Who should pay for nursing home care?
A wheelchair-bound woman suffering from multiple sclerosis has won a
groundbreaking High Court ruling concerning who should pay for nursing home
care for the chronically ill. Nicola Mackintosh, a partner at Mackintosh
Duncan in South London, discusses the implications of the case with Jon
Robins...
Maureen Grogan challenged
the decision by Bexley NHS Care Trust in south-east London that she was not
entitled to fully-funded care from the National Health Service (NHS). As a
result, Greenwich local council placed her in a BUPA-run nursing home. She
was forced to sell her home to pay fees of almost £100,000. Mrs Grogan
challenged the decision of the trust not to fund all her care and
accommodation. Mr Justice Charles was critical of Department of Health
guidance saying it was "far from being as clear as it might have been, and
this has inevitably caused difficulty for this care trust and others". He
held that the decision must be quashed because the Bexley trust had applied
flawed criteria. He added that the case raised issues with "wide
implications" for the sick and disabled and health authorities across the
country.
Grogan’s case was based on a 1999 decision of the Court of Appeal in the
case of Pamela Coughlan. That case laid down the ‘primary health need’ test,
explains Nicola Mackintosh who advised Pamela Coughlan. "So if your primary
need is health care and that’s why you are in a nursing home, then the NHS
is legally responsible for the entire care package," she says. Social
services could only be responsible for care which is "merely incidental and
ancillary to the provision of that accommodation", she adds.
"For social services to be responsible, which means it would be
means-tested, the care has to be of a quantity and a quality which you would
expect a social care agency to provide," the solicitor continues.
In 2001 following the Coughlan ruling the Government introduced a new
system for residents of nursing homes called ‘free nursing care for all’.
The system, known as Registered Nursing Care Contribution, involved the NHS
making a small financial contribution towards the overall costs of the care
package. The idea of 'free nursing care' was "misleading", Mackintosh
argues, because what they introduced was a method of making a small
financial contribution - a flat rate contribution within three bands (low,
medium and high) towards the cost of the care that a registered nurse was
providing to that person in care.
She argues that most people were dealt with under the RNCC system and not
under continuing care. "Only very few people who were about to die
immediately were basically eligible for fully funded care. So you had a
distortion of the system. Following Coughlan, what should have
happened is that, with anybody who should have been placed in a nursing
home, one would ask why they had been placed there and was it because their
primary need was a healthcare. If the answer was ‘Yes’ then the NHS was
responsible for full cost of their care package but as a matter of routine
people were being placed in a care home and just being given a financial
contribution towards the cost of a registered nursing care and nothing else.
The RNCC system was being used as a replacement for continuing care. That is
why the judge in Grogan said the case misleading and caused
injustice."
(24/03/06)
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Case annotations in other services:-
R v North and East Devon Health Authority, ex p Coughlan (Secretary of State
for Health and another intervening) [2001] QB 213, [2000] 3 All ER 850,
[2000] 2 WLR 622, 97 LGR 703, [1999] Lloyd's Rep Med 306, 51 BMLR 1, [1999]
31 LS Gaz R 39, 2 CCL Rep 285, 143 Sol Jo LB 213, [1999] All ER (D) 801; R
(on the application of Grogan) v Bexley NHS Care Trust BLD 2601060209 [2006]
EWHC 44 (Admin), [2006] All ER (D) 166 (Jan)