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Monday, April 26, 1999 Published at 11:22 GMT 12:22 UK


Government challenges free elderly care ruling

The original ruling said the NHS must pay for care

The government is to challenge a High Court ruling that potentially entitles thousands of elderly people in private nursing homes to free care.

BBC Social Affairs Editor Niall Dickson reports
Last December, Pamela Coughlan, who is severely disabled, won a case against North and East Devon Health Authority in the High Court.

She had refused to be moved from an NHS nursing home to a private one. The court's ruling in her favour meant it was unlawful for authorities to refuse to pay for long-term care.

But now the authority, supported by the government, is challenging the ruling in the Court of Appeal.

The Royal College of Nursing has decided to support Ms Coughlan's case.

Closing beds

The health authority had wanted to shut down Mardon House, a purpose-built NHS home for people with severe disabilities in Devon, and move residents into the private sector.

Niall Dickson, the BBC's Social Affairs Editor, said it is a familiar process that has seen thousands of long-stay beds shut over the last 20 years.

Some people see it as the quietest privatisation of all, he said.

However, last December the High Court ruled that Ms Coughlan, a resident at the home, needed nursing care and that the NHS is responsible for providing that care.

The case is now due to go to the Court of Appeal, and raises questions as to who should pay for nursing care - the health service, social services or the individual.

The authority said it had no option but to challenge the ruling.

Annie Jefferies, the authority's policy planning manager, said the issue was a national one and the original ruling needed clarification.

She said: "If we hadn't appealed we wouldn't have been able to discharge any patients from an NHS hospital into a nursing home."

This was because while the hospitals are run by the health authority, nursing homes are run by social services.

Royal college support

This area of confusion - who is responsible for what - is central to the case.

After the original ruling, the Royal College of Nursing wrote to Health Secretary Frank Dobson to ask for guidance to be issued.

[ image: The RCN says the government position undermines the profession]
The RCN says the government position undermines the profession
Now the Health Secretary has supported the authority, the college has come forward to support Ms Coughlan's case.

It says the case will "clarify in law whether or not the NHS is liable for the funding of all nursing care regardless of where it is provided".

The college said such confusion would not have been possible before the NHS and Community Care Act of 1990.

The outcome "will have major implications for the tens of thousands of people in nursing homes who are currently means-tested for their nursing care", it said.

Changing the profession

The college will argue that if the health authority's action - transferring a patient from health to social services - was legal, then this distorts the profession of nursing.

A spokeswoman for the college said the argument was based on how the profession had developed historically.

She said: "What the health authority and Department of Health are arguing is that long-term nursing care is not health - they're arguing that it's social care.

"Nurses, because of where nursing has originated from, say it is health, even though you sometimes do it in a social care setting.

"If you start to say some nursing is social services and some nursing is health care, you start to develop two different branches of nursing."

Health Secretary's powers

The distinction could prove damaging to health services, she said.

"If the Secretary of State can decide that long-term general nursing care isn't health, if you took it to its logical conclusion, he could say that medical care isn't. Where do you draw the line?

"We're saying that he doesn't have the authority to do that."

The college also said that "removing the distinction between nursing care in nursing homes and elsewhere is likely to be cost-effective for the NHS - as well as a benefit to older people".

This is because nurses could focus on the patient, not the setting in which the care is provided, it said.

Government report

The government set up a Royal Commission to examine who should pay for such care - the NHS or older people and their families.

The commission reported last month and recommended that both nursing and personal care - such as washing and dressing - should be provided free.

Ministers have so far given this solution a lukewarm reception.

The appeal is expected to be heard in the two weeks from 17 May.

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