Where should the boundary between healthcare and social care lie? This article looks at this question in light of the recent Court of Appeal judgment in Forge Care Homes Limited & Others v Cardiff & Vale University Health Board & Others.

Much recent thinking suggests that even to ask this question is to set off in the wrong direction. The distinction is often artificial and unproductive. The best health and social care outcomes, and the most efficient use of limited public resources, are likely to be achieved by a co-ordinated approach which cuts across traditional boundaries.

Nonetheless, the health/social care distinction remains embedded in a great deal of legislation, and in the institutional and funding arrangements that flow from it. So, at least for the time being, how and where the boundary is drawn will continue to matter. These questions arose in a particularly acute form in Forge Care Homes Limited & Others v Cardiff & Vale University Health Board & Others.

Jump straight to our commentary on the implications of the case.

Background

Where a care home provides nursing, medicines, or medical treatment to its residents, its operator is under a duty to ensure that a suitably qualified registered nurse is at all times working at the home.

Prior to the Health and Social Care Act 2001 (the 2001 Act), where a local authority met its statutory duty to provide 'community care services' by means of a residential placement at a care home, it was responsible for meeting the costs of the placement in full. This included the costs of any nursing care.

However, section 49 of the 2001 Act stated that nothing in the legislation requiring a local authority to provide community care services either authorised or required it to make provision for nursing care by a registered nurse.

For these purposes, 'nursing care by a registered nurse' was defined as -

"services provided by a registered nurse and involving -

  1. the provision of care, or
  2. 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 legislation was here drawing a health/social care distinction. Placement in a care home generally was treated as social care, and so a matter for local authorities. Nursing, however, was an aspect of healthcare, and therefore the responsibility of the National Health Service.

This distinction was easy to state, but more difficult to apply. Registered nurses working in care homes do not restrict themselves to the healthcare-related tasks that only a registered nurse can perform. In the real world, they provide other forms of assistance to residents as the need arises. Indeed the definition of 'nursing care' seems to envisage exactly this possibility.

If the same nurse may therefore provide both healthcare and social care, how is that to be accounted for in practice? In particular, whose duty is it to pick up the nursing costs? This question formed the subject-matter of Forge Care Homes.

The case

The claimants (Forge Care Homes and a number of similar entities) owned and operated care homes in Wales. The defendants were the seven Local Health Boards (LHBs) that cover the whole of Wales, and form part of the NHS in Wales.

The LHBs exercise functions of the Welsh Ministers to provide, to the extent they consider necessary to meet all reasonable requirements, certain accommodation and health related services. Those services include the provision of care home accommodation where that accommodation is needed for the purposes of providing nursing care.

Where a resident of a care home has a primary need for nursing care the full costs of providing all of that resident's care are funded by NHS Wales. However, where a resident requires some nursing care but nursing is not the primary need, an LHB will pay only part of the costs (known as the Funded Nursing Costs, or FNC).

From 2001 to 2007, the FNC rate was set by the Welsh Government. Since then it has been set by the LHBs. Up to 2014, the LHBs set the FNC rate on the same basis as it was previously set by the Welsh Government. This was designed to assume that all of a registered nurse's working time should be included in the calculation of the cost.

In 2014, following a survey carried out for them by independent healthcare consultants, the LHBs changed the basis on which they set the FNC rate. They relied on the part of section 49 of the 2001 Act which excluded from the definition of 'nursing care' those services which did not need to be provided by a registered nurse. On this basis they applied a discount for the assumed time that a registered nurse working at a care home would spend in the provision of social care.

The care home operators (supported by several local authorities as interested parties) challenged this decision and argued that the NHS was liable for all of the costs of a registered nurse irrespective of the proportion of time spent by the registered nurse on healthcare and social care provided while in attendance at the care home.

Their argument was based on the premise that the definition of nursing care referred to 'services', and therefore the exception only applied to those cases where the totality of the services being provided by a registered nurse fell outside the concept of nursing care (or where the number of registered nurses at the care home was greater than the number that it was legally required to provide).

