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Welcome to the UK's Healthcare Law Service |
STOP PRESS... STOP PRESS... |
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Your
Right to Free Nursing Care |
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 Robert
Campbell & Company is a specialist firm of Solicitors, operating
nationally, offering advice and assistance to those requiring health care
law and employment law advice.
Principal of the firm, Robert Campbell is a leading name in healthcare law, having dealt with regulatory and community care contracting issues for many years. We represent care homes and families providing specialist advice and representation to the healthcare sector unavailable from most legal practices and our work is therefore national. An increasing amount of work is now centred around NHS continuing care funding where we represent those who have wrongly been denied NHS funded care (in a private nursing home for example) where the primary need for care is a health need and such denial is therefore unlawful. Some leading examples of cases where patients have won continuing care eligibility can been seen here. A great deal of our work is in the regulatory field where we represent clients in relation to appeals to the Care Standards Tribunal, in the High Court and Magistrates Courts and before public authority committees. A great deal of our time is spent negotiating with Registration Authorities on behalf of Home Owners or their Associations in an effort to avoid litigation where possible. We are also very experienced in Judicial Review Proceedings as a result of various challenges made to decisions of public authorities. Robert Campbell has been involved in many of the Tribunal and Court decisions which now shape our law, and his extensive specialist experience has attracted clients from all over the healthcare industry some of whom have provided testimonials. As lawyers to some of the largest employers in the country Robert Campbell & Company also provide legal advice and representation in relation to employment disputes. The impact of European law upon our own legal rights and obligations is of increasing importance and particularly following the Human Rights Act 1998, which came into force in October 2000, cannot be ignored. See the article by Robert Campbell & Company setting out the main provisions of the Act. Before reading any further please check out our Terms and Conditions since by accessing this site, you agree to, and use it upon, those Terms and Conditions. Robert Campbell & Company is regulated by the Solicitors Regulatory Authority and is a practising style of Robert T. Campbell, Solicitor.
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SPECIALIST SOLICITORS CONTINUING NHS CARE FUNDING CAPPED FEE SCHEME
Following the
recent Panorama expose’ of the Government’s unlawf
"Long before the Panorama programme we were campaigning on this issue as we
believe thousands of people who have paid Tax and National Insurance all their
lives are being routinely relieved of their life savings by a system that
unfairly complicates what should be a quite straightforward issue.
The problem is that those most in need of our help are often incapable, through lack of mental capacity, to avail themselves of it even although many have sufficient resources whereas the families, who ultimately will lose out, often have the will to act but lack the resources.
In order to help people in this situation we are offering a capped fee scheme at £595 plus VAT which, particularly given what are often huge sums at stake, we feel is affordable and highly competitive. If the steps taken under our scheme do not result in nursing care being provided free when it is lawfully due we will consider taking matters further, advise you of the options available and likely costs involved"
A recent client said:
| "Re: Robert
Campbell & Company Solicitors - Free Nursing Care Representation We just wanted to say how grateful we are for the intervention of Robert Campbell & Company in relation to the cost of care for our father. Dad was admitted to hospital suffering from dementia that was thought to be a mixture of Alzheimer's and Vascular Dementia. On any view he was clearly unable to look after himself and needed continuing and continuous nursing care. The NHS Trust responsible for the hospital carried out all sorts of assessments and came to the conclusion that Dad was not entitled to his nursing care on the NHS and would be discharged in ul refusal to provide nursing care on the NHS to those entitled, specialist Healthcare Solicitors, Robert Campbell and Company, are offering a capped fee service to family members who are seeing the family inheritance being hijacked. Principal
of Robert Campbell and Company, Robert Campbell, said: to a private nursing
home for which he would have to pay the fees. |
Full details of the scheme can be obtained by contacting Robert Campbell on 0870 2412139 or visiting .
Search terms:
care, law, carehome, care home law, care standards, regulatory, regulations,
human rights, registration, care standards, inspection, csci, care standards
tribunal, healthcare law, inspectorate, employment, residential, nursing
The National Homes Swindle
THE CARE STANDARDS ACT 2000
In April 2002 the current raft of legislation regulating residential and nursing
homes The Registered homes Act 1984 and attendant regulations will be repealed
and replaced by the Care Standards Act ("CSA" ).
