R (on the application of Forge Care Homes Ltd. v Cardiff and Vale University Health Board and Others (2017)

Keywords: Nursing Care, Funding, Integration, Joint working, FNC

The Supreme Court ruled that the NHS is responsible for funding all aspects of the work done by registered nurses in social care settings.

The case concerned an ongoing dispute in Wales between local authorities and the NHS about the basis on which the NHS pays for Nursing Care under FNC arrangements in Care Homes.

The core of the case concerned the proper construction of s.49 of the Health and Social Care Act 2001 which prohibits local authorities from providing nursing care provided by a registered nurse which means “any services provided by a registered nurse…” “other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse.”

The Health Boards had reduced the funding provided to care homes for nurses, claiming that they were responsible for funding only the provision of nursing care (i.e .medical tasks) carried out by registered nurses and that the provision of social care, even where tasks are carried out by a registered nurse, was the responsibility of local authorities. The care homes (and local authorities) took the position that the NHS is responsible for the whole cost incurred by a home in employing a nurse to attend full time (as required by registration regulations).

At first instance, it was ruled that the Health Boards were responsible for the full cost of having the minimum number of nurses required by registration regulations present and working at the home all of the time. This would have meant that Health Boards were required to pay for the full costs of employing nurses, regardless of the fact that nurses might well spend some of their time carrying out social care or non-registered nurse tasks.

The Court of Appeal overturned that judgement, ruling that the wording of s.49(2) “other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse” should be interpreted as meaning that local authorities should pay some contribution towards the nursing costs to account for those services provided by a nurse which did not need to be provided by a nurse. Thus, Health Boards were entitled to discount their contribution to the extent they judged to be right to account for nurses also carrying out social care or non-registered nurse tasks (i.e. not however low they fancied, but the rate that they rationally judged to be referable to the proportion of non-nursing tasks).

The Supreme Court (with Lady Hale giving judgment) unanimously allowed the appeal against the Court of Appeal’s conclusion. The Court rejected the argument that the Health Boards should be required to pay the full cost of the presence of a registered nurse in a care home because of the practical impact of the regulatory requirement for a registered nurse to be present. However, the Supreme Court found that the Health Boards’ decisions were based on a misinterpretation of s.49(2).

Lady Hale set out the background to the introduction of section 49, which was the “glaring anomaly” that nursing care was either provided free by the NHS or bought in by the local authority or residents depending on where it was provided. Therefore, in her view, the Court should firstly interpret the restriction on what local authorities may provide, and then impose an obligation on the NHS to fund that which the local authorities cannot provide.

Lady Hale noted that:

“if Parliament had wanted to prohibit local authorities from paying for anything done by a registered nurse in a care home, it both could and would have said so. It did not. It began with the broad concept of prohibiting the local authority to purchase “any services provided by a registered nurse” and then limited those prohibited services in two ways. First, to be excluded, they must be services “involving” the provision, planning, supervision or delegation of “care”. So, the exclusion from the local authority remit was limited to services which have to do with the care of residents, that is, with looking after them. However, that exclusion was not limited to the concept of nursing services or nursing care. Registered nurses could be involved with any form of care, nursing, personal or social.

Secondly, however, “services which having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse” are excluded from that which is prohibited to be purchased by councils.

This clearly envisages that there will be circumstances in which somepersonal or non-nursing care willneed to be provided by a registered nurse. Care which is associated with or ancillary to the nursing care which she or he is providing obviously needs to be provided by her/him. When a registered nurse is engaged in providing nursing care, it makes no sense to say that s/he does not need to do the other things that the resident needs to have done while she is providing the nursing care.” (paras. 37-38)

The Health Boards’ decision had been that the nurses’ activities included: (a) direct nursing care time, (b) indirect nursing care time (eg management of medicines, overall care planning, and hygiene standards), (c) non-nursing care time (eg social care including dressing and washing), and (d) other time (including stand-by time, paid breaks and time spent receiving supervision); and that the NHS should only be responsible for time spent doing tasks in categories (a) and (b). That was drawing the line in the wrong place according to the Court’s decision.

Lady Hale concluded:“As the legislation quite clearly envisages that there will be some circumstances in which care does need to be provided by a registered nurse, even though it is not care which only a registered nurse can provide, in my view it is our duty to say so.In my view, therefore, “nursing care by a registered nurse” covers (a) time spent on nursing care, in the sense of care which can only be provided by a registered nurse, including both direct and indirect nursing time as defined by the Laing and Buisson study; (b) paid breaks; (c) time receiving supervision; (d) stand-by time; and (e) time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which s/he has to provide.” (para. 43-44).

ANALYSIS:

The case concerned the law in Wales. However, the virtually identical wording of s.22(8) Care Act 2014 means that the Supreme Court’s judgement is now the clear authority on where the line between local authority and NHS funded care in case homes is to be drawn in England as well, particularly since Lady Hale’s judgement explicitly acknowledges this: “given how important it is, not only to the Health Boards and local authorities in Wales, but also to thousands of care home residents who fund or contribute to the funding of their own care, as well as to those in England where the legislation is in similar terms.” (para. 27)

Local authorities can heave a sigh of relief that much of the estimated burden of £250 million annually across the UK which rested on the outcome of this case will now have to be borne by the NHS.

It is to be noted though that it still does not clarify what IS so ancillary or incidental to a nursing task as to be caught in the notion of what FNC is actually for….

Full transcript available at: http://www.bailii.org/uk/cases/UKSC/2017/56.html