Registered Nurses

August 4th, 2017 by James Goudie KC

The issue in Forge Care Homes Ltd v Cardiff & Vale University Health Board (2017) UKSC 56 was whether it is the NHS or local authorities (with means-tested contributions from clients) who are responsible for paying for the work done by registered nurses not only in health care settings but also in social care settings.  The Supreme Court, allowing an appeal by local authorities has unanimously held that, on the correct interpretation of Section 49 of the Health and Social Care Act 2001 (exclusion of nursing care from community care services), it is the NHS who are responsible for the payment.

The appeal concerned the funding of nursing care for residents of care homes for residents who require some nursing care but for whom healthcare is not a primary need. The Supreme Court says that the NHS funding obligation is not confined to tasks which can be performed only by a registered nurse.

Section 49 envisages that there will be circumstances in which some personal or non-nursing care will be provided by a registered nurse, care which is associated with or ancillary to the nursing care the registered nurse is providing.

Lady Hale, with whom the other Supreme Court Justices agreed, said:-

“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.”

“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 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?”

“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.

  1.      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.

“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.

  1.     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 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.”


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