To The Chairman Review Panel For Iris Perkin. Held 10th July 2006.
I would like to make a legal submission to you before you consider my mothers case, but without prejudice to my stated position that only the Court of Appeal can decide if she is liable to refund Croydon Council for her nursing care fees.
It is clear that as a panel you are obliged by law to apply the rulings in the Grogan case and despite the insertions of new paragraphs on pages 11, 12, 15 & 16 to try and make the South West London Strategic Authority Continuing Care policy legally compliant with the judgement in Grogan, these alterations to the 2005 policy still leave the old criteria in place making the criteria even more difficult to understand. The criteria is therefore flawed and it cannot be said from it, what clear test the decision maker is to apply. As Mr Justice Charles said in the Grogan case, “the decision maker is effectively left adrift on a sea of factors without guidance as to the test or tests he should apply”. The recent amendments that have been to the policy being used by the South West London Strategic Health Authority merely leave you as decision-makers more adrift than ever. The major cause for concern in terms of the revised policy can be found on page 17, where despite the changes under the heading of key considerations it is suggested that the very issues of, complexity, unpredictability or intensity, which bear no relation to the Coughlan Judgement, especially to patients (b) Ross Bentley, and (c) ruled to be entitled at law to free care, are still relevant in deciding entitlement to NHS Continuing Care. In fact Lord Justice Charles in ‘Grogan’ struck down criteria based on ‘complexity, unpredictability or intensity ', saying ‘The criteria is fatally flawed”. Indeed the Healthcare Commission in their letter dated 23rd June 2006, suggests that it would be best for the PCT to follow the new Key Principles for Dispute outlined in the draft of the National Framework of NHS Continuing Healthcare and NHS-funded Nursing Care in England, when issuing its final response regarding my mother, even though this is only a consultation document and may equally prove to be contrary to the law as established in Coughlan, and not use the South West London Strategic Health Authority criteria which they have given the PCT twenty working days from the date of their letter, to respond to me regarding the legality of the amended criteria.
The illegality of the assessment that my mother has been subjected to is further underlined in the report compiled by Dr Cooling that you are considering today. The report does not pay close attention to the criteria that needs to be used to assess my mother. His report at point 23 makes a judgement concerning the classification of the level at which my mother’s care needs can be met. However, there is no indication of the test that he has applied to show how he has arrived at this decision and if he is even aware of the decision in the Grogan Court Case or the Department of Health new guidance that was issued on the 3rd March 2006. In fact the head of Willow Lodge EMI Nursing home tells me that Dr Cooling conducted his assessment several weeks ago, so that it was completed before the amended South West London Strategic Health Authority policy was issued, so that there is clear evidence that he was not aware that Coughlan is the overarching test that must be applied. No doubt Dr Cooling applied his own view, based on his expertise and experience of NHS internal policy of these matters without identifying and perhaps without any close consideration of the test, which the guidance issued on the 3rd March states must be applied. As the Grogan decision clearly demonstrated previous NHS policy does not comply with the law as established in Coughlan.
I submit to you that Section 107 of the Grogan judgement requires you to (1) establish the test to be applied, (2) to satisfy yourself that it is lawful under Coughlan and (3) be clear that the establishment of the RNCC scheme in 2001 does not and could not alter the law as established by the Court of Appeal in the Coughlan case.
The Secretary of State’s directive of the 3rd March 2006 requires you to obey these section 107 rulings. I therefore wish to submit that the test that you must apply is to consider the five patients, who led by Pam Coughlan, were ruled to be entitled to free NHS continuing care by the Court of Appeal.
I submit that the medical condition of my mother is, sadly, identical to patients (2) and (3) who were ruled to be entitled at law to NHS continuing care by the Court of Appeal. Lord Woolf in referring to the illegal assessments in Coughlan referred specifically to patient (2) Ross Bentley, as “immobile, unable to communicate and doubly incontinent”. Paragraph 48 of the Coughlan Court of Appeal judgement made it clear that the eligibility criteria cannot place a responsibility on the local authority which goes beyond the terms of section 21 of the National Assistance Act 1948 and the court ruled that any care which is more than ancillary to the accommodation is always beyond the terms of section 21. The question in law therefore, is not a matter of where the NHS decide to draw the line on what it considers to be care that the NHS is responsible for, but is in fact a question of what services can a local authority legally provide. The ruling in Coughlan was that their disabilities were of a scale, which were beyond the scope of local authority services, and that they were therefore entitled to free NHS Continuing Care, as the local authority could only provide care needs ancillary to the accommodation.
For my mother not to be entitled to free NHS Continuing Care it would have to be shown that my mother failed the test established in Coughlan that the provision of nursing services to her was (1) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (2) of a nature which a local authority can be expected to provide. Yet it can be clearly seen from the reports compiled by Dr Cooling and Carol Frankum, which you are considering today, that my mother is sadly in a position, where she is totally dependent on nursing care which Carol Frankum’s report says she requires twenty four-hours a day. An opinion further underlined by the fact that my mother has twice had, “Do Not Resuscitate Forms” signed by NHS medical staff without reference to the next of kin because of their assessment of my mother’s poor medical condition and which the Health Commission have stated in their letter dated 23rd June 2006 will need to be made clear reference to, in the decision that you take today. The context of Lord Woolf’s comment shows that he regarded it as absurd to deny Ross Bentley NHS Continuing Care because in his view she needed services of a wholly different category to that which he said could be legally provided by a local authority. By implication it would be equally absurd to refuse my mother free NHS Continuing Care and to do so would be a breach of the law as established in the Coughlan case. Much as it might like to, the NHS cannot alter the law by introducing internal rules and procedures to deny someone their clearly established legal rights. The law can only be changed by the passing by Parliament of primary legislation and this panel would be acting ultra viries if it did not act in accordance with the law, notwithstanding any directives that it may have been given by the Strategic Health Authority.
If the decision reached by this panel is that my mother is not entitled to free NHS Continuing Care it will have reached a decision that is based on a misinterpretation of the NHS’s statutory responsibilities under the Health Act, relying on criteria which are clearly unlawful for the reasons I have stated and which rely on an approach to the provision of nursing services by a local authority which it does not have the statutory authority to provide.
I therefore submit that my mother Iris Perkin is clearly entitled to free NHS Continuing Care and call on you to act in accordance with the law and confirm that this is indeed the case.
Ian Perkin CPFA FRSA