Court Clarifies Right to Free Nursing Care
Thousands of people have been unlawfully forced to pay for their own nursing care despite a landmark court ruling in 1999.
In 1999 Pam Coughlan took her local health authority to court when they refused to fund her fees for staying in a nursing home. In that case the Court of Appeal essentially said that, as Ms Coughlan’s primary need was a health need, the local authority was barred from funding this because their powers and duties to support people under the National Assistance Act did not go that far. By inference, where the local Social Services authority’s powers ended, the NHS responsibility would begin.
This was important because, whereas NHS care is fully funded by the taxpayer and therefore free at the point of delivery, Social Services care packages are means tested and recipients have to pay if their means are sufficient. Accordingly patients with assets, a house for example, are often forced to sell them to pay for their care unless they can get free care under the NHS.
The CSA is a far more broad ranging piece of legislation than the 1984 Act. It
attempts to grasp control of the whole concept of care, in all its forms, and to
regulate those who provide it virtually in all settings and circumstances.
Those services currently regulated, including residential care homes for adults,
nursing homes and children's homes will continue to be registered and inspected
but the powers of registration and inspection are being removed from local and
health authorities and passed over to a new national public authority called the
Commission for Care Standards'.
For the first time previously unregulated care services will be brought under
the regulatory umbrella including:
| Domiciliary social care providers | |
| Independent fostering agencies | |
| Residential family centres | |
| Boarding schools |
Greater certainty and less ambiguity is to be welcomed but home owners will find that the legislation severely curtails their rights and, essentially decides many areas of potential dissent in advance but against them by giving absolute power to the new regulations body the Care Standards Commission ("CSC ).
Homeowners who felt inspection officers were too powerful before will discover that, although the description omnipotence may be going too far, their regulatory armory is far greater than before and their hand is evident in drafting much of the Act and, of course, the standards themselves.
The CSA creates many new powers for inspectors some of which may cause a few raised eyebrows. For example:
"S.31(1) The registration authority may at any time require a person who caries on or manages an establishment or agency to provide it with any information relating to the establishment or agency which the registration authority considers it necessary or expedient to have for the purposes of its functions under this Part."
and .......
"(3) A person authorized by virtue of this section to enter and inspect premises may:
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a) Make any
examination into the state and management of the premises and treatment
of patients or persons accommodated or cared for there which he thinks
appropriate
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b) Inspect and take
copies of any documents or records (other than medical records) required
to be kept in accordance with regulations under this part section 9(2)
the Adoption Act 1976, section 23 (2)(a) or 59(2) of the 1989 Act or
section 1(3) of the Adoption (Intercounty Aspects) Act 1999.
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c) Interview in private
the manager or the person carrying on the establishment or agency."
"(6) The person so authorised may, with the consent of the person mentioned in subsection (5)(b) examine him in private and inspect any medical records relating to his treatment in the establishment The powers conferred by this subsection may be exercised in relation to a person who is incapable of giving consent with or without the person's consent."
further
"S32(2) A person so authorised may require any person to afford him such facilities and assistance with respect to matters within the person's control as are necessary to enable him to exercise his powers under section 31 or this section."
and
"(3) A person authorised by virtue of section 31 to inspect any records shall be entitled to have access to, and to check the operation of; any computer and any associated apparatus which is or has been in use in connection with the records in question."
Whilst the detailed regulations under the CSA remain to be finalised the National
Minimum Standards themselves have been issued, at least for older people.
Legal Minimum Standards for care providers are an innovation. Hitherto local "guidelines" or the like have not had any force of law so that they have all been capable of challenge. This is a very important aspect of the new legislation in that it provides a whole raft of new legislative provisions with which care providers must comply or risk prosecution or cancellation proceedings.
The standards are obviously designed to drive quality up and those drafting them have recognised the critical importance to the provision of quality care of producing a soundly recruited, trained, disciplined and motivated staff team. Evidence of this will be required to satisfy the new regime and Robert Campbell & Company have produced a tool designed to provide homeowners with this.
for a description of our Integrated Personnel Management and Training System.
