This page gives readers the "big picture" of what
our campaign is about, and helps them see "the wood for the trees".
It was mostly written in February 2003 and is my own personal view of what "Coughlan" and Free Continuing Care is about, and what may happen in the months and years ahead. The words below are my own, but I would like to thank all those who have helped me understand the law and this law-breaking by Government and NHS in recent years. I particularly want to thank Derek Cole, my good friend and legal advisor, and Pam Coughlan, whose case made the the law clear. Other pages of NHSCare.info provide much more detail, including my mother's case and how I got drawn into this campaign.
You can compare your patient's case with the medical condition of Pam Coughlan by visiting our advice to solicitors page. If the patient's health care need is equal to, or greater than Pam's, then under the law, they should qualify for 100% NHS funded Continuing Care.
Most, if not all, Eligibility Criteria for Continuing Care still being used within Health Authorities, to decide if someone qualifies for 100% NHS funding are deeply flawed - some would say "unlawful". Why ? Because if they were applied to Pam Coughlan, she probably would not qualify. This is because they are vague and do not include a "Coughlan test". i.e. comparison of the patient's care needs with those of Pam Coughlan.
Tried
www.google.com
? e.g. to document it is a HEALTH condition. e.g.
"what is alzheimers",
"MS",
"MND", etc.
The Law Society words on our front page are very clear:
"The judgment in Coughlan clearly establishes that where a person's primary need is for health care, and that is why they are placed in nursing home accommodation, the NHS is responsible for the full cost of the package. "
Furthermore, the same right of 100% NHS funding under the law, applies to those in a residential
home, their own home, a hospice, or hospital.
You should consult the simple advice on the front page of
www.nhscare.info including that
to solicitors and "spreading the word".
This may all happen a little quicker, of course - but, as I said earlier,
don't hold your breath :-)
Robin Lovelock
The figures above are almost all "guesstimates" but at least serve to quantify the approximate
size of the ongoing fraud, and answer questions such as "can we afford it".
Robin is grateful to those who have provided recent figures.
e.g. the figures of annual expenditure on NHS and total Government spending were based on
budget2006.treasury.gov.uk/page_09.html
Various other "non attributable" estimates given to Robin include: 25,000 patients currently
receive 100% NHS funded Continuing Care, but under the law, another 75,000 are entitled to it.
If an average care home costs £500 per week, that's £26,000 per year. 75,000 extra patients would
cost nearly £2 billion/year. However, many nursing homes cost far more than this, and this,
together with the backlog of claims to be made, probably puts the cost
of the NHS obeying the law to nearer £3 billion per year.
Of course, the figure of 75,000 may also be an under-estimate.
Estimates of how many people sold their house to pay for care
vary from the 360,000 in Paul Burstows report of 2002, to figures
as large as 700,000 in the Sunday Express.
Large insurance companies interested in moving into health insurance,
including cover for long term health care, perhaps coupled with Coughlan-based claims
of care costs against the NHS, may wish to read statistics on this
laingbuisson.co.uk page, which includes:
the NHS Confidence Trick
Legislation, conceived during the Thatcher era, passed administration from
the family GP to the NHS, for the process of moving a person into a Care Home
from hospital or their own house. This 'Care in the Community' act, passed in 1993
and modified in 1995, became the means for the NHS and Social Services (once
one organization) to perform a massive confidence trick on us all. Beds, seen
to be occupied by patients unlikely to be cured, could often be freed by moving
the patients into a nursing home. The cost of such a home would probably be
less than half that of a hospital bed, and the circumstances for the patient
and their family probably much better. So far, no problem. However, what soon
became the norm was for the local Social Services to become involved. They would
misinform the family that the nursing home must be paid for by the family,
after a "means test" - which is completely unlawful. If and when the patient
has no money, after selling their house, then the Social Services (i.e.
the local rate-payers) will pay. However, in most typical cases, the majority
of the nursing home costs were paid for by the patient's estate. Several hundred
thousand families have done this, and each will be owed many tens of thousands of
pounds - hence the estimated tens of £billions owed by the NHS to these many families.
is it fair ?
