The Coughlan Judgment remains the single biggest legal landmark case in the area of NHS Continuing Healthcare Funding.
The Law Society stated: “The Judgment in Coughlan clearly establishes that where a person’s primary need is for healthcare, and that is why they are placed in nursing home accommodation, the NHS is responsible for the full cost of the package.”
Pamela Coughlan was seriously injured in a road traffic accident in 1971. She sustained a spinal cord injury, causing complete tetraplegia (with sensory and motor paralysis) and in need of full-time care.
The accident left Pamela Coughlan with severe physical disabilities including partial paralysis of her respiratory tract. She can speak coherently with mental clarity, is able to use an electric wheelchair to mobilise by herself, can use a computer with voice technology (but can’t operate the keyboard), can eat with a leather strap tied around her right hand to hold a spoon in place (provided her food is cut up), and is able to drink with assistance (someone holding the cup).
What is often overlooked is that Pamela has Autonomic Dysreflexia – a life threatening condition which can result in sudden death. It is caused by ‘noxious’ stimuli – commonly bladder and bowel distension – below the level of the spinal injury. The stimuli messages are blocked and can’t get past the spinal injury, resulting in rising blood pressure (hypertension) until the stimulus is removed (eg the bowels are evacuated). Here’s a helpful link that explains the condition in more detail:
Pamela is doubly incontinent, has high ‘Continence’ needs, requires frequent administration of suppositories, intermittent catheterisation every 3 hours, and manual evacuation for every bowel movement. Failure to manage her complex and unpredictable condition can be fatal.
You really need to read the full extent of her condition to understand the totality of her care needs. The Spinal Injuries Association have helpfully set these out in a lot of detail, and you can visit the link below for more information:
The Funding issues
Until 1993 Pamela Coughlan received NHS care in Newcourt Hospital. The Hospital was subsequently closed and Miss Coughlan was moved to a new NHS facility at Mardon House. Pamela Coughlan (and other patients) were promised that Mardon House would be their ‘home for life’. However, in October 1998, in breach of promise, the Health Authority decided to shut Mardon House, leaving the patients and Pamela Coughlan to find alternative accommodation.
In 1999, the NHS Health Authority tried to pass responsibility for Pamela Coughlan’s care needs to the Local Authority (via Social Services) by reclassifying her health needs as ‘social’ needs.
There is a critical distinction between ‘health’ needs and ‘social’ needs and it’s all to do with who finances ie who pays for the care package!
Healthcare needs provided by the NHS, must be provided free of charge at the ‘point of need’, and are not means-tested. Social care is provided by the Local Authority and is means-tested – meaning that you may have to pay for some of all or your care.
By reclassifying Pamela Coughlan’s chronic condition as social care needs, it meant that she fell into the auspices of the Local Authority funding. Her previously free package of care would now be subject to means-testing, with the outcome being that she would now have to pay for her own long term care.
Pamela Coughlan brought her case against the NHS and argued that funding for all her care needs (including food and accommodation etc) should be fully-funded free of charge by the NHS (and not subject to means-testing by the Local Authority).
In 1999, after a lengthy court battle, the Court of Appeal found in her favour, and ruled that her nursing care was the sole responsibility of the NHS. However, the Local Authority can provide some nursing care, but only when that is not the ‘primary health need’, as that responsibility falls on the NHS. This principle is now known as the ‘Primary Health Need Approach’.
The Court found that unless the nursing care is:
1. ‘merely incidental or ancillary to the provision of the accommodation; and
2. of a nature that an authority whose primary responsibility is to provide social services can be expected to provide’…
then it is the NHS’s responsibility to provide for that individual’s care, even if they have been placed in a home by a Local Authority.
It was held that Pamela Coughlan’s needs were clearly of a scale beyond the scope that the Local Authority (Social Services) were expected to provide and so should be fully-funded by the NHS.
Coughlan raises hope for thousands of others battling the NHS!
Pamela Coughlan’s courage and success in fighting for her rights has since given nationwide encouragement to many thousands of people in a similar situation – who have been shunted from the NHS and subjected to Local Authority means-testing – placing them at risk of losing their lifetime savings or being forced to sell their home to pay for their care.
If this has happened to your relative, then you MUST ask for a reassessment urgently, otherwise your relative could be needlessly paying thousands of pounds every month for their care which could be funded by the NHS, free of charge. If your relative has already passed away then you can request a retrospective review of their care needs as a refund may be due!
Miss Coughlan said that “If you think you should genuinely be funded by the health service and you have similar needs to mine, or more, then you will win.”
Watch her interview here : https://www.youtube.com/watch?v=YaMXowPWxis
People going through the funding assessment process quite rightly refer to the ‘Coughlan’ case in support. This was an outstanding result and clarified the boundary between NHS and Local Authority funding.
Some years later, the Coughlan Judgment led to the introduction of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care. The National Framework is designed to streamline the assessment process as to eligibility for NHS Continuing Healthcare Funding (or ‘CHC’) – a fully-funded package of free NHS care for ALL your relative’s care needs (including accommodation) if they have a ‘primary health need’.
The National Framework first originated in 2007, was updated in 2012, and was only recently revised in October 2018. It puts the principles of the Coughlan Judgment squarely into guidance for both NHS Practitioners and members of the public to consult when seeking CHC Funding.
Some families directly compare their relative’s care needs to Pamela Coughlan as automatic justification for entitlement to CHC Funding. Whilst Coughlan undoubtedly sets the benchmark in this field, those who have already been through the NHS assessment process for NHS funded care, will know, that in practice, it is not quite that simple.
It is vital to remember that each case has to be looked at on its own merits. No two cases are going to be exactly alike.
This is the critical bit. The National Framework indicates that a full assessment for CHC Funding is to be carried out by a Multi-Disciplinary Team using the Decision Support Tool. NHS Continuing Healthcare is not just about the scores allocated to each Care Domain recorded in the Decision Support Tool (and hence direct comparison to Coughlan), but the overall totality of needs, taking a holistic approach, and looking at the interaction of those needs in conjunction with the 4 key indicators (Nature, Complexity, Intensity and Unpredictability).
Therefore, although Pamela Coughlan secured NHS funding based on her particular care needs, it is suggested by some, that if her needs were to be assessed against the modern National Framework, she would be found ineligible for NHS funding.
That said, the Court of Appeal decision in Coughlan is still as relevant today as it was in 1999. It enshrines in law the principle that if your relative has a ‘primary health need’, then it is the responsibility of the NHS to pay for every penny of their care needs. But how they achieve that funding is determined by the assessment processes set out in the National Framework.
The National Framework does not replace the Coughlan ruling, but embodies Coughlan, such that its principles form the core essence of the National Framework.
The National Framework is guidance, whereas Coughlan is law.
Remember: An assessment for CHC Funding should always take place before any discussion over finances and paying for care, and before any Local Authority assessment (means-tested). Read our blog: So will you be self-funding?
You can read more about the Coughlan Judgment in Annex B of the National Framework (pages 152/153).
Whether the NHS or the Local Authority fund your relative’s care package, the decision should be based on healthcare needs and not financial considerations as to who should pay for care. If your relative has a primary health need, then following the Coughlan Judgment, their care package should be funded in full by the NHS, and they should not be asked to contribute a penny. Coughlan is relevant and that is the approach you need to take.
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