Apart from the fact that providers who do not comply with this will have to close we at Robert Campbell & Company see this as a positive development. A well recruited, trained, disciplined and motivated work force is likely to be happier and more stable, saving enormous costs generated by the care industry malaise, high staff tumover, and lead to the provision of a quality product -superb care. These are, or should be, every business person's objectives. Profitability should also be increased and regulatory interference reduced.
he CSA dawns a new age in care. It is right that this should happen now given the demographic outlook over the next 30 years but the central question remains - will funding be sufficient to provide for the excellence to which we all aspire?
The New Care Standards
Tribunal
Following the demise of the Registered Homes Tribunal a new tribunal has come
into being, the Care Standards Tribunal. At the time of writing the new tribunal
is awaiting finalisation of a fresh set of rules which had been out for
consultation at the end of last year.
The Care Standards Tribunal is actually the same body as that provided under the Protection of Children Act but it's ambit of operation has been widened to hear appeals in England and Wales against:
Decisions of the National Care Standards Commission in England and decisions of the National Assembly for Wales (NAW) in respect of establishments and agencies;
Decisions of the Early Years Branch of Ofsted in England and decisions of the National Assembly for Wales in respect of the registration of childminders and day are providers for children under 8 years old;
Decisions of the National Care Standards Commission in England and the National Assembly for Wales (NAW) in respect of a refusal to waive disqualification relating to the provision of, management or financial involvement in, or employment in, a children's home under Section 65 of the Children Act 1989.
Decisions by the Secretary of State for Health in respect of inclusion on the list of those considered unsuitable to work with children;
Decisions by the Secretary of State for Education and Skills to prohibit or restrict employment of an individual in schools list 99);
Decisions of the Secretary of State for Health in respect of inclusion on the list of those considered unsuitable to work with vulnerable adults;
In due course the Care Standards Tribunal will be asked to handle other appeals and applications including in relation to the General Social Care Council, decisions of the Chief Inspector of Schools and decision of OFSTED.
With this wider range of responsibilities than that of the old Registered Homes Tribunal ("RHT") is likely to come a more "court like" set of procedural rules dealing in more detail with the manner in which cases are disposed of in contrast to the now almost defunct RHT rules (there are still RHT cases proceeding under the old rules due to the transitional provisions which deal with the disposal of cases pending before April this year) which were very brief and left most of the "mechanics" of hearing the cases to the discretion of the RHT itself which was authorised to regulate it's own proceedings.
The more important departures from the previous rules planned in the new set appear to be:
The determination of appeals without an oral hearing where requested by the appellant;
Preliminary hearings where the President or nominated chairman directs that there should be such a hearing or where either party (with the permission of the President) requests such a hearing; enabling the president or nominated chairman to find in favour of the opposing party where the other party fails to comply with his directions;
Enabling the President or nominated chairman to issue a costs warning before a hearing and the Tribunal to issue a costs order following a hearing where in his/their opinion the appeal has not hope of succeeding or where the party has acted unreasonably in bringing or conducting the appeal proceedings;
Presentation of evidence and particular provisions in relation to the giving of evidence by children and vulnerable adults;
Provision for the Tribunal to review its decision.
For the first time it will be noted costs can be awarded. However initially the
rules are likely to provide for such awards to be a maximum of £500.
There will be different procedures for different types of matter intended to reflect the different nature of appeals and type of appellant between the various functions of the tribunal.
First Party Top Ups
In case anyone missed it, Charges for Residential Accommodation ("CRAG") amendment 16 was issued in October last year allowing, for the first time, certain residents to top up their own fees so that they can go into more expensive accommodation than the paying Council would "otherwise expect to pay".
However this only applies if residents have either accessed the 12 week property disregard or are subject to a deferred payments scheme.
