Under the ‘1946 National Health Service Act’ which became law on 5th July 1948, every resident British citizen having an illness, disability or injury became entitled to receive NHS care ‘free at the point of need’. The NHS say they “hold a continuing commitment to the founding principles of the NHS which can be summed up as: The provision of quality care that meets the needs of everyone, is free at the point of need and is based on a patient's clinical need not their ability to pay" See the NHS website at: http://www.nhs.uk/aboutnhs/CorePrinciples/Pages/NHSCorePrinciples.aspx
However the NHS have adopted a policy of subjecting certain patients to ‘Eligibility Criteria’ by which means they seek to avoid paying for the continuing health care which many frail sick and vulnerable elderly people require. This is discriminatory and totally unlawful because nowhere does the National Health Service Act provide for the application of ‘criteria’ to determine who is or is not entitled to receive care ‘free at the point of need’ In fact the Act specifically states: 'The services so provided shall be free of charge' and 'NHS in England' (cited above) confirms that this hasn't changed. The Act has not been repealed and although modified by later acts the core principles remain intact
The NHS treat all this with total contempt: In practice they force primarily long term sick and vulnerable elderly residents of care homes to pay for their own care by handing them over to social services who unlawfully apply the 1948 National Assistance Act to ‘means test’ and force them to pay, including confiscation of their property and life savings. This is completely unlawful because only where a patients needs are ‘merely incidental and ancillary to the provision of the accommodation’ may the care be considered outside the remit of the NHS and then only if it is “of a nature which it can be expected that an Authority whose primary responsibility is to provide social services, can be expected to provide" Nowhere do the unlawful Criteria define the 'nature of the services which a local authority can be expected to provide' So in the total absence of any such guidance, Health Authorities themselves choose to fabricate an 'expectation' to suit their own agenda; which is 'to avoid paying whenever possible'.
However the ‘Coughlan’ judgment provides the answer: Local Authorities CANNOT provide the sort of care services which the Appeal Court ruled are the sole responsibility of the NHS. Miss Coughlan’s care needs are in fact precisely what the NHS and Social Services choose to define as 'social and personal care' - which can thus ONLY be lawfully met by the NHS. In fact their own ‘National framework for continuing healthcare’ reiterates Lord Woolf’s words “In respect of Miss. Coughlan, her needs were of a scale beyond the scope of Local Authority services’. (A signed copy of Miss Coughlan’s Daily care needs (‘Pam’s Day’) is available from the author of this paper on request)
The NHS ‘National Framework’ states that ‘...LA’s can provide nursing services under section 21 of the National Assistance Act as long as the nursing care services are capable of being properly classified as part of social services responsibilities’ . But they can’t! The definitive guidance to any such classification is provided by S21 of that Act:
'Section 21: Duty of local authorities to provide accommodation' (Note ‘accommodation’ NOT ‘care’.)
Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing]—
residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them . . .
Thus Social Services can only provide 'accommodation' for those who are in need of 'care and attention'- but NOT the actual 'care and attention' which they may require. The question has been clarified by case law:
In the High Court, Queens Bench Division, on 28th. July 1999, Mr. Justice Sullivan addressed the meaning of Section 21 of the National Assistance Act, and in his summation said "The duty under s21 of the National Assistance Act 1948 to provide accommodation for those in need of care and attention arose only where the accommodation was not otherwise available" (i.e. NOT where care and attention was 'not otherwise available')
In the Court of Appeal, case No. QBCOA99/0940/0941/0942/0943, on 27th. July 2000, Lord Justice Otton, on behalf of his colleagues said, "I now turn to consider the language and effect of section 21 of the 1948 Act: Sub-section 21 authorizes the provision of accommodation to a person only where accommodation is not otherwise available to them. In the present case accommodation was (or is) available to the respondents by virtue of section 117. (Mental Health Act). Thus on my interpretation, the section 21 (1) power does not arise"
When this case went to the House of Lords, (25th. July 2002), Lord Steyn for his colleagues, dismissed the Appeal by Local Authorities, having commented that the two previous rulings were "careful judgments"
In view of the forgoing judgments, social services departments clearly have no lawful role to play in meeting continuing health care needs other than to provide accommodation when this is not otherwise available.
