Extract from the Law Society's Evidence to the House of Commons Health Committee Inquiry into NHS Continuing Care

The Law Society is the professional body for solicitors in England and Wales. The Society regulates and represents the solicitors' profession, and has a public role in working for reform of the law.

We welcome the announcement of the inquiry into the long standing problems in relation to NHS funded continuing care and the opportunity for submitting this paper to the Select Committee.

Summary

The Law Society is concerned that the recent announcement by Stephen Ladyman that a National Framework ('the Framework') is to be developed, fails to address the fundamental problems in the NHS continuing care system.

Specifically the Framework will not address the core problems in relation to NHS continuing care if its content is incorrect and not inline with the Coughlan judgement. Also, if the Registered Nurse Care Contribution (RNCC) assessment tool is retained, the Framework will do nothing to correct the perception that only people whose needs exceed the high band are eligible for NHS health care.

According to the Coughlan judgement, the boundary between health and social care is not one of policy, but of law. Legally, there has been no material change in the scope of the NHS continuing health care responsibilities since inception and no amendment to the primary statutory obligation (albeit that the duty is now to be found in the consolidated 1977 NHS Act). However over the past decades, changes in the provision of long term chronic health care services following the development of community care has created confusion in relation to funding responsibilities and blurred the practical boundary between health and social care.

The Law Society is concerned that health care has been redefined as social care without any primary legislation or debate, with the effect being that the state may seek payment for chronic and long term health services.

We also believe that successive Governments have actively contributed to this confusion by issuing incorrect circular guidance and failing to ensure that Health Authorities' eligibility criteria and assessment methods comply with the judgment of the Court of Appeal in the Coughlan case. This has resulted in many vulnerable people and their families being forced to pay for health care which should be the responsibility of the NHS and free at the point of delivery.

The judgment in Coughlan clearly establishes that where a person's primary need is for health care, and that is why they are placed in nursing home accommodation, the NHS is responsible for the full cost of the package. Contrary to Government guidance, social services authorities may only purchase nursing care in strictly limited situations, in accordance with the judgment. Whilst much of the debate has concentrated on nursing home placements, it must be recognised that eligibility for NHS funded care is not relevant to the location in which that care is provided. Those people cared for in their own homes whose primary need is for health care may also be eligible for NHS funded care.

The Law Society further believes that the creation and development of the RNCC tool has proved to be the most significant reason why health bodies have failed to properly appreciate their full NHS continuing care responsibilities. It has replaced consideration of whether a person's primary need is for health care with an assumption that the only nursing for which a person cannot be forced to pay is registered nursing. We believe that this has distorted the true legal responsibilities of the NHS as set out by the Court of Appeal and led to widespread inequalities and injustice.

The Law Society believes that the eligibility criteria currently being operated are incompatible with the Coughlan judgment. We are concerned that the criteria would result in people being eligible for NHS funded care only if they fall within the 'palliative care' category and are aware of cases where people are being forced to pay for services which are clearly health services, such as kidney dialysis, artificialfeeding, catheter care, wound care and bladder washouts. This is based on the mistaken belief that chronic health care for patients in a stable condition is no longer the responsibility of the NHS.

The Law Society believes that a national framework will only be of assistance if the following conditions are met:

• The RNCC system is abolished
• The Framework is one set of national eligibility criterion with a standard assessment method to be applied by all Strategic Health Authorities, PCTs and NHS Trusts in conjunction with local authority social services departments so that individuals whose primary need is a health need will receive fully funded care no matter where or in what setting they live.
• The Framework should not make any distinction between general or specialist nursing care, as both are nursing care arising from healthcare as opposed to social care needs
• The Framework should clearly state that funding decisions should not place undue reliance upon the predictability of a condition but should be based on whether the primary need of the patient is healthcare, as well as the 'ancillary/incidental' test set out in Coughlan.
• The Framework must properly address the health needs of people with mental health conditions.
• The Government should take proactive steps to ensure compliance.

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