Government guidance on funding continuing healthcare

Following the Court of Appeal judgement in the case of R v North and East Devon Health Authority, ex parte Coughlan on 16 July 1999, the Department of Health issued a circular on funding continuing healthcare. The case concerned Pamela Coughlan who, after an accident, became completely paralysed and required intense medical treatment and support.

After the NHS-owned residential home she lived in was closed, Coughlan was transferred to the care of her local authority by the health authority. This meant that she would be subject to means testing and could potentially have been forced to pay for her care.

The judgement delivered by the Court of Appeal stated that the legality of the transfer of responsibility for the patient's nursing care to the local authority depended on whether the nursing care was 'merely incidental or ancillary' to the provision of accommodation by the local authority, and that it was of a nature that a social services department would be expected to provide.

Elsewhere, this dilemma was being argued in the context of social baths versus health baths, where the question of who should provide baths was fiercely debated.

The care that Coughlan required was significant and the Court of Appeal found that the local authority did not have the powers to provide the medical care required. The circular confirmed aspects of the Coughlan judgement.

The NHS did not have sole responsibility for nursing care, as local authorities could purchase nursing care for people in residential homes run by the local authority. A local authority could only purchase nursing care if it was incidental to the provision of accommodation for a person qualifying for residential care (under section 21 of the National Assistance Act 1948). However, if a person's overriding care need was medical, the NHS was obliged to provide the nursing care.

In summary, if a person's primary need was medical, then the health authority was responsible for the treatment and accommodation of that person. A local authority was able to fund nursing care if the care was 'incidental' to that person's residence at a local authority care home.

The anomaly created by NHS continuing care is that both care and accommodation costs are paid for by the NHS, thereby creating a massive incentive for people and their families to push for services funded as part of NHS continuing care rather than social care services to minimise the cost.

Health and local authorities were advised to jointly review their policies and eligibility criteria and revise them in line with the Coughlan judgement. They were also asked to consider whether service users needed to be reassessed if the current policies and criteria were not in line with the judgement.