole package of care must be paid for by the NHS" .

However, the 'criteria' are merely part of their internal decision making process and have no significance in law.

Robin Lovelock is putting newsletters on a new website to be announced shortly.

Derek Cole.