Nursing care by a registered nurse in a care home is funded by the National Health Service and includes all social care
September 14, 2017
R (on the application of Forge Care Homes Ltd and Others) v Cardiff and Vale University Health Board and Others
The Supreme Court of the United Kingdom
Lady Hale, DP, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Hodge
2017 UKSC 56
August 2, 2017
Reported by Linda Awuor & Faith Wanjiku
Health law-social care-nursing care- whether the National Health Service or local authorities (with means-tested contributions from clients) was responsible for paying for the work done by registered nurses in social rather than health care settings-Health and Social Care Act, 2001,section 49 (2)
Statutes- interpretation of statutes- nursing care-exclusion of nursing care from community care services- whether nursing care by a registered nurse covered everything that was done by a registered nurse in a care home, as it would have in a hospital or other health service setting or whether it covered only some of what she did- Health and Social Care Act, 2001, section 49 (2)
The Appeal concerned whether the National Health Service or local authorities (with means-tested contributions from clients) were responsible for paying for the work done by registered nurses in social rather than health care settings. In general, health care was provided or arranged by the National Health Service, and was free for all patients irrespective of means, while social care was provided or arranged by local authorities with means-tested contributions from those clients who were deemed able to pay for some or all of it themselves. The owner of a care home providing nursing services to residents was obliged by regulation to ensure that a registered nurse was working at the care home at all times.
Local Health Boards in Wales (the Boards) decided to pay a flat weekly rate, following a survey which asked nurses to record and categorise the time they spent at different tasks:
a) direct and indirect nursing care time,
b) non-nursing care time and
c) other time (which included stand-by time, paid breaks and time receiving supervision).
The weekly rate excluded payment for time in the last two categories on the basis that those services fell within the exception in section 49(2) of the Health and Social Care Act, 2001 which did not need to be provided by a registered nurse.
The decision of the Boards to interpret section 49(2) in that way was challenged by the Appellants. The High Court quashed the decision, holding that the Boards ought to have funded all the services in fact provided by a registered nurse. The Boards conceded that they should have covered nurses’ stand-by time but appealed the finding in respect of services which needed not have been performed by a registered nurse. The Court of Appeal by a majority allowed the Boards’ appeal. The local authorities appealed to the Supreme Court.
i. Whether nursing care by a registered nurse covered everything that was done by a registered nurse in a care home, as it would have in a hospital or other health service setting or whether it covered only some of what she did under section 49 (2) of the Health and Social Care Act.
ii. Whether under section 49 (2) of the Health and Social Care Act it was the National Health Service or local authorities (with means-tested contributions from clients) responsible for paying for the work done by registered nurses in social rather than health care settings.
Relevant Provisions of the Law
Health and Social Care Act, 2001
Social Care- Nursing care
Section 49-Exclusion of nursing care from community care services
(1) Nothing in the enactments relating to the provision of community care services shall authorise or require a local authority, in or in connection with the provision of any such services, to -
(a) provide for any person, or
(b) arrange for any person to be provided with, nursing care by a registered nurse.
(2) In this section ‘nursing care by a registered nurse’ means any services provided by a registered nurse and involving -
(a) the provision of care, or
(b) the planning, supervision or delegation of the provision of care, 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 task of the Court was to interpret the meaning of the words used by Parliament to impose a restriction on what local authorities could have provided or arranged and thus indirectly to have imposed an obligation on the National Health Services (NHS) to fund what the local authorities could not have provided or arranged. Interpretation had to have come before application. Once interpreted, it was for those on the ground to have put that interpretation into practice. In passing the Health and Social Care Act, Parliament did not intend to leave the division of responsibility in the hands of the NHS.
- In construing the test in section 49(2) of the Health and Social Care Act, if Parliament had wanted to restrict the definition of nursing care by a registered nurse to tasks which could only be performed by a registered nurse, it both could and would have said so but it did not. On the other hand, 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 but it also did not. It began with the broad concept of any services provided by a registered nurse but then limited those services in two ways. They had to be services involving the provision, planning, supervision or delegation of care. They were limited to services which had to do with the care of residents, that was, with looking after them. However, they were not limited to nursing services or nursing care. They could have involved any form of care, nursing, personal or social.
