Court of Appeal rules on responsibility for non-nursing activities provided by nurses in care homes

February 9th, 2016

The Court of Appeal has just delivered an important judgment on the division of responsibilities between local authorities and the NHS. R (Forge Care Homes) v Cardiff and Vale University Health Board [2016] EWCA Civ 26 concerned what is termed ‘funded nursing care’. That is nursing care delivered in a care home by a registered nurse, to residents who require some nursing care, but nursing care is not their primary need.

The case arose in Wales under the Welsh legislation. However, the same issue arises in England, the wording of the legislation is comparable, and so the case will be directly relevant to England.

Under the relevant legislation, local authorities are not permitted to provide ‘nursing care by a registered nurse’. This ensures that it is only the NHS, and not local authorities, who are responsible for nursing care.

The Welsh health authorities (Local Health Boards, akin to English CCGs) set a rate to be paid to care homes to cover funded nursing care. The rate they set covered only time spent directly or indirectly on nursing tasks, and excluded social care provided by nurses.
The result of that decision by the Local Health Boards was that the cost of social care provided by nurses then had to be paid for by the care homes or local authorities.

The care homes brought a judicial review challenge to that decision, contending it misinterpreted the statutory provision barring local authorities from providing ‘nursing care by a registered nurse’. At first instance, Hickinbottom J upheld the judicial review claim and quashed the decision of the health authorities.

The Court of Appeal reversed that decision, and held that there was a distinction between those tasks which needed to be carried out by a nurse (the cost of which fell to be paid for by health authorities), and social care or other tasks which did not need to be carried out by a nurse, and were the responsibility of local authorities or the individual.

The effect of this case is that it is the NHS who determine the forms of care which need to be provided by a registered nurse, and fund only those forms of care. Other non-nursing tasks provided by nurses (e.g. administration and management of the home, social care such as personal care which does not need to be provided by a registered nurse) are not the responsibility of health, and fall to be funded by local authorities and / or the individual. This includes any services provided by nurses which the NHS does not consider to be nursing care.

As to how to draw the distinction, Laws LJ held that there was a basic factual question: “do this nurse’s activities in the care home need to be provided by
a registered nurse?” Earlier, he also gave this guidance:

“… some services need to be provided by a registered nurse and some do not. The distinction is drawn by reference to two matters: the nature of the services, and the circumstances in which they are provided. The nature of the services invites attention to the contrast between clinical or medical tasks which by their nature need to be provided by a nurse, and social or personal tasks which do not; though certainly the latter may be performed by a registered nurse. The circumstances in which the services are provided invites attention to the fact that circumstances may dictate whether a particular task needs or does not need to be provided by a nurse.”

Two members of chambers, Clive Sheldon QC and Patrick Halliday, acted in the case for the Department of Health.

By Jonathan Auburn, @jonauburn11kbw

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