Transcript of an interview with Nicola Mackintosh, Pamela Coughlan's lawyer

[fr0d0]

I only have time at the moment to deal with the point about when and how challenge the legal decision.

I believe that your opportunity... to challenge any decision not to grant your mother CHC before the courts arises once the last "local remedy" has been exhausted, but within a pretty strict time limit. In Wales, AIUI, this would be the Independent Review Panel. This would be done by way of judicial review (and would allow you, subject to any legal advice you may seek or receive) to advance any relevant argument(s) about the lawfulness or otherwise of any part of the process, including any guidance relied on. Judicial review is normally by application to the High Court. It isn't to be undertaken lightly, and if you are contemplating this step I'd strongly urge you to seek specialist legal advice. Be aware that you may not be able to do seek judicial review, but that is a matter on which you need professional advice.

whatever the LA does wouldn't give rise to a challenge of the legality or otherwise of the NHS' decision over CHC.

W

Thank you once again Wirralson. I have requested legal advice from a specialist already and am waiting to hear back on that. Currently the authority is waiting to act once the NHS manages to shake me off. I understand the disconnect between the LA and the NHS.

The NHS have stated that the IRP wouldn't be relevant if I'm challenging the legality of the framework.

the next step is the Ombudsman. And it states clearly on the ombudsman's website that the service specifically cannot deal with legal challenges.

I'm interested in what you think might be a successful route of appeal using the process. It is clear that the DST recommendation is not Coughlan Compliant. Could I use that to challenge the decision? Surely if like you and they say, if there's a disparity they need to address that. I could also dig into the detail and pull up some obscure reasoning that demonstrates the disparity, as others seem to have done here.

Kind regards

 

[Wirralson]

Thank you once again Wirralson. I have requested legal advice from a specialist already and am waiting to hear back on that. Currently the authority is waiting to act once the NHS manages to shake me off. I understand the disconnect between the LA and the NHS.

The NHS have stated that the IRP wouldn't be relevant if I'm challenging the legality of the framework.

the next step is the Ombudsman. And it states clearly on the ombudsman's website that the service specifically cannot deal with legal challenges.

I'm interested in what you think might be a successful route of appeal using the process. It is clear that the DST recommendation is not Coughlan Compliant. Could I use that to challenge the decision? Surely if like you and they say, if there's a disparity they need to address that. I could also dig into the detail and pull up some obscure reasoning that demonstrates the disparity, as others seem to have done here.

Kind regards

fr0d0,

At last we are reaching a (possibly uneasy) mutual understanding. One of the reasons the process of researching the issue is taking so long is that, like you, I have other things going on. I must stress my motive in posting is (a) to minimise the risk of others being unintentionally misled and (b) to provide helpful pointers (not detailed advice - that would not be appropriate or possible) along the lines you ask in the post above.

I would disagree to an extent with the statement that the NHS is making about the IRP, but please be guided by your specialist legal advice on this and not me or anyone else on here. The IRP is relevant to the extent that in challenging the decision, it represents the last "local remedy" - after that you've nowhere else to go within the process. But it is less relevant in that any challenge would be unlikely to be affected by any decision it might reach (although if you win at IRP, you might find it hard to mount a challenge to the framework.)

The Public Services Ombudsman for Wales (PSOW - which we discussed a few months ago online) can deal with a wide range of issues about the decision and maladministration, but not, as you say, anything which would risk usurping the functions of the courts. You will certainly have seen this, but in case others have not here is the relevant link:

https://www.ombudsman-wales.org.uk/...ic_body_-_E__Acting_Omb_amends_Jan_2014_.ashx

Others may wish to note in particular the following extract reflected in your post above:

You should also be aware that we cannot look into your
complaint if you have a legal right of appeal or the right to take
the matter to court, unless there are particular circumstances
that make it unreasonable for you to do so.

• Is the matter one that the law allows the Ombudsman
to look at?
For example:
> you may disagree with a decision of a public body but, if
the body had a right to make the decision and arrived at it
properly, then we cannot look into your complaint​

​

My reading of this is the same as I think yours is: you could ask them to look at aspects of the handling of case, but not the legality of the framework. From what you say, your local Health Board seems to have more or less complied with the procedures as it sees them, so the PSOW may not be a route that is useful to you.

One problem with challenging the legality of the framework is timing when you do it: too soon, you may run foul of the local remedies rule - too late and you may miss the deadline. You do have to have locus standi - a legal situation that gives you a position which entitles you to bring a challenge. This requires a knowledge of your and your mother's circumstances it would not be proper to share either in open forum or in PM, and also a detailed level of current professional knowledge - so it's back to your solicitor, I'm afraid, on that one. But like the old saying in comedy, timing is key to success. On the whole, I'd argue it's never too early to prepare, which allows the challenge to proceed whenever it is desirable from your and your advisers' perspective. One key point to remember is that the remedies in judicial review are actually quite limited: even if the High Court declares anything unlawful, that may not be as much help to you and others as you think.

