JUDGMENT
R (on the application of Forge Care Homes Ltd and
others) (Appellants) v Cardiff and Vale University
Health Board and others (Respondents)
before
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Carnwath
Lord Hodge
JUDGMENT GIVEN ON
2 August 2017
Heard on 26 April 2017
Appellants Respondents
Richard Gordon QC Fenella Morris QC
Emily MacKenzie Benjamin Tankel
Tom Pascoe
(Instructed by Ceredigion
County Council on behalf
of all of the Local
Authorities (except the
County Council of the
City and County of
Cardiff)
)
(Instructed by Blake
Morgan LLP (Cardiff)
)
Intervener (Secretary of
State for Health)
Clive Sheldon QC
Sarah Wilkinson
(Instructed by The
Government Legal
Department
)
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LADY HALE: (with whom Lord Clarke, Lord Wilson, Lord Carnwath and
Lord Hodge agree)
1. The interface between health and social care is a difficult and controversial
policy area. In general, health care is provided or arranged by the National Health
Service, and is free for all patients irrespective of means, while social care is
provided or arranged by local authorities with means-tested contributions from those
clients who are deemed able to pay for some or all of it themselves. This case is not
about the rights or wrongs of that general policy. This case is about who is legally
responsible for paying for the work done by registered nurses in social rather than
health care settings. Is the National Health Service responsible for all the work they
do or are the social care funders responsible for at least some of it? The issue happens
to arise in relation to Wales, where the legislation has since changed, as has the
legislation in England, but very similar issues arise under the legislation now in
force.
2. The issue is the correct interpretation and application of section 49 of the
Health and Social Care Act 2001, which is headed 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
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(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.” (emphasis supplied)
3. The social care funders contend that this means that the NHS, in the shape of
the Local Health Boards, is required to fund the full cost of a registered nurse’s
presence in a care home. This is in the context of regulation 18(3) of the Care Homes
(Wales) Regulations 2002 (SI 2002/324), which requires that:
“Where the care home –
(a) provides nursing to service users; and
(b) provides, whether or not in connection with
nursing, medicines or medical treatment to service
users,
the registered person shall ensure that at all times a suitably
qualified registered nurse is working at the care home.”
(emphasis supplied)
4. The Local Health Boards, on the other hand, contend that the nurse’s time
can be divided into a series of discrete tasks or functions, some of which do not need
to be provided by a registered nurse, so that they are responsible for only a
proportion of her time working in the home.
How the dispute arose
5. In practice, Local Health Boards pay for nurses’ time in social care homes by
a weekly flat rate payment for each care home resident who qualifies for some
nursing care. Between September and November 2013, every Local Health Board
in Wales decided to set the rate at £128.61 per resident per week. This was an
increase on what they had previously been paying. Their decisions took account of
a report by healthcare consultants Laing & Buisson.
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6. Laing & Buisson conducted a survey which asked nurses to record and
categorise the time they spent during a particular shift into: (a) direct nursing care
time, (b) indirect nursing care time (eg management of medicines, overall care
planning, and hygiene standards), (c) non-nursing care time (eg social care including
dressing and washing), and (d) other time (including stand-by time, paid breaks and
time spent receiving supervision). They commented that splitting nurses time and
costs in such detail was “always likely to prove challenging”. If social care were
excluded, homes might be “inclined to minimise nurses’ participation in providing
holistic and integrated nursing and social care support for residents”. “Would it not
be a lot simpler”, they asked, “just for the NHS to pay for the full direct salary cost
of registered nurses, rather than argue about the split between nursing and nonnursing care?” (NHS Wales Funded Nursing Care Review 2013, Laing & Buisson
FNC Survey Report, pp 23, 26).
7. The Health Boards decided that time in categories (c) and (d) did not fall
within the definition of “nursing care by a registered nurse” in section 49(2) and
therefore they would not fund it. This resulted in a weekly payment which was
£27.33 lower than it would have been had that time been included. It has been
estimated that the overall cost to the Health Boards in Wales if it were included
would be between £7 and £13m a year.
