Test cases: Coughlan and Grogan

Annex B:    The Coughlan  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.

Annex C:          The Grogan Judgment

R v Bexley NHS Care Trust, ex parte Grogan

1.    Maureen  Grogan  had  multiple  sclerosis,  dependent  oedema  with  the  risk  of  ulcers breaking out, was doubly incontinent, a wheelchair user requiring two people for transfer, and  had  some  cognitive  impairment.  After  the  death  of  her  husband,  her  health deteriorated and she had a number of falls. Following admission to hospital with a dislocated shoulder, it was decided that she was unable to live independently and she was transferred direct to a care home that provided nursing care.

2.    Subsequent assessments indicated that (under the then local criteria dated December

2002) Mrs Grogan’s condition was such that she did not qualify for fully funded NHS continuing healthcare. It was initially determined that she was in the medium band of NHS- funded nursing care. By and large, she remained in this band, although one determination placed her in the high band from April to October 2004. Mrs Grogan argued that the decision to deny her full NHS funding was unlawful, since the eligibility criteria put in place by South East London NHS CB were contrary to the judgement in the Coughlan case. She also submitted that the level of nursing needs identified in the Registered Nursing Care Contribution (RNCC) medium and high bandings (in which she had been placed) indicated a primary need for healthcare that should be met by the NHS.

3.    Key relevant points from the Grogan judgement include:

•     In assessing whether Mrs Grogan was entitled to NHS continuing healthcare, the care trust did not have in place – and did not apply –criteria which properly identified the test or approach to be followed in deciding whether her primary need was a health need.

•     The court identified the fact that there can be an overlap, or a gap, between social care and NHS provision, depending on the test, or tests, applied. The court accepted, as had been submitted by the Secretary of State, that the extent of her duties was governed by NHS legislation, not the upper limits of local authority lawful provision, and that therefore there was a potential in law for a gap between what the Secretary of State provided and those ‘health services’ that the local authority could ‘lawfully’ supply.

•     If the policy of the Secretary of State was that there should be no gap, then, when applying the primary health need approach, this should be considered against the limits of social services lawful provision, not just by reference to a ‘primary health need’.

4.  The trust’s decision that Mrs Grogan did not qualify for NHS continuing healthcare was set aside, and the question of her entitlement to NHS continuing healthcare was remitted to the trust for further consideration.

5.  There was no finding, or other indication, that Mrs Grogan in fact met the criteria for NHS continuing healthcare.

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