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Last Updated: Sunday, 5 March 2006, 22:04 GMT
An expert's view
Luke Clements
The following is an edited transcript of Panorama's interview with Luke Clements, a Reader in Law at Cardiff Law School and a consultant solicitor with the London practice Scott-Moncrieff Harbour & Sinclair, who answers questions on continuing care.

What do you think of the landscape in general before we go into the particular?

The general situation is one of confusion within the health and social services. An enormous injustice, I think, to patients. I don't think that one can blame the health or the social workers at the work face.

I think that they're misinformed; they've been misinformed by some very poor, probably deliberately poor government guidance. And as result of that, there is conflict between the agencies and, as I say, there is enormous injustice to patients and carers.

If you don't blame the health workers and social workers, do you blame the government and the NHS? Do you think they're guilty?

Yes. Without doubt. I used to think that it was just sort of the cock-up theory that basically you had civil servants that didn't know what they were doing but I don't believe that. I believe that there's been a deliberate policy within the Department of Health to misinform Primary Care Trusts, primarily, of the true legal position, the position that the Court of Appeal laid down in Coughlan and the ombudsmen have been repeating for over 10 years now.

You think this is a government deliberately flouting the law?

There are historical problems. I'm not just particularly blaming this government but this government came to power in 1997 with one promise on the NHS. Frank Dobson said he would cut waiting lists. And it was a promise even he now would say that was inappropriate.

It was something the government couldn't do in the short term and anything that took resources away from that objective, which the whole country was looking at, was obviously downplayed.

And as the ombudsman has said, she found a letter saying do the bear minimum on continuing care because it doesn't cut waiting lists.

So you think that strategically continuing care simply didn't count?

It was taking resources away from cutting waiting lists and therefore, yes, it strategically doesn't count, it doesn't score high enough as a political issue. There are not enough people writing enough letters. It's not getting on the front of the Daily Mail enough to become a political priority.

Do you think it could?

I don't know. I mean the problem is that the people whose lives are blighted by this, who have to sell their houses, who are traumatised with nervousness and worries and anxiety....These people are exhausted. They're ill-informed. They're often with somebody that's dying and those are not the sort of people that are going to launch campaigns at such a difficult period.

This group of people are vulnerable and their voice isn't being heard.

But you're describing the transformation of a formally free service into an actually not free service.

Yes. We have seen a transformation within 20 years from a service which was formally free and taken as normal to a service now which is effectively means tested.

It's means tested severely in the sense that you are only allowed to keep 18.10 of your income. Everything else goes towards it. So effectively your whole income goes towards your nursing home costs.

But no minister has ever stood up and said "there's been a change in policy".

No minister's stood up and said "there's been a change of policy" because there has been no change of policy. There's been no document to say "we have now changed our view. People who are long-term ill should have to pay for these things".

And presumably no government would much like to put it like that?

No government would like to say we changed our mind, continuing care, long-term chronically ill people are no longer covered by the NHS. You're going to have to pay for it. You're going to have to sell your house.

No government would like to do that. What was interesting was, of course, this problem occurred at the end of the Major government. And the Major government was particularly concerned to stop that because it was hitting Middle England, it was hitting the people that had recently bought their council houses.

I think that the Major government did attempt to resolve the problem actually. But, of course, this government has different priorities.

So how would you describe this government's policy of having protested in opposition that it thinks selling your home to pay for nursing care is a scandal but continuing to promote that policy in government?

The government's policy in this area is hypocrisy. I think we're all so cynical about politicians we think that that is normal, that they will say they're doing one thing where we, as people that know about this subject, know that that is completely untrue.

They are not prioritising this. They don't want to prioritise this. They are fearful of the cost. Although I'm not convinced it would be a great cost. So they say one thing and they do something else. So they're being politicians I suppose.

Coughlan was meant to be the legal test. It seems to me as if Coughlan has never happened; as if Pamela Coughlan is invisible.

The government has tried to erase the Coughlan decision. There's no doubt about that. The government has reissued guidance after Coughlan but it's not actually mentioned what Coughlan was about.

Coughlan said that if you need a lot of low-level nursing you qualify for continuing care, even if your situation is stable, even if it's predictable. That has never been written into the guidance.

It seems to me that the only way you could write guidance would be to repeat what the Court of Appeal said in the Coughlan decision. It's a succinct statement of continuing care criteria. But that appears in none of the government statements.

You appear to be describing a government walking - stepping very carefully around a Court of Appeal decision?

There is no doubt the Coughlan decision was very inconvenient to this government. It was a strong decision, it was a clear decision, it is a decision that was unpalatable and therefore the government has to weave a way through it without being totally untruthful but also without actually referring to the case or referring to the case as little as it can.

Do you think the criteria being applied by strategic health authorities, the rules under which you do or don't get free NHS care, since Coughlan, are, in effect, unlawful?

Yes. I think that the criteria that are emerging from strategic health authorities, continuing to emerge despite the protestations of the Department of Health, are unlawful. They are saying things that are clearly not Coughlan compliant and nobody seems to be pulling them up on this.

You're a solicitor telling me that

I'm a lawyer and I'm saying that these are unlawful. And I have absolutely no doubt that if some of those criteria went to court judges would agree with it.

The issue that comes across to lawyers like myself is that when you take a case like that there is a deal. They give in. But how many people have got the energy to find a lawyer, get legal aid, go along and challenge somebody before they die. In the vast majority, people just give up.

But you're telling me that you think that - you're sure that up and down the country Strategic Health Authorities are doing things with respect to ordinary people whose homes and savings are at risk which is against the law, unlawful?

Up and down the country Strategic Health Authorities are doing things that fundamentally affect the life of ill people and their carers which are unlawful.

Does it surprise you to be telling me that?

I'm not surprised about that to be honest. My practice is in social care law and what is astonishing is the across-the-board breaking of the law in relation to the social care rights of vulnerable people, not just by the NHS but by social services.

Largely that's because this is a group of people that don't complain because they are in such terrible straights. Unfortunately, this is not unique but this is a very bad example of it.

The situation I'm describing is unlawful. The consequence of that is that people's homes and savings are being put at risk and also they're being caused enormous anxiety at an acute period of their lives.

What words would you use to describe a system in which rules that you say are unlawful put at risk the homes and the savings of members of the community?

The way of describing that would be to say that it's outrageous and it's profound injustice.

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