by Derek J.Cole, M.A. (Law), LL.B. (Cantab). 27th January 2003.
9 Anglesea Terrace, ST LEONARDS ON SEA, TN38 0QS.
The Thames Valley Health Authority (TVHA) 'eligibility criteria', intended to be introduced on 1st February 2003, are catastrophically unlawful and in open defiance of the Court of Appeal. The Court in R (Coughlan) v N & E Devon H.A., July, 1999 has said that ALL those 'whose primary needs are health needs' or with 'disabilities' are under the Health Acts 100% the responsibility of the N.H.S.
The fundamental problem is the ministry circular of 28th June, 2001 HSC 2001/015/LAC (2001) 18 and its reference to its predecessor of 1995. It says.
(c) HSG(95)8 is lawful, although could be clearer.
This is palpably untrue. Lord Woolf referred to the circular as 'defective' and said the denial of free care as a result went 'far beyond' what the Health Acts permitted.
James Goodie Q.C., who was in Court throughout as Counsel for the N & E Devon Health Authority, in an opinion given to various Health and Social Service Departments in Essex in March 2000 says brutally that it was 'unlawful'.
All the subsequent advice given in 2001 HSC 2001/015/LAC (2001) 18 is in consequence unlawful. I find it difficult to believe that those who wrote the circular had actually read 'Coughlan'. If they had, they certainly had not understood it.
The new TVHA 'criteria' are fundamentally flawed, as is HSC 2001/015; LAC (2001) 18 on which it is based, because they are based on the treatment the patient must receive whereas Coughlan is based on the condition of the patient even if no treatment is possible. There is no mention of Miss Coughlan's treatment in the judgment. It is based on her condition, which went 'far beyond' (Lord Woolf's words) what the NHS could lawfully pass on to Social Services.
The TVHA criteria are so monumentally unlawful that I am looking into the possibility that officers who adopt or implement them are personally liable for 'misfeasance in public office'.
5.1.a. The words 'complexity or intensity or unpredictability' are totally unlawful. Coughlan covers all those with 'health needs' or 'disabilities'.
Page 7.. It says - The need for care or supervision from a registered nurse and/or G.P. is not, by itself sufficient reason to receive N.H.S. Continuing Care.' This does, however, provide very strong evidence of Health Needs under Coughlan. (See comment about page eight below).
5.2. Joint Packages.
' .some input from the N.H.S. for their long term care needs. However they may also require input from Social Services'. This is unlawful.
In Coughlan Lord Woolf quoted Dr Morgan Chief Executive of the Health authority , as saying (my underlinings) ,'In my view, it would be very difficult if not impossible to distinguish between the elements of nursing care and what otherwise might be called social care - for example help with eating or washing. The difficulty is particularly acute in the context of work carried out by nursing auxiliaries or other carers under the supervision of qualified nurses. This will generally parallel the equivalent arrangements in NHS hospitals where care is delivered by a range of individuals including nursing auxiliaries and others who are not professional nurses. I therefore seriously doubt whether a coherent and consistent division could be maintained between what is a nursing task and what is a carer's task if it were proposed that there should be a different funding regime for the two types of care." .
Lord Woolf commented
We are not in a position to comment on the correctness of this view of Dr Morgan. However if she is correct, then the position can be remedied by the Health Service taking responsibility for the whole cost.
NOTE. The Health Authority here conceded in Coughlan, and Counsel for the Secretary of State did not contest it, that only things such as 'eating or washing' are Social Care and thus that everything else is Nursing.
Page Eight- registered Nursing Care.
All those within the High and Medium bands have 'health needs' entitling them to 'free care' under the Health Acts as defined by Coughlan.
Arguably, some in the low band have minor nursing needs permitted to be passed to Social Services under Coughlan (and thus to be means tested). If a Registered Nurse is required, the N.H.S. can make a grant of £35. The top two bands are clearly redundant and the 2001 Act providing for Register Nursing care has very little scope to operate.
The Assessment Tool.
This is totally and bizarrely misconceived. The whole approach is wrong (see below)..Also it uses throughout the word 'specialist' which Lord Woolf specifically ruled has no meaning in law or medicine.
We have two decided cases. 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'.
He further commented that to deny somebody like her free care went 'far beyond' what the law permitted. James Goudie Q.C. subsequently commented that she 'was not a marginal case'. Yet under the TVHA scheme she would score something like
Breathing 20%; Mobility 50%, Drugs 40%, Food & Drink 40%, Continence 60%. The TVHA scheme requires 60% in each of five categories. The scheme as applied to Miss Coughlan is totally at variance with the Court's view.
The medical report on Mr Squires Senior said
'He appeared to be more confused and disorientated but there was an improvement in his behavior. He is now much more tolerant of other people, more accepting of personal care so much that the female staff can manage him'
This scores 50% on 'cognitive impairment' and 20-40% on 'behavior' only.