I'll look at DST issues as best I can in the time I have available. Enjoy the b/h if you can.

W

 

[fr0d0]

The guidance from the Welsh Ombudsman is clearer than you state.

From the Welsh Ombudsman Continuing Care.pdf

"The Ombudsman cannot : ... say whether the particular eligibility criteria used by the LHB is unlawful (that is for the courts to decide)."

Pretty toothless

If I was to be successful at the IRP then I wouldn't need the appeal.

The thing is this whole shameful mess needs exposing in court. The government and NHS shouldn't be allowed to get away with this. Your extreme cautiousness is tantamount to condoning something unjust.

I don't need expensive legal advice to understand the Coughlan test. It's that clear, and was designed well to remove any doubt. That's our starting point. Let's be clear here... legal advice is necessary to unravel the web of deceit created by the CHC framework guidance. That barrier makes pursuing justice beyond the reach of ordinary people, and as such is deplorable.

 

[Wirralson]

The guidance from the Welsh Ombudsman is clearer than you state.

From the Welsh Ombudsman Continuing Care.pdf

"The Ombudsman cannot : ... say whether the particular eligibility criteria used by the LHB is unlawful (that is for the courts to decide)."

Pretty toothless

If I was to be successful at the IRP then I wouldn't need the appeal.

The thing is this whole shameful mess needs exposing in court. The government and NHS shouldn't be allowed to get away with this. Your extreme cautiousness is tantamount to condoning something unjust.

I don't need expensive legal advice to understand the Coughlan test. It's that clear, and was designed well to remove any doubt. That's our starting point. Let's be clear here... legal advice is necessary to unravel the web of deceit created by the CHC framework guidance. That barrier makes pursuing justice beyond the reach of ordinary people, and as such is deplorable.

fr0d0


The Ombudsman is not a Court. Ruling on matters of administrative law is a matter for the Courts. That was made clear in 1967 when the original proposals were made and is also true in its country of origin (Sweden) where the title can be translated as plenipotentiary or commissioner. They can investigate, but not rule on legal matters, and rightly so. The Courts have a monopoly power of legal coercion (the ability to enforce judgments) in this country.

My cautiousness is because I have been working in and around administrative law for 30+ years and I have seen plenty of people with your approach come unstuck in pretty serious ways. It is neither condoning nor condemning anything. And whether or not the present CHC guidance is viewed by you unjust, the power to defined what is a health need remains within the discretion of SofS for Health or - in your case - Welsh Ministers and a line will be drawn somewhere, somehow.

I am afraid I would suggest strongly that you do need legal advice (which need not be expensive - you may find a contingency fee lawyer who would bear the risk - that is one positive thing about present-day solicitors) to mount a judicial review. That would be true regardless of subject.

W

 

[fr0d0]

Thanks Wirralson. I'm extremely cautious in practice. Here on the forum it's different. I want to try and understand as well as I possibly can. As I said I am in the process of engaging a lawyer. As I can i'll update you on that. It would be ground breaking for a decision to be made in favour of the NHS. But I don't bank on success.

 

[fr0d0]

Just a thought... if we're saying that the CHCF process isn't unlawful - which I accept that it isn't in principle, until it has been judged to be so in a court of law... then the outcome of a DST Panel, the decision, can be challenged on the grounds that it is not Coughlan Compliant - as this is STILL what the CHCF was designed to replicate. A challenge on those grounds would be valid.

 

[Wirralson]

Just a thought... if we're saying that the CHCF process isn't unlawful - which I accept that it isn't in principle, until it has been judged to be so in a court of law... then the outcome of a DST Panel, the decision, can be challenged on the grounds that it is not Coughlan Compliant - as this is STILL what the CHCF was designed to replicate. A challenge on those grounds would be valid.

Sort of. Judicial review is essentially about challenging decisions, and not simply about challenging regulations. But I think you need to be careful about Coughlan - it doesn't in fact, lay down a specific standard of need for care and it isn't quite the landmark decision that is sometimes assumed. I do agree that it is important - don't get me wrong! What I would suggest you should look at raising with your solicitor is not whether the DST decision is Coughlan compliant, but first of all whether it complies with the framework as it stands. If the DST decision isn't compliant with the current regulations then that is easier to prove. The restatement in Coughlan of what are basic administrative law principles confirms the fact that the Secretary of State for Health has a very wide discretion in defining a "healthcare need", and the factors that can be taken into account can include a wide range of things. Effectively, although the Coughlan case went in favour of the applicant in that she got the NHS to pay, the Court of Appeal was only considering points of law - there was no question of her having to pay for her care by that stage at least. One of the points the CofA considered was one on which they effectively diluted the judgment of Hidden J at first instance was that local authorities could actually pay for nursing care and went on to outline the ambit of the discretion SofS Health has to give guidance and the limits of LA nursing care. If the High Court (first instance) decision had stood, Coughlan would have been the victory some believe it is. Actually, on that particular point, the NHS/SofS for Health got more or less what they wanted (reaffirmation of the scope of the discretion) - a point sometimes missed. The NHSLA (or its predecessor) wouldn't have funded the case otherwise.