Where there is a 'health need' (an illness or disability) this is the sole responsibility of the NHS - and County Council involvement is totally unlawful unless any care they provide is 'incidental and ancillary’ to the provision of the accommodation’ (Lord Woolf, Coughlan judgment in ‘orbita dicta’)
To deny NHS care to patients whose care needs are fundamentally comparable with those of Miss. Coughlan, is both a failure to heed and apply the National Health Service Act, the National Assistance Act, the ‘Coughlan Judgment’ and even the (albeit unlawful) National Framework and to substitute a policy of blatant discrimination. It is also completely contrary to Human Rights legislation. Note: The National Framework is further unlawful because its application produces an unlawful result.
ALL so-called ‘social and personal care needs’ which arise as a direct consequence of a medical condition are inseparable from it. Thus if an underlying illness or disability - a health need’ - were to suddenly disappear so too would all related care needs, thereby confirming unequivocally that the ‘primary need is a health need’ (an illness or disability) “for which the NHS is as a matter of law responsible” (Lord Woolf in ‘Coughlan’) There can be only ONE ‘primary need’ - and all so-called ‘Social and personal needs’ are consequential ‘secondary needs’.
The application of ‘eligibility criteria’ which determine the right to NHS care based on the ‘quality’ and ‘quantity’ or the ‘intensity’, ‘complexity’ and ‘unpredictability’ of the care required is again unlawful. No such concepts are mentioned anywhere in the Health Act or were decreed in ‘Coughlan’ because nothing like it applies to Miss. Coughlan. It is merely a NHS ploy to avoid paying. The Court ruled ALL Miss. Coughlan’s care to be the sole responsibility of the NHS. Thus to systematically refuse NHS funded care to those whose care needs compare with or exceed those of Miss. Coughlan is blatant discrimination against one particular sector of society and therefore totally unlawful, constitutes a criminal act and breaches Human Rights legislation.
All requests by patients relatives and attorneys to Primary Care Trusts and Strategic Health Authorities to review their funding decisions meet with the divisive ruling that ‘only the application of the eligibility criteria can be considered – not it’s content or lawfulness’ An identical attitude is applied by both the Ombudsman and the Healthcare Commission – now the ‘Care Quality Commission’. This is a shameful and disgraceful policy and tantamount to a court of law declaring that a plea of ‘Not Guilty’ cannot be entered by a defendant! Thus the unlawful policies and practices of all these bodies are ‘writ in words of stone’ and not open to challenge or even discussion: It’s quite ‘OUTRAGEOUS!’
This would appear to indicate the existence of a conspiracy between the Department of Health, NHS Trusts, County Council Social Services departments, the Health Service Ombudsman’s office and the Court of Protection, to defraud long term care patients and their families.
If any review panel or anybody else believe that the NHS has a statutory duty or valid legal basis for refusing to provide NHS care ‘free at the point of need’ to any patient who is so ill that they require permanent nursing care either in their own home, in an institutional environment or anywhere else, then it is incumbent upon them to quote the relevant legislation which justifies refusal of NHS funded care. Rulings by ministers and DoH ‘guidance’ is NOT the law!
NHS quasi-judicial panels set up to determine eligibility for NHS funded continuing care are unsupported by the Health Act and in total breach of the European convention on human rights: ARTICLE 6-1 of the convention reads as follows: “In the determination of civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…” NHS panels are neither fair nor impartial and are certainly NOT 'established by Law'. They can determine questions of medical opinion but NOT law.
Decisions which commit applicants to meeting the cost of their own care thereby putting all their financial resources and property at risk can only be determined by a properly constituted tribunal or court of law. Claimants cannot be forced to accept a decision which does not accord with Article 6 of the Human Rights Convention. It therefore follows that neither the NHS nor Social Services can presume and pre-empt the conclusions of the required Human Rights tribunal and ALL care thus remains the sole responsibility of the NHS until determined otherwise through due process of law – NOT when the NHS decide that their appeals procedures are exhausted and they deem themselves not liable to provide continuing care funding.
