QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
|BEXLEY NHS CARE TRUST
|SOUTH EAST LONDON STRATEGIC HEALTH AUTHORITY
||First Interested Party
|SECRETARY OF STATE FOR HEALTH
||Second Interested Party
Elisabeth Laing (instructed by the Solicitor of the Department) for the Second Interested Party
Hearing dates: 6,7,8 December 2005
Crown Copyright ©
Charles J :
" ---- nursing care for a chronically ill patient may lawfully be provided by a local authority as a social service (in which case the patient pays according to means) or whether it is required by law to be provided free of charge as part of the National Health Service" (see paragraph 1).
In Coughlan a number of further questions arose if local authority provision was lawful, in particular as to the effect of an assurance. The judge had decided that both general and specialist nursing care were the sole responsibility of the NHS and that nursing care was "health care" and could never be "social care" (see paragraph 19 of the judgment in Coughlan where the financial and other consequences of that view are set out).
"30. The result of the detailed examination of the three sections can be summarised as follows.
(a) The Secretary of State can exclude some nursing services from the services provided by the NHS. Such services can then be provided as a social or care service rather than as a health service.
(b) The nursing services which can be so provided as part of the care services are limited to those which can legitimately be regarded as being provided in connection with accommodation which is being provided to the classes of persons referred to in section 21 of the 1948 Act who are in need of care and attention; in other words as part of a social services care package.
(c) The fact that the nursing services are to be provided as part of social services care and will have to be paid for by the person concerned, unless that person's resources mean that he or she will be exempt from having to pay for those services, does not prohibit the Secretary of State from deciding not to provide those services. The nursing services are part of the social services and are subject to the same regime for payment as other social services. Mr. Gordon submitted that this is unfair. He pointed out that if a person receives comparable nursing care in a hospital or in a community setting, such as his or her home, it is free. The Royal Commission on Long Term Care, in its report, "With Respect to Old Age" (Cm 4192-1) (March 1999), chapter 6, pp 62 et seq, not surprisingly agrees with this assessment and makes recommendations to improve the situation. However, as long as the nursing care services are capable of being properly classified as part of the social services responsibilities, then, under the present legislation, that unfairness is part of the statutory scheme.
(d) The fact that some nursing services can be properly regarded as part of social services care, to be provided by the local authority, does not mean that all nursing services provided to those in the care of the local authority can be treated in this way .. The scale and type of nursing required in an individual case may mean that it would not be appropriate to regard all or part of the nursing as being part of "the package of care" which can be provided by a local authority. There can be no precise legal line drawn between those nursing services which are and those which are not capable of being treated as included in such a package of care services.
(e) The distinction between those services which can and cannot be so provided is one of degree which in a borderline case will depend on a careful appraisal of the facts of the individual case. However, as a very general indication as to where the line is to be drawn, it can be said that if the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide to, the category of persons to whom section 21 of the 1948 Act refers and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided under section 21. It will be appreciated that the first part of the test is focusing on the overall quantity of the services and the second part on the quality of the services provided.
(f) The fact that care services are provided on a means tested contribution basis does not prevent the Secretary of State declining to provide the nursing part of those services on the NHS. However, he can only decline if he has formed a judgment which is tenable and consistent with his long-term general duty to continue to promote a comprehensive free health service that it is not necessary to provide the services. He cannot decline simply because social services will fill the gap.
31. It follows that we do not accept the judge's conclusion that all nursing care must be the sole responsibility of the NHS and has to be provided by the health authority. Whether it can be provided by the local authority has to be determined on an assessment of the circumstances of the individual concerned.
117. Our conclusion may be summarised as follows
(a) The NHS does not have sole responsibility for all nursing care. Nursing care for a chronically sick patient may in appropriate cases be provided by a local authority as a social service and the patient may be liable to meet the cost of that care according to the patient's means. The provisions of the 1977 Act and the 1948 Act do not, therefore, make it necessarily unlawful for the health authority to decide to transfer responsibility for the general nursing care of Miss Coughlan to the local authority social services. Whether it was unlawful depends, generally, on whether the nursing services are merely (i) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide. Miss Coughlan needed services of a wholly different category. "
"The Secretary of State accepts that, where the primary need is a health need, then the responsibility is that of the NHS, even when the individual has been placed in a home by a local authority. The difficulty is identifying the cases which are required to be placed into that category on their facts in order to comply with the statutory provisions. Here the needs of Miss Coughlan and her fellow occupants were primarily health needs for which the health authority is as a matter of law responsible, for reasons which we will now explain. " (my emphasis)
The main statutory provisions
"There can be no justification for charging people in care homes for their nursing costs. We will make nursing care available from the NHS to everyone in a care home who needs it. Both the report of the Royal Commission and the Note of Dissent to it supported this. In the future, the NHS will meet the costs of registered nurse time spent on providing, delegating or supervising care in any setting. This is a wider definition than that proposed in the Note of Dissent which suggested it should include those tasks that only a registered nurse could undertake. Therefore, people identified as needing nursing home care will no longer have to meet any of the costs for the registered nurses involved in their care. Instead the NHS will meet those costs. People who can afford to do so will still have to make a contribution towards their personal care and accommodation costs in a nursing home." (my emphasis)
"Nothing in the enactments relating to the provision of community care services shall authorise or requires a local authority, in or in connection with the provision of any such services, to;
(a) provide for any person, or
(b) arrange for any person to be provided with,
nursing care by a registered nurse."
