The NHS - A Broken Trust

By Ross McWIlliam
BBC Frontline Scotland

A decade ago the English law courts made a landmark ruling that was to have a huge impact on who should get funding for long-term care from the National Health Service.

The most famous of these was the Coughlan judgement - named after Pamela Coughlan, who was left paralysed after a road accident.

Health care is supposed to be free ... and social care is means tested. The Court of Appeal said where your primary need was health the NHS was liable for the whole cost Nicola Mackintosh Pamela Coughlan's lawyer The full programme

In simple terms the court ruled that if your primary needs were health care then the NHS should pick up the tab for everything, whether you were in hospital or not.

The guidelines in England were changed to make it easier to assess who was eligible for funding.

That change never happened in Scotland. The old rules, so heavily criticised in the English courts, are still in place north of the border.

It made us wonder why no-one here was making a song and dance about it and beating a path to the Scottish courts.

Either there isn't a problem or there are people paying for their care unaware the NHS should be footing the bill. We decided to find out which was true.

But since no-one appeared to be making a fuss where could we start?

Well we had heard stories that a Scottish solicitor, concerned that the NHS was ignoring its legal obligation to fund patients' long-term care, was building up a portfolio of cases.

More about him later.

Frontline survey

It seemed to us that if there were patients losing out then we would find them in care homes across Scotland. So we contacted 25 care home managers and gave them the guidance used in England to work out if patients qualified for the full funding package from the NHS.

The results of our survey - which looked at just over a thousand people - were startling. The care home managers reported that more than 90% qualified.

Looking at the bigger picture, we reckoned as many as 20,000 people in Scotland could be funding their own care when the NHS should be paying.

David Waddell with his mother Sarah Send us your care cost views

One of the care home residents in our survey seemed to be a perfect example.

Sarah Waddell from Glasgow is bed ridden, relies completely on nurses and carers, and is fed intravenously. She requires 24-hour care and that doesn't come cheap.

Her family had to sell Sarah's house and so far they have paid almost £40,000 towards her care. But would that happen if Sarah lived in England?

To help answer that question we brought an English doctor up to examine Sarah Waddell. Dr Ian Donald is a consultant geriatrician who has advised the NHS on Continuing Care.

Using the revised guidelines, and remember these are in place in England but not Scotland, his assessment was that Sarah should have all her care and accommodation paid for by the NHS.

And that brings us back to the Scottish solicitor mentioned earlier. George Harper from Fife has around a dozen clients who he says are missing out because the NHS in Scotland is using the old guidelines criticised in the English courts.

His argument has won support from an important ally.

The Health Ombudsman - an independent watchdog set up to defend patients' rights across Scotland - told us the guidelines used here since 1996 were unintelligible and unacceptable. They need an urgent overhaul.

Well we have learned that the guidelines are indeed under review and have been since 2004. That review still hasn't been completed.

But at least the new health secretary is now on the case, Nicola Sturgeon has told us that she wants that review to be completed as quickly as possible so that patients receive the level of care they are entitled to.

Families like the Waddells will be watching carefully.

The NHS - A Broken Trust will be broadcast on BBC One Scotland at 2230 BST on Tuesday 28 August.