8. The decisions of the seven Local Health Boards, covering the whole of
Wales, to set the flat rate at £128.61 (subsequently increased in accordance with an
inflationary uplift mechanism which is not now disputed) were originally challenged
by 11 owners and operators of care homes in Wales. All the local authorities in
Wales were joined as interested parties. They (with the exception of the County
Council of the City and County of Cardiff, which has taken no part in these
proceedings) have effectively taken over the conduct of the case from the care home
owners. The Welsh Ministers were also joined as interested parties but have taken
no part in this appeal. The Secretary of State for Health, who is responsible for the
NHS in England, has intervened in the appeal in support of the Local Health Boards.
9. The care homes’ challenge, on the ground that too restrictive an interpretation
of “nursing care by a registered nurse” had been adopted, succeeded before
Hickinbottom J: [2015] EWHC 601 (Admin); [2015] PTSR 945. He rejected the
Health Boards’ argument that it covered care which could only be provided by a
registered nurse and accepted the challengers’ argument that it covered all the
services in fact provided by a registered nurse. Hence he quashed the Health Boards’
decision.
10. On appeal, the Health Boards conceded, as they had done below, that they
had been wrong to exclude the nurses’ stand-by time (part of (d) in para 6 above)
from their calculations. Subject to that, the Court of Appeal, by a majority, allowed
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their appeal: [2016] EWCA Civ 26; [2016] PTSR 908. Laws LJ gave the leading
judgment. He held that the Judge’s construction gave insufficient weight to the
excepting words at the end of section 49(2). These clearly distinguished between
different services provided by a nurse at a care home. It did not follow from the fact
that a nurse needed to be on call at all times that everything she did while on duty
was a service which needed to be provided by a registered nurse. Whether what she
did fell within the definition was a factual rather than a legal question.
11. Elias LJ agreed that section 49(2) envisaged that there would be some
services provided by a registered nurse which would not fall within the concept of
“nursing care by a registered nurse”. But it followed from the requirement to have a
nurse or nurses in attendance at all times that the Health Boards had to pay for all
the arrangements necessary to secure this, so not only stand-by time, but also meal
breaks, supervision and administrative tasks associated with it. But if the costs were
increased because she also provided social care that was not a service for which the
Health Boards should pay.
12. Lloyd Jones LJ agreed with Laws LJ. Distinguishing between the services
provided by the nurse inevitably involved what had been referred to as a “task-based
approach” apportioning her time according to how she spent it. He also agreed that
it did not follow from the fact that a nurse had to be there at all times that everything
she did while there was the responsibility of the Health Boards. The approach
adopted by Elias LJ was inconsistent with the agreed requirement to distinguish
between different categories of services.
13. The local authorities now appeal to this Court.
The statutory context
14. The powers and duties of local authorities in relation to what is now called
social care were contained in a series of enactments which have now been replaced,
in Wales, by the Social Services and Well-being (Wales) Act 2014 and, in England,
by the Care Act 2014. At the relevant time, section 47 of the National Health Service
and Community Care Act 1990 required a local authority, where it appeared that a
person for whom they were responsible might be in need of community care
services, to carry out an assessment of his need for those services and decide whether
his needs called for them to provide such services. “Community care services” were
defined in section 46 of the 1990 Act as services which a local authority might
provide or arrange under a number of enactments, including Part III of the National
Assistance Act 1948. Part III of the 1948 Act included section 21(1)(a), under which
local authorities could provide or arrange “residential accommodation” for adults
who “by reason of age, illness, disability or any other circumstances are in need of
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care and attention which is not otherwise available to them”, in other words care
homes. This was a duty owed to people ordinarily resident in their area and other
persons in urgent need (Local Authority Circular LAC (93)10).
15. By section 21(5), “accommodation” included “board and other services,
amenities and requisites provided in connection with the accommodation”.