"Community care services" has the same meaning as in section 46(3) of the National Health Service and Community Care Act 1990 Act (see section 59 of the HSCA 2001 Act). It, therefore, applies to nursing services provided under section 21 of the 1948 Act. .
i) to strengthen the incentives for the NHS to ensure effective rehabilitation after acute illness or injury, and to reduce perverse incentives to discharge patients too early to the care of social services; and
ii) that the NHS (in pursuance of its powers and duties under the 1977 Act) would provide or arrange nursing care by a registered nurse free of charge (and conversely, that a local authority could not provide it, or charge for it).
The Claimant's case
i) There is a legal division between health care and social care.
ii) That division is reflected in the terms of the judgment of the Court of Appeal in Coughlan.
iii) Coughlan is, amongst other things, authority for the propositions that: (a) where the nature of a patient's condition is such that an ill (including a chronically ill) patient needs, in the exercise of statutory power, to be accommodated for the provision of nursing care on a sufficiently extensive scale then the provision of that nursing care in that accommodation reflects a primary need for health care, (b) the NHS will in such a case be liable to fund that patient's health care in its entirety in respect of those nursing services and accommodation in which it is provided, (c) where a patient has a primary need for health care and, therefore, the need for nursing services is more than merely ancillary or incidental to the provision of accommodation in which nursing is provided, a local authority has no power to fund nursing care of any type.
iv) Central Government Guidance appears at least to be capable of reflecting those aspects of the judgment in Coughlan.
v) In the present case the Care Trust is bound to apply criteria that fully reflect the Coughlan judgment. Indeed, it purports to apply Criteria that fully reflect Central Government Guidance (and thus what I have referred to as the Primary Health Need Approach).
vi) In the event, however, the Criteria do not fully reflect either the Coughlan judgment or (at least on a Coughlan-compliant reading of it) Central Government Guidance.
vii) The RNCC (the Registered Nursing Care Contribution) high band (which has included the Claimant) and the RNCC medium band (which has included, and currently includes, the Claimant) contain assessment criteria that are coextensive with and/or overlap with those criteria entitling a patient to fully funded NHS care. It is, therefore, incompatible with both Coughlan and with Central Government Guidance for the RNCC to be applied as if it could only engage once a patient had been assessed as not qualifying for fully funded NHS care. (Moreover, whilst Government may not have intended it to do so, the creation of such a high level of nursing and need in the high band RNCC had led, in practice, to Trusts rejecting eligibility for NHS funded care unless a person's needs exceeded the condition referred to in high band RNCC).
viii) The Claimant has been assessed under unlawful Criteria. Her assessment is therefore unlawful. Finally:
ix) The fact that - as the RNCC assessments demonstrate - the nature of the Claimant's condition is such that she requires the regular supervision of a registered nurse (and other nursing care services) entitles her to fully funded NHS care in circumstances where - as here - the Care Trust purports to implement Central Government Guidance.
The position of the Local Authority providing accommodation and care to the Claimant
The Registered Nursing Care Contribution (RNCC)
i) the correct interpretation of s. 49 HSCA 2001, the Guidance and the RNCC (and the circulars issued in respect of it, and the RNCC Workbook) is that the RNCC assessment comes in after a decision has been made that the relevant person does not qualify for Continuing NHS Health Care,
ii) health care is not confined to nursing care, it has a number of aspects and all those aspects need to be considered in determining whether a person's primary need is for health care,
iii) "continuing care" or "long-term care" is defined in paragraph 5 of the Guidance as "a general term that describes the care which people need over an extended period of time, as the result of disability, accident or illness, to address their physical and mental health needs. It may require services from the NHS and/or social care. It can be provided in a range of settings.",
iv) paragraph 6 of the Guidance says that "continuing NHS health care describes a package of care arranged and funded solely by the NHS",
v) the assessment process of the Claimant (and others in a similar position) has two stages. The first stage is the decision whether a person is eligible for continuing NHS health care. The second stage, which arises if the decision at the first stage is "no", is the determination whether, and if so, what, nursing care by a registered nurse that person requires. This second stage is referred to as the determination of the registered nursing care contribution, or "RNCC", and
vi) s. 49 HSCA 2001 is not the logical starting point for determining the divide between health and social care provision that has to be respected (see R(T, D and B) v Haringey LBC referred to earlier).
i) generally it fails to give proper weight to the point that the nature and extent of the nursing care a person requires (whether from a registered nurse or others) do not change as a matter of fact (or nursing need) between the first and second stages,
ii) it assumes that the decision made at the first stage is correct, albeit that the point is made in the RNCC Workbook that the assessor should consider whether the person does meet the criteria for Continuing NHS Health Care. But as appears from the extract set out below this point is made in terms that a person would meet the criteria for Continuing NHS Health Care if conjunctively their needs "appear significantly greater than the high band of nursing need, and their primary need is for health care". It therefore envisages that a person whose needs are within the high band of nursing need would not for that reason alone qualify for Continuing NHS Health Care,
iii) it does not have proper regard to the point that as a result of the enactment of s. 49 HSCA 2002 the position on the ground is that although the section only prohibits local authorities from arranging and funding such registered nursing care (and thus registered nursing care they could lawfully have provided) the practical result and reality is that registered nursing care is now provided and funded by the NHS, and the extent of that registered nursing care is gauged and characterised by reference to the bands described for the application of the RNCC and not by reference to any limit placed on the extent and nature of such nursing care that could be lawfully provided by a local authority applying the decision in Coughlan,
iv) thus it does not have proper regard (a) to the nature and extent of the nursing needs described in the bands described for the application of RNCC as a matter of fact - and thus by reference to the actual nursing needs of the person who falls within those descriptions, (b) to the point that as a matter of fact and of nursing need, those needs are not capped, or altered by the time at which, or the purpose for which, the documents provide that the RNCC bands are to be applied, and (c) to the point that the RNCC bands are not described by reference to the limits of nursing care that could have been lawfully provided by a local authority prior to enactment of s. 9 applying the test in Coughlan, and
v) and again generally it does not have proper regard to the question whether a person with nursing needs falling within .the descriptions in those bands has a primary need for health care, and thus to the effect at stage 1 of those nursing needs as a matter of fact and nursing need .