The Local Authority Circular ("LAC") announcing the new provisions contains an interesting piece of guidance to local authorities in relation to what they would "usually expect to pay" (the, rather strange, definition of how they would arrive at the maximum fee they would agree contained in the Choice of Accommodation Directions 1993). I have always felt this provision more or less gave Councils carte blanche to set the limit but the LAC says:
The additional Payments Regulations only allow residents to top-up if they have either accessed the 12 weeks-property disregard or are subject to a deferred payments agreement. Once the value of the home is realised, they will be able to support themselves in a way that suits them best. To deny them choice until the home is sold would be unfair.
The interesting words are "….it's usual cost was sufficient to allow it to provide residents with the level of service they could reasonably expect if……"
Many would argue this is simply not being followed and that it could be demonstrated with evidence that the fees paid do not cover the cost of this provision. The guidance is issued under S7 (1) of the Local Authority Social Services Act 1970 and, therefore, should be obeyed as a matter of Law. One wonders whether this may be of assistance in the uphill battle the industry faces year on year for proper funding in respect of local authority placements.
STATEMENTS OF PURPOSE
The Care Homes Regulations 2001 ("CHR") contain a Regulation, Reg. 4 (1), requiring registered persons to produce a written statement called a Statement of Purpose ("SOP") consisting of:
(a) a statement of the aims and objectives of the care home;
(b) a statement as to the facilities and services which are to be provided by the registered person for service users; and
(c) a statement as to the matters listed in Schedule 1.
CHR 43 (1) renders failure to comply with Reg 4 an offence.
CHR 43 (2) & (3) provides for the service of a warning notice (similar to the old Reg.20 and Reg. 15 notices) that give registered persons an opportunity to comply or else be prosecuted.
CHR 16 (1) requires the registered person to provide all of the facilities listed as being available in response to CHR 4 (1)(b)
CHR 43 (1) renders failure to comply with CHR 16(1) an offence
Whilst failure to provide the Statement of Purpose itself is an offence only
failure
to actually provide the facilities and services that registered persons promise
to provide in response to CHR 4(1)(b) is an offence.
As providers may not always be able to control to supply of facilities and services to be provided it would be prudent for them to couch the 4(1)(b) statement in as general terms as possible.
Although failure actually to conduct the home in accordance with the statement provided in response to CHR (1)(a) and (c) are not in themselves direct offences it is the writer's view that, in considering any proceedings under any other "conduct" CHR the Court may take these statements evidentially into account, similarly in relation to any proceedings for cancellation of registration. This is particularly so in relation to "fitness" issues where the breaking of an "undertaking" might be relied upon to show a lack of integrity.
Providers need to prepare their SOPS with extreme care. Do not promise anything
you cannot guarantee to deliver and ensure that any undertakings given are
sufficiently general in terms that failure to deliver may not be relied upon as
a direct breach of promise.
|
Employment law is complex
and constantly changing. Employers , faced with an ever increasing
plethora of new legal rules need a reliable, practical legal resource when
employment related disputes arise as, without good and timely advice, the
consequences can be costly-the maximum compensatory award for unfair
dismissal has been recently raised to £50,000. |
Susan Strickland runs a care home in Hertfordshire. In 1995, after a history of disagreement with Hertfordshire Registration and Inspection Unit, her home was closed down by emergency order on the ground that there would otherwise have been a serious risk to the life, health or wellbeing of residents.
Mrs Strickland had had no notice of the fact that an emergency application was to be made, despite my being in negotiation with the authority at this time, and the home was closed immediately, all residents being taken to other homes, many in great distress. A substantial number of the residents soon died, although no one can say if that was caused by or contributed to by the trauma of the closure. What was clear, however, was that Mrs Strickland faced very substantial losses and possibly financial ruin.
One year after the closure our appeal to the Registered Homes Tribunal was heard and, extraordinarily (I don’t think it had happened before) a submission by us akin to "no case to answer" was made after the authority’s evidence had been heard and allowed. We had won without calling any of our numerous witnesses.
The basis of the submission was that the officers had not visited the home during the 6 days preceding their application for the emergency order and could not, therefore, say what conditions existed in the home at the time they were telling the magistrate that there would be a serious risk. Their "evidence" was historical.
