From: 'The Guardian' Tuesday May 13, 2003
In 1999 I represented Pamela Coughlan, a severely disabled woman in her 50s, in a legal challenge against North and East Devon health authority, which had told her that she would have to leave the hospital it had promised would be her "home for life".
The health authority (HA) argued that the law on the provision of continuing care had changed in 1996, when eligibility criteria for accessing health services were devised. It argued that the responsibility for long-term healthcare had been transferred from the NHS to social services, which charged people for these services.
The court of appeal decided that there had been no legal change in 1996, or since then, and that the NHS was still responsible for long-term nursing. However, the court held that in certain limited situations services provided in nursing homes could be classed as social care - and charged for. It is this exception to the general rule that continues to be misunderstood, misinterpreted, and in many cases, used by HAs across the country as an excuse for unlawfully charging older people.
The 1999 appeal court judgment is complex. But, in summary, if a person's need is primarily for healthcare the NHS must pay the full cost of the placement - including personal care, such as bathing, feeding and dressing, as well as accommodation costs.
Only if the person's needs are "merely ancillary or incidental to the provision of the accommodation" may the care be considered to be outside the remit of the NHS, and then only if it is of a nature which one would expect a social services agency to provide.
The boundary between health and social care is a matter of law. Whether someone falls on the health or social care side of the fence depends on the quantity and quality of nursing care required, based on the facts of the individual case.
It is unhelpful to draw a distinction between "general" and "specialist" healthcare to restrict eligibility for free continuing care because the boundary between the two is elusive and unclear.
For example, in the Coughlan case, North and East Devon HA said that "artificial feeding, continuous oxygen therapy, wound care, pain control, administration of medication, catheter care, bladder wash-outs, tracheostomy (artificial opening in the front of the windpipe through the skin of the neck) and tissue viability" were general care. It also said that practice nursing, district nursing, health visiting, community psychiatric nursing and community learning disability nursing were "general care services".
As the health service ombudsman ruled in February, the Department of Health told HAs to make sure that their criteria complied with the appeal court judgment. But ministers took no action to enforce this. Little, if anything, changed.
The government fudged the issue by introducing the concept of "free nursing care for all" from October 2001. It was a clever ruse to avoid paying for nursing home placements, but instead to make a limited contribution to some of the nursing costs.
The policy was based on a limited definition of nursing, which excluded most of the extensive nursing tasks being carried out for people on a daily basis in homes up and down the country. However, it did not change health authorities' legal responsibilities.
The saga of continuing healthcare has been characterised by political red herrings and posturing, whilst the underlying legal problem remains. Not so long ago, the people who are now in nursing homes would have been in hospital beds paid for by the NHS. Now, those people are still receiving healthcare, but as HAs continue to act unlawfully, they are not receiving the justice they deserve.
Nicola Mackintosh is a partner in Mackintosh Duncan
solicitors, south London. She is an expert in community care,
mental health and health law, and is legal aid lawyer of the year
2003 (civil and social welfare law)