i) in the case of the Claimant the· assessment of her nursing needs for the purposes of deciding whether she qualified for Continuing NHS Health Care and for the RNCC was carried out by the same person on the same day. I was told that this often occurred. One can easily understand why this is so, and also that in some cases a further assessment may be carried out for the RNCC. But the approach to the assessments in this case makes it clear that the nature and extent of a person's nursing needs do not change between the stages, and
ii) the sequential approach does not provide a satisfactory answer to the argument that as
a) the focus in Coughlan was on nursing needs, and
b) the conclusion was that Miss Coughlan's needs were primarily health needs and her nursing needs were not ones that the local authority could lawfully provide (see paragraphs 31,48 and 117),
a proper application of Coughlan and the Primary Health Need Approach would mean that if any of the RNCC Bands describe a degree and nature of nursing care equivalent to that needed by Miss Coughlan a person who had those needs should at Stage 1 be found to be eligible for Continuing NHS Health Care.
i) at paragraph 3.5 that:
"The form reproduced below should be used to record the determination of registered nursing care for the person in one of three bandings: high, medium, or low, within the framework of stability, predictability, risk, and complexity (emphasis in workbook). In making this determination, a holistic approach should be followed and consideration given to the totality of information gained from the domains of the single assessment and the care plan, which will also have addressed the key dimensions of instability, predictability, intensity, risk and complexity of needs (my emphasis). This information should be used by the designated NHS nurses alongside their professional skills, knowledge, and observations of the individual concerned, to inform the determination of registered nursing care needs within a nursing home setting. In evaluating all assessment information, full account must be taken of the prognosis of people's conditions, and the likely outcomes if help were not to be provided, or was provided in different ways. Attention should be paid to the full range of a person's problems, and not just those for which a nursing response is immediately obvious.",
ii) at paragraphs 3.8 and 3.9 it describes the 'high band' and 'medium band' respectively as follows:
"The High Band
People with high needs for registered nursing care will have complex needs that require frequent mechanical, technical and/or therapeutic interventions. They will need frequent intervention and re-assessment by a registered nurse throughout a 24- hour period, and their physical/mental health state will be unstable and/or unpredictable.
The Medium Band
People whose needs for registered nursing care are judged to be in the medium banding may have multiple care needs. They will require the intervention of a registered nurse on at least a daily basis, and may need access to a nurse at any time. However, their condition (including physical, behavioural and psychological needs) is stable and predictable, and likely to remain so if treatment and care regimes continue. "
iii) The terms used in those definitions are defined as follows in Box 3.1:
"Stable: Health 'or disease process/disorder, including emotional, physical, behavioural and psychosocial needs, are in a steady state, and are likely to remain so if correct treatment/care regimes continue.
Unstable: A fluctuating disease process/disorder, and/or emotional, physical, behavioural and psychosocial conditions, resulting in an alternating health state and requiring frequent or regular intervention or treatment.
Predictable: How the patient responds to their health or disease processes/disorder or to any internal or external triggers can be anticipated with some certainty through established interventions and regularly reviewed care plans.
Unpredictable: How the patient responds to their health or disease processes/disorder or to any internal or external triggers cannot be anticipated with certainty, and there is a requirement for ongoing assessment, care planning, intervention and review.
At Risk: Abilities are compromised or absent most or all of the time; sensory loss is multiple; self-image is low. Frequent reassessment of risk is needed.
Minimal Risk: Abilities present most of the time, but there is a need for regular reassessment of risk.
Medium Complexity: Physical and mental needs are moderately complex; mechanical/technical and/or therapeutic assistance are needed regularly or intermittently. The interventions require regular reassessment.
Highly Complex: Physical and mental needs are highly complex; mechanical/technical and/or therapeutic intervention are needed frequently, including frequent reassessment over a 24 hour period." (emphasis in workbook), and
iv) at paragraph 3.11 being the guidance notes on completion of the RNCC state that:
"Remember that the person's eligibility for NHS continuing care should be considered once assessment information has been evaluated and an appropriate care plan is being considered. If your examination of all the patient information leads you to think that in fact this person does meet the criteria for NHS continuing care (that is, their needs appear significantly greater than the high band of nursing need, and their primary need is for health care) the case should be re-directed." (emphasis in workbook, and I have referred to this above)
v) at page 22 a case study is included to provide an example of a person who would fall within the High Band but whose assessment was that she required admission to a nursing home providing nursing care (my emphasis) but who under the two stage approach would not be assessed as having qualified for Continuing NHS Health Care .
i) L. Clements, Community Care and the Law (3rd edition, 2004) states at paragraphs 10.148 and 10.150 that:
"It is arguable that the Department [of Health] set the high level of support (i.e. the "high" band) above the level defined by the Court of Appeal [in Coughlan] as the point at which a person could expect full continuing care funding.
It is likely that some patients assessed as falling within the "medium" band will also be entitled to continuing care."
ii) why the Health Service Ombudsman has said in a letter to the Department of Health (which is set out in the record of the evidence to the Select Committee - see Volume II to its Sixth Report of Session 2004-05 (HC 399-ii) on NHS Continuing Care published on 3 May 2005 at page 98) in respect of the definition for high band RNCC that:
" .... This definition does not allow for complexity, intensity and unpredictability of health care needs to be alternative types of qualifying need. Rather, a person must have "complex needs", and their physical/mental health state must be "unstable and /or unpredictable" in order to receive high band RNCC. A person must therefore either have complex and unstable, or complex and unpredictable health care needs. This, in itself, appears to create a higher threshold of health care need than would qualify a person· for NHS CC.
