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Last Updated: Sunday, 5 March 2006, 22:03 GMT
The Grogan case
Solicitor Anne Spowart
Many people have lost their homes or life savings, says Ms Spowart
Anne Spowart is a partner at Morrison Spowart who was the instructing solicitor in Grogan v Bexley NHS Care Trust (2006). Here she explains the case history and its significance.

Chronically-ill Maureen Grogan successfully challenged a decision by Bexley NHS Trust that she was not eligible for fully-funded NHS care.

The case has far-reaching implications and could affect many thousands of ill or elderly people currently accommodated in care homes where nursing is provided.

Mrs Grogan is a 65-year-old multiple sclerosis sufferer with dependant oedema with the risk of ulcers breaking out, and also suffers from double incontinence.

She has "nil" mobility and is a wheelchair user, requiring two people to transfer her, as well as some cognitive impairment.

Her health had deteriorated following her husband's death, and after a fall in November 2002 she was admitted to hospital.

Totally dependant

It was decided that she could not live independently and she was transferred straight to the Gallions View Nursing Home in February 2003. The accommodation was provided by the local authority at a cost of 600 per week.

There are probably thousands of old and ill people who should be looking carefully at the continuing care criteria adopted in their area
Anne Spowart

Bexley NHS Care Trust assessed Mrs Grogan in 2003, 2004 and 2005 as not requiring fully-funded NHS care. It used criteria drawn up by the South East London Strategic Health Authority (SHA).

After deciding that she was not entitled to fully-funded NHS care, she was assessed as having substantial nursing needs and the NHS therefore made a contribution to her nursing care (up to 125 per week).

Her asset was the family home which she was forced to sell to meet the fees.

Mrs Grogan, with the support of her family, exhausted the Trust's review procedure before challenging the Trust's decision not to fund all her care and accommodation in the High Court.

She relied upon a decision of the Court of Appeal in 1999 (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 fund both the care and accommodation.

'Fatally flawed'

In 2001, the Department of Health issued guidance to health authorities which was criticised as being unclear by both the health ombudsman and the health select committee.

On 25 January 2006 Mr Justice Charles added his voice to these criticisms stating that the guidance was "far from being as clear as it might have been".

He found that the criteria used by the Trust were "fatally flawed" as they did not reflect the fact that those with a primary health needs should be NHS funded.

The judge quashed the decision not to fund Mrs Grogan's care and ordered the Trust to reconsider her case again in line with the 1999 Court of Appeal decision.

Mrs Grogan is by no means a special case: there are probably thousands of old and ill people around the country who should be looking carefully at the continuing care criteria adopted in their area to see if the local NHS has been acting lawfully in refusing to fund their care.

The failings in the system may mean that many have already lost their homes or life savings.

There is clearly a need for a widescale review of criteria used by health authorities as they all have the same failings as South East London.

As all the criteria draw on the guidance issued by the Department of Health it is likely that this will be the case.

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