Derek J. Cole, (M.A. ) LL.B. (Cantab). 9 Anglesea Terrace, St Leonards on SeaTN39 0QS

I hope the briefing below about the authorities will help your M.P. or anybody who may advise you.

If the patient is not yet in a Nursing home, the ministry circular of 11th Aug, 1999 requires the Health trust to pay until the legal point is settled. Say the Court of Appeal has ruled you don't have to pay.

Who has power of attorney/? They must release medical documents to the Patient or the PoA. If they have obtained a signature from an elderly ill or infirm patient, that is void and highly unlawful. Repudiate it. Check the Hospital Trust and local Primary Care Trust on the web and write to the Chief Executive demanding the medical records, copy to your M.P. (Enclose this document as well if you like)

R (Coughlan)- v - N & E DEVON HA July, 1999 ruled that, under the Health Acts, the N.H.S. must pay 100% for those who have 'health needs' or 'disabilities'. The Ministry confirmed this with their new circular of 25th Sept. 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" .

New case. In E.308/99-00 4th Nov, 2002 the ombudsman found that a patient in the early stages of alzheimers with no specific nursing needs was covered and the Somerset & Dorset H.A. has agreed to a refund from early 1998 to March 2000, when the patient moved to Devon,where a decision is due shortly. 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 Nursing Home because of his Health needs and under the Court of Appeal ruling the N.H.S. was legally obliged to pay all his Nursing Home fees.

If you have 'Health Needs' or 'Disabilities' you are 100% the financial responsibility of the Health Service even if no treatment at all is possible (see above). However, Nursing at law is the dictionary definition, 'treating the sick'. Only help with housework, shopping, cooking and similar tasks can lawfully be described as 'social care', as admitted by the H.A. in court in 'Coughlan'.

The Ombudsman (see above) has ordered refunds.- '..... the new Authority should ....... review the eligibility criteria for funding continuing care that have been in operation since April, 1996 to ensure that they were (and are) in line with the Coughlan judgment and other relevant guidance............the new Authority should then determine whether there were any patients ..... who were wrongly refused funding for continuing care and make the necessary arrangements for reimbursing the costs they incurred unnecessarily.'

There are strict rules over what happens before a patient is asked to become a 'self-funder'. The Ombudsman says I would really have expected to see a record of a more detailed assessment ..... I recommend that in future assessments of eligibility should including why the patient is considered to meet, or not to meet, all the criteria'. . This supplements and is extra to the requirement for a 'written care plan' laid down by DoH booklet 25253. The criteria in 'Coughlan' are, of course, 'Health Needs' and 'Disabilties'.

The Court of Appeal has said, and the protocol of the Administrative Court confirms, that all disputes must be settled if at all possible by a local tribunal to avoid coming to Court except as a very last resort. R(Cowl) v Plymouth City, 14/12/2001 [2001] EWCA Civ 1935 As most cases involve sums in excess of £100000 and could exceed £250000. every finding that a patient should become a self-funder is a major quasi-judicial decision under Article 6 of the Human Rights Act as defined in Salesi v. Italy (1993) 26 EHRR 187. Every decision requires due process of law with a genuinely independent Tribunal if required. Derek J. Cole.