In addition, however, a person will also need "frequent intervention and re-assessment by a registered nurse throughout the 24-hour period". This again appears to be a higher threshold than for continuing care eligibility, where the healthcare needs must only be such that they require "regular supervision by a member of an NHS multi-disciplinary team". Of course, a registered nurse could be a member of the NHS multi-disciplinary team.
Consequently it is difficult to see how a person with healthcare needs that properly place him or her at high band RNCC would have even reached the stage of an RNCC assessment had he or she been properly assessed for NHS Cc. This is because the level of health care needs that warrant high band RNCC would seem to be, at the least, equivalent to those that should qualify a person for continuing care funding, if not higher. It would seem to us therefore that a person properly assessed for nursing needs and in receipt of high band RNCC, on the basis that the person. bas intense nursing needs and/or complex nursing needs, would qualify for NHS CC funding.
It is our view that the threshold for high band RNCC was set at such a level that confusion with NHS CC was inevitable, and that injustices will continue to occur without urgent action to clarify matters. The current situation has worked to the disadvantage of many old and vulnerable people and their relatives who, as a result, have been wrongfully refused continuing care funding.
Due to our concerns about the compatibility of high band RNCC with refusals of NHS CC, we placed on hold the further consideration of complaints where the aggrieved was in receipt of high band RNCC. Having now considered this matter further, and taken advice from Counsel, we ask that the Department provide urgent clarification as to the intention behind the words quoted above, and clarification as to how you require practitioners to distinguish between eligibility for high band RNCC and eligibility for NHS continuing care funding. Upon receiving that clarification, the Ombudsman may then seek further advice from Counsel as to the legality of that approach and the decisions made by trusts and strategic health authorities in complaints we are holding and decide how we should proceed on the complaints we have on this matter. This could be by launching a series of investigations against trusts and authorities, or, preferably, by us agreeing a way forward on the matter strategically, and resolving the complaints en bloc (for example by asking trusts and strategic health authorities to agree NHS CC for these meeting high band RNCC or to reassess patients for NHS CC using your new advice and guidance). (bold my emphasis, italics in the report)", and
iii) why the Select Committee in its Sixth Report of Session 2004-05 (HC 399-i) on NHS Continuing Care published on 12 April 2005 at paragraphs 89-103 under the headings "Confusion over the. Registered Nursing Care Contribution" and "Questions over whether the criteria are actually Coughlan-compliant" considered the overlap between high or medium band RNCC and continuing care fully funded by the NHS and the effect of Coughlan and the extent to which the findings of the Court of Appeal in Coughlan have been implemented by Health Authorities, and reported:
"To qualify for high band nursing care [RNCC], people will need to be assessed as having an "unstable" or "unpredictable" state of physical health. However, as people assessed as qualifying for fully funded continuing care must also have "unstable" and "not easily predictable" health care needs, this raises the question of whether it is possible to distinguish between high band nursing care and continuing care funding. This confusion was raised in many written submissions, and was also a major finding of the independent review [commissioned by the Department of Health]. (para. 91)
It seems to us, and is supported by our legal advice, that if a person's needs for registered nursing care are deemed to be at high band RNCC level, it is difficult not to say that that person should also be eligible for NHS continuing care funding, given the similarity of the wording ... it is difficult to see how a person with healthcare needs that properly place him or her at high band ·RNCC would even have reached the stage of an RNCC assessment, had he or she been properly assessed for NHS continuing care. This is because the level of health care needs that warrant high band RNCC would seem to be, at the least, equivalent to those that should qualify a person for continuing care funding, if not higher. (para 93)
It seems to us a nonsense that two separate systems exist for assessing eligibility for fully funded NHS continuing care and for nursing care contributions as fundamentally both systems are doing the same thing, which is determining NHS funding of ongoing health care. We have heard from several authoritative sources, including the Ombudsman, that the criteria for assessing eligibility for continuing care and high band nursing care are virtually indistinguishable from each other, causing considerable problems for those charged with applying them, and raising the possibility that, in fact, everyone who qualifies for high band RNCC should also automatically qualify for fully funded continuing care. (para 96)
We are surprised that these two distinct policies regarding the funding of ongoing health care have been developed by the same Department with seemingly no regard for ensuring coherence or harmony between the two systems. We urge the Government to put right this confusion and end unnecessary bureaucracy immediately. It seems to us that the simplest way to achieve this would be to integrate the two systems. If the two systems continue to co-exist, there must be clarification of the interaction between them, and we recommend simplification of the banding system. (para 97)
The Minister has stated that all 28 sets of eligibility criteria now operating [by Health Authorities both for fully funded NHS care and for high and medium band RNCC] are legal and in line with current guidance. However, we have received evidence which calls this in to question, arguing that in fact the Coughlan case itself would have failed to meet the requirements of current eligibility criteria, either for NHS continuing care, or for high or even medium band RNCC, as Pamela Coughlan's condition was stable and predictable, although she had high level nursing care needs. Mackintosh Duncan solicitors, who specialise in continuing care law, told us that of the many sets of eligibility criteria they have seen which are currently being used, "none of those criteria are in accordance with the Coughlan judgment". These are very serious charges which the Government must answer. The new national eligibility criteria must be explicitly Coughlan-compliant, ensuring that all people whose primary need is for 'health care will receive fully funded care, even if this requires a fundamental revision of the definitions and terminology of the criteria. (para 103) (my emphasis)"
"A pattern is emerging from the complaints I have seen of NHS bodies struggling, and sometimes failing, to conform to the law and central guidance on this issue, resulting in actual or potential injustice arising to frail elderly people and their relatives (paragraph 1).