- Services which having regard to their nature and the circumstances in which they were provided, did not need to be provided by a registered nurse were excluded. That clearly envisaged that there would have been circumstances in which somepersonal or non-nursing care would have needed to be provided by a registered nurse. Care which was associated with or ancillary to the nursing care which she was providing obviously needed to be provided by her. When a registered nurse was engaged in providing nursing care, it made no sense to say that she did not need to do the other things that the resident needed to have done while she was providing the nursing care. For example, there may be a reason why a nurse needs to take a patient to the lavatory. The tasks associated with taking a resident to the lavatory cannot be parceled up between two carers in this way. Whoever is doing them needs to do them all. That applies to all sorts of caring tasks which a nurse needs to do for some reason and which cannot sensibly be parceled up between nursing and non-nursing tasks.
- One service which a nurse undoubtedly has to do is to provide, as the Laing and Buisson report puts it, an overall, holistic, person-centred plan for each resident who needs some nursing care. In the course of doing this, she may very well have to engage in social and personal care tasks in order to understand the overall needs of the resident and provide an appropriate care plan to meet them.
- The Court was, by definition, looking at the funding of the care of residents who, although health care was not a primary need do have a need for some nursing care. That has to be provided by a registered nurse. Other kind of care which was ancillary to or associated with the nursing care which those residents needed did also have to be provided by a registered nurse. Any other approach was contrary to the holistic view which was taken of looking after the whole person. It was a matter of fact what part of the care provided by registered nurses to residents who had a need for some nursing would fall within the definition; it could or could not be a substantial part of their care; but that was a matter for the decision-makers and not for the Court. It’s also acceptable that time spent on paid breaks fell within the definition of nursing care by a registered nurse. Part of providing their caring service was taking the breaks necessary to have been able to provide those services properly. The same applied to time spent receiving supervision, which was also a necessary part of providing the caring services they were there to provide.
- Nursing care by a registered nurse covered:
(a) time spent on nursing care, in the sense of care which could 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 have been provided by a registered nurse because they were ancillary to or closely connected with or part and parcel of the nursing care which she had to have provided.
- The concentration in the case on the division between nursing and personal care had been a distraction. There was some personal care which, in all the circumstances, did need to be performed by a registered nurse, but there was some which did not. That was a question of fact, although the only practical solution was to make a rough and ready calculation based on the generality of what took place. Some differentiation between the care services provided was required. The Court could draw the dividing line in a different place from them. Parliament envisaged that some care services would be included beyond those which could only be provided by a registered nurse: hence the addition of category (e) above to the list.
- Stand-by time should have been included, the Health Boards’ decisions were based on a misinterpretation of section 49(2) and had to be quashed and re-taken in the light of the guidance given in the judgment. The matter ought to be put down for negotiation between all the parties who were governed by the legislation and had an interest in the outcome.
Relevance to the Kenyan Situation
Kenya too has legislation to cater for provision of social care to the elderly. The Constitution of Kenya, 2010 provides for the right to social security in article 43 (1) (e) on economic and social rights. Article 57 provides that the State shall take measures to ensure the rights of older persons to receive reasonable care and assistance from their family and the State.
The Social Assistance Act No. 24 of 2013 provides for the rendering of social assistance to persons in need. Section 2 defines social services to include rehabilitation and day care assistance and financial assistance to include payment for care in residential institutions and payment for health care services.
Section 21 provides that a person qualifies for social assistance as an elderly person if the person has attained the age of 65, has been neglected or abandoned without any ascertainable means of support, or lives or begs on the street for a living.
The UK case brings the need for mutual correlation between the national government and county government health systems on provision of health care, specifically social care in this case. The case will be an important precedent in regulation and management of social care hospitals when the government undertakes to provide for them.