Need for better integration of health and social care underlined by dispute over nurse funding, expert says

This week, the UK's highest court ruled that local health boards in Wales had "misinterpreted" the legal provisions governing whether certain work done by registered nurses should be paid for by them or by local authorities. In particular, the Supreme Court found that time spent on "providing, planning, supervising or delegating" the provision of certain ancillary social care services provided by nurses should be funded by health boards, rather than by local authorities.

Healthcare expert Joanne Ellis of Pinsent Masons, the law firm behind Out-Law.com, described the judgment as "a welcome common sense clarification".

"The funding of nursing and personal care for older people is still ridiculously complicated and highlights yet again the need for an integrated budget for health and social care," she said. "The Netherlands has made this work and now is consistently rated at the top of the table for its healthcare system."

"The sooner care operators can focus just on quality and outcomes rather than having to work out which fund or authority should be paying for what the better, and this judgment is a small step along that path," she said.

The dispute arose in relation to who should cover the cost of care for individuals who receive what is known as 'funded nursing care'; where some nursing care is provided but nursing care is not that person's primary need. Section 49 of the 2001 Health and Social Care Act provides that a local authority is not required to fund "nursing care by a registered nurse", which should instead be funded by the National Health Service. However, the owner of a care home providing nursing services is legally obliged to ensure that a registered nurse is working in the care home at all times, regardless of whether the nurse is actively providing nursing services.

Based on these provisions, local health boards in Wales had been paying a flat weekly rate to local authorities to cover the costs of funded nursing care. This rate was calculated following a survey which asked nurses to categorise the time they spent on different tasks, and corresponded to time spent on traditional nursing care and 'stand-by' time. This left the cost of paid breaks and time receiving supervision to be covered by local authorities.

The court concluded that the definition of 'nursing care by a registered nurse' should cover time spent on traditional nursing care; paid breaks; time receiving supervision; and 'stand-by' time. However, it should also cover social care services which "ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which she has to provide", the court said.

Lady Hale, giving the judgment of the court, said that the parties' "concentration ... on the division between nursing and personal care" had been a "distraction".

"There is some personal care which, in all the circumstances, does need to be performed by a registered nurse, but there is some which does not," she said. "It seems to me plain that parliament envisaged that some care services would be included beyond those which could only be provided by a registered nurse."

"We are, by definition, looking at the funding of the care of residents who, although health care is not a 'primary need', do have a need for some nursing care. That has to be provided by a registered nurse. Other kinds of care which are ancillary to or associated with the nursing care which these residents need does also have to be provided by a registered nurse. Any other approach is contrary to the holistic view which is now taken of looking after the whole person," she said.