I do not underestimate the difficulty of setting fair, comprehensive and easily comprehensible criteria. The criteria have to be applied to people of all ages, with a wide range of physical, psychological and other difficulties. There are no obvious, simple, objective criteria that can be used. But that is all the more reason for the Department to take a strong lead in the matter: developing a very clear, well-defined national framework. One might have hoped that the comments made in the Coughlan case would have prompted the Department to tackle this issue. However efforts since then seem to have focused mainly on policy about free nursing care. Authorities were left to take their own legal advice about their obligations to provide continuing NHS health care in the light of the Coughlan judgment. I have seen some of the advice provided, which was, perhaps inevitably, quite defensive in nature. The long awaited further guidance in June 2001 [HSC 2001/015] gives no clearer definition than previously of when continuing NHS health care should be provided: if anything it is weaker, since it simply lists factors authorities should 'bear in mind' and details to which they should 'pay attention' without saying how they should be taken into account. I have criticised some Authorities for having criteria which were out of line with previous guidance: except in extreme cases I fear I would find it even harder now to judge whether criteria were out of line with current guidance. Such an opaque system cannot be fair. (paragraph 31)"
i) the problems arise at the stage at which the decision falls to be made as to whether the actual nursing (and other) needs of a person mean that he, or she, qualifies for Continuing NHS Health Care on the application of the approach and policy of the S/S namely that he, or she, would do so if his or her primary need is a health need,
ii) the bands are not described by reference to the nursing care that could have been lawfully provided by a local authority prior to the enactment of s. 49 (applying the Coughlan test),
iii) of the argument that as a matter of fact registered nursing care falling within the high band (and perhaps the medium bands) falls outside that limit set by Coughlan, particularly when it is remembered that the focus of Coughlan was on nursing care and the decision of the Court of Appeal was that the care she needed was well outside the limits of what could be lawfully provided by a local authority, and
iv) the second stage should not influence the decision at the first stage but a message or steer given by the Guidance and the RNCC Workbook, when read together in the light of the sequential approach, is that as the RNCC bands come in at the second stage the fact that the extent and nature of a person's actual day to day nursing needs fall within any of the bands set for the RNCC (and thus the high band) will not by itself (and thus a need for that type and extent of nursing care will not by itself) qualify for Continuing NHS Health Care on the basis that the primary need of that person is for health care (see paragraphs 54 and 68 to 70 hereof).
The Guidance - the Policy and Approach of the S/S - the Primary Health Need Approach
i) if the relevant person's primary need IS a health need he qualifies for Continuing NHS Health Care, and
ii) in assessing whether or not he has that primary need the totality of his needs and thus all his needs for health care fall to be take into account.
i) the absence of a clear, distinct and early expression of the test and approach to be applied, and thus of the test or approach, against which the relevance and effect of the qualitative and quantitative criteria and factors listed in the Guidance have to be assessed, and
ii) subject to the proviso set out below, the absence of an explanation that the Primary Health Need Approach is to be applied to achieve the result that all nursing care (including RNCC) is merely (a) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide, and (b) of a nature which prior to the enactment of s. 49 HSCA 2001 it could have been expected that an authority whose primary responsibility is to provide social services could have been expected to provide, and could thus have been lawfully provided by a local authority (see Coughlan).
The proviso is that, as the S/S argued before me, the approach to be adopted leads to the result that the relevant local authority can lawfully provide (or prior to the enactment of s. 49 HSCA 2001 could have lawfully provided) a person assessed as being ineligible for Continuing NHS Health Care with his accommodation and all health care needs (leaving aside available NHS services other than RNCC) and thus with all his nursing needs in the accommodation provided. (This approach could be modified by a definition limiting the nursing needs, including RNCC, and an assertion that it was those defined needs that the relevant local authority could have provided prior to the enactment of s. 49 HSCA 2001.)
" 21. Following the Coughlan judgment, and until the implementation of section 49 of the Health and Social Care Act removing from local councils the responsibility for providing nursing care by a registered nurse, the eligibility criteria for NHS arranged and funded nursing services in nursing home should cover the following broad situations:
- where all the nursing service is the NHS' responsibility, because someone's primary need is for health care rather than accommodation (the situation is covered at paragraph 18 above [i.e. the person qualifies for Continuing NHS Health Care]);
- where responsibility for care can be shared between the NHS and local councils because nursing needs in general can be the responsibility of the local council, but the NHS is responsible for meeting other health care requirements;
- where the totality of the nursing service can be the responsibility of the local council, and there are no other health care needs.
22. Need for care from a registered nurse alone is not sufficient reason for receiving continuing NHS health care. When free nursing care is implemented from October 2001, no one, following an assessment of need, will be charged for the nursing care which they require from a registered nurse in a nursing home. Social Security benefits will still be available to those people in receipt of free nursing care. It is important that the needs of people placed in nursing home care are regularly re-assessed and appropriate support to promote independence provided wherever possible.
Further guidance on the extension of NHS responsibility for services provided by a registered nurse will be issued over the summer. This guidance will also include further details on the commissioning process for patients in receipt of free nursing care in a nursing home."
i) the nature and extent of such care does not indicate a primary health need,
ii) by reference to Coughlan such nursing services are merely (a) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (b) of a nature which it could have been expected that an authority whose primary responsibility is to provide social services could have been expected to provide prior to the enactment of s. 49 HCSA 2001, and
iii) such nursing services are not on a par with the nursing needs of Miss Coughlan (which in Coughlan were found to be nursing services of a wholly different category to those which a local authority could lawfully provide).
