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In 1972 Coughlan was transferred to Newcourt Hospital in Exeter where she remained for 21 years. In the late 1980s rumours surfaced that the health authority planned to close the hospital since it could not be suitably refurbished. Following a residents’ campaign against the closure, a compromise was suggested whereby if residents agreed to move into a purpose built unit at Mardon House, it would be their ‘home for life’.
Despite this assurance, in 1997 residents were informed that Mardon House was to be sold because the NHS did not consider any of the residents to be their responsibility, effectively deciding that the residents were not entitled to NHS continuing healthcare. Coughlan and her lawyer challenged the decision and the High Court found in her favour in 1998. The health authority and Department of Health appealed the decision but this was dismissed by the Court of Appeal in 1999.
The Coughlan judgment is without question the most important benchmark case in NHS continuing healthcare, and one that is often misunderstood. The judge in the case of Coughlan ruled that not only were her needs primarily health needs that could not lawfully be provided by the local authority, but that Coughlan herself required services of a wholly different category.
The eligibility criteria for continuing healthcare applied in the case of Coughlan were judged to be far too restrictive and this judgement resulted in every health authority being instructed to review its local criteria to ensure that it was ‘Coughlan compliant’. Essentially this meant that local authorities could only legally provide healthcare services that were:
1. Merely incidental and ancillary to the provision of accommodation which a local authority is already under duty to provide.
2. Of a nature, which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide.
Ultimately the Coughlan case highlighted that if an individual has healthcare needs that are over and above that which social services can be expected to provide and are therefore primarily health needs, the NHS has a responsibility to provide for those needs, and to fund the necessary care.
The patient involved was a man with severe brain damage who was discharged into the community by Leeds General Infirmary with no follow-up care or funding in place. Although his needs had stabilised, he still required a significant amount of nursing care for the rest of his life and so his wife paid for his care in a private nursing home.
The Ombudsman upheld the complaint on the grounds that Leeds Health Authority had failed to appreciate that a need for substantial nursing was itself sufficient to entitle a patient to NHS continuing healthcare and that it was unreasonable for the authority to implement a policy that failed to make long-term NHS care available.
Pointon Ombudsman case, 2003:
Mr Pointon suffered from Alzheimer’s disease and had a range of mental and physical health care needs. These included incontinence, cognitive impairment, verbal communication difficulties, inability to feed himself and a requirement for constant supervision and reassurance.
The Ombudsman found that Department of Health guidance had not been properly followed because the continuing healthcare assessment tools used in his case were too focussed on physical needs to the detriment of his psychological needs. Furthermore, Mrs Pointon was providing a high level of personalised care with great skill. The fundamental principle established in this case was that the nursing care provided by Mr Pointon’s wife was equal to, if not superior to that which Mr Pointon would have received in a hospital dementia ward.
This challenged the assumption that nursing care can only be provided by qualified nurses. The ruling led to the principle that NHS continuing healthcare could be provided in any setting, not just care homes with nursing. Furthermore it led to a cultural understanding that assessment toolkits should be needs focussed rather than dependent upon whether or not the need is being met by a specialist.
Grogan, 2006:
In the case of Grogan vs Bexley Primary Care Trust the High Court ruled that eligibility criteria used by the PCT were unlawful because it contained no guidance regarding the primary health need approach which defined the limits of a local authority’s responsibility to provide healthcare. This meant that there was the possibility of confusion around what test should be applied by the decision-makers when deciding upon the eligibility of an individual. The judgment also found the Department of Health’s guidance on the primary health need approach to lack clarity.
The judgement also gave way to the term dubbed ‘Grogan gap’ in which it is possible for individuals to fall between health and social care provision. Strategic Health Authorities and Primary Care Trusts were instructed to review their criteria to ensure that this scenario would not happen and that treatment or care was not delayed by uncertainty over funding responsibilities.
A number of other important principles were established by Grogan, one being the requirement of PCTs to assess all the individual’s relevant needs rather than only their nursing needs. A further principle clarified the interaction between continuing healthcare and the registered nursing care contribution (RNCC). In all cases decision makers should establish whether an individual was eligible for continuing healthcare before considering which RNCC banding to apply to their care.
Pearce Ombudsman case, 2007:
Mike Pearce was forced to sell the family home to fund his mother’s care fees after she was deemed ineligible for continuing healthcare. His mother suffered with Alzheimer’s disease and required full assistance with all activities of daily living. After a 5 year battle with Torbay PCT resulting in one of the first continuing healthcare assessments using the new National Framework (at the time not finalised), the Ombudsman upheld his complaint and recommended Torbay PCT pay £50,000 in retrospective restitution.
For example, the ‘Decision Support Tool for NHS Continuing Healthcare, November 2012 (Revised)’ states:
“Where there is:
• one domain recorded as severe, together with needs in a number of other domains, or
• a number of domains with high and/or moderate needs,
This may also, depending on the combination of needs, indicate a primary health need and therefore careful consideration needs to be given to the eligibility decision and clear reasons recorded if the decision is that the person does not have a primary health need.”
This implies that an individual who has been assessed as presenting with several Moderate levels of need within the 12 care categories (domains) may be eligible for continuing healthcare. Potentially, there is a substantial difference between an individual who presents with several Moderate levels of need and one that presents with 2 Severe levels of need (which according to the guidance should result in eligibility). This leaves significant room for individual interpretation and inconsistency in the application of the primary health need approach.
It is generally understood that should Coughlan be assessed under the National Framework today she would probably be assessed as presenting with some Moderate levels of need across the domains. Having worked with hundreds of individuals since the National Framework was introduced in 2007 our caseworkers at Beacon have never come across a case of an individual being awarded continuing healthcare who presents only with a handful of Moderate levels of need in the Decision Support Tool. This does not mean that there are no examples of individuals with similar needs being eligible for continuing healthcare, but such examples are evidently in the minority.
This means that whilst the National Framework may be ‘Coughlan compliant’ it can be applied is such a way that is not Coughlan compliant. It is quite possible that if Coughlan were assessed today, she would not be eligible. Considering that the judge in the case of Coughlan concluded that she required services of a ‘wholly different category’ and put her care needs well outside those that could be provided by social services, this raises significant questions about the way in which continuing healthcare criteria are being applied across the country.
At Beacon, we have seen cases where individuals presenting with very similar care needs over a period of time have become ineligible despite presenting with the same needs and the same or higher care domain levels. Despite revisions to the National Framework since 2007 the eligibility criteria have remained the same, and so it is the interpretation and application of that criteria which has changed.
Everybody’s care needs are different. It is important that your particular set of needs are assessed on their own merits rather than in comparison with Coughlan, or anybody else. However, it is equally important that ICB decision makers apply the eligibility criteria in a way that is fair, consistent and in line with the principles established by Coughlan. If you feel that the criteria has not been applied correctly in your case, then we would recommend that you challenge this decision.