Some may say "if people can afford it, why should they not pay for their
nursing home ?" My personal view is that it is particularly unfair to
pick on this vulnerable group of patients to pay for their own care. Why not choose
some other group, such as those going into a hospital to
have a baby, or those in hospital with deseases caused by smoking or obesity ?
Confronted by the truth I am sure all of us, whatever our politics,
will agree that the NHS should pay for 100% of all nursing care - as required by Law.
can we afford it ?
"Yes" is the simple answer.
Our best guess is that the cost of the NHS obeying the law, and granting Continuing Care
to all those who are entitled to it, might cost in the region of £3 billion per year.
The backlog created by those defrauded in the past ten years may now be £30 billion.
However, medical records are destroyed, and any repayment procedure would take years,
and so we are still dealing with a figure in the ballpark of £3 billion per year.
Compare £3 billion with the typical annual spending on the NHS of £96 billion,
or total Government spending of some £552 billion per year. If the Government
are frightened to increase taxes on all of us, they can always add the
£3 billion to their massive "borrowing requirement" - with little effect on the economy.
stopping the Confidence Trick
How will we stop the confidence trick ? In my view it can
only happen one way: by very large numbers of families, acting with determination
and great patience, refusing to pay for this care and claiming back money owed them. They will need to have the
correct letters written for them to the right people, do the right things,
and let the law take it's course over many months and years. Unfortunately, despite the fact that we
love to hate them, they will probably need the help of lawyers - or reputable businesses
able to take on the work on a "no win, no fee" basis.
what should I do ?
the Lawyers
Large successful law firms like Bevan Brittan (formerly Bevan Ashford), who defended the NHS in the Coughlan case
and lost, and have defended the NHS on Coughlan-related cases and lost, will
happily continue to defend the NHS on these cases and lose: they are paid for their time
by their client - not on results. Strange as it may seem, it is in the business interest of
law firms defending the NHS for large numbers of families to have their cases fought and
won. The cases are lost - but they still get paid. It also makes "business sense"
for the NHS to continue fighting each case: delays in the case being won means
delays in their paying back that huge backlog of claims - and more medical records are destroyed.
Now let us look at the business opportunities
for other reputable businesses who offer "no win no fee" services. Their costs, fees
and profits will depend on many things, including who else enters this business
to compete with them, and how many years it takes for the Government to recognize
it will cost the taxpayer less for the NHS to stop fighting cases, and set up
a faster means of families claiming the money - but don't hold your breath.
"No Win No Fee Coughlan business" might be worth £billions over several years
- if they charged 10% of money claimed back on a "no win no fee" basis.
the Politicians
Politicians, both local and MPs, have their uses: they often have the ear of the press,
and right now publicity of NHSCare.info is probably our best means of informing everyone
of this injustice and how it might be resolved. It was via the publicity efforts of an MP
that I found out about all this, and obtained the expert support of Derek Cole. However,
all politicians in office are probably afraid of Coughlan - because almost all will be of the
same party as the local council, where this unlawful and immoral practice has been
perpetrated. If they make a fuss, they risk having cases on their own patch raised.
Ultimately it is the local councilors and MPs who can exert pressure on Social
Services and NHS to get back into line and do the right things. The opposition parties
at local level have less to lose and can be more vocal - but do not expect too much of them
- they are only politicians :-)
the Police
Most of this "Coughlan" subject is too much of a "hot potato" for the police. Also, do not confuse "unlawful"
and the civil courts, with "illegal" and where the police get involved.
Criminal Fraud has certainly occured, and still does - to the tune of £billions per year - but pinning
down those who should be prosecuted, and finding the evidence, is not unlike the subject of "war crimes".