i) the persons charged with making the relevant day to day decisions will take the view that the' care described in all the RNCC bands could have been lawfully provided by the local authority applying the Coughlan test prior to the introduction of s. 49 HSCA 2001. This would have the following knock on practical effects on them, namely:
(a) if the bands are wide, and in fact go beyond the Coughlan test as to what a local authority could have lawfully provided, of extending the amount of nursing care that they consider could have been lawfully provided by a local authority in accommodation it provides, and
(b) setting the limit of social services at that level, and thus of affecting their view on where the line should be drawn between on the one side social services and on the other health services and, in particular, as to the assessment concerning which public body should be responsible for providing accommodation,
ii) the persons charged with making the relevant day to day decisions will focus their minds on the balance of the nursing care provided in the accommodation over and above that covered by the RNCC (because the practical effect of s. 49 HSCA 200 I, and the guidance in respect of it, is that nursing care by a registered nurse will be provided by the NHS), rather than on the question whether all the nursing care provided in the accommodation, and thus the nursing care so provided by registered nurses and by health care assistants and others under the direction or supervision of registered nurses and generally (a) could have been provided by the local authority applying the test set out in the Coughlan case, and/or (b) could alone or with other factors found the conclusion that the person has a primary health need that qualifies him for Continuing NHS Health Care.
I reached these conclusions without reliance on the witness statement of Pauline Ford an adviser at the Royal College of Nursing (RCN) whose statement was made on behalf of the RCN. However, in my view they are supported by that evidence and in particular by paragraph 14 of her statement in which she says that although the S/S and the RCN understand the sequential nature of the RNCC process, nurses on the ground report differences in application and the process can be inverted. She then cites from a document entitled "Charging for the privilege of being ill? Problems and opportunities with long term care" RCN 2005. The citations include the following:
"The RNCC system was viewed by many participants as increasingly anomalous and the cause of many difficulties. Not least, it is clear that the principle that assessment for NHS continuing care should always precede that for RNCC is widely flouted, and this in itself denies many patients access to fully funded care because their eligibility is never assessed (page 23 para. 3.4).
--------------- The potential for confusion, overlap and omission between the two systems is legion (page 23, para 3.5) "
"In addition the NHS is responsible for what is known as "continuing NHS health care", where the services to meet the totality of the patient's care should be arranged and funded entirely by the NHS. These responsibilities will remain unchanged; the requirement to fund the registered nursing care of people in care homes will not reduce the need to also make provision for continuing NHS health care ---- It may be helpful for easy reference to insert in the back of folder or the criteria for continuing health care that has been agreed by your Health Authority" (emphases in the Workbook)
i) factually (and thus at the first stage) the nature and extent of the nursing described in the RNCC bands satisfies points (i), (ii) and (iii) in the paragraph 70 hereof, or
ii) there is a gap between (a) the needs constituting a primary health need, and (b) the nursing care that could have been lawfully provided by a local authority prior to the enactment of s. 49 HSCA 2001 which is filled, or partially filled, by the RNCC nursing care.
i) the first bullet point in paragraph 21 to "someone's primary need for health care rather than accommodation" is arguably a move away from (a) the policy and approach stated in Coughlan (and here), and (b) the decision in Coughlan, because I agree with the Claimant that it is at least strongly arguable that the comments of the Social Security Commissioners in Secretary of State for Work and Pensions v Vale and others (CDLAl316112003 dated 27 July 2005) accurately reflect the decision in Coughlan. These comments (cited below) support the view that in applying the Primary Health Need Approach, and Coughlan, you ask whether the primary reason for the accommodation is a health need (which can include, or having regard to Coughlan, comprise a nursing need) rather than whether someone's primary need is for health care rather than accommodation, and further or alternatively you do not ask whether given the extent of health services (including RNCC) provided by the NHS the provision of accommodation (and the balance of any nursing care) is something that should be provided as a social service or by the NHS as a part of the person's health needs,
ii) in paragraph 22 the further guidance mentioned (which included the RNCC workbook) is referred to as guidance on "the extension of NHS responsibility". In my view this is a natural and fair way to describe it because it is a description that reflects the pragmatic effect of s. 49 HSCA 2001 which is (a) to take any responsibility for the provision of RNCC nursing care which could have been lawfully provided by local authorities away from them and place it on the NHS (like other health care that is made available on the NHS e.g. a GP although a feature of such (and other) nursing care that distinguishes it as a matter of fact is that it is and was provided in the accommodation provided by the local authority), and (6) to provide that registered nursing care, as it is described in all the bands, will be arranged and funded by the NHS. This description and effect is in my view a pointer to a conclusion that in drawing the line between what is social· care and what is health care, and thus in deciding which public authority should provide accommodation, the balance of nursing care that would be provided by the local authority (rather than all the nursing care) is relevant,
iii) they arguably support the view that a shared arrangement is permissible between health care and social services care on the basis that (a) the provision and funding of RNCC care (and any other health care provided by the NHS) constitutes the health care and is provided by the NHS, with (b) accommodation together with any balance of nursing and other care is provided by the local authority as a social service (and care that is incidental thereto ).
" ---- When a patient has been assessed as requiring accommodation because of the extent of his nursing needed, it is clear from Coughlan that the burden of reassessment - and the burden of deciding whether the claimants no longer need nursing services. - falls upon the health authority. This must particularly be so, where the patient suffers from a condition that over time is unlikely to improve to a significant extent. In the absence' of any such assessment, the health authority remains liable to arrange for those needs to be met and cannot lawfully pass responsibility for a patient to a local authority.
This is of course for good reason, because, unlike health authorities, local authorities, formerly had limited power, and now have no power to purchase nursing services for people living in private care homes. Without a positive assessment that a person has no continuing requirement for substantial nursing services, a transfer of responsibility of that person from health authority to local authority may result in a requirement for nursing care not being met. .