On the claimants' case, it was neither realistic nor appropriate to seek to apportion the time spent by a registered nurse between healthcare and social care. In practice, the nurse's time was indivisible, and any distinctions between tasks were artificial. As such, they claimed, this was not an effect that either the government or Parliament could possibly have intended the 2001 Act to have.

The LHBs' defence was that this distinction was precisely what section 49 of the 2001 Act appeared to envisage. The NHS should only be liable for funding costs relating to time spent by the registered nurse on delivering nursing care, and all the other time of the nurse spent at the care home fell to be funded by the local authority.

In their initial defence, the LHBs argued that such 'other time' included any standby time (e.g. breaks) where the nurse was not actively carrying out any tasks, but this argument was sensibly abandoned during the course of the proceedings. In essence the LHBs' case became simply that they were not liable for time spent by the registered nurse on social care.

The High Court had found in favour of the care home operators and local authorities, and the LHBs appealed.

The decision

In giving its judgment the majority of the Court of Appeal found the LHBs' interpretation of section 49 to be correct.

Lord Justice Laws gave the leading judgment, supported by Lord Justice Lloyd Jones. He explained that there is a distinction to be drawn between the different types of services provided by a registered nurse and that distinction, as section 49 of the 2001 Act suggests, must be made by reference to the nature of the services and the circumstances in which they are provided.

The NHS is liable only for funding those costs of a registered nurse which relate to time spent by the registered nurse on providing healthcare (i.e. clinical or medical care) or which arise solely because it is necessary to have a registered nurse available at all times. This latter category includes the cost of standby time, i.e. where the nurse is not carrying out any care related tasks at all.

In determining the nature of the services, it is necessary to consider the type of task being carried out. Clinical or medical tasks would by their nature be tasks that needed to be performed by the registered nurse whereas social or personal tasks would not. The circumstances in which services are provided is relevant because there may well be circumstances where, although the particular task itself is not one that needs to be carried out by a registered nurse, it is appropriate or necessary for the registered nurse to perform it because of some other factor (e.g. to assess the resident's mobility).

This means that the apportionment between nursing care and social care is informed both on a task-by-task basis and also by reference to the circumstances in which each task is carried out.

Laws LJ also dismissed the argument that the complexities of this process could be used as an aid to interpretation. He said that the ordinary meaning of the legislation was not problematic, and that being the case there was no basis for seeking a strained construction of the statutory provision.

He concluded by allowing the appeal and stated that the question to be answered is really one of fact and not of law. The law is clear and simply needs to be applied to the facts in each case. It may need to take account of changing and complex circumstances, but this does not mean that the law is unclear.

As a measure of the difficulty of this in practice, there was a dissenting judgment from Lord Justice Elias, who agreed with the construction of section 49 as adopted by Laws LJ but disagreed on the implications of that construction for the outcome of the case.

Implications of the case

The effect of Forge Care Homes then is to confirm the division of responsibilities, and therefore costs, between the NHS and local authorities in relation to the services provided by registered nurses at care homes.

In this respect it is worth noting that, while this case concerned the interpretation of legislation that applies in Wales, corresponding legislative provisions are also in force in England. For that reason the Secretary of State for Health intervened in the proceedings, and the judgment has application to both countries.

More broadly, Forge Care Homes demonstrates how entrenched the distinction between healthcare and social care is in certain parts of the legislative regime, and how deep it goes in practice - even, in this case, to the level of requiring the time of certain individuals to be divided up between competing tasks for the purposes of allocating funding.

As a matter of the interpretation of existing legislation, the judgment is surely correct. The language of the 2001 Act was not difficult to understand, and it was given its natural meaning by the court. But it is an entirely different matter to ask whether that legislation continues to make sense in policy terms. Is it helpful to think in terms of categories that require the activities of the same individual to be divided up on what, at least in terms of the patient experience, looks like an arbitrary basis? By extension, is it helpful to organise an entire system of care on that basis?

There are various initiatives designed to break down the barriers between health and social care, and take a more holistic approach to the issue. If they succeed, it may be that in due course Forge Care Homes will look like evidence of a historically curious way of organising things. For the moment, it is the law, and remains important both on its own facts, and in terms of what it signals about the ongoing importance of the health/social care distinction in the wider system.