Pamela Coughlan’s case clarified the law regarding NHS Continuing Healthcare
Challenging injustice can be hard. Challenging injustice when you’re severely disabled, like Pamela Coughlan, requires extraordinary courage and determination.
Pamela Coughlan’s legal victory in securing NHS Continuing Healthcare for herself has since helped thousands of families with elderly relatives to also find the courage to fight for what they’re entitled to – and force the NHS to provide free care.
Many families are still fighting that battle and still face many obstacles. However, thanks to Pamela Coughlan they can refer to the ‘Coughlan test’ in their legal argument for the entitlement to care fees.
For this and for everything she went through during her case and beyond, Pamela Coughlan deserves our gratitude.
Pamela Coughlan’s case
In the 1970s Pamela Coughlan was paralysed after a road accident and needed full-time care. She had severe physical disabilities including partial paralysis of her respiratory tract.
At the same time, however, she could still speak coherently and with mental clarity, use an electric wheelchair by herself, use a computer with voice technology, and eat and drink with some assistance.
Her care was financed by the NHS until, in the 1990s, the East Devon Health Authority) transferred responsibility for her care to Social Services. By reclassifying her needs as ‘social’ care rather than ‘health’ care, this meant she would now be means-tested and have to pay for her own long-term care.
She pursued a case against the NHS to secure NHS Continuing Healthcare, fighting it in the High Court. It took two years and, in 1999 after an unsuccessful appeal by the then Labour government, she finally won a landmark case in the Court of Appeal (The judgment applies to England and Wales.)
Unlawful NHS decisions
The Court agreed that the actions of the local authority had been unfair and that the NHS had not followed its own guidance. It stated that the NHS had reneged on its promise to provide long-term care, used inconsistent eligibility criteria and had consequently made unlawful decisions.
Nursing care responsibility
The key question was whether nursing care for a chronically ill patient can lawfully be provided by the local authority as ‘social’ care (means-tested) or whether it must be provided free of charge in law by the NHS.
In court the judge ruled that both general and specialist nursing care were the sole responsibility of the NHS. However, the Court of Appeal subsequently found that the local authority can provide some nursing care, but only when…
“…the nursing services are merely (i) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide.”
In Pamela Coughlan’s case, however, the Court of Appeal ruled that her nursing care was the responsibility of the NHS, not the local authority.
The Court also raised the issue of people with needs that are chronic yet stable – as opposed to people with acute conditions. The NHS should address chronic yet stable needs as part of a Continuing Healthcare assessment process. The NHS should also not assume that just because a need is ‘stable’ it is automatically the responsibility of the local authority.
The ‘Coughlan test’
Pamela Coughlan’s needs were greater that those for which the local authority could be expected to provide care. As a result she was eligible for NHS Continuing Healthcare. The ruling also indicated that it would therefore be logical that anyone with needs the same as or greater than Pamela Coughlan should also be eligible for NHS Continuing Healthcare. This became known as the ‘Coughlan Test’.
The case clarified the law regarding fully-funded NHS Continuing Healthcare. The Court of Appeal stated that…
“…where the primary need is a health need, then the responsibility is that of the NHS, even when the individual has been placed in a home by a local authority.”
Continuing Care assessors will often say that the Coughlan case is ‘old’ and therefore doesn’t count anymore. They also often say that the rulings in this case are no longer relevant. Both statements are incorrect. Assessors must still decide whether or not a person’s care needs fall above or below the legal limit for local authority care. If they fall above that line, the NHS must fund care through NHS Continuing Healthcare – and no means testing should take place. Read more about the local authority’s role in NHS Continuing Healthcare.
Primary Health Need Approach
The judgment also concluded that the ‘vast majority’ of people in nursing homes should have their care fees NHS funded, and that only if someone’s health care needs are ‘incidental’ to their overall care needs should the responsibility be passed to Social Services.
This is now known as the ‘Primary Health Need Approach’ and it is applied in all assessments for NHS Continuing Healthcare. It came about in 2007 as a direct result of the Coughlan case. However, there is no definition in law of a Primary Health Need. It means that a culture has developed where NHS funding assessors seem to apply their own subjective interpretation of the guidelines onto funding decisions. The result is that many tens of thousands of people are still illegally charged for healthcare and nursing care in the UK.
National Framework for Continuing Healthcare
The guidelines in question are known as The National Framework for NHS Continuing Healthcare. Introduced in 2007 and revised in 2012, they were supposed to streamline the Continuing Healthcare eligibility criteria nationally.
However, there is a legal argument that suggests if Pamela Coughlan’s needs were measured against this National Framework, she would be found ineligible for NHS funding. This indicates that the National Framework itself could well be illegal.
The law, however, is clear: Pamela Coughlan does qualify for NHS Continuing Healthcare.