I am writing in response to your article on R v North and East Devon health authority ex-parte Coughlan (news focus, page 9, 20 May).
To state that the judgement of Mr Justice Hidden in the Divisional Court 'completely undermines existing health and social care legislation' misunderstands the position. One of the grounds for the challenge to the health authority's decision was that the common practice of requiring social service authorities to make provision for long-term nursing care breaches the provisions of the NHS Act 1977, the NHS and Community Care Act 1990 and other related legislation. In effect the duty lies with the NHS.
The distinction between the duties of these two arms of government becomes critical for patients who can face substantial charges for services arranged or provided by local social services authorities.
In 1994 the health service commissioner reported on an investigation into a complaint about charges for nursing care, and correctly confirmed that the legal duty to provide nursing care rests with the NHS. In fact the current confusion about who pays for long-term nursing care arose from the working of guidance issued by the Department of Health in 1995, rather than from anything said by the commissioner. Health and social services authorities attempting to follow that guidance have found themselves on the wrong side of the law. The effect has been the surreptitious off- loading of costs to social services departments and patients.
The Court of Appeal has now heard the arguments in the case. Its judgement is expected soon. Hopefully this will bring to a close the long period of uncertainty which has affected not only health service bodies but patients and social services departments. It may be that the effect will be to return a financial burden to the NHS, but if the government wishes to shift the responsibility to patients or other agencies, this must be done openly by way of primary legislation after public debate.
Association of Community Health Councils for England and Wales