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Summary of the Coughlan judgment

R v North & East Devon Health Authority ex p Coughlan (decided by the Court of Appeal in July 1999) concerned  Ms Coughlan, a severely disabled resident at the Mardon House nursing home. When she moved in she was promised that it was a "home for life". However later the health authority believed the home had become uneconomic and proposed to close it and move Ms Coughlan elsewhere.

The health authority believed that community care law changes had effectively transferred the provision of nursing care to social services departments from health authorities and that it was no longer empowered to provide or arrange general long term nursing care. So it decided it could break the promise to Ms Coughlan if it seemed reasonable taking economic factors and other patients' needs into account. The promise was seen as just one of a range of factors to consider

The consultation about the closure by the health authority with Ms Coughlan took place over a short period and important expert opinions were not shared with the residents. The health authority failed to identify an alternative placement for Ms Coughlan before deciding to close Mardon House and there had been only been medical and nursing assessment of her needs.

The Court of Appeal decided the case as follows:

• for the health authority to break its promise to Ms Coughlan there needed to be an overriding public interest and compelling circumstances but in this case these factors were lacking and it was unlawful to break the promise
• where a person's need is primarily for health care then the health service must fund the whole of nursing home placement. There had been no change in the law as to who provided nursing care by the guidance HSG (95)8 (which covers NHS responsibilities for continuing care), and the health authority's assumption that there had been such a change (so that it only had to provide specialist nursing) had led to the adoption of unlawful eligibility criteria.
• social services departments can only provide nursing to a person in a nursing home where it is a service "ancillary or incidental" to the accommodation provided (see also section 21(5) of the NAA 1948).
• the health authority had breached article 8 of the European Convention of Human Rights which protects a persons "right to respect for his private and family life [and] his home" and the interference in this case was not "necessary in a democratic society" as provided for in article 8.

More information

• coughlan judgment
• grogan judgment
• the national homes swindle - BBC Panorama report (5 March 2006)
• the national homes swindle: a growing scandal - BBC Panorama report (23 July 2006)
• r on the application of grogan v bexley nhs care trust and others
• view other caselaw

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