From Derek J.Cole. M.A. (Law), LL.B. (Cantab),
9 Anglesea Terrace, St Leonards on Sea, TN38 0QS
To XXXXXXX- by e-mail
Thank you for consulting me concerning your father. The Solicitors for the Surrey and Sussex Strategic Health Authority, Messrs Capsticks, describe me as 'a local crusading citizen,Derek Cole, a retired gentleman with two law degrees who has clearly built up a flourishing pro bono practice in this field.' I negotiated the successful claim of Jean Woolley (ITN 20th Feb) with them and am happy to accept that description. 'Pro bono' means free of charge.
You have an arguable case that he is 100% the financial responsibility of the NHS under the 'Coughlan case'.
As a consequence, I do not see that Social Services have any role to play - he is the responsibility of the NHS. The Audit Commission have now intervened on this point and are going to each SHA area in turn to investigate to ensure that cases are not being passed to Social Services unlawfully. Their first investigation, in Thames Valley, has led to a spectacular increase in the number of 'free care' cases paid for by the NHS. Buckinghamshire Social Services have retained the services of James Goudie Q.C. (who was in court throughout Coughlan) to enforce the law.
The Audit Commission have now moved on to Gloucester and Avon and will no doubt eventually reach Birmingham.
In Kent, the Ombudsman has intervened to challenge the 'criteria' and they seem likely to move from area to area as well.
More importantly, Dr Bob Spink M.P. told the House of Commons the outcome of a Review Panel in Chelmsford (at which I appeared) considering the current Criteria was 'perverse and wrong' (Hansard, 7th Jan, 6.33 p.m.), Ms Rosie Winterton, Minister of State, promised to investigate and obviously this puts all cases such as your father's in suspense anyway. This case has been fully covered in the Daily Mail money section.
Dr Spink is being urged to ask Ms Rosie Winterton to investigate the implications of the Cambridgeshire decision for the Chelmsford Case as well. The ombudsman said that there the 'criteria' were unlawfully applied.
Also Dr Ladyman (Health Minister) has confirmed to my M.P., Michael Foster, PPS to the Attorney General, that the assurances given to Andrew Mackay M.P. in May confirming the pledges given in Parliament by Lord Hunt, Health Minister, in March are being put in to effect.
He gave Parliament the following promises to 'issue directions to the NHS specifying that an assessment for continuing care is to be carried out, that a record is made of the assessment, and that the patient was informed of the right to ask for that decision to be reviewed and the outcome of the review'. (as confirmed by letter to Andrew Mackay M.P. from the then Health Miniser, Jacqui Smith,). My underlining.
You are entitled to a copy of the 'criteria', which they must send you.
Lord Hunt also said 'the patient will remain in hospital until the dispute about eligibility for continuing NHS care has been resolved'. (House of Lords, 17th March, 2003)
In my other cases, this is being interpreted as involving a move to an NHS Intermediate care or step-down facility where his recovery can be better provided for than in a hospital ward. This seems to be true in your father's case, but does not alter his right to free care while you are in dispute
Your father CANNOT be asked to pay until the matter is finally resolved. This could be by the Ombudsman, in Court or through the eventual investigation by the Audit Commission into the area of your SHA..
Any attempt by the NHS to make his pay at this stage might involve Ministers in a breach of Parliamentary privilege in view of the undertaking given last March. The Opposition Parties might argue that the passage of the Delayed Discharges Act was secured by deception.
If necessary, you should leave any meeting rather than discuss who should pay. Obviously, you pay nothing.
You should point out that a Clause 2, Section 5, notice to move a patient cannot (under Ministry orders) be issued to Social Services while the family are in dispute over the situation.
Derek J. Cole.