"The judgment in Coughlan clearly established that where a person's primary need is for health care, and that is why they are placed in nursing home accommodation, the NHS is responsible for the full cost of the package." - from the summary of the Law Society's Evidence to the House of Commons Select Committee Inquiry into NHS Continuing Care.
When patients, their families or attorneys complain that the NHS refuse to meet their statutory duty or Local Authorities have unlawfully assumed responsibility for patient care, they are met with concerted prevarication, procrastination and sheer bloody-minded intransigence. Eventually the NHS may agree to ‘review’ the decision by a Primary Care Trust to refuse NHS funded care and impose a quasi-judicial panel who refuses to consider the lawfulness of the ‘criteria’ applied (which it isn’t) but only whether it was a correct interpretation of their own ‘National Framework’ and is ‘robust’ – whatever that may mean! They invariably claim that ‘Patients needs are assessed using the continuing healthcare (CHC) checklist which is part of the ‘National Framework’. This is totally meaningless and unlawful because they cannot state precisely WHERE in the 1946 National Health Service act there is any mention that ‘criteria’ and hence ‘checklists’ can be applied to determine who is and is not eligible to receive NHS funded care ‘free at the point of need’. Also they refuse or are unable to confirm whether Miss. Coughlan would qualify for NHS funded care if the ‘criteria’ applied to a given patient were applied to her. (See her daily care regime) Their whole paraphernalia of checklists, support tools and review panels is fatally flawed and unlawful because their Criteria is!
Prior to hospital discharge the NHS are required to complete a ‘Multi-disciplinary assessment’ (MDA) to determine what on-going care is required and where and by whom it can best be provided. They are also required to asses for continuing NHS funded care. But these ‘Eligibility Panels’ invariably comprise managers from both the Local Authority and the Primary Care Trust who almost inevitably decide that "The panel found that from the available clinical evidence that (the patient) was not eligible for NHS Continuing Health Care . . . ." It is therefore reasonable to assume that this 'clinical evidence' was considered by clinicians, not qualified lawyers. However the right to NHS continuing health care cannot be determined by some quasi-judicial panel of clinicians and administrators as this is a question of law, not medical opinion. Their decision is therefore totally irrelevant, lacks any lawful validity and is unenforceable at law. Moreover, any financial losses incurred as a result of their action could leave such panel members personally liable and open to an exemplary damages claim. All panel members should be aware of this. Furthermore no quasi judicial panel, even if lawful, can make a decision which seeks to impose or results in the imposition of a substantial financial burden and places at risk a citizens entire assets. Such an action is a clear breach of the Human Rights Act and must be heard before a tribunal lawfully constituted in accordance with that Act.
As mentioned above, the ‘Coughlan’ appeal observed ‘The NHS had attempted to re-define health care as social care’ and ruled that, although Miss Coughlan's accommodation was provided by the NHS, social services, could not lawfully provide any of her care because it would have been more than 'incidental or ancillary' to the provision of her accommodation. Thus Lord Woolf's words "Here the needs of Miss Coughlan and her fellow occupants (of her Exeter care home) were primarily health needs for which the Health Authority is as a matter of law responsible" confirm unequivocally that all the care Miss Coughlan receives is in the eyes of the law 'primarily health care' and NOT so-called 'social' or 'personal' care. So what Social Services choose to call 'social care' has no foundation in law but social services said that was the only care that Miss Coughlan required! Thus 'health care' encompasses any and all so-called 'social care' which arises as a direct consequence of a health need (an illness or disability) and is thus the sole responsibility of the NHS. All patients assessed as requiring only so-called 'social care' are entitled to free NHS care to meet ALL their needs there being no lawful demarcation between ‘nursing’ and ‘social’ care. As Lord Woolf said, it’s ALL ‘nursing – caring for the sick’. The Appeal Court also ruled “In respect of Miss Coughlan. her needs were clearly of a scale beyond the scope of LA services’” and it is incumbent upon the NHS to produce evidence to show that a given patient’s care needs are less than Miss. Coughlan’s. In fact the Court’s judgment was based on Miss. Coughlan’s condition, not on her care or treatment which is therefore irrelevant to patient continuing care needs.
