Derek J.Cole. M.A. (Law), LL.B. (Cantab) -10th Jan, 2003

The 'eligibility criteria' being adopted by various strategic Health Authorities based on the Ministry Circular of 28th June are plainly unlawful - one could even say absurdly unlawful - because they refer to the intensity of the treatment the patient requires wheras the Coughlan case is based on the condition of the patient, even if no treatment is possible. There is no mention of the treatment of Miss Coughlan in the judgment.

I recommend something akin to the draft below.

Agreed draft join instructions to N.H.S. and Council staff.

'Patients whose 'primary needs are health needs' and/or with 'disabilities' are under the Health Acts 100% the responsibility of the N.H.S. Only patients with minor nursing needs ancillary to the accommodation can be passed to the council for 'means testing' to become self-funders or as customers of Social Services.

In the Court of Appeal, Lord Woolf said 'Coughlan was grievously injured in a road traffic accident in 1971. She is tetraplegic; doubly incontinent, requiring regular catheterisation; partially paralysed in the respiratory tract, with consequent difficulty in breathing; and subject not only to the attendant problems of immobility but to recurrent headaches caused by an associated neurological condition'.

Anybody as disabled as she was is entitled to100% free care by the NHS.

Lord Woolf also said that refusing her free care would go 'far beyond' what the Health Acts permitted and restricted those who could be passed to Social Services.

In E.308/99-00 4th Nov, 2002 the ombudsman recommended that the claim to free care of a patient in the early stages of Alzheimers with no specific nursing needs should be reconsidered. The Somerset & Dorset H.A. has agreed to a refund on behalf of the N.H.S and is making refunds to the executor for the N.H.S. in Hampshire, Southampton and for the S.W.Peninsula H.A. as well.

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 Care Home because of his Health needs and under the Court of Appeal ruling the N.H.S. was legally obliged to pay all his fees.

Officers of the N.H.S. and the Council should consider the above decisions carefully, study the detailed medical reports and then put to themselves the question required by the Common Law. 'On reading the decisions and the medical reports, would a reasonable person, the passenger on the Clapham omnibus, regard the patient as entitled to 100% free care or not?'