However, section 21(8) provided that:
“Nothing in this section shall authorise or require a local
authority to make any provision authorised or required to be
made (whether by that or by any other authority) by or under
any enactment not contained in this Part of this Act or
authorised or required to be provided under the National Health
Service Act 2006 or the National Health Service (Wales) Act
2006.”
16. By section 3(1) of the National Health Service (Wales) 2006 Act (which is in
substantially the same terms as its predecessors in the National Health Service Acts
of 1946 and 1977):
“The Welsh Ministers must provide throughout Wales, to such
extent as they consider necessary to meet all reasonable
requirements –
(a) hospital accommodation,
(b) other accommodation for the purpose of any
service provided under this Act,
(c) medical, dental, ophthalmic, nursing and
ambulance services, …
(e) such other services or facilities for the prevention
of illness, the care of persons suffering from illness and
the after-care of persons who have suffered from illness
as they consider are appropriate as part of the health
service,
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(f) such other services or facilities as are required for
the diagnosis and treatment of illness.”
17. Under section 12, the Welsh Ministers may direct the Local Health Boards
established under section 11 to exercise these functions. The effect of the directions
current at the relevant time (the National Health Service (Nursing Care in
Residential Accommodation) (Wales) Directions 2004) was that Local Health
Boards were obliged to provide nursing care for those who required it, including
those accommodated in care homes by local authorities. In practice, there are three
categories of resident in care homes:
(1) A resident who has a “primary need” for health care. Local Health
Boards fund the whole of her care, both nursing and non-nursing, and her
accommodation. This is known as “Continuing Health Care”.
(2) A resident who requires some health care but for whom this is not a
primary need. Local Health Boards fund the nursing care which she needs,
known as “Funded Nursing Care”, while the resident herself, or the local
authority, or both, fund the rest of her care and accommodation.
(3) A resident who requires no nursing care. The whole of her care and
accommodation will be funded by the resident, or by the local authority, or
by both.
18. This case is concerned with the funding of nursing care for residents in
category (2). The extent to which a local authority is neither allowed nor required to
fund such care is governed by section 49 of the 2001 Act (subsequently replaced by
section 47 of the 2014 Act, section 47(10) of which defines nursing care by a
registered nurse in almost identical terms to section 49(2)). The case has been argued
throughout on the basis that, if a local authority is not permitted to fund such care,
then the Local Health Boards are required, under section 3(1) of the 2006 Act, to do
so: there will be no “funding gap”.
19. Part of the background to the enactment of section 49 is the decision of the
Court of Appeal in R v North and East Devon Health Authority, Ex p Coughlan
[2001] QB 213 (upholding the decision of the first instance Judge). The claimant
was severely disabled as a result of a road traffic accident. She and others were
placed in an NHS home for long term disabled people and assured that this would
be their home for life. Then the health authority decided that they were in need of
only “general” rather than “specialist” nursing services and that these should be
purchased by the local authority rather than provided by the NHS. So the health
Page 8
authority decided to close the home and transfer their long-term care to the local
authority. The case is generally known for holding that to close the home would be
an unjustified breach of the legitimate expectations engendered by the health
authority’s promise and thus an abuse of power. But it is also important for its
discussion of when nursing care could, and could not, be provided by local
authorities in residential accommodation which they provided or arranged under
section 21 of the 1948 Act. On the one hand, section 21(5) included in the provision
of accommodation “board and other services, amenities and requisites provided in
connection with the accommodation”. This could obviously include nursing care for
those residents who needed it. On the other hand, section 21(8) excluded anything
“authorised or required to be provided under the National Health Service Act 1977”.
