Every health authority has been told to check the criteria used for deciding who gets free nursing care and who has to pay to ensure they comply with a landmark court judgment last month. Any authority that has to revise its criteria must also reassess the patients in its care.
The move follows last month's Appeal Court victory of Pamela Coughlan, who was left paralysed after a road accident in 1971. She had appealed against the decision of North and East Devon health authority to close the home where she had received round-the-clock nursing care and force her to pay for it privately.
Ms Coughlan, 55, won her case after the Appeal Court ruled that the decision to close the home was unlawful and that North and East Devon had misinterpreted the criteria.
However, in a blow to elderly people facing large nursing care bills in private homes, it upheld the distinction between people needing specialist nursing care, who came under the NHS, and those having general nursing care, who were the social services' responsibility and who could be made to pay.
Frank Dobson, the Health Secretary, said at the time that he was "delighted" with the outcome of Ms Coughlan's case, which could have cost the health service millions of pounds if the Appeal Court had not recognised the distinction between general and specialist nursing care. A government spokeswoman said yesterday's interim guidance was intended simply to remind health authorities that they needed to check that their criteria were lawful. A full-scale review will follow in the autumn.
The Royal College of Nursing claimed the decision to issue the interim guidance represented a shift from the Health Department's earlier upbeat position as it recognised the implications of the judgment.
There are 157,500 elderly people being cared for in nursing homes of whom 42,500 pay the costs of their nursing care.
"We think the vast majority of those who pay should qualify for free care on the basis that their primary need is for health care. Otherwise, they would be in residential homes," a spokeswoman said.
Many health authorities had stricter criteria even than North and East Devon's, which counted artificial feeding, catheter and tracheostomy care and bladder washouts as part of general, not specialist, nursing care. "They are by no means the most extreme," the spokeswoman said.
The Appeal Court judgment left health organisations confused because it said where a patient's primary need for accommodation was a health need, then the patient's nursing care was the responsibility of the NHS, and not the local authority.
However, in a separate part of the judgment the three Appeal Court judges said: "Nursing care for a chronically sick patient may, in appropriate cases, be provided by a local authority as a social service and the patient may be liable to meet the cost of that care according to the patient's means."Reuse content