Therefore, we consider the concession by the health authority in these appeals that at all material times it remained responsible for the care of the claimant was well-made. Indeed, it was made plain at the hearing that understandably the local authority would not have considered it appropriate to accept responsibility for these claimants, having regard to the claimants' nursing needs and to section 21 (8) of the 1948 Act."
The Decision - the Criteria - challenges to them
i) a Continuing Care Policy sets out the circumstances under which people can expect to receive Continuing Care funded by the NHS and that the Criteria takes into account the law and the Guidance,
ii) the policy (and thus the Criteria) is intended to guide clinical and social care staff in making decisions about Continuing Care for individuals and to inform patients, service users, their carers and advocates about their entitlement to NHS continuing care,
iii) Continuing Care is a general term that describes the care that people need over an extended period of time, as a result of disability, accident or illness to address both physical and mental health needs. It may require services from the NHS and/or social care. It can be provided in a range of settings such as care homes, hospices, or, subject to clinical safety and resource issues, in the individual's own home.
i) Eligibility criteria provide a broad framework within which entitlement is assessed. Although some clinical care characteristics have been specified, the assessment will address the overall level of health needs presented in an individual case as this will determine entitlement to Continuing NHS Health Care fully funded by the NHS, even in the absence of some of these characteristics (paragraph 3.1), and
ii) patients requiring Continuing Care will fall into one of three categories described as:
• Category 1: Continuing NHS Health Care fully funded by the NHS.
• Category 2: Continuing health and social care giving rise to both social services and NHS responsibilities.
• Category 3: Social Care provided by the Local Authority.
"Continuing NHS health care is a very specific term. It describes a package of health care arranged and funded solely by the NHS because of the nature or complexity or intensity or unpredictability of an individual's health needs as set out in this policy. The package of care funded by the NHS will include nursing and assessed personal care needs. These needs will be addressed by a range of health care professionals and will also require regular monitoring.
Continuing NHS Health Care fully funded by the NHS may be made available in a variety of settings e.g. care homes with nursing or subject to clinical safety and resource issues, in the individual's own home". (my emphasis), the
"Continuing health and social care describes a package of care that involves services from both the NHS and local authorities. Local authorities are legally obliged to undertake financial assessments of people needing care in a care home and to charge individuals accordingly. Charges may also be made for some services provided in the home.
For patients entering care homes with nursing, the Registered Nursing Care Contribution (RNCC) will be considered once it has been established that an individual is not entitled to Continuing NHS Health Care fully funded by the NHS. The RNCC is NHS funded nursing care. The NHS funds registered nursing care in accordance with the three RNCC bands (see below) and also continence products. This arrangement has been made available to patients, who fund their own care home with nursing placements from October 2001 and will be available for other care home with nursing patients from April 2003. "(my emphasis) .
[The three bands are then set out as is a list of other matters for which the NHS is also responsible for arranging and funding and which could be provided either at home or in a care home] it is then stated that:
The remainder of the placement costs would be funded by the local authority or self, depending upon the outcome of the financial assessment.
[It is then stated that the local authority is also responsible for arranging and funding a list of other items]"
"Eligibility for Continuing NHS Health Care fully funded by the NHS (category 1), should be considered for those patients whose care needs are likely to require continuing medical nursing or therapy or other healthcare input to their Continuing Care plan for provision because:
- their condition is unstable, unpredictable progressively deteriorating in a way that indicates the need for a review of the care plan within one month after transfer to long-term care for,
- their continuing health care needs are complex and/or intense
The comprehensive assessment process for determining the care requirements on individual may involve the use of tools [ - which include tools that are then described -- ]
Once the overall assessment (including the social work assessment) is complete consideration will be given to whether the person meets the criteria for Continuing NHS Health Care fully funded by the NHS, taking into consideration the overall scale of the individual's needs.
Examples of types of situations where fully funded NHS Continuing Care may be appropriate are set out below. Situations like these will not necessarily entitle an individual to fully funded NHS Continuing Care. These are illustrative examples only. Decisions on eligibility will only be taken as a result of a multi disciplinary assessment that looks at the overall needs of an individual.
In applying the criteria for Continuing NHS Health Care fully funded by the NHS the central consideration is the impact that these ongoing health care needs are having, or are expected to have, on the day-to-day provision of Continuing Care. For example, the care plan might require:
- Close monitoring to identify the need of urgent or frequent healthcare input, including specialist psychiatric advice.
- Arranging urgent or frequent additional health care input.
- Maintaining close contact with the healthcare providers from outside the home, including complex specialist nursing care. The advice of these health care providers will need to be incorporated into the individual's care plan.
For an older person with physical health problems, this may be because: [and reasons are set out]
Continuing NHS Health Care fully funded by the NHS may be available in care homes with nursing, or, subject to clinical safety and resources issues, in the individual's own home.
Eligibility for Continuing NHS Health Care fully funded by the NHS should be agreed by a consultant working as a member of the multidisciplinary team (i.e. consultant geriatrician, consultant old age psychiatrist, consultant nurse or consultant therapist).
If an individual does not meet the criteria for fully funded care than a determination for RNCC will be undertaken for those entering care homes with nursing.
Eligibility for Continuing Health and Social Care giving rise to both Social Services and NHS responsibilities (category 2).
These criteria apply to physically frail people who have a lower level of need, than those who fit the criteria for Continuing NHS Health Care fully funded by the NHS. They are likely to have extensive needs, but nursing needs can be met within the parameters of the Registered Nursing Care Contribution (see section 3.2). They will, in addition to this, require personal and social care in varying amounts that would render care in a care home (i.e., formerly a residential home) inappropriate.
There may be circumstances where category 2 patients choose to receive their care at home. If this was at variance with professional advice, agreement would have to be reached with the clients/carer(s) as to how the care needs will be met. A multidisciplinary meeting should decide on the care to be shared between family, district nurses, GPs, social care and voluntary sector providers. The RNCC will not apply to patients receiving their care at home.