It is common practice when seeking to ‘hand over’ patients to Local Authority care for the NHS to claim "The panel agreed that (this patient’s) health care needs were incidental and ancillary to the provision of accommodation and are the kind of services which a local authority could be expected to provide" This is of course complete humbug! As stated above, where the need for accommodation arises as a consequence of a health need, it cannot be the 'primary need' and the fundamental point is that patient care which is more than incidental and ancillary to the provision of accommodation cannot lawfully be provided by social services. They then try to justify their provision of health care by claiming that their care "is of a nature which it can be expected that an authority whose primary responsibility is to provide social services, can be expected to provide" Again this it utter humbug! Nowhere is there any definition of ‘the services which a local authority can be expected to provide' So Health Authorities and Social Services themselves formulate an 'expectation' to suit their own agenda: 'to avoid paying whenever possible'. In fact the answer is self evident: Local Authorities CANNOT provide the sort of care services which the Appeal Court ruled in ‘Coughlan’ are the sole responsibility of the NHS. Miss. Coughlan's care needs (see 'Pamsday') are in fact precisely what the NHS and Social Services choose to define as 'social and personal care' – and which the Court ruled can ONLY be lawfully met by the NHS! In fact the ‘National framework for continuing health care’ quotes the actual Judgement: In respect of Miss. Coughlan, her needs were of a scale beyond the scope of Local Authority services’.
The ‘St. Helens’ judgement (Case N0: C1/2007/2121, heard on 23RD. June 2008 before the Court of Appeal) quotes Lord Woolf in Coughlan “...eligibility criteria cannot place a responsibility on the local authority which goes beyond the terms of section 21 of the 1948 National Assistance Act”. This effectively places sole responsibility on the PCT to ensure that the local authority is competent and lawfully empowered to provide the care a patient requires. It does NOT permit a local authority to elect to provide patient care of its own volition – or to accept responsibility for a given patient simply because a PCT unilaterally withdraws funding. The onus is on the PCT to provide the rationale for their decision and the patient – and local authority – can challenge that decision. In accordance with ‘Delayed Discharges’ legislation, funding must not be withdraw under any circumstances pending resolution of any funding dispute.
By claiming that a patient has only ‘social needs’ the NHS seek to transfer patients to social services in order to avoid their statutory duty under the Health Act to meet ALL care costs. Social Services then endeavour to ‘recover’ care costs from those who hold capital assets – including the value of their homes – by forcing them to pay for their own care. This is precisely what the health authority attempted in ‘Coughlan’. And as the court observed, “the authority tried to redefine health care as social care”. They failed in both the High Court and the Court of Appeal – yet health authorities throughout the land are still doing exactly that! However, where there is illness, disability or injury the NHS have sole responsibility for providing ALL care and the Courts continue to support this: For example. Case No: CO/9781/2010 The judgement handed down on 28/10/2010 (the Booker Case) applied ‘Coughlan’ and the Health Act confirming that the right to continuing long term care is determined by clinical need NOT on an individual’s ability to pay.* (The 19 year old lady concerned was awarded £2.9 Million and left tetraplegic following a road accident)
*Oldham PCT’s lawyers argued that, given Ms Booker’s pay-out, it was simply not necessary for the NHS to continue picking up the bill for her care when she wanted a private nursing regime and had the money to fund it.
However, Judge Pelling came down in favour of Ms Booker and Direct Line when he ruled that Ms Booker can do “as she pleases” with her damages pay-out and is just as entitled to free NHS care as an “independently wealthy” patient.
