Coughlan & Ors, R (on the application of) v North & East Devon Health Authority

Factual and Procedural Background

This case concerns an application for judicial review challenging the decision of a Health Authority to close a purpose-built NHS facility, Mardon House, which provided nursing care to chronically ill patients including the Applicant, referred to as Miss Coughlan. Miss Coughlan, severely disabled following a 1971 accident, was assured that Mardon House would be her home for life. In 1998, the Health Authority decided to close Mardon House and transfer residents to local authority care, which is subject to means testing. The Applicant challenged the legality of the closure decision and the transfer of nursing care responsibility to the local authority. The initial judgment was in favor of the Applicant, quashing the closure decision. The Health Authority and the Secretary of State for Health appealed. The Royal College of Nursing intervened to address specific nursing care provision issues.

Legal Issues Presented

1. Whether nursing care for a chronically ill patient must lawfully be provided by the NHS free of charge or whether it may be provided by a local authority as a social service subject to means testing.
2. The legality and propriety of the eligibility criteria used by the Health Authority to determine entitlement to NHS long-term care.
3. The legal effect and enforceability of the promise made by the Health Authority’s predecessor that Mardon House would be a home for life for Miss Coughlan and other residents.
4. Whether the decision to close Mardon House and transfer care breached Miss Coughlan’s human rights under Article 8 of the European Convention on Human Rights.
5. The adequacy and timing of the assessments of Miss Coughlan’s needs and the identification of alternative placements prior to the closure decision.
6. The lawfulness and adequacy of the consultation process undertaken by the Health Authority before deciding to close Mardon House.

Arguments of the Parties

Appellant's Arguments (Health Authority)

• The promise of a home for life was not absolute and could be overridden by an overriding public interest, such as the need to improve reablement services.
• The decision to close Mardon House was based on proper consideration and was lawful, including the consultation process.
• Nursing care could lawfully be transferred to local authority provision subject to statutory guidelines and eligibility criteria.
• Multi-disciplinary assessments and identification of alternative placements were not required before the closure decision.
• The Secretary of State’s policy and guidance documents supported the distinction between specialist and general nursing care responsibilities between NHS and local authorities.

Appellee's Arguments (Applicant)

• All nursing care remains the responsibility of the NHS and cannot be lawfully transferred to local authorities for social services provision.
• The eligibility criteria applied by the Health Authority were unlawful and artificially limited NHS responsibility.
• The promise that Mardon House would be a home for life created a legitimate expectation which the Health Authority unlawfully breached.
• The closure decision was unfair and an abuse of power as there was no overriding public interest to justify breaking the promise.
• The Health Authority failed to conduct proper multi-disciplinary and risk assessments and did not identify suitable alternative placements before deciding closure.
• The consultation process was flawed due to non-disclosure of key reports and inadequate time for meaningful consultation.

Intervenors' Arguments (Secretary of State for Health and Royal College of Nursing)

• The Secretary of State emphasized the need for eligibility criteria to delineate NHS and local authority responsibilities and accepted the policy distinction between specialist and general nursing care.
• The Royal College of Nursing focused on whether nursing care in nursing homes must be free of charge as in hospitals or patients’ own homes, and whether the distinction between specialist and general nursing care was lawful.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed statutory interpretation of the Health Act 1977 and the Care Act 1948, focusing on the division of responsibilities between the NHS and local authorities for nursing care. It rejected the initial judge’s conclusion that all nursing care must be the sole responsibility of the NHS, recognizing that some nursing care may be provided as part of social services accommodation under the Care Act, subject to the nature and extent of the nursing needs.

The Court emphasized that the Secretary of State has discretion under the Health Act to determine what services are necessary to meet reasonable requirements, including resource considerations, and that social services care may include incidental nursing care connected with accommodation.

However, the Court found that the eligibility criteria used by the Health Authority were unlawful as they imposed an overly restrictive interpretation of NHS responsibility, improperly shifting substantial nursing care needs to local authority provision.

Regarding the promise of a home for life, the Court applied the doctrine of legitimate expectation, distinguishing between procedural and substantive expectations. It held that the promise created a substantive legitimate expectation enforceable in public law, requiring the Health Authority to justify any departure by an overriding public interest.

The Court concluded that the Health Authority failed to establish such an overriding public interest and that breaking the promise was unfair and amounted to an abuse of power. It further recognized the human rights dimension under Article 8 ECHR, acknowledging the significance of Mardon House as the Applicant’s home.

On assessment and placement, the Court found that while multi-disciplinary assessments and identification of alternative placements are important, the statutory guidance does not require them to precede a closure decision. The Court did not find the Health Authority’s handling of these issues unlawful in this context.

Regarding consultation, the Court applied the Gunning principles and found that despite some criticisms, the consultation process was not unlawfully flawed. The non-disclosure of a report was not deemed to vitiate the consultation as the report was considered part of the Authority’s internal deliberations rather than the consultation material.

Holding and Implications

The Court DISMISSED the appeal, upholding the initial judgment in favor of the Applicant.

The direct effect of the decision is that the Health Authority’s decision to close Mardon House was unlawful due to misinterpretation of statutory duties, unlawful eligibility criteria, and unjustified breach of a legitimate expectation. Nursing care for patients with primarily health needs, such as the Applicant, remains the responsibility of the NHS. The Health Authority must honor the promise of a home for life or provide a lawful justification if it seeks to depart from it.

No new legal precedents were established beyond the application and clarification of existing principles on legitimate expectation, statutory interpretation of health and social care duties, and consultation requirements.