Within this group of patients, many will have some complex and/or extensive needs."
i) the Primary Health Need Approach,
ii) the test set out in Coughlan as to what a local authority call lawfully provide, or could have lawfully provided prior to the enactment of s. 49 HSCA 2001,
iii) to the test or approach to be applied by the decision maker by reference to the Guidance, or the Coughlan case (and what it decides and records) or otherwise.
i) that if the nature and degree of the nursing needs of a person fall within any of the RNCC bands that person will fall within category ~ unless he has other health needs that bring him within category I, and therefore at the first stage such nursing. needs of themselves will not qualify a person for category 1 (Continuing NHS Health Care), and
ii) that category 2 is a shared care arrangement in which the local authority will provide accommodation as a social service on the basis that (a) the provision and funding of RNCC care (and any other health care provided by the NHS) constitutes the health care and is provided by the NHS, with (b) accommodation together with the balance of nursing and other care is provided by the local authority as a social service (and care that is incidental thereto).
This flows, for example, from the point made that such persons "are likely to have extensive needs, but nursing needs can be met within the parameters of the RNCC' without any qualification or explanation as to how those nursing needs could have been lawfully provided by the local authority prior to the enactment of s. 49 HSCA 2001, or as to why their "complex and/or extensive needs" do not qualify them for Continuing NHS Health Care. Also this is in line with points made under the previous heading (a) as to the guidance or steer given by the Guidance and the Workbook, read in the light of the sequential argument, and (b) as to how paragraphs 21 an0 22 of the Guidance could be read.
i) this is not implicit in, and does not flow from a fair reading of, the Criteria,
ii) a fair reading of the Criteria could well found the approach in the minds of the relevant decision makers set out in paragraph 92 above, and
iii) the Criteria can fairly lead to the decision maker simply taking his or her own approach based on experience and views as to when a person should qualify for Continuing NHS Health Care.
guidelines, or a failure to apply the correct approach at law, or a failure to give adequate reasons.
Other challenges and remedy
i) in my view a proper approach to stage I of the sequential approach and the determination of whether the Claimant qualifies on an application of the Primary Health Need Approach requires an assessment of all her relevant needs which should not be determined by reference to either (a) generalisations or classes, or (b) the product of the existing assessments and the qualitative and quantitative description therein of her needs (including nursing needs) because although they are descriptions of fact I have concluded they have been made on an approach that cannot be identified and thus in my view cannot be said to have been carried out by reference to the approach which the Claimant asserts is the correct one in law, and
ii) in my view, the limited argument before me by reference to the detail of the information contained and described in the present assessments of the Claimant does not lead inevitably to the conclusion that on a lawful consideration, overview and assessment of all her needs (even if they establish a need for high band RNCC nursing) the Claimant qualifies for Continuing NHS Health Care.
i) in my view a detailed analysis of the actual nursing care needs to be carried out to see whether it could have been lawfully provided by the local authority before the enactment of s. 49 HSCA 2001 applying the test set out in Coughlan,
ii) the Claimant's argument relies on the test set out in Coughlan for determining what the local authority can lawfully provide as a test setting the starting point for continuing NHS Health Care and thus the range of persons who satisfy the Primary Health Need Approach. Thus it does not recognise the possibility of there being a gap,
iii) although not advanced in this case (save in the sense that the S/S pointed out that there can be a gap between what a local authority could have lawfully provided and what the NHS is obliged to provide) I consider that it is arguable that on a correct application of Coughlan a person does not have a primary need for health care on the Primary Health Need Approach so as to qualify him for Continuing NHS Health Care simply because he needs nursing, or other health care, that falls outside what a local authority could have lawfully provided prior to the enactment of s. 49 HSCA 2001. Indeed as appears earlier I accept the point made on behalf of the S/S that the duties, and thus the guidance and test set by the NHS for the provision of health care, are not governed by the limits of the "last resort" provision of services by local authorities, and
iv) further, in my view this argument in (iii) above is strengthened if it can be said that, like other NHS services provided to a person accommodated by a local authority (e.g. access to a GP), the nursing services the person needs over and above those that could, on the Coughlan test, have been lawfully provided by a local authority are now being provided as a matter of fact by the NHS through the RNCC. I appreciate that this would be a departure from an all or nothing approach such as that advanced in this case and a move to a shared arrangement. But as I have pointed out a shared arrangement is identified as a possibility in Coughlan. Further it must occur in a number of other situations between the NHS and individuals, and indeed in respect of a number of the aspects of the health care of a person accommodated by a local authority who does not need any nursing care by a registered nurse.
i) identify the test it applies,
ii) in doing so address the point flowing from s. 49 HSCA 2001, and the sequential argument advanced by the S/S and adopted by the Care Trust, that the Coughlan test on what the local authority could lawfully have done addresses the issue prior to the prohibition introduced by s. 49 HSCA 2001, with the consequence that at the first stage of the sequential approach it is relevant to consider whether all the nursing needs in the accommodation (including the RNCC) could have been lawfully provided by the local authority prior to the enactment of s. 49 HSCA 2001,
iii) in so doing address the point as to how a conclusion that the relevant person has needs for registered nursing care as described in the RNCC bands (or other nursing needs) that could not have been lawfully provided by a local authority prior to the enactment of s.49 HSCA 2001 is to be taken into account in the assessment of the question whether that person qualifies for Continuing NHS Health Care.
Point (iii) engages points made herein relating to the potential for a gap between what a local authority could have lawfully provided and what the NHS provides and sets as the qualification for Continuing NHS Health Care, and sharing. It also, I accept engages points as to the effect of existing policy and guidance on the approach to be taken.