Annex B: The Coughlan Judgment

Annex B:    The Coughlan  Judgment

See also Annex C: the Grogan Judgment

R v North and East Devon Health Authority, ex parte Pamela Coughlan

1.  Pamela Coughlan was seriously injured in a road traffic accident in 1971. Until 1993, she received NHS care in Newcourt Hospital. When the Exeter Health Authority wished to close that hospital and move Miss Coughlan and other individuals to a new NHS facility at Mardon House, the individuals were promised that Mardon House would be their home for life.

2.  In October 1998, the successor health authority (North and East Devon Health Authority) decided to withdraw services from Mardon House, close that facility, and transfer the care of Miss Coughlan and other disabled individuals to the local authority (LA) social services. Miss Coughlan and the other residents did not wish to move out of Mardon House and argued that the decision to close it was a breach of the promise that it would be their home for life, and was therefore unlawful.

3. The arguments on the closure of Mardon House raised other legal points about the respective responsibilities of the health service and the social services for nursing care. The Court of Appeal’s judgement on this aspect has heavily influenced the development of continuing care policies and the National Framework. The key points in this regard are as follows:

•     The NHS does not have sole responsibility for all nursing care. LAs can provide nursing services under section 21 of the National Assistance Act 1948, so long as the nursing care services are capable of being properly classified as part of the social services’ responsibilities.

•     No precise legal line can be drawn between those nursing services that can be provided by an LA and those that cannot: the distinction between those services that can and cannot be provided by an LA is one of degree, and will depend on a careful appraisal of the facts of an individual case.

•     As a very general indication as to the limit of LA provision, if the nursing services are:

a)  merely incidental or ancillary to the provision of the accommodation that an LA is under a duty to provide, pursuant to section 21; and

b)  of  a  nature  that  an  authority  whose  primary  responsibility  is  to  provide  social services, can be expected to provide  then such nursing services can be provided under section 21 of the National Assistance Act 1948.

•     By virtue of section 21(8) of the National Assistance Act 1948, an LA is also excluded from providing services when the NHS has, in fact, decided to provide those services.

•     The services that can appropriately be treated as responsibilities of an LA under section 21 may evolve with the changing standards of society.

•     Where a person’s primary need is a health need, the responsibility is that of the NHS, even when the individual has been placed in a home by an LA.

•     An  assessment  of  whether  a  person  has  a  primary  health  need  should  involve consideration not only of the nature and quality of the services required, but also of the quantity or continuity of such services.

•     The  duty  of  clinical  commissioning  groups  under  section  3  of  the  National  Health Service Act 2006 (as amended by the Health and Social Care Act 2012), is limited to providing the services identified, to the extent that they consider necessary to meet all reasonable requirements.

•     In respect of Ms Coughlan, her needs were clearly of a scale beyond the scope of LA services.

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