After the intervention of the Ombudsman and careful consideration of Coughlan Dorset and Somerset H.A. conceded that he was entitled at Law to 100% free care. They had already adopted 'criteria', almost identical to the new T.V.H.A. document, based on HSC 2001/015/LAC (2001) 18 and wrote to say they had now 'reviewed' it. As they had accepted responsibility for Mr Squires Senior and confirmed they had taken account of our arguments, this is a euphemism for saying they had clearly 'ditched' HSC 2001/015/LAC (2001) 18.
Everybody who scores 60% in only one category in the T.V.H.A. scheme clearly has 'health needs' under 'Coughlan'. Many who score 40% in any one category have an arguable case.
Mr Justice Hidden ruled that under section 21 of the National Assistance Act, 1948 Social Services could not be responsible for ANY nursing. Dr Morgan (above) for the Health Authority conceded in Court and the Secretary of State did not dispute that only things akin to washing and feeding are 'Social Care'. All else is 'nursing'. In fact, all 'tending the sick'(the dictionary definition) is nursing.
The Court of Appeal decided that Mr Justice Hidden's ruling was too tight and in 'obiter dicta' allowed a very minor change so that Social services could provide Nursing care ancillary to the accommodation. They can do minor tending of the sick. However, the actual judgment in effect makes it clear that virtually every patient transferring from hospital to care home remains 100% the responsibility of the N.H.S
The Community Care (Delayed Discharges Bill) provides for councils to be fined if they fail to handle promptly cases which are defined 'as unlikely to be safe to discharge the patient from hospital unless one or more community care services are made available for him' (Clause 2 (1) (b).
For the first time it provides a dispute settling mechanism between The NHS and councils and prohibits recourse to the Courts except in extremis. This replaces the advice Essex received from James Goudie Q.C. in March 2000 (see above) to seek Mandamus to force the N.H.S. to do its duty.
In view of the large amounts which maybe involved, council-tax payers are entitled to expect Social Services to contest all fines under this procedure, which is governed by Article 6 of the Human Rights Act under the rule in Salesi v Italy.
Social Services can only be made responsible for 'community care services' not required to be provided by the N.H.S. under the Health Acts. The fines can only be applied for a very limited range of cases indeed - the providing of social care, (washing, feeding etc,) as conceded by the NHS & the Secretary of State in Coughlan.
I very much hope that councils have not accepted these unlawful new criteria, as it could impose unlawful fines on them.
THE CONTINUING CARE REVIEW PANEL.
As this cannot review the lawfulness of the 'criteria' (page 25-2) it is useless and complainants should go direct to the complaints procedure and on to the Ombudsman. (Page 28 -8)
THE CORRECT 'CRITERIA'
I suggest something like the following.
'Patients with 'health needs' and '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 to 100% 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 found that a patient in the early stages of Alzheimer's 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 behavior. 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.
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?' END OF PROPOSED CRITERIA.
It is outside the scope of this opinion, but I have been asked by families if the conduct of the Ministry and the N.H.S. should be referred to the Crown Prosecution Service.
The Court of Appeal has ruled that those with 'Health Needs' and 'Disabilities' are 100% the responsibility of the Health Service.
The T.V.H.A.'s Threshold Tool is on Page 13 of their criteria. (Note. It uses throughout the definition 'specialist' which Lord Woolf specifically ruled in terms has no meaning in law or medicine.)
Under it a patient in the following condition would NOT be entitled to free care.
'Is able to breathe only through a tracheotomy that requires frequent attention and suction or has absent gag reflex requiring frequent attention or is able to breathe unaided during the day but needs to go on to a ventilator at night due to sleep apnoea and needs constant supervision
Is unable to consistently communicate basic needs even when prompted, verbally or non-verbally (eg Parkinson's/stroke/dementia). Inability includes mental disorders.
Has a high level of cognitive impairment or mental disorder or fluctuating mental state which places the individual at significant risk of self-neglect or harm or exploitation on a regular basis which requires 24 hour 1-1 specialist nurse/medical management
Has challenging behavior occurring on most days requiring specialist nurse management or requires specialist nurse management most days to reduce episodes of challenging behavior and maintain a manageable level of behavior. Shouting and screaming that presents a management problem.'
The T.V.H.A. are try to say that a patient for whom that is the complete diagnosis does not have 'health needs' or 'disabilities' as ruled by the Court of Appeal. I do not know if this is 'Contempt of Court' (morally it is but technically probably no) or 'Conspiracy to Defraud', but I do know that the maximum penalty for conspiracy is life imprisonment or an unlimited fine.
The full Ombudsman's Dorset Ruling and the Dorset & Somerset letter of decision is on www.NHSCare.info It was scanned free of charge by a member of my family and thus contains odd misprints. If in doubt on any part of the text, please e-mail me on email@example.com