The court held that this was “limited to those health services which, in fact, have
been authorised or required to be provided under the 1977 Act”. It did not include
“services which the Secretary of State [had] legitimately decided under section 3(1)
of the 1977 Act it was not necessary for the NHS to provide” (per Lord Woolf MR,
at para 29). There was no precise dividing line between those nursing services which
are and those which are not capable of being treated as included in the “package of
care” provided by the local authority (para 30(d)). But it could not be based solely
on whether the nursing care was “general” or “specialist”. The distinction was one
of degree which would depend upon the facts of the individual case:
“However, as a very general indication as to where the line is
to be drawn, it can be said that if the nursing services are (i)
merely incidental or ancillary to the provision of the
accommodation which a local authority is under a duty to
provide … and (ii) of a nature which it can be expected that an
authority whose primary responsibility is to provide social
services can be expected to provide, then they can be provided
under section 21.” (para 30(e))
20. The court acknowledged Mr Gordon’s submission, on behalf of the claimant,
that this was unfair: if a person received comparable nursing services in a hospital
or at home, they would be free of charge. But that unfairness was part of the statutory
scheme (para 30(c)). However, the NHS eligibility criteria could not place
responsibility on a local authority which went beyond what section 21 permitted.
These patients’ health care needs went far beyond that. Hence the closure decision
was unlawful.
21. But the matter did not rest there. The other part of the background to section
49 of the 2001 Act is the Report of the Royal Commission on Long Term Care
(chaired by Sir Stewart Sutherland), With Respect to Old Age: Long Term Care –
Rights and Responsibilities (Cm 4192-I), published in March 1999 between the first
instance and Court of Appeal judgments in the Coughlan case. This made two main
recommendations. The first was that all nursing care, wherever it was delivered,
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should be free and funded by the NHS (recommendation 6.3 (para 6.26)). The
current situation was “not justified or defensible”. By nursing care was meant “care
which involves the knowledge or skills of a qualified nurse” (para 6.22). The second
was that all personal care should also be free of charge and funded from general
taxation (recommendation 6.4 (para 6.37)). By personal care was meant care which
“involves touching a person’s body. … It falls within the internationally recognised
definition of nursing but may be delivered by many people who are not nurses …”
(para 6.43). A long list of such tasks was provided (para 6.44).
22. There was a Note of Dissent by Joel Joffe and David Lipsey. They agreed
that the position on nursing care was a “glaring anomaly” and that it should be free
and funded by the NHS wherever it was provided. But they defined it strictly as
“that care which requires the specific knowledge and skills which only a registered
nurse can provide” and then gave examples (para 65). Further, the dissenters could
“not go along with” the central recommendation of the majority that personal care
should be provided free of charge (para 1). This would cost a great deal of money
while doing nothing to increase the funds actually devoted to personal care or to
improve the quality of services provided.
23. The Government published its response in July 2000, The NHS Plan: The
Government’s response to the Royal Commission on Long Term Care (Cm 4818-
II). This rejected the recommendation on personal care, believing it not to be the
best use of resources. But it accepted the recommendation on nursing care (para 2.5).
This would require primary legislation, which would be introduced as soon as
possible, with a view to introducing free NHS nursing care in all nursing homes by
October 2001 (para 2.8). Crucially:
“2.9 In the future, the NHS will meet the costs of registered
nurse time spent on providing, delegating or supervising care
in any setting. This is a wider definition of nursing care than
proposed in the Note of Dissent to the Royal Commission
report, which suggested it should include those tasks that only
a registered nurse could undertake.
2.10 Therefore people identified as needing nursing home
care will no longer have to meet any of the costs for the
registered nurses involved in their care, or for the specialist
equipment used by those nurses. Instead the NHS will meet
these costs. …” (emphasis supplied).
24. Section 49 was enacted as a result. The Explanatory Notes to the 2001 Act
confirm this:
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“240. Section 49 removes local authorities’ functions to
purchase nursing care by a registered nurse. …
241. Subsection (1) removes the right of a local authority to
provide or arrange nursing care by a registered nurse. It is
intended that the NHS in pursuance of its powers and duties
under the 1977 Act will provide or arrange nursing care by a
registered nurse and such care will (in accordance with the
1977 Act) be free of charge. …
242. Subsection (2) defines ‘nursing care by a registered
nurse’ as services provided by a registered nurse and involving
either the provision of care or the planning, supervision or
delegation of the provision of care, other than services which
do not need to be provided by a registered nurse. In deciding
whether services need to be provided by a registered nurse, it
is necessary to have regard to the nature of those services and
the circumstances in which they are provided. …”
25. We have been referred to various ministerial statements made during the
Parliamentary debates on the 2001 Bill, but I do not regard those statements as
sufficiently clear and unequivocal to meet the stringent tests of admissibility laid
down in Pepper v Hart [1993] AC 593 and R v Secretary of State for the
Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349.
