CRITICISMS from the select committee and the ombudsman of the system for deciding who should pay for ongoing nursing home care have been described in this column previously. Last week the High Court added its voice to calls for reform and quashed the decision of one health authority not to fund continuing care in the case of a sick elderly woman.
Maureen Grogan is 65 and has deteriorating multiple sclerosis, double incontinence, is a wheelchair user requiring two people to transfer her and has cognitive impairment.
In 2004 and 2005 she was assessed by the Bexley NHS Care Trust, using criteria drawn up by the South East London Strategic Health Authority, as not requiring fully funded NHS care. As a result, Greenwich local council placed her in a BUPA-run nursing home. But Mrs Grogan was forced to sell her home to pay the fees — so far almost £100,000. Mrs Grogan challenged the decision of the trust not to fund all her care and accommodation. Her case was based on a 1999 decision of the Court of Appeal (in the case of Pamela Coughlan) that if a person’s primary need is for health care (rather than social care), then the NHS should pick up the whole bill.
The court found that the criteria drawn up by the strategic health authority and adopted by the trust were fatally flawed because they did not reflect the fact that those with a primary health need should be NHS funded. The judge quashed the decision not to fund Mrs Grogan’s care and ordered the trust to reconsider her case in line with revised guidance.
The trust claimed that its decision was in line with Department of Health guidance and its criteria for deciding who to fund were therefore lawful.
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However, Mr Justice Charles called on the department to revisit it, “not least to promote a consistency of approach to the relevant issues which concern important and widespread issues of public importance and . . . which can have a profound effect on the individuals concerned”. He found that the lack of clarity in the guidance by the DoH meant that local NHS bodies had difficulty in developing criteria that lawfully described the all-important divide between health and social care. The department’s attempt to introduce a nursing care contribution for those in local authority care led to a two-tier system described by the select committee (in a passage set out and endorsed by the judge) as a “nonsense”, and by the ombudsman as leading to confusion and injustices for old and vulnerable people.
All health authorities rely on the department’s guidance to draw up their continuing care criteria. The judgment is likely to mean an anxious scrutiny of all such criteria to see if the same mistakes made by Bexley have been replicated elsewhere.
Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers
E-mail: s.cragg@doughtystreet.co.uk