The Coughlan Case
Pamela Coughlan’s case clarified the law regarding NHS Continuing Healthcare
Challenging injustice is hard. Challenging injustice when you’re severely disabled, like Pamela Coughlan, requires extraordinary courage and determination.
Pamela Coughlan’s legal victory in securing NHS Continuing Healthcare for herself has since helped thousands of families with elderly relatives to also find the courage to fight for what they’re entitled to – and force the NHS to provide free care.
Many families are still fighting that battle and still face many obstacles. However, thanks to Pamela Coughlan they can refer to the ‘Coughlan test’ in their legal argument for the entitlement to care fees.
For this and for everything she went through during her case and beyond, Pamela Coughlan deserves our gratitude.
Her case
In the 1970s Pamela Coughlan was paralysed after a road accident and needed full-time care. She had severe physical disabilities including partial paralysis of her respiratory tract.
At the same time, however, she could still speak coherently and with mental clarity, use an electric wheelchair by herself, use a computer with voice technology, and eat and drink with some assistance.
Funding withdrawn
Her care was financed by the NHS until, in the 1990s, her local authority (the East Devon Health Authority) transferred responsibility for her care to Social Services. By reclassifying her needs as ‘social’ care rather than ‘health’ care, this meant she would now be means-tested and have to pay for her own long-term care.
She pursued a case against the NHS to secure NHS Continuing Healthcare, fighting it in the High Court. It took two years and, in 1999 after an unsuccessful appeal by the then Labour government, she finally won a landmark case in the Court of Appeal (The judgment applies to England and Wales).
Unlawful NHS decisions
The Court agreed that the actions of the local authority had been unfair and that the NHS had not followed its own guidance. It stated that the NHS had reneged on its promise to provide long-term care, used inconsistent eligibility criteria and had consequently made unlawful decisions.
Nursing care responsibility
The key question was whether nursing care for a chronically ill patient can lawfully be provided by the local authority as ‘social’ care (means-tested) or whether it must be provided free of charge in law by the NHS.
In court the judge ruled that both general and specialist nursing care were the sole responsibility of the NHS. However, the Court of Appeal subsequently found that the local authority can provide some nursing care, but only when…
“…the nursing services are merely (i) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide.”
In Pamela Coughlan’s case, however, the Court of Appeal ruled that her nursing care was the responsibility of the NHS, not the local authority.
The Court also ruled that care for people with ‘stable yet chronic conditions’ (not just acute conditions) is the responsibility of the NHS.
The ‘Coughlan test’
The ruling also indicated that anyone with needs the same as or greater than Pamela Coughlan should be eligible for NHS Continuing Healthcare. The measure of her health needs became known as the ‘Coughlan Test’.
The case clarified the law regarding Fully-Funded NHS Care. The Court of Appeal stated that…
“…where the primary need is a Health Need, then the responsibility is that of the NHS, even when the individual has been placed in a home by a local authority.”
Primary Health Need Approach
The judgment also concluded that the ‘vast majority’ of people in nursing homes should have their care fees NHS Funded, and that only if someone’s health care needs are ‘incidental’ to their overall care needs should the responsibility be passed to Social Services.
This is now known as the ‘Primary Health Need Approach’ and must be applied in all assessments for NHS Continuing Healthcare.
National Framework for Continuing Healthcare
The new National Framework for NHS Continuing Healthcare, introduced in 2007, aimed to streamline care eligibility criteria across England and Wales.
However, there is a legal argument that suggests if Pamela Coughlan’s were measured against this new National Framework, she would be found ineligible for NHS funding! This would indicate that the National Framework itself may be illegal.
The law, however, is clear: She does qualify for NHS Continuing Healthcare. And, in the UK, healthcare is free at point of need.
Despite the Coughlan case, tens of thousands of elderly people with health needs as their primary needs are still being forced to pay for their own care.
