A landmark high court ruling has thrust elderly health care into the legal arena. Yet lawyers still need to gain the trust of a sceptical older population, reports Jon Robins

Arecent BBC Panorama programme on long-term care for the elderly revealed that around 40,000 homes a year were being sold to pay for care. Prior to that report, the government called on health authorities to review eligibility criteria following a landmark ruling by a High Court judge in March, which damned criteria set by the South East London Strategic Health Authority as ‘fatally flawed’.


The ruling concerned Maureen Grogan, a wheelchair-user with deteriorating multiple sclerosis, who won a groundbreaking High Court challenge over who should pay for her nursing home care (Grogan v Bexley NHS Care Trust [2006] EWHC 44 (Admin)). She was 65 years old, with double incontinence, but was nonetheless assessed by Bexley NHS Care Trust as not requiring fully funded NHS care and, consequently, placed in a BUPA-run nursing home. Ms Grogan had been forced to sell her home to pay fees of almost £100,000.


Mr Justice Charles ruled that if a patient’s primary need is healthcare, the NHS must provide free care and accommodation. His call to address the criteria – and the underlying 2001 Department of Health guidelines – vindicated the position of lawyers and the Law Society. A Society spokeswoman said after the case that it illustrated how the system is in disarray and that the criteria used by trusts are often unlawful (see [2006] Gazette, 2 March, 8).

‘The case has far-reaching implications and could affect many thousands of ill or elderly people,’ says Anne Spowart, Ms Grogan’s solicitor and a partner at south London firm Morrison Spowart. She says she has since been ‘overwhelmed’ by calls from other families in similar circumstances, looking for legal help. In fact, in the week after the Panorama programme (called ‘The National Homes Swindle’), the BBC’s helpline received 2,700 calls and charity Help the Aged was taking 150 calls a day.


‘There is a real access issue [to legal advice] for elderly people,’ says Ms Spowart. ‘A lot of people who are frail, or are in care homes, are nervous about finding their way to a solicitor’s office.’


The lawyers’ group Solicitors for the Elderly (SFE) is concerned that as the legal needs of older clients increase because of the growing elderly population – as well as those of their families and carers – older clients are becoming more ill-served by the legal profession.


‘It is an increasingly complex area of the law,’ says Stephanie Rose, a solicitor at Berkshire firm Clifton Ingram who deals with wills, trust and probate as well as more specialised work to do with the Court of Protection, powers of attorney and services for the elderly. ‘We have a huge shortage of solicitors wanting to qualify in the private client area,’ says Ms Rose, who has helped set up a sub-committee of SFE to promote the area of law to practitioners.


‘It just isn’t seen as an attractive option to people and there is a serious shortage of lawyers,’ Ms Rose laments. She maintains that the profession has done little to address the lack of lawyers wanting to go into private client work, highlighting the recent decision to no longer include wills and probate in the compulsory element of the legal practice course as evidence that the profession does not take private client work as seriously as it should.


‘But the problem is more deep-rooted and I do think the profession is to blame,’ she says. ‘We just don’t promote the subject as being glamorous. There will always be a market for our skills, and solicitors have been very slow to realise that it’s important because the elderly population is increasingly significant.’


The legislative landscape is also changing with, for example, the Mental Capacity Act 2005, which governs decision-making on behalf of those who lack mental capacity, coming into force in April 2007. The Act will controversially create a lasting power of attorney (replacing the enduring power of attorney), with powers to cover personal welfare matters, property and affairs, as well as advanced decisions to refuse treatment (or living wills). The Law Society recently warned that the new power may both fail to correct the failings of the old and also create further problems (see [2006] Gazette, 4 May, 8).

Julia Abrey, joint SFE chairwoman and a partner at City firm Withers, points out that 20% of all people over 80 have ‘a significant reduction in their mental capacity’, and everyone over the age of 40 years has ‘some loss of cognitive function’. She says: ‘We are living longer and our physical health is improving generation upon generation, but our mental health isn’t necessarily doing so.’


