R v Cardiff and Vale University Health Board and others

Under section 49(2) of the Health and Social Care Act 2001, NHS-funded nursing care is neither confined to tasks which only a registered nurse can perform nor extended to everything done by a nurse while on duty. It includes direct and indirect nursing care, stand-by time, paid breaks, supervision, and other care which, in its circumstances, is ancillary to, closely connected with, or part and parcel of required nursing care.

Whether particular personal or social care falls within the definition is a question of fact. Decision-makers may use a practical, generalised calculation, but must draw the boundary according to the statutory test rather than a rigid division between nursing and non-nursing tasks.

Local Health Boards in Wales set a flat weekly payment for the nursing care of care-home residents whose health care was not a primary need. Their calculation excluded nurses’ non-nursing care, paid breaks, supervision and, initially, stand-by time. Care-home operators challenged the calculation, and Welsh local authorities subsequently conducted the proceedings.

The Administrative Court allowed the challenge in [2015] EWHC 601 (Admin), holding that the relevant definition covered all services in fact provided by a registered nurse. The Court of Appeal allowed the Health Boards’ appeal by a majority in [2016] EWCA Civ 26, although the judges differed over some categories of time.

The central issue was the meaning of “nursing care by a registered nurse” in section 49(2) of the Health and Social Care Act 2001, particularly the exclusion of services which, having regard to their nature and circumstances, did not need to be provided by a registered nurse.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hodge agreed, held that the Health Boards had misinterpreted section 49(2) of the Health and Social Care Act 2001. Their decisions were quashed and had to be retaken in accordance with the Supreme Court’s guidance.

2. Section 49 was intended to move the boundary established under the earlier legislation in R v North and East Devon Health Authority, Ex p Coughlan further towards NHS funding. Parliament supplied its own test and did not leave the division of financial responsibility to the NHS. The statutory words had to be interpreted before they could be applied by decision-makers.

3. The definition was not confined to tasks which only a registered nurse could perform. Parliament could have imposed that restriction expressly but did not do so. Nor did the provision cover everything done by a registered nurse merely because the nurse had to remain on duty. The service must involve providing, planning, supervising or delegating care and must, having regard to its nature and circumstances, need to be provided by a registered nurse.

4. The definition therefore covered: (a) direct and indirect nursing care which only a registered nurse could provide; (b) paid breaks; (c) time receiving supervision; (d) stand-by time; and (e) other care which, in all the circumstances, ought to be provided by a registered nurse because it was ancillary to, closely connected with, or part and parcel of the nursing care which the nurse had to provide. Personal and social care could fall within the last category. A holistic care plan could also require a nurse to undertake such care to understand and meet a resident’s overall needs.

5. Whether particular care satisfied the definition was a question of fact. Some differentiation between services was necessary, but a rigid task-by-task separation of nursing from personal care drew the boundary incorrectly. A rough and ready calculation based on the generality of care-home practice could be the only practical solution.

6. Ministerial statements did not satisfy the stringent conditions for admissibility established by Pepper v Hart and R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd. The preceding reports and explanatory notes could nevertheless be considered to identify the statutory mischief and proposed solution.

1. United Kingdom Supreme Court: Allowed the local authorities’ appeal unanimously. It quashed the Health Boards’ decisions and required them to be retaken under the construction stated in the judgment: [2017] UKSC 56.

2. Court of Appeal: By a majority, allowed the Health Boards’ appeal, subject to their concession concerning stand-by time: [2016] EWCA Civ 26; [2016] PTSR 908.

3. Administrative Court: Allowed the care-home operators’ challenge and quashed the Health Boards’ decisions, holding that all services actually provided by a registered nurse were covered: [2015] EWHC 601 (Admin); [2015] PTSR 945.