I don't think it is accurate to say CHCF is designed to replicate Coughlan - rather it is an attempt to provide consistent guidance on the process and considerations involved in CHC cases, which takes account of relevant elements of Coughlan (and Grogan and the later St Helens case, all of which pre-date it.)

 

[fr0d0]

So why does it specifically cite Coughlan? What you say doesn't ring true. You're always quick to add confusion yet have never delivered your actual point, even after months of you promising it. I strongly suspect that you are just here on behalf of the NHS to prevent people pursuing justice.

Yes Coughlan has been the subject of 15 years of clever obfuscation by the NHS legal team.

You don't seem to be able to understand what Nicola Mackintosh is saying in the OP. You are in effect calling her a liar. Well I call foul on you sir. I don't agree with anything that you say.

I'm not talking about challenging via appeal, but challenging the process from its claimed source: Coughlan, if you read the background documentation.

IN LAW the very wording "ancillary needs" and "complexity, intensity and unpredictability" have been ruled against by law lords. How clear do you need that to be?

Please Wirralson don't go off on another tirade of mind melting legalese. It really isn't welcome and only serves to muddy what is incredibly clear with common sense.

 

[Not so Rosy]

Just like Ian Perkin, I am refusing to comply with Social Services request to pay for my mums nursing home care, so the NHS have not move her out of the hospital for 13 months now. They state that it would be in my mums best interest to be in the nursing home, but won't move her

First of all I am hoping I have done the right quote here, I am not very au fait with how things work on this forum.

Bit shocked your Mum has been left in a hospital bed for 13 months unless you think that is the best place for her, I could never do that with the added risk of infection etc.

I am a bit of a newbie on here so don't know your history, can you say what you Mum scored on the Care Domains ?

 

[Wirralson]

Post deleted and shortened post below.
fr0d0

What do you mean by "not challenging via appeal but challenging the process from its claimed source"?

You don;t have to go to IRP, (is this what you mean by appeal) but if you wish to go to Court, then you effectively have to make a request for a judicial review of the decision. That is a challenge to the decision on specific legal grounds. If you haven't been to IRP you may find your request for judicial review fails, as you haven't done what is called exhausting local remedies (i.e getting to the end of the process).

W

W

 

[fr0d0]

Bit shocked your Mum has been left in a hospital bed for 13 months unless you think that is the best place for her, I could never do that with the added risk of infection etc.

Effectively, it is the best place for her, yes.... apart from being too far away to visit often for anyone. Family or friends. A clean, tidy and stimulating environment with people that she is familiar with. Compared to the urine soaked, lonely and abusive environment she previously occupied, and the very lonely setting suggested for her future occupation.

We have, however, fully agreed with the professionals and go along with their recommendations completely. They do continually try to guilt us by stating exactly as you've said, wanting us to give in to their unfair demands. On her principle we are not prepared to do this, and indeed, we understand that it's quite wrong of them to be acting contrary to her best interests, as they see them, as they are now doing and have been doing in the past.

I'm sorry I'm not willing to provide you with details.

 

[fr0d0]

exhausting local remedies

...is exactly what I mean to do.

 

[CB1]

Thank you once again Wirralson. I have requested legal advice from a specialist already and am waiting to hear back on that. Currently the authority is waiting to act once the NHS manages to shake me off. I understand

Effectively, it is the best place for her, yes.... apart from being too far away to visit often for anyone. Family or friends. A clean, tidy and stimulating environment with people that she is familiar with. Compared to the urine soaked, lonely and abusive environment she previously occupied, and the very lonely setting suggested for her future occupation.

We have, however, fully agreed with the professionals and go along with their recommendations completely. They do continually try to guilt us by stating exactly as you've said, wanting us to give in to their unfair demands. On her principle we are not prepared to do this, and indeed, we understand that it's quite wrong of them to be acting contrary to her best interests, as they see them, as they are now doing and have been doing in the past.

I'm sorry I'm not willing to provide you with details.

frOdO are you aware of a Addas report sent to all local authorities dated October / 07 the same month the first national guidelines (the framework) came out this was before the local Authority's became corrupted as the NHS. read it, then all will be come clear.
the disconnect between the LA and the NHS.

The NHS have stated that the IRP wouldn't be relevant if I'm challenging the legality of the framework.

the next step is the Ombudsman. And it states clearly on the ombudsman's website that the service specifically cannot deal with legal challenges.

I'm interested in what you think might be a successful route of appeal using the process. It is clear that the DST recommendation is not Coughlan Compliant. Could I use that to challenge the decision? Surely if like you and they say, if there's a disparity they need to address that. I could also dig into the detail and pull up some obscure reasoning that demonstrates the disparity, as others seem to have done here.

Kind regards