The law relating to continuing NHS care is misunderstood and inconsistently applied, resulting in the sick and elderly paying for medical services that should be free, the representation arm of the Law Society has warned.


The Society added that many vulnerable members of the community have had to sell their homes to meet the costs of long-term care when they were actually entitled to receive it free at the point of delivery.



Responding to a Department of Health consultation on the new national framework to determine eligibility for continuing care, Chancery Lane criticised the government's proposals and, in particular, the 'four key indicators' - nature, complexity, intensity and unpredictability - used to assess whether an individual has a primary health need requiring continuing care.



Saying solicitors are increasingly involved in disputes over eligibility, the Society argued that these indicators were retrogressive and not in line with the approach of the Court of Appeal in its key ruling in Coughlan in 2000.



The appeal court held that entitlement to free, continuing NHS care was triggered when an individual's overall care needs required services that were over and above those that social services could provide. It did not favour an approach based on key indicators.



In its response, written by the mental health and disability committee, the Society said the four indicators are 'also elusive, overlapping and likely to confuse'.



Nicola Mackintosh, a partner at London firm Mackintosh Duncan and the solicitor who represented Mrs Coughlan, said: 'The proposals do not comply with the test in the Court of Appeal judgment and so the postcode lottery of access to NHS funded care will continue.



'Severely ill people in nursing homes will still be charged for health care services when their needs are plainly beyond "social care" responsibilities. It is shocking that the government should carry on flouting the law in this way, subjecting the most vulnerable people in society to a continuing injustice.'



Fellow committee member Luke Clements, a consultant with Scott-Moncrieff Harbour & Sinclair in London, said: 'The new proposals make for a profoundly depressing and inadequate document. It is intellectually flawed in that it fails to understand what the court said in Coughlan, which laid down the primary health need test.'



He added that the new guidelines were so retrogressive that Mrs Coughlan herself, who qualified for free health care back in 1999, would not now be entitled to it under the proposed scheme.



Jonathan Rayner