Geum 123
Many thanks - it confirms my earlier post. I agree with your final conclusion. The Coughlan judgment makes clear that the NHS has a degree of discretion in deciding what is and isn't required by way of nursing care. The Grogan case is the one which resulted in what had previously been guidance only being developed into the mandatory national CHC framework. (The issue was partly that there was no evidence of how the decision to decline CHC funding had been reached or what criteria employed.) The St Helens case makes it clear that the NHS (then the PCTs now CCGs) is the primary decision taker as to what is a primary health need The question at issue seems to have been how that discretion was exercised in that particular case, especially given the background of undertakings given to residents of the care homes in question. The definition of "nursing care" would also appear to be an issue. The NHS regards nursing care as quite specifically requiring the care of someone with nursing qualifications, which in many cases dementia patients will not need on a day to day basis. Incidentally, although the colloquial references are frequently is to "Coughlan compliance" the Grogan case (sometimes called the Bexley case) and the St Helens and Knowsley case equally relevant to the point at discussion in this thread, The point is that the Coughlan case makes clear that there is a discretion as to what constitutes nursing care. The Grogan case makes it clear there needs to be evidence of the basis for the decision. That case was a judicial review and it is as well to remember the remedies are limited - in effect if the public authority loses, they have to go back and consider their decision in the light of the judgment, but the issue is often how a decision was reached rather than the decision itself. The Grogan cases resulted in the mandating of the national CH framework, although guidance (based on the reasoning in the Coughlan case), appears to have existed before that. Finally the St Helens case makes clear that the decision on what constitutes a primary health need rested with what were Primary Care Trusts in England and are now Clinical Commissioning Groups. So I'd say anyone arguing that the CHC framework is, of itself, unlawful is making a statement that is difficult to support. Implementation of it and decisions in individual cases may be open to challenge, but that would require professional advice.
One the question of legality, my understanding is that the NHS and Community Care Act 1990 and the NHS Act 2006 are as Acts of Parliament, lawful (although European law can override these to an extent). Challenging the lawfulness of aspects of its implementation (i.e. on the subject here, the use of CHC framework, or the latter's implementation in any given case) would almost certainly need to be by way of judicial review. That has strict time limits, and is, as you point out, potentially extremely costly. Mounting such a legal challenge would require expert professional advice from a solicitor specialising in the field.
I'd also agree strongly with you that anyone seeking CHC funding for a relative is going to get best results working within the framework and trying to influence the outcome by engaging with it, as SisterAct illustrates. The NHS will use it - so individuals might as well work with the tools they have. Brandishing a copy of the Coughlan judgment and claiming the whole process is unlawful isn't going to help - the NHS staff will politely ignore any remarks to that effect and simply complete the CHC assessment regardless.
Wirralson