THE COST OF NURSING HOME CARE
The background – The Coughlan decision
In 1999 a quadriplegic Pamela Coughlan sought judicial review of her local health authority’s decision to sell the NHS home in which she lived and where she had been promised “a home for life”. The issue the court was asked to determine was whether care should be provided by a local authority as a social service and in which event the patient might have to pay dependent upon means or whether it should be provided free under the NHS as a health care need.
In 1995 the Department of Health had issued guidance to health authorities requiring them to develop criteria for establishing whether or not a person should be eligible to receive “NHS fully funded continuing health care”. An eligible person would be entitled to receive accommodation, nursing care, personal care and food free of charge.
In the Coughlan case the court decided that where a person’s need is primarily health care, that person should receive totally free care. Where the primary requirement was for social care the cost of any care home placement should be met by the local authority and could be means tested. The court did not, however, draw a clear line between health care needs and social care needs.
Following the decision in the Coughlan case, the Department of Health in 2001 issued guidance to health authorities requiring them, for the first time, to agree their eligibility criteria with the local authorities in their area. The idea was that if both the health authority and local authority in an area agreed the criteria it would make it easier to establish who was responsible for health and social care responsibilities.
From 2001, the NHS has provided some financial help (the Registered Nursing Care contribution) to an individual receiving nursing care but who is regarded as not eligible to receive the totally free care available to those who enjoy NHS fully funded continuing health care. The amount of contribution by the NHS towards the care costs of such an individual is determined by specialist nurses who assess how much “care by a registered nurse” that individual needs (the Registered Nursing Care Banding System). Assessments fall into three bands :-
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low
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medium
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high
The criticism
In February 2003 the Health Service Ombudsman reported that the Department of Health guidance on eligibility criteria for NHS fully funded continuing health care had been misinterpreted and misapplied from 1996 onwards by some health authorities. The report observed that some authorities were utilizing over restrictive criteria not properly in line with the Department of Health guidance and the judgment in Coughlan. The Department of Health responded to the Ombudsman’s concern by requiring strategic health authorities to review whether the NHS fully funded continuing health care criteria in use in their area were consistent with the judgment in Coughlan. It also required them to investigate cases where individuals may have been wrongfully denied NHS fully funded continuing health care and to make appropriate restitution.
The Grogan decision
In January 2006 the case of Maureen Grogan was heard in the High Court. Mrs Grogan was 65 years old, was wheelchair bound with multiple sclerosis and with no mobility. She suffered from double incontinence and her cognitive senses were also impaired. She had been hospitalized following a fall in November 2002 and was transferred straight from hospital to a nursing home the following February at the expense of the local authority. The local NHS Care Trust had decided that Mrs Grogan was not eligible for NHS fully funded continuing health care in 2003, 2004 and 2005. A contribution had been made to the cost of her nursing care but she was forced to sell her family home to meet nursing home fees of almost £100,000.00.
Mrs Grogan challenged the decision of the Trust arguing that her primary need was health care and that the NHS should meet the expense. The Judge agreed and set aside the Trust’s decision. He observed that the eligibility criteria being used in the area where she lived were confusing and “fatally flawed” and did not reflect the fact that those with a primary health care need should be granted NHS fully funded continuing care. The criteria being used also wrongly linked NHS fully funded continuing care eligibility to the Registered Nursing Care Contribution bands. He commented that the Department of Health Guidance was “far from being as clear as it might have been” and that the case generally raised issues with “wide implications” for the sick and disabled and health authorities across the country.
An overview
The decision in Grogan underlined the fact that the criteria being used by many local health authorities are often unlawful and that there may be thousands of elderly and infirm individuals around the country who have been (or are being) wrongly assessed and asked to contribute towards the cost of their care when that expense should be met by the NHS.
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