Continuing care framework ‘unlawful,’ says expert

The government’s national continuing care framework does not comply with the law, but the barriers to a court challenge mean it will remain until the issue becomes a political priority, a community care legal expert has warned.

Luke Clements, reader in law at Cardiff Law School and author of Community Care and the Law, said that under the framework launched last month, Pamela Coughlan, the subject of the defining case on continuing care, would be ineligible for full funding.

In 1999, the Court of Appeal ruled that Coughlan, who was left tetraplegic and doubly incontinent by a car accident, was eligible for full NHS funding because her primary need for long-term care was health-based.

Clements said the decision support tool, designed to help primary care trusts determine eligibility included in the framework, would result in her being deemed inelgible.

He said: “The courts would give this a good kicking because it’s so clearly defiant of the Court of Appeal’s judgement.”

However, Clements said the barriers to a case reaching court were high because only people who were both denied continuing care and were ineligible for local authority-funded social care, because they were too wealthy, would be minded to challenge a decision – and they would be ineligible for legal aid.

The framework was designed to ensure continuing care decisions complied with the Coughlan judgement and introduce a national system of eligibility, replacing regionally-based criteria.

It states states that PCTs should take into account, but not be bound by, the sort of conditions, such as Coughlan’s, which have led to people being deemed eligible.

A Department of Health spokesperson said it was confident it had developed a legally robust system. He added that the framework had been developed following a full consultation and account had been taken of all responses received.

Further information
National continuing care framework

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