Stressing the principles underpinning the public health service, he said: “Access to NHS services is based on clinical need, not on an individual’s ability to pay.” Ruling the PCT’s stance unlawful, he said there was nothing within the NHS National framework “that suggests that financial considerations are relevant to the provision of future (i.e, long term) healthcare”.
However the NHS have adopted a policy of subjecting certain patients to ‘Eligibility Criteria’ by which means they seek to avoid paying for the continuing health care which many frail sick and vulnerable elderly people require. This is discriminatory and totally unlawful because nowhere does the National Health Service Act provide for the application of ‘criteria’ to determine who is or is not entitled to receive care ‘free at the point of need’ In fact the Act specifically states: 'The services so provided shall be free of charge' and 'NHS in England' (cited above) confirms that this hasn't changed. The Act has not been repealed and although modified by later acts the core principles remain intact
The NHS treat all this with total contempt: In practice they force primarily long term sick and vulnerable elderly residents of care homes to pay for their own care by handing them over to social services who unlawfully apply the 1948 National Assistance Act to ‘means test’ and force them to pay, including confiscation of their property and life savings. This is completely unlawful because only where a patients needs are ‘merely incidental and ancillary to the provision of the accommodation’ may the care be considered outside the remit of the NHS and then only if it is “of a nature which it can be expected that an Authority whose primary responsibility is to provide social services, can be expected to provide" Nowhere do the unlawful Criteria define the 'nature of the services which a local authority can be expected to provide' So in the total absence of any such guidance, Health Authorities themselves choose to fabricate an 'expectation' to suit their own agenda; which is 'to avoid paying whenever possible'.
However the ‘Coughlan’ judgment provides the answer: Local Authorities CANNOT provide the sort of care services which the Appeal Court ruled are the sole responsibility of the NHS. Miss Coughlan’s care needs are in fact precisely what the NHS and Social Services choose to define as 'social and personal care' - which can thus ONLY be lawfully met by the NHS. In fact their own ‘National framework for continuing healthcare’ reiterates Lord Woolf’s words “In respect of Miss. Coughlan, her needs were of a scale beyond the scope of Local Authority services’. (A signed copy of Miss Coughlan’s Daily care needs (‘Pam’s Day’) is available from the author of this paper on request)
The NHS ‘National Framework’ states that ‘...LA’s can provide nursing services under section 21 of the National Assistance Act as long as the nursing care services are capable of being properly classified as part of social services responsibilities’ . But they can’t! The definitive guidance to any such classification is provided by S21 of that Act:
'Section 21: Duty of local authorities to provide accommodation' (Note ‘accommodation’ NOT ‘care’.)
Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing]—
residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them . . .
Thus Social Services can only provide 'accommodation' for those who are in need of 'care and attention'- but NOT the actual 'care and attention' which they may require. The question has been clarified by case law:
In the High Court, Queens Bench Division, on 28th. July 1999, Mr. Justice Sullivan addressed the meaning of Section 21 of the National Assistance Act, and in his summation said "The duty under s21 of the National Assistance Act 1948 to provide accommodation for those in need of care and attention arose only where the accommodation was not otherwise available" (i.e. NOT where care and attention was 'not otherwise available')
In the Court of Appeal, case No. QBCOA99/0940/0941/0942/0943, on 27th. July 2000, Lord Justice Otton, on behalf of his colleagues said, "I now turn to consider the language and effect of section 21 of the 1948 Act: Sub-section 21 authorizes the provision of accommodation to a person only where accommodation is not otherwise available to them. In the present case accommodation was (or is) available to the respondents by virtue of section 117. (Mental Health Act). Thus on my interpretation, the section 21 (1) power does not arise"
When this case went to the House of Lords, (25th. July 2002), Lord Steyn for his colleagues, dismissed the Appeal by Local Authorities, having commented that the two previous rulings were "careful judgments"
In view of the forgoing judgments, social services departments clearly have no lawful role to play in meeting continuing health care needs other than to provide accommodation when this is not otherwise available.