In the meantime Herts had issued a separate proceeding to cancel Mrs Strickland’s registration on the ground that she was unfit and an application that Mrs Strickland had made to manage her own home was refused. About another year passed pending the hearing of her "fit person" appeal when, on the afternoon of the day before the hearing was due to start, the Council faxed a letter to the tribunal saying they wanted to withdraw. The tribunal subsequently re-instated Mrs Strickland’s registration and, some 7 ½ years after the original blow, this tenacious woman is getting back on her feet, filling the home and battling on.
Mrs Strickland is now suing for compensation. The main plank of her argument is that the Council were, at the very least, negligent in the way they treated her and have caused her very substantial loss.
For years now the law in relation to this kind of action has been firmly tilted against home owners. The rot set in with a case called Martine in 1993 that established, in effect, that Registration Authorities did not owe home owners a duty to take care in the exercise of their functions. The rationale for this was essentially that for them to owe such duties may produce a conflict of interest between that and the clear duties they owed to residents. Martine was followed by a line of other cases unhelpful to our cause.
In the light of this Herts decided to apply for Summary Judgment. That is to say it submitted the law was so clearly against us that we had no chance of succeeding at trial and therefore our claim should be struck out.
The matter came before a High Court judge recently. Mrs Strickland was represented by Leading and Junior Counsel, so important is the issue at stake for her.
The Council’s lawyers put forward a number of alternative arguments in support of their contentions and the decision was reserved.
When the reserved decision was handed down it contained the following passage:
"There is no doubt, however, that the law has moved on since the decision of the Court of Appeal in Martine and that of the House of Lords in X v Bedfordshire County Council. It is well established that it is inappropriate to grant summary relief in respect of a claim which depends on principles of law which are in a state of flux or development: see e.g. E v Dorset County Council (1995) 2 AC 633. Moreover, so far as the vexed question of whether a duty is owed by local authorities in the exercise of statutory functions is concerned it is virtually beyond question that the law is indeed in a developing state. In Douce v Staffordshire County Council (2002) EWCA Civ.506 the Court of Appeal were addressing an appeal from Rafferty J. who had refused an application for summary judgment made by the defendant county council in respect of a claim brought against them in their capacity as the "registration authority" under the Registered Homes Act 1984. The appeal was dismissed and the court expressed its thanks to counsel for their assistance "in changing legal landscape". Both the Judge and the Court of Appeal were of the clear opinion that "we are here in an area of developing jurisprudence and considerable uncertainty when… we are dealing with the tortuous liability of local authorities entrusted with a regulatory function".
We have won the battle – now for the war!
It has to be said there is no guarantee the court that eventually tries the case will agree with the judge who heard the Summary Judgment application. However, that one judge can find it in himself to acknowledge Mrs Strickland may very well have rights, whereas previously the door has been slammed very firmly in such home owners’ faces, is a very significant departure from the accepted position on this issue.
It must be right that home owners should have some form of redress where regulatory authorities act so incompetently as to cause them such horrendous damage. That this may give rise to a fine balancing act between the duties owed to residents and those whom they police is no bad thing. The absence of any safeguards for home owners has for too long been a window for abuse of power with impunity. If Mrs Strickland is successful this will, at last, be closed.
Special Report on commissioning
of adult social care
Community Care, 08/06/2005
There are to be no shotgun marriages - the language is now about 'virtual' care
trusts, closer partnerships between the organisations, more pooled budgets and
sharing of staff.
Then there is 'cross-commissioning', where community matrons and nurses
commission home care, or social workers commission equipment or health
interventions as part of their case management role.
Meanwhile, adult social services departments will be allowed to contract out
even their statutory functions, while still retaining overall responsibility for
them.
Should this sort of closer working not materialise, the government warns it may
'strengthen the duty' for local authorities and NHS bodies to co-operate in
commissioning adult services and sharing responsibility.
Two other major green paper themes are the need to give clients choice and
independence and the need to prevent more ill health and social exclusion, thus
saving on complex care needs later on.
New partnership arrangements - Local Area Agreements and now Local Public
Service Agreements - are the means to bring commissioners together with their
communities to address these themes.