It is one thing for the Minister to say that “a nurse is not defined by the tasks that he
or she performs” (Hansard, Standing Committee E, 6 February 2001, col 442); it is
quite another thing to say that there is no limit to the work done by a registered nurse
in a care home for which the NHS must pay. We are, however, entitled to take into
account the preceding reports and explanatory notes to identify the mischief at which
the legislation was aimed and the proposed solution to it.
The issue and the arguments
26. There is no doubt that the mischief at which section 49 was aimed was the
“glaring anomaly” that nursing care was either provided free by the NHS or bought
in by the local authority or residents depending on where it was provided. It was
clearly intended to shift the boundary established by the Coughlan decision further
in the direction of NHS funding. But the question remains whether “nursing care by
a registered nurse” covers everything that is done by a registered nurse in a care
home, as it would in a hospital or other health service setting or (probably) in the
patient’s own home, as the appellant local authorities contend, or whether it covers
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only some of what she does, as the Health Boards contend. This turns on the meaning
and purpose of the concluding words in section 49(2):
“… 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.”
Had those words not been there, there is no doubt that the local authorities’
interpretation would be correct and the NHS would have to pay for all the time spent
by a registered nurse in a care home providing, planning, supervising or delegating
care of any sort, at least for those residents whose needs were the reason for her
presence. So the question is: why are those words there and what do they mean?
27. There are no other decided cases which have discussed this question, perhaps
surprisingly, given how important it is, not only to the Health Boards and local
authorities in Wales, but also to thousands of care home residents who fund or
contribute to the funding of their own care, as well as to those in England where the
legislation is in similar terms. Section 49 is referred to in two cases, R (Grogan) v
Bexley NHS Care Trust [2006] EWHC 44 (Admin); [2006] LGR 491) and R (St
Helens Borough Council v Manchester Primary Care Trust [2008] EWCA Civ 931;
[2009] PTSR 105, but in both cases the issue was the criteria for deciding whether
an individual qualified for continuing NHS care (category (1) residents in para 17
earlier), with the consequence that the NHS was responsible for all their care costs,
or whether they fell within the scheme under discussion here, in which case those
costs might be shared. There was no detailed discussion of how those costs are to be
shared, which is the issue in this case.
28. Much of the oral argument in this court focussed upon the consequences of
the requirement in regulation 18(3) of the Care Homes (Wales) Regulations 2002,
that if a home “(a) provides nursing to service users; and (b) provides whether or not
in connection with nursing, medicines or medical treatment to service users” a
suitably qualified registered nurse must be working there at all times. This means
that in such homes there must always be a registered nurse on duty, even if she is
doing nothing. This would in practice be the case even without regulation 18(3),
because, as was the evidence at first instance, if a home has residents who need
nursing care “they [will] need to be cared for in an environment where a registered
nurse is available on a 24 hour basis. This will usually be because of the complexity,
intensity or unpredictability of their needs” (First Witness Statement of Victoria
Warner, para 8). The Local Health Boards therefore accepted before the judge that
time spent on “stand-by” should have been included in the time for which they
should pay. Mr Gordon, for the local authorities, argues that this means that they
should pay for all the time that the nurse is there. She has to be there all the time and
therefore all the services which she is providing while she is there need to be
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provided by her. Thus, the argument goes, even if the Health Boards are in principle
correct to divide up the nurse’s time according to what she is doing, in practice
whatever she is doing needs to be done by her because she has to be there.
