Free nursing care changes to the legislation mean that the local authority is no longer able to contract for the nursing element of a package of care. So who is contracting for it? Is the NHS contracting with the home, or is the individual contracting with the home, and recouping an NHS contribution?
In law, we are sure that the former position is the case – the NHS is contracting. There is no financial power to contribute to the cost of another’s services in the NHS legislative framework. There is an express power to contract, with the private sector, in s23 NHSA, and there is a power directly to provide nursing in s3 of the NHSA.
A. Self funding people, including loophole payers getting free nursing care as of October 1st 2001
Whenever a contract is made for care and accommodation between a nursing home and an individual, the paying party enjoys common law contractual and statutory rights against the provider. So privately paying individuals have made a contract for nursing home care. Even when a preserved rights person pays for the package with benefit to which s/he is entitled, the same is true in law, although it might not feel like that to the client or to the home, which regards the State as paying. These clients have the option of giving up the status as contractor for their registered nursing care.
2. Full paying local authority clients
When a local authority is placing a client in a nursing home under s26 NAA, the home owes the authority contractual obligations because it is the payer, but the beneficiary of the services can acquire the same rights against the home through the Contract (Rights of Third Parties) Act, unless its provisions have been excluded.
We think that in the case of all people now getting free nursing care, there are now 2 parallel contracts in force for the package – the health authority’s, on the one hand, and the local authority’s or the self funder’s, on the other. No invoicing is necessary because the government has elected to make the money available in bands, at the behest of the purchaser, dependent on the assessed RNCC contribution. This analysis is consistent with what is said in the guidance about what people should do if they have complaints about the nursing services – these are seen as an NHS complaint.
Whilst this may not make much difference to LA clients (because the position before was that they were merely the beneficiary of the services) it is a bit different for private self funders who have taken themselves off to care. As of October 1st, unless they object, their private law contracts under which they had arranged to purchase nursing care and accommodation have been interfered with through the process of government guidance. It is as if the State has come along and said ‘We will take this bit over, if you want to save the money’, but on terms that the State imposes. It may be nice to save the money, but it means that the individual is no longer a consumer of nursing care, in a position to negotiate a bit more or something a bit different according to their preferences; s/he is a beneficiary of the State’s provision, with all that this entails, for both better and for worse.
So far as preserved rights clients are concerned, they are self funders too, although they are not to get FNC until April 2002, and before that date comes, they will become local authority clients first, notionally at least (the first week of April is for the hand-over).