Getting people into primary services
Local authorities see their role as helping people access free universal
services - the preventive part - and as guarantors of quality for the more
complex care packages that they buy in the marketplace.
"We need to be looking at how do we get people into universal services,
like primary care; to accessing ordinary services rather than specially tailored
individual services which tend to be stigmatising and expensive," says John
Dixon, social services director in West Sussex and co-chair of the Association
of Directors of Social Services disabilities committee.
But a headache for commissioners is that one of the engines of the choice agenda
- direct payments - also threatens to unsettle their long-term planning and
block-contracts with big care providers.
"I know that providers are very bothered about hundreds of thousands of
people all buying care packages from cards in newsagents windows and small ads -
the potential destabilisation is horrendous," says Dixon.
"It's a myth that social service departments have been dragging their feet
over direct payments. The problem is service users don't want the bureaucracy
and the risk of having to assure the safety for themselves. They want someone to
turn to if things break down."
Local government is therefore keen to see personalised budgets introduced well
before the projected date of 2012. "With personalised budgets I expect them
to be able to buy off of local authority block contracts, something you can't do
with direct payments," says Dixon.
"The local authority can still do the commissioning and users can go to
those providers safe in the knowledge they have been assessed by the council -
there's much less risk to the service user."
Direct payments should not be restricted to social care
The other sticking point with direct payments is they are not available to NHS
bodies - creating real headaches for any arrangement in which the NHS and adult
social services share care.
"Direct payments must not be restricted to social care as service users
will look to have the same level of flexibility and choice in other services,
including health care, as this agenda progresses," says Jeni Bremner,
programme manager on the Local Government Association's community wellbeing
board.
"The provision of community based health care such as district nursing and
chiropody can be fundamental underpinnings of independence. It is essential that
the choice agenda in the NHS and other areas of public service keeps pace with
the social care agenda as it develops."
There is a way around this bar on NHS direct payments, but it's a complex
agreement known as a Section 31 arrangement. Dixon argues: "It should be
written into the White Paper that we will allow the NHS to have direct payments,
otherwise someone who moves from social care to community care loses that
option."
"Boundaries will be blurred, says Webber"
From the NHS point of view, a big change in commissioning habits may come once
GPs' practices are again allowed to hold commissioning budgets. "Patients
will have more choice about what and where they want their care to be
delivered," says Jo Webber, policy manager at the NHS Confederation.
"There always will be issues around resources"
"Front line professionals have been trying to make care packages fit round
patients, so it's nice to have that reinforced in the green paper.
"There always will be issues around resources, but now there are more open
and honest conversations.'
The green paper points to some innovative ideas such as adult placements (i.e.
fostering for adult clients) but is not prescriptive about new service
configurations.
"What you are going to find is some of boundaries between health and social
care workers will get more blurred as time goes on,' says Webber. 'It makes no
sense to duplicate going in to see someone when, with cross training, one person
could deliver a package of care.'
Mental Capacity Act 2005 comes into force April 2007
An Act to reform the currently wholly unsatisfactory situation that has obtained
for so long regarding the affairs of those who lack mental capacity is now on
the statute books and will come into force next year.
This Act received royal assent in April 2005, and will come into force on 1st
April 2007. It makes new law governing the way in which decisions are made on
behalf of people who lack mental capacity.
The Act includes provision for advance decisions to refuse treatment. It extends
powers of attorney so that they can apply to decisions in relation to donors’
health and welfare, as well as their finances. It also sets a framework to
assess the best interests of a patient who lacks capacity, together with
provision relating to medical research. It introduces new criminal offences of
neglect and ill-treatment of people who lack capacity.The legislation will be
accompanied by a Code of Practice, to which all professional and paid carers
will be under a statutory duty to have regard.
The Government is carrying out extensive consultation on the implementation of
the Act prior to it coming into force and has established a Mental Capacity
Consultative Forum established to consider the legislation and Code, and will
continue to advise the Government on those aspects of implementation which
affect palliative care.
Robert Campbell will be publishing an article on the new legislation shortly.