29. This approach, it is argued, does not ignore the closing words of section 49(2)
for two reasons. First, the NHS does not have to pay for roles which happen to be
done by a registered nurse but could just as well be done by someone else. In many
homes, for example, the manager is a registered nurse, but the manager’s role does
not need to be performed by a registered nurse. This argument does accept that
“nursing care by a registered nurse” is defined by the sort of work the nurse is doing
rather than by her formal qualifications. But defining her role is different from
parcelling up her time in the manner put forward by the Health Boards. Against this,
the Health Boards argue that the NHS is already protected by section 49 from having
to pay for registered nurses doing something other than providing, arranging or
supervising care. But it cannot have been intended that it should have to pay the full
costs of employing a manager if she is also fulfilling the “on call” requirement.
30. The second reason for suggesting that the local authorities’ approach does
not ignore the closing words is that the NHS does not have to pay for over-staffing.
If the home only needs there to be one nurse on duty at all times, then the services
provided by other nurses do not need to be provided by a registered nurse. Against
this, the Health Boards argue that even if there are more nurses than required, the
NHS still has to pay for that part of their work which does need to be done by a
registered nurse.
31. Overall, the Health Boards and the Secretary of State argue that the
Government’s policy decision was that personal care should be provided or arranged
by local authorities and subject to means-tested charges. It would be contrary to that
policy to oblige the NHS to pay the costs of personal care which happened to be
provided by a registered nurse and absurd to make it pay the cost of a registered
nurse on stand-by fulfilling some completely different role. Their interpretation
encourages efficiency: homes should arrange their business so that nurses spend as
much time as possible on nursing care, but when they are not, their time should be
used productively on personal care rather than standing idle. Dividing up the nurses’
time between nursing and non-nursing tasks is the only way to make sense of section
49 as a whole, including the closing words.
Discussion
32. The parties in this appeal have adopted diametrically opposed positions. The
Health Boards and Secretary of State argue that the consistent view of the case law
has been to respect the decisions of the NHS as to what services are necessary to
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meet all reasonable requirements, under section 3(1) of the 2006 Act, subject only
to challenge on the usual judicial review grounds. Thus, it is said, there is nothing
unusual in the NHS defining the limits of its responsibilities for itself. The proper
construction of section 49(2) depends upon what the NHS decides is reasonably
required. Against this, it is true that the courts have normally respected those
decisions, subject only to challenges on conventional judicial review grounds; but
in this case the NHS is arguing that it should be free to define the extent of the
responsibilities of others, the local authorities or residents, by deciding for itself
what is and what is not a nursing task, because all are agreed that there should be no
funding gap between what is funded by the NHS and what is funded by local
authorities with means-tested contributions from the clients. The limits of the local
authorities’ responsibilities are defined by Parliament in section 49. If Parliament
had wanted to leave the division of responsibility in the hands of the NHS, it could
and would have left the Coughlan decision undisturbed.
33. On the other hand, the local authorities’ primary argument before this Court
was that the court should focus on the application rather than the interpretation of
section 49. If it is accepted that the NHS must fund the presence of a nurse who is
there to fulfil the legal or practical requirement that a nurse must be on duty at all
times, then it follows that the NHS must fund everything that that nurse does while
on call in this way. This cannot be correct. The task of this court is to interpret the
meaning of the words used by Parliament to impose a restriction on what local
authorities may provide or arrange and thus indirectly to impose an obligation on
the NHS to fund what the local authorities cannot provide or arrange. Interpretation
must come before application. Once interpreted, it is for those on the ground to put
that interpretation into practice.
34. Before turning to that task, it is worth bearing in mind that the current practice
does not in fact reflect the logic of the Health Boards’ interpretation. Their taskbased approach would logically require an individualised assessment of what is in
fact done by each registered nurse working in a care home and dividing it into
nursing and non-nursing tasks. Instead, the Health Boards have relied on a survey to
produce an average result and thus a flat rate contribution across the board.
Furthermore, it appears that this is only done in relation to nurses’ time in care
homes. Section 49 applies to all kinds of community care services, including
services in the clients’ own homes, but we have no evidence of a similar
apportionment being made in relation to home nursing services. Nor, of course, does
it take place in hospital, where nurses may well spend time doing other tasks than
those which the NHS argues are covered by section 49. The courts below accepted
that this was the only practical solution to the problem but it is not necessarily
logical.
