I recently sent the letter below to Mike Thatcher the Editor of Public Finance.  Unfortunately at 900 words he thought it too long for publication.  A shorter letter from me was then published in the 1st September 2006 edition, which provided a link to this page where I have below published the full letter:- 

Some readers of Public Finance may have seen the recent Panorama programmes entitled "The National Homes Swindle" http://news.bbc.co.uk/1/hi/programmes/panorama/5188580.stm or might have noticed the campaign that the Sunday Express has been running for the last three weeks concerning the same subject.  The issue has probably passed most Cipfa members by, as very little attention has been paid to the particular issue in the NHS and local government "trade press", despite the extensive coverage, which the BBC, Sunday Express and other newspapers having been giving to this national scandal.    Why is it a national scandal and why have I been helping both the BBC and the Sunday Express to bring this matter to the public at large?   On the face of it,  telling the elderly (or on occasions younger adults) that when they have the misfortune to acquire a serious health problem needing long term nursing care, that they are the responsibility of not the NHS, but Social Service Departments, who will means test them and require them to sell their homes if necessary to pay for health care they need, could just be seen as another symptom of a cash strapped NHS having to ration access to its services, in the same way as it does in hundreds of other situations, ranging from access to breast cancer drugs to the provision of infertility treatment.  What makes the "The National Homes Swindle" different and what makes it an issue that should concern every member of Cipfa, is that what is happening to the elderly goes to the very heart of whether our public services are being operated and managed with integrity in an ethical manner, or whether under pressure to please their political masters, public servants are prepared to ignore the rule of law and deny the most vulnerable in our community their legal rights to free NHS care.   In 1998 a young art teacher Pam Coughlan, who in a tragic road accident had become quadriplegic, took on the might of the NHS, when she had the courage to challenge the ruling of the North and East Devon Health Authority that she was not entitled to free NHS continuing care in the Court of Appeal.  Not only did Pam prove that she had been illegally denied free NHS care, but so did several other patients, including Ross Bentley, a patient whom Lord Justice Woolf, the then Master of the Rolls and later Lord Chief Justice described as being immobile, unable to communicate and doubly incontinent.  In his ruling Lord Justice Woolf made it clear that the Health authority reached a decision about these patients, which depended on a misinterpretation of its statutory responsibilities under the Health Act and that the eligibility criteria adopted and applied by the Health Authority to determine qualification for free long term NHS health care were unlawful and depended on an approach to the services which a local authority was under a duty to provide which was not lawful.

Despite this landmark ruling, the NHS and Social Service Departments have continued to carry out in private, assessments on particularly elderly patients, who are more dependent than Pam Coughlan and come to the conclusion that they are only in need of social care and not health care, with the sole purpose of saving the cash strapped NHS money.  Determinations given to patients have regularly informed them that their medical conditions are not intensive or unstable enough to qualify for NHS care, yet as the Court of Appeal determined in Pam's case her condition is neither intensive or unstable, by definition those that suffer from serious long illness are unlikely to be either, but this does not diminish their requirement that the NHS provided in the long stay hospitals that successive governments have systematically closed in the pursuit of financial savings.  Last year the Law Society gave evidence to the Health Select Committee and expressed its concern that health care had been redefined as social care without any primary legislation or debate, with the effect being that the state is making patients who have chronic long term healthcare needs quite illegally pay for their own health care.  

In my opinion this is one of the most important issues that the public services have ever had to face up to.  Do we expect large organisations like the NHS to submit themselves to the rule of law, or do we think that when money is tight, it is acceptable to ride rough shod over the legal entitlements of the vulnerable in order to save money and not add to the NHS total financial deficit.  It is an issue that I have drawn to the attention of my fellow Cipfa Council members, in an attempt to ensure that Cipfa plays a part in this important debate and makes a considered response to the, "National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care in England" consultation, emphasising that as a fundamental principle the NHS should obey the law and that review panels should be composed of individuals of integrity, from outside the NHS and Social Service arenas, to arbitrate in disputed cases.

If any members of the Institute have friends or relatives who are experiencing difficulties in obtaining free NHS continuing care and I am sure there will be at least a few,  because the practice of denying patients their legal rights is so wide spread, they can access independent advice at www.NHScare.info 

Ian Perkin

Member of Cipfa Council  

ianperkin@blueyonder.co.uk