Where there is a 'health need' (an illness or disability) this is the sole responsibility of the NHS - and County Council involvement is totally unlawful unless any care they provide is 'incidental and ancillary’ to the provision of the accommodation’ (Lord Woolf, Coughlan judgment in ‘orbita dicta’)
To deny NHS care to patients whose care needs are fundamentally comparable with those of Miss. Coughlan, is both a failure to heed and apply the National Health Service Act, the National Assistance Act, the ‘Coughlan Judgment’ and even the (albeit unlawful) National Framework and to substitute a policy of blatant discrimination. It is also completely contrary to Human Rights legislation. Note: The National Framework is further unlawful because its application produces an unlawful result.
ALL so-called ‘social and personal care needs’ which arise as a direct consequence of a medical condition are inseparable from it. Thus if an underlying illness or disability - a health need’ - were to suddenly disappear so too would all related care needs, thereby confirming unequivocally that the ‘primary need is a health need’ (an illness or disability) “for which the NHS is as a matter of law responsible” (Lord Woolf in ‘Coughlan’) There can be only ONE ‘primary need’ - and all so-called ‘Social and personal needs’ are consequential ‘secondary needs’.
The application of ‘eligibility criteria’ which determine the right to NHS care based on the ‘quality’ and ‘quantity’ or the ‘intensity’, ‘complexity’ and ‘unpredictability’ of the care required is again unlawful. No such concepts are mentioned anywhere in the Health Act or were decreed in ‘Coughlan’ because nothing like it applies to Miss. Coughlan. It is merely a NHS ploy to avoid paying. The Court ruled ALL Miss. Coughlan’s care to be the sole responsibility of the NHS. Thus to systematically refuse NHS funded care to those whose care needs compare with or exceed those of Miss. Coughlan is blatant discrimination against one particular sector of society and therefore totally unlawful, constitutes a criminal act and breaches Human Rights legislation.
All requests by patients relatives and attorneys to Primary Care Trusts and Strategic Health Authorities to review their funding decisions meet with the divisive ruling that ‘only the application of the eligibility criteria can be considered – not it’s content or lawfulness’ An identical attitude is applied by both the Ombudsman and the Healthcare Commission – now the ‘Care Quality Commission’. This is a shameful and disgraceful policy and tantamount to a court of law declaring that a plea of ‘Not Guilty’ cannot be entered by a defendant! Thus the unlawful policies and practices of all these bodies are ‘writ in words of stone’ and not open to challenge or even discussion: It’s quite ‘OUTRAGEOUS!’
This would appear to indicate the existence of a conspiracy between the Department of Health, NHS Trusts, County Council Social Services departments, the Health Service Ombudsman’s office and the Court of Protection, to defraud long term care patients and their families.
If any review panel or anybody else believe that the NHS has a statutory duty or valid legal basis for refusing to provide NHS care ‘free at the point of need’ to any patient who is so ill that they require permanent nursing care either in their own home, in an institutional environment or anywhere else, then it is incumbent upon them to quote the relevant legislation which justifies refusal of NHS funded care. Rulings by ministers and DoH ‘guidance’ is NOT the law!
NHS quasi-judicial panels set up to determine eligibility for NHS funded continuing care are unsupported by the Health Act and in total breach of the European convention on human rights: ARTICLE 6-1 of the convention reads as follows: “In the determination of civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…” NHS panels are neither fair nor impartial and are certainly NOT 'established by Law'. They can determine questions of medical opinion but NOT law.
Decisions which commit applicants to meeting the cost of their own care thereby putting all their financial resources and property at risk can only be determined by a properly constituted tribunal or court of law. Claimants cannot be forced to accept a decision which does not accord with Article 6 of the Human Rights Convention. It therefore follows that neither the NHS nor Social Services can presume and pre-empt the conclusions of the required Human Rights tribunal and ALL care thus remains the sole responsibility of the NHS until determined otherwise through due process of law – NOT when the NHS decide that their appeals procedures are exhausted and they deem themselves not liable to provide continuing care funding.
