Long Term Care - Who Pays?
With more of us living longer than ever before, Tom Monteith, ponders the issue of;
To What Extent Are Our Assets Protected When It Comes To Paying For Long Term Care?
How the UK should fund the cost of Long Term Care for those that require it is a contentious issue which simply refuses to go away. Over the last few years, it has been researched in detail by a Royal Commission formed specifically to tackle the problem and, thereafter, the subject has been debated at length by politicians who, as the election looms, are desperate to solve this very real area of concern, which impacts on millions of voters.
Despite recent efforts, care fees remain a real threat to the accumulated assets of many families in Scotland. This article seeks to highlight an important Court case from 1999, which, despite its significance, is still not as well known to, or understood by, the population and indeed the medical profession as it should be.
Health Care V Social Care?
On 16 th July 1999 , the English Court of Appeal delivered its judgment in the case of R. v. North and East Devon Health Authority, ex parte Coughlan. The case concerned a Ms. Coughlan, a disabled lady who was being cared for by the NHS until the NHS decided to transfer her to a nursing home. After the transfer, Ms. Coughlan was asked by the local authority to contribute towards the cost of providing her care, the argument being that since her care provision was now the responsibility of the local authority rather than the NHS, she was liable to contribute.
Ms. Coughlan appealed against this decision and the matter ended up in Court. After long and detailed arguments, the Court decided that,
Nursing care for a chronically sick patient could, in appropriate cases, be provided by a local authority as a social service, rather than by the NHS, and the patient could, depending on his or her means, be liable to meet the cost of that care. However, if the needs of the patient were primarily health needs, the health authority was, as a matter of law, responsible.” 
In addition to the NHS being liable to meet the costs of providing health care for those who happen to be cared for in a hospital, it is also responsible for the long term care costs of people where health care is being provided in a nursing home. The crucial question in determining liability is whether the elderly person’s primary needs are for “health care” or for “social care”. Guidelines on this matter have been prepared and these are now available from every Health Authority in the country.
Severe Lack of Awareness
The Scottish Public Services Ombudsman is supposed to ensure that the NHS’ Guidelines are followed, however to date in Scotland the Ombudsman has not been asked to investigate one single case. Bearing in mind that decisions on funding made before the Coughlan decision was given were open to review in order to ensure that they were made correctly, it is thought that the lack of complaints is due to the public’s ignorance of their rights in this area rather than the law being properly applied in every case. This is particularly the case since Alzheimer’s Disease is a condition that will often entitle a person to have their care funded by the NHS rather than by the individual personally.
Given our aging population, and since the costs associated with Long Term Care are more likely to increase than decrease in the future, it is increasingly important that individuals become more aware of their rights in this area.”
Should the content of this article give you cause for thought about your own circumstances or those of a relative, you should seek professional advice to ensure that the right decision has been made for you or your loved ones.
Article compiled by Tom Monteith
Posted by Sharon Clift on Mar 26, 2005