Few DPP or senior police inspectors will want to tangle with those who appoint them.
Many police will regard some of
the grey areas as a bit academic, where we are talking about criminal offenses such as "misfeasance
in public office" or "conspiracy" - but do not underestimate how these subjects may
"concentrate the mind" of some senior managers in NHS and Social Services. Ignorance of
the law has never been a defense for anyone. We are dealing with vast sums of
money sloshing around within a huge, poorly managed NHS organization. I would be amazed if organized crime did not already have a major foothold
within the NHS. The police have already been alerted to these "grey areas" and other,
more serious crimes such as manslaughter and murder. These are police matters and
may also be passed to investigative journalists who want to "dig deeper".
those within NHS and Social Services
Despite "concentrating minds", and catching news headlines, the effect of police investigation
will probably be counter-productive: NHS doctors and staff will simply "close ranks"
and hide or falsify medical records even more than they do now. Hence the concept of an Amnesty for
those people who admit to unlawful, or even criminal behavior.
We do not need to punish the wrong-doing - just bring it to an end. It is not easy to
distinguish between a manager who is telling a deliberate lie, or one who is simply
repeating something they had been told, and had never questioned it. An early example was
where an NHS manager told me that they were confident that the "criteria" document
they were using was lawful and compliant with Coughlan, because they had taken the advice of
Bevan Ashford, the law firm who had won Coughlan. See "the Lawyers" above - Bevan Ashford did not win this case - they lost.
I have some sympathy for those within NHS and Social Services, desperately trying to do their
day to day work, perhaps maintain a pretense to families that what they are telling them
is true, but perhaps starting to have their own doubts on whether they are "doing the right thing",
or even that they may be breaking the law.
the Future
Your crystal ball may be better than mine: my own guess in February 2003 was that this subject
would be public knowledge sometime later in 2003, and within a year or two, large
numbers of families, aided by no win no fee businesses, will be claiming back
the money owed to them. I had not realized how poorly this subject would be handled by the media.
I had hoped that many others, now knowing the law, will not be paying for
the care home, and insisting on it being paid for by the NHS. After a few months or
years of this, the Government - of whatever party - will insist that the NHS
and local authorities fall into line with the law, and this will no longer be a major issue.
If we are optimistic, we may hope that this will help to solve some of
the other NHS problems like bed-blocking, which is probably partly due
to a fight between NHS and Social Services budgets. If we are really hopeful,
perhaps some of the secrecy surrounding medical records will be reduced,
increasing the efficiency of nursing staff and those who need to monitor
standards of care. Of course, even when the NHS fall into line, and they pay
for Care Homes, other problems are sure to arise. e.g. there will be a
financial pressure for increased care of old people at home - but not to
the same quality of life they might have had in a good care home. But we
may hope that things will get better rather than worse - slowly.
August 2006
footnote on facts and figures ...
QUOTE
The total value of the care home market for elderly and physically disabled people at April 2003 was estimated at £10.2 billion, of which private sector operators accounted for £6.9 billion. At April 2003, there were an estimated 501,900 places in residential settings for long stay care of elderly and physically disabled people across all sectors (private, public and voluntary) in the UK. Overall UK capacity has decreased by some 13,400 places in the 15 months to April 2003, a similar annual rate of closure to the previous year. Total capacity is now some 73,700 (13%) lower than the 1996 peak of 575,600.
The latest Laing & Buisson fee survey in March 2003 found average weekly fees of £455 for private nursing care for elderly people and £329 for private residential care in the UK.
Average fee inflation is estimated at 8% for both private nursing and residential care for older people between 2001/2002 and 2002/03.
and, under "Occupancy Rates":
Laing & Buisson's most recent full survey of care homes for elderly and physically disabled people, in March 2003, found occupancy rates of 91.8% for all for-profit homes, compared with the average of 90.4% recorded in 2002 and 92.3% for private residential homes and 87.7% for dual registered homes.
UNQUOTE