"The judgment in Coughlan clearly established that where a person's primary need is for health care, and that is why they are placed in nursing home accommodation, the NHS is responsible for the full cost of the package." - from the summary of the Law Society's Evidence to the House of Commons Select Committee Inquiry into NHS Continuing Care.
When patients, their families or attorneys complain that the NHS refuse to meet their statutory duty or Local Authorities have unlawfully assumed responsibility for patient care, they are met with concerted prevarication, procrastination and sheer bloody-minded intransigence. Eventually the NHS may agree to ‘review’ the decision by a Primary Care Trust to refuse NHS funded care and impose a quasi-judicial panel who refuses to consider the lawfulness of the ‘criteria’ applied (which it isn’t) but only whether it was a correct interpretation of their own ‘National Framework’ and is ‘robust’ – whatever that may mean! They invariably claim that ‘Patients needs are assessed using the continuing healthcare (CHC) checklist which is part of the ‘National Framework’. This is totally meaningless and unlawful because they cannot state precisely WHERE in the 1946 National Health Service act there is any mention that ‘criteria’ and hence ‘checklists’ can be applied to determine who is and is not eligible to receive NHS funded care ‘free at the point of need’. Also they refuse or are unable to confirm whether Miss. Coughlan would qualify for NHS funded care if the ‘criteria’ applied to a given patient were applied to her. (See her daily care regime) Their whole paraphernalia of checklists, support tools and review panels is fatally flawed and unlawful because their Criteria is!
Prior to hospital discharge the NHS are required to complete a ‘Multi-disciplinary assessment’ (MDA) to determine what on-going care is required and where and by whom it can best be provided. They are also required to asses for continuing NHS funded care. But these ‘Eligibility Panels’ invariably comprise managers from both the Local Authority and the Primary Care Trust who almost inevitably decide that "The panel found that from the available clinical evidence that (the patient) was not eligible for NHS Continuing Health Care . . . ." It is therefore reasonable to assume that this 'clinical evidence' was considered by clinicians, not qualified lawyers. However the right to NHS continuing health care cannot be determined by some quasi-judicial panel of clinicians and administrators as this is a question of law, not medical opinion. Their decision is therefore totally irrelevant, lacks any lawful validity and is unenforceable at law. Moreover, any financial losses incurred as a result of their action could leave such panel members personally liable and open to an exemplary damages claim. All panel members should be aware of this. Furthermore no quasi judicial panel, even if lawful, can make a decision which seeks to impose or results in the imposition of a substantial financial burden and places at risk a citizens entire assets. Such an action is a clear breach of the Human Rights Act and must be heard before a tribunal lawfully constituted in accordance with that Act.
As mentioned above, the ‘Coughlan’ appeal observed ‘The NHS had attempted to re-define health care as social care’ and ruled that, although Miss Coughlan's accommodation was provided by the NHS, social services, could not lawfully provide any of her care because it would have been more than 'incidental or ancillary' to the provision of her accommodation. Thus Lord Woolf's words "Here the needs of Miss Coughlan and her fellow occupants (of her Exeter care home) were primarily health needs for which the Health Authority is as a matter of law responsible" confirm unequivocally that all the care Miss Coughlan receives is in the eyes of the law 'primarily health care' and NOT so-called 'social' or 'personal' care. So what Social Services choose to call 'social care' has no foundation in law but social services said that was the only care that Miss Coughlan required! Thus 'health care' encompasses any and all so-called 'social care' which arises as a direct consequence of a health need (an illness or disability) and is thus the sole responsibility of the NHS. All patients assessed as requiring only so-called 'social care' are entitled to free NHS care to meet ALL their needs there being no lawful demarcation between ‘nursing’ and ‘social’ care. As Lord Woolf said, it’s ALL ‘nursing – caring for the sick’. The Appeal Court also ruled “In respect of Miss Coughlan. her needs were clearly of a scale beyond the scope of LA services’” and it is incumbent upon the NHS to produce evidence to show that a given patient’s care needs are less than Miss. Coughlan’s. In fact the Court’s judgment was based on Miss. Coughlan’s condition, not on her care or treatment which is therefore irrelevant to patient continuing care needs.
