The NHS funds NHS care, which is free at the point of delivery, and local authorities provide social care, which is means tested. Local authorities cannot lawfully pay the cost of nurses to provide nursing care even if care is delivered within a social care setting. However, if a local authority buys a care package from a private provider for a social care patient where a nurse is needed for some of the services, how much should the NHS contribute to the overall cost of the package?
That issue reached the Supreme Court in R (Forge Care Homes Ltd) v Cardiff and Vale University Health Board. Should the NHS pay for the entire cost of the nurses, on the grounds that a nurse presence was needed on call all the time, or only for the times when a nurse provided care of a type that only a qualified nurse can provide?
The answer, according to Lady Hale, turned on the interpretation of s.49(2) of the Health and Social Care Act 2001, and the definition of “nursing care provided by a registered nurse”. The facts of the case arose in Wales, where s.49 has now been repealed. However, the Supreme Court states that similar issues arise in relation to the current legislation.
Lady Hale DPSC (the recently-appointed next President of the Supreme Court) gave the leading judgment, and held at para. 44:
“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 [a study by healthcare consultants Laing & Buisson]; (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 she has to provide.”
The Supreme Court held that the NHS bodies (at least in Wales, and under the legislation in force at the material time) would have to re-make their decision regarding the funding of nursing care by dividing the time up between these different activities. The court suggested that this should be negotiated between the parties. The decision would involve a question of fact, which was a matter for the decision-makers rather than the court provided they approached the matter in the way the court had outlined.
Who won this litigation? Well, no one really. The court came down evenly between the extreme positions adopted by either party – which is more or less what they told NHS bodies and the local authorities to do.
With thanks to David Lock QC for his input.