35. I start from the proposition that, in passing the 2001 Act, Parliament did not
intend to leave the division of responsibility in the hands of the NHS. It clearly
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intended to provide a test, but a different test from that in section 21(8) of the 1948
Act (para 15 above). It must also have intended to depart from the position
established in Coughlan, which depended upon the test in section 21(8).
36. In construing the test in section 49(2), I bear in mind that, if Parliament had
wanted to restrict the definition of “nursing care by a registered nurse” to tasks
which can only be performed by a registered nurse, it both could and would have
said so. It did not. The Government’s response to the Royal Commission report
clearly envisaged a wider test than that put forward by the dissenters to that report.
37. 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. It did not. It began with the broad concept of “any services
provided by a registered nurse” but then limited those services in two ways. First,
they must be services “involving” the provision, planning, supervision or delegation
of “care”. So they are limited to services which have to do with the care of residents,
that is, with looking after them. However, they are not limited to nursing services or
nursing care. They could involve any form of care, nursing, personal or social.
38. Secondly, however, “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” are excluded. This clearly envisages that there will be circumstances in which
some personal or non-nursing care will need to be provided by a registered nurse.
Care which is associated with or ancillary to the nursing care which she is providing
obviously needs to be provided by her. When a registered nurse is engaged in
providing nursing care, it makes no sense to say that she does not need to do the
other things that the resident needs to have done while she is providing the nursing
care.
39. 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
parcelled 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 parcelled up between nursing and non-nursing
tasks.
40. 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 (p 6). 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.
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41. We are, by definition, looking at the funding of the care of residents who,
although health care is not a “primary need” do have a need for some nursing care.
That has to be provided by a registered nurse. Other kinds of care which are ancillary
to or associated with the nursing care which these residents need does also have to
be provided by a registered nurse. Any other approach is contrary to the holistic
view which is now taken of looking after the whole person. It is a matter of fact what
part of the care provided by registered nurses to residents who have a need for some
nursing will fall within this definition; it may or may not be a substantial part of their
care; but that is a matter for the decision-makers and not for us.
42. I would also accept the view that time spent on paid breaks falls within the
definition of “nursing care by a registered nurse”. Part of providing their caring
services is taking the breaks necessary to be able to provide those services properly.
The same applies to time spent receiving supervision, which is also a necessary part
of providing the caring services they are there to provide.
43. This construction is close, but not identical, to the third argument put forward
in the local authorities’ case. Their first and second arguments, as we have seen,
were that the NHS should pay for everything done by a registered nurse whose
presence was required in a care home and her time should not be “atomised” into
different tasks. Their third argument was that time spent providing personal or social
care, on paid breaks, or receiving supervision, should be included. The respondents
argue that they should not be allowed to advance it. However, having rejected both
parties’ primary arguments, it is our task to try to discern the true meaning of the
legislation. As the legislation quite clearly envisages that there will be some
circumstances in which care does need to be provided by a registered nurse, even
though it is not care which only a registered nurse can provide, in my view it is our
duty to say so.
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 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 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.
45. In other words, the concentration in this case on the division between nursing
and personal care has been a distraction. There is some personal care which, in all
the circumstances, does need to be performed by a registered nurse, but there is some
which does not. I agree with Laws LJ that this is a question of fact, although the only
practical solution is to make a rough and ready calculation based on the generality
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of what takes place. Hence I also agree with Laws LJ and Lloyd Jones LJ that some
differentiation between the care services provided is required. But I would draw the
dividing line in a different place from them. It seems to me plain that 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.
Decision
46. It follows from this, and from the earlier concession that “stand-by” time
should have been included, that the Health Boards’ decisions were based on a
misinterpretation of section 49(2) and must be quashed and re-taken in the light of
the guidance given in para 44 of this judgment. Ideally, this should be a matter for
negotiation between all the parties who are governed by the legislation and have an
interest in the outcome.