While legal advice for the elderly may be suffering an image problem, it can involve cutting-edge human rights work, with an impact on thousands of families, as was the case with the Grogan ruling.


Nicola Mackintosh, a partner at Mackintosh Duncan in south London, acted for Pamela Coughlan in the 1999 case which led to Grogan. The Coughlan case laid down the ‘primary health need’ test, explains Ms Mackintosh. ‘So if your primary need is healthcare and that’s why you are in a nursing home, then the NHS is legally responsible for the entire care package,’ she says. Social services could only be responsible for care which is ‘merely incidental and ancillary to the provision of that accommodation’, she adds.


In 2001, following Coughlan, the government introduced a system for residents of nursing homes called ‘free nursing care for all’. The system, known as Registered Nursing Care Contribution (RNCC), involved the NHS making a small financial contribution towards the overall costs of the care package. The idea of ‘free nursing care’ was ‘misleading’, Ms Mackintosh argues, because what they introduced was a method of making a contribution under a flat-rate scheme.


She says most people were dealt with under the RNCC system and not under continuing care. ‘Only very few people who were about to die immediately were basically eligible for fully funded care,’ she says. ‘So you had a distortion of the system.’ Ms Mackintosh argues that the RNCC system was being used as a ‘replacement for continuing care’. The judge in Grogan said it was easy to understand why the dual continuing care and RNCC systems had attracted criticism from the likes of the Health Service Ombudsman and health select committee for causing confusion and potential injustice.


‘I don’t know whether it’s because social care managers in hospitals or in the community aren’t trained properly or that they are trained in such a way so as to maximise the amount they can get out of the families,’ ponders Jennifer Margrave, who specialises in legal services for the elderly at her eponymous Guildford practice. ‘But they certainly do not tell the whole, very complicated story.’


Ms Margrave’s work in this area led to her winning the private client lifetime achievement award at the Gazette centenary awards in 2003. She breaks down her normal workload into probate, trusts and wills – but she reckons about 40% of her workload is now dealing with issues to do with care and funding. She has about seven clients on her books at the moment where children live in the house with elderly parents. ‘The first thing they’re told by social services when parents have to go into care is that they have to sell the house,’ she says. ‘That isn’t necessarily true.’


Kettering sole practitioner Yvonne Hossack has been campaigning against care home closures for the past nine years. ‘When a person is in care, the most important thing to them is their care, not the money that they will leave for their children,’ she says. ‘I can understand that people want to leave an inheritance, but the children themselves should ensure it’s used when their parents are alive to keep them in a care setting where they are safe and loved.’


She says the problem for her clients – elderly people in residential care – is that they have ‘no security of tenure’. She adds: ‘They are in a worse position than squatters, because no one needs to go to court to evict them.’ However, Ms Hossack reckons that moving residents into a home can have tragic consequences as, she claims, the mortality rate is twice as high as for those who stay put.


Lawyers who act for the elderly agree that solicitors in general practice need to be aware of the particular responsibilities of dealing with elderly clients, and the professional ethics issues that that entails. ‘It may involve the family, and so it might not be the client who contacts you,’ says Tish Hanifan, a barrister who developed a specialism in ‘older client law’. In particular, Ms Hanifan points out that solicitors must not accept instructions which they suspect might have been given under duress or undue influence.


‘You have to be very careful not to treat elderly people differently to any other client just by virtue of their age,’ she says. There is a balance to be struck between ‘the fact that you might think that older people are vulnerable’ and ‘protecting their right to individualism’. She adds: ‘Solicitors also have to remember that issues like care funding are often a “crisis issue” and so emotions are often heightened, and other underlying concerns in the family can come to the fore.’


Ms Abrey maintains that the profession needs to win over older clients. ‘Elderly people are often afraid of lawyers,’ she reports. ‘They think that they don’t understand them and they also think they are terribly expensive and the moment they sit down the clock starts ticking. We want to make it clear to elderly people and their carers that we are understanding and sympathetic to their particular needs.’


Jon Robins is a freelance journalist