It is common practice when seeking to ‘hand over’ patients to Local Authority care for the NHS to claim "The panel agreed that (this patient’s) health care needs were incidental and ancillary to the provision of accommodation and are the kind of services which a local authority could be expected to provide" This is of course complete humbug! As stated above, where the need for accommodation arises as a consequence of a health need, it cannot be the 'primary need' and the fundamental point is that patient care which is more than incidental and ancillary to the provision of accommodation cannot lawfully be provided by social services. They then try to justify their provision of health care by claiming that their care "is of a nature which it can be expected that an authority whose primary responsibility is to provide social services, can be expected to provide" Again this it utter humbug! Nowhere is there any definition of ‘the services which a local authority can be expected to provide' So Health Authorities and Social Services themselves formulate an 'expectation' to suit their own agenda: 'to avoid paying whenever possible'. In fact the answer is self evident: Local Authorities CANNOT provide the sort of care services which the Appeal Court ruled in ‘Coughlan’ are the sole responsibility of the NHS. Miss. Coughlan's care needs (see 'Pamsday') are in fact precisely what the NHS and Social Services choose to define as 'social and personal care' – and which the Court ruled can ONLY be lawfully met by the NHS! In fact the ‘National framework for continuing health care’ quotes the actual Judgement: In respect of Miss. Coughlan, her needs were of a scale beyond the scope of Local Authority services’.
The ‘St. Helens’ judgement (Case N0: C1/2007/2121, heard on 23RD. June 2008 before the Court of Appeal) quotes Lord Woolf in Coughlan “...eligibility criteria cannot place a responsibility on the local authority which goes beyond the terms of section 21 of the 1948 National Assistance Act”. This effectively places sole responsibility on the PCT to ensure that the local authority is competent and lawfully empowered to provide the care a patient requires. It does NOT permit a local authority to elect to provide patient care of its own volition – or to accept responsibility for a given patient simply because a PCT unilaterally withdraws funding. The onus is on the PCT to provide the rationale for their decision and the patient – and local authority – can challenge that decision. In accordance with ‘Delayed Discharges’ legislation, funding must not be withdraw under any circumstances pending resolution of any funding dispute.
By claiming that a patient has only ‘social needs’ the NHS seek to transfer patients to social services in order to avoid their statutory duty under the Health Act to meet ALL care costs. Social Services then endeavour to ‘recover’ care costs from those who hold capital assets – including the value of their homes – by forcing them to pay for their own care. This is precisely what the health authority attempted in ‘Coughlan’. And as the court observed, “the authority tried to redefine health care as social care”. They failed in both the High Court and the Court of Appeal – yet health authorities throughout the land are still doing exactly that! However, where there is illness, disability or injury the NHS have sole responsibility for providing ALL care and the Courts continue to support this: For example. Case No: CO/9781/2010 The judgement handed down on 28/10/2010 (the Booker Case) applied ‘Coughlan’ and the Health Act confirming that the right to continuing long term care is determined by clinical need NOT on an individual’s ability to pay.* (The 19 year old lady concerned was awarded £2.9 Million and left tetraplegic following a road accident)
*Oldham PCT’s lawyers argued that, given Ms Booker’s pay-out, it was simply not necessary for the NHS to continue picking up the bill for her care when she wanted a private nursing regime and had the money to fund it.
However, Judge Pelling came down in favour of Ms Booker and Direct Line when he ruled that Ms Booker can do “as she pleases” with her damages pay-out and is just as entitled to free NHS care as an “independently wealthy” patient.
Stressing the principles underpinning the public health service, he said: “Access to NHS services is based on clinical need, not on an individual’s ability to pay.” Ruling the PCT’s stance unlawful, he said there was nothing within the NHS National framework “that suggests that financial considerations are relevant to